The Ontario government has introduced a bill that would have a non-bencher oversee the Law Society of Upper Canada’s hearing and appeal panels and allow the regulator to suspend lawyers who haven’t paid cost awards made against them in professional misconduct proceedings.
Bill 111, dubbed the modernizing regulation of the legal profession act, would create a new tribunal headed by a full-time chairperson to allow for “better co-ordination and consistency” between the two panels, said Brendan Crawley, spokesman for the Ministry of the Attorney General.
“To ensure that this tribunal would be both independent and effective, a full-time lawyer would act as its chair. The chair would be someone who is not currently one of the society’s directors, known as benchers,” he told Law Times.
“How the law society treats cases of potential misconduct is a matter of vital concern to the public, to the organization’s members, and to all who have dealings with our legal system. This step would provide for better co-ordination and consistency of the two panels and ensure greater transparency and accountability to the public.”
Defence lawyer Bill Trudell, who often represents lawyers at law society proceedings, says he likes the sound of independent oversight of the panels.
“I like the word overseeing,” he says.
“The law society talks about transparency a lot. . . . There isn’t a lot of transparency within the law society in terms of how things work. For example, the proceedings authorization committee — we don’t have any right to see what report goes there. So if [there’s] a new oversight tribunal with someone who is not in the law society and is experienced, [with] great reputation, it can only lead to transparency of the process.”
The bill also proposes that the law society be able to suspend lawyers and paralegals who haven’t paid cost awards made against them. Instead of commencing a new hearing against the lawyer or paralegal, bill 111 would allow the law society to suspend the licensee a day after the deadline to pay the costs unless there has been an appeal.
“The Law Society Act currently allows for suspension of a licence when the licensee has failed to comply with a costs order following the outcome of a disciplinary hearing. However, the process involves an application to the hearing panel, which increases both caseload and time delay,” said Crawley.
“The proposed amendment would provide for a simpler process to suspend a lawyer’s or paralegal’s licence for failure to pay such legal costs.”
Similar provisions exist in other jurisdictions, he noted. “In British Columbia, for example, if a lawyer is in default of a costs order, he or she is automatically suspended on Dec. 31 of the calendar year in question. In Alberta, if a lawyer does not fulfil a costs order by the time specified in the order, he or she is automatically suspended.”
The bill proposes to amend the original act by adding a section that reads: “A licensee’s licence is suspended if the licensee is ordered to pay costs under section 49.28 and he or she fails to comply by the deadline for payment provided for under the order or the bylaws, as the case may be.”
But that section wouldn’t apply “unless the time for appealing the costs order has expired or, if an appeal of the costs order is commenced, unless the appeal is finally disposed of,” the proposed bill states.
The suspension would remain in effect until the lawyer or paralegal has, “to the satisfaction of the society,” paid all costs owing, according to the text of the bill.
For Trudell, having such a provision without a proper duty counsel system would punish lawyers who can’t afford legal counsel. “One of the really disappointing things you see at the law society if you monitor the cases is the number of lawyers who are unrepresented,” he says.
“It is astounding to me that in an age of access to justice, we don’t have a duty counsel system and the costs of the duty counsel system is something that would offset the expense of these hearings. When you’re talking about having somebody automatically suspended if they haven’t paid a costs award . . . you’re going to penalize people who can’t afford it,” he says.
Trudell is also calling for greater scrutiny of costs awards against lawyers given the “incredible amount of waste in time and money spent” on proceedings. “If that’s going to be the case, then there must be serious scrutiny in relation to costs the law society claims. I’ve had cases where there are bills being proposed, for instance, for investigation where they’re not docketed properly. So if they’re going to at the end of the day try and collect cost awards, then someone has to be sure that those costs are properly spent, scrutinized, and not wasted.”
The bill, which had its first reading last week, would also require the law society to give the lawyer or paralegal notice specifying when the suspension would start.
Another provision of the bill would increase the representation of paralegals on the law society’s governing body. Instead of two representatives, the bill proposes having five paralegal benchers sit at Convocation.
Law society treasurer Tom Conway said he’s happy with that provision of the bill. “We’re delighted that the attorney general has been able to move forward with a key recommendation of the Morris report so quickly,” he said in reference to last year’s report on paralegal regulation by David Morris.
“This is the logical place to start in the evolution of the law society’s governance to accommodate the new paralegal profession.”