The next Law Society of Upper Canada bencher election is rapidly approaching.
It’s an extremely important one. When the results are in, I hope it heralds a cultural shift in how our regulator deals with its members under investigation and in disciplinary proceedings.
In the past few years, some representatives of our law society seem to have become aggressive and unbalanced in their approach.
There’s no question that the LSUC’s focus is on regulation as opposed to monitoring, guidance, helpful consultation, and even mediation. With its obsession with promoting transparency in the protection of the public, there seems to be a lack of balance, understanding, and compassion. The profession is sensing it.
One would hope that correspondence from our own regulator would be eagerly opened. I doubt that’s the case. Most members of the profession sense that it’s rarely a get-well card.
I suspect that members experiencing difficulty are reluctant to pick up the phone and call the law society for help and guidance. That wasn’t always the case. The LSUC was vibrant, engaged, energized, and trusted in its dealings with its members.
Many representatives of the law society now see themselves only as regulators, not friends or mentors, while suggesting organizations such as The Advocates’ Society, Ontario Bar Association, Criminal Lawyers’ Association or Ontario Crown Attorneys’ Association are who we must resort to for help.
Surely, a balance can and should be achieved. The amount of money spent on disciplinary hearings and investigations is staggering. A fraction of that money directed to mentoring and ethical guidance would be enlightening.
Let me be very clear. There may be lawyers and indeed paralegals who don’t care about ethics, are driven by opportunities to cut corners, and are in wilful violation of the rules. They must be disciplined but they’re a small minority.
There are so many more who are suffering from burnout, depression, collapsed relationships, failed expectations, financial ruin, health problems, family pressures, and addictions who need help, mentoring, and guidance to correct their mistakes and change their environment.
It’s trite to say it, but we must remember that lawyers and paralegals are human and subject to human error. Coupled with this is our unique difficulty given our training to be problem solvers and successful professionals that we can’t seem to ask for help.
Our law society needs to understand this. Much more will be achieved by a simple, clear warning in that first letter sent out by the investigations department such as: “You have a duty to respond. This matter may lead to discipline proceedings against you that could be career threatening. We encourage you to consult with counsel before responding.”
It’s simple to do. It would inform the member that the matter is serious. It would render whatever comes next more manageable.
Every letter announcing an investigation demands a response and points out that prosecution for failure to co-operate is ever present. Failure to co-operate or respond often ends up in a summary prosecution with the same potential penalties available as on the merits, most often a suspension and clearly a record of professional misconduct for which there’s no pardon ever.
There may be many reasons for not responding or not engaging: fear, helplessness, and failure are more often the motivator rather than any wilful snubbing of the law society.
Furthermore, the number of lawyers and paralegals who are unrepresented through their own disciplinary process is troubling.
The law society should promote and support a robust independent duty counsel system for its members (who often can’t afford to retain counsel) instead of relying on the goodwill of organizations such as The Advocates’ Society and individual lawyers to assist.
Our law society needs to be aware of the enormous damage caused to careers due to the mere publication of the fact that a disciplinary proceeding has been authorized. Long before any finding of misconduct, a reputation can be irreparably ruined by publication on the LSUC web site, let alone in articles in legal publications, in the media at large or in the coffee shops of small towns.
In attempting to preserve its own reputation, our law society often destroys that of its members before any finding of wrongdoing.
This is unacceptable. We need a cultural shift in front-end management separating those who clearly deserve discipline from those who essentially need guidance.
This is impossible under our present system in which the closed proceedings authorization committee receives the report and recommendations of the investigations department signed off by the discipline department. There’s no bencher involvement before this. The lawyer under investigation has no access to the report to the committee.
Only those lucky enough to have counsel from the start can hope to ensure their side of the story is presented comprehensively.
There are enormous problems in our system. There are too many situations where a lawyer under investigation isn’t given the actual complaint or complaint form but is asked to respond.
Moreover, interviews conducted during an investigation are too often adversarial, feature cross-examination, and amount to fishing expeditions outside the focus of the areas authorized.
This, too, is unacceptable and will surely lead to court challenges later on when it becomes clear that the Charter of Rights and Freedoms applies to regulatory bodies.
Our law society does a terrible job of exercising discretion and alternative dispute resolution. While every other justice-related institution is seeking front-end management and diversion, the benchers to date have abandoned that to others by exercising insufficient oversight.
There are many members of the profession who would happily volunteer their time to mentor and help divert cases out of the system. Often, all that’s required is for a colleague to be able to admit to someone that they’ve failed.
But the rigid structure of our regulator frustrates a plea for help.
Consideration should be given to the creation of an ombudsman or a mentor-in-residence. There’s a commissioner for unhappy complainants. Why isn’t there an office that members could contact in confidence for help, guidance, and information?
In past elections, voter turnout has been embarrassingly small. There may be many reasons for this. I suggest one may be that some of our benchers seem to be out of touch with an expensive, crushing, and often unnecessarily aggressive approach to members of the profession who are under investigation.
It’s not enough for benchers to see it at the back end and then start promoting expediency in the hearing process. If self-regulation is to survive, we need benchers who have a passion for the profession and recognize the need for a balanced approach.
In recent months, benchers Larry Banack, Julian Porter, Glenn Hainey, Linda Rothstein, and Mark Sandler have opened the doors to a dialogue on some of these issues. This is an incredibly important step. An informed dialogue between the membership and benchers is vital as we approach the election and hopefully an eventual cultural shift.
Bill Trudell is a Toronto lawyer who occasionally defends clients in LSUC disciplinary proceedings.
