YOU’VE GOT MAIL – Law Society Complaints and You*
*Published in “For the Defence” – Criminal Lawyers’ Association Newsletter, Vol.32, No.1 – September, 2010
By Nadia Liva
There is nothing worse than coming back from a long day in court to see a massive pile of unopened mail awaiting you. Bills are bad – no argument there. A lack of retainer cheques: even worse. But nothing puts fear and loathing in the heart of a lawyer like an envelope from the Law Society of Upper Canada with the words “Private and Confidential” on it. It’s unlikely to be a late Christmas card in the month of June. It might be a letter of thanks if you’ve been on an educational panel – in which case there will be a well-earned sigh of relief. But there is a chance that it is a letter of complaint.
How Did It Get On Your Desk?
Aside from the obvious “Canada Post” response, a letter of complaint can result from a complaint having been made by a client – either present or past – there is no limitation period on making a complaint. It can arise from conduct in court witnessed by a colleague, an opposing party, or a justice. It may be the result of conduct arising out of litigation.
Under the Rules of Professional Conduct, a colleague may also be the source of a complaint. Under Rule 6.01(3), we have a positive duty to report to the Society “unless to do so would involve a breach of solicitor-client privilege”: a) the misappropriation or misapplication of trust funds; b) the abandonment of a law or legal services practice; c) the participation of a lawyer in serious criminal activity related to one’s practice; d) mental capacity issues of such a serious nature that clients are likely to be severely prejudiced; and 3) any situations in which clients are likely to be severely prejudiced.
Pursuant to By-Law 8 s.2 of the Law Society’s By-Laws, you are required to self report in writing to the Law Society if you have been charged with certain offences, in particular (but not limited to) (i) an indictable offence under the Criminal Code of Canada, and (ii) an offence under the CDSA. Charges which allege dishonesty (implicitly or explicitly) or which relate to your practice relating to offences under the Income Tax Act (Canada) or other Acts also must be reported.
Privately laid complaints pertaining to indictable offences also must be reported to the Law Society. All self reporting must be “as soon as reasonably practicable” after notification of the charge, or in the case of a private prosecution, after having received notice of the disposition.
An “indictable offence” includes “an offence for which an offender may be prosecuted by indictment or is punishable by summary conviction, at the instance of the prosecution”.
A complainant can either fill out a form available on the Law Society’s website (www.lsuc.on.ca) or submit a complaint in writing to the Complaint Services Department. A complainant is required to provide not only self identifying information, but details regarding the alleged misconduct, including supporting documentation if relevant. Complaints Services may seek to obtain information from the complainant in order to determine the proper course of action.
Complaints arising out of fees issues are not within the jurisdiction of the Society. A complainant who feels she has been over-billed, will be given information regarding the Assessment Office of the Superior Court of Justice or they may be directed to Small Claims Court. Discrimination and harassment complaints (depending on the severity of the alleged conduct) may be referred on to the Discrimination and Harassment Counsel – an arms-length, confidential resource for settling issues pertaining to discrimination or harassment. Complainants alleging criminal conduct will be referred to the police.
If the complaint falls within the Society’s jurisdiction and does raise concerns regarding professional conduct, Complaints Services may try to resolve the issue itself. Failing that, it will forward the complaint to the Intake Department of Professional Regulation Division. Upon reviewing the file, the Intake Department may contact the complainant and request further information. A deadline is given to provide the information. If the information is not received, Intake may decide to close the file. If the information does not reveal professional misconduct or conduct unbecoming, the file will be closed. A decision may be made to defer the investigation pending further investigation and/or information. If the file closed, you will be notified in writing that a complaint has been made against you and that the file has been closed. You may be invited to respond if you wish. But this should be done rarely. Like asking “why?” during a cross examination, you may unwittingly provide grounds for further investigation. If a file is closed, it’s closed. If it re-opens, assess whether a response is necessary at that time.
Complaints Resolution Department
If the file is not closed by Intake and there is sufficient information to proceed, yet the matter is not of a serious nature, the file may be sent to Complaints Resolution where efforts will be made to mediate and/or resolve issues between the complainant and you. This may arise in situations where the complainant feels his/her calls are not being returned, or where they want a file transferred and they feel it is not being done quickly enough.
You have a duty to participate, respond and cooperate with the Law Society – whether by providing a written response or by providing a file requested by the client, or simply by resolving the issue between yourself and the client. You have a duty to respond promptly. Failing to do so may result in further disciplinary action as described below. If you cannot bring yourself to deal with the client due to difficulties in the relationship, hire counsel or ask a colleague to assist. Do not let the matter sit unattended.
In order to respond to a complaint, you may provide information covered by solicitor/client privilege. You may wish to discuss with counsel or a colleague exactly how much privileged information should be disclosed. You may also wish to discuss whether certain information should be shared under separate cover with the investigator – such as issues pertaining to the complainant’s mental stability.
Upon successful resolution of the complaint, the file will be closed. You will again be notified by letter that the file has been closed. Such a resolution is not part of your discipline history.
If the matter is serious, it may be referred on to the Investigation Department. Investigators at the Law Society are former police officers, lawyers and civilians with differing expertise.
An investigator is seeking information – from the complainant, from you and from third parties where appropriate. They are gathering information in order to determine whether there is merit to the complaint, whether disciplinary action is necessary or whether there is an alternative manner to resolve the matter.
You are an integral part of the investigation. You will be asked to provide a response to the allegations made. There will be a deadline set in the original letter. You may not receive a copy of the actual complaint in this initial letter. You are more likely to be provided simply with a summary of the allegations made against you.
This is where being proactive matters. Contact the investigator and discuss whether you require more time than the deadline given provides. You may need time to retain counsel, locate a file in storage, obtain transcripts, and/or speak to witnesses. The investigator’s initial concern will be whether you will be participating in the process. Immediate contact shows that you are taking the matter seriously and they will endeavor to work with you as best they can.
Request a copy of the original complaint as it may assist you in focusing your response. If you are not provided a copy of the original complaint and/or supporting documentation provided by the complainant, make sure you note in your response that you have requested the information and have not been provided the information, or if provided with information, indicate what you have. If you cannot locate your file and/or if you are relying on your memory, specifically mention this in your response as your memory may be refreshed in the future by other information.
The old adage “the doctor who treats himself has a fool for a patient” applies to lawyers as well. When the complaint pertains to you, you may not have the objectivity needed to respond. Reviewing a difficult file may be painful and may cause delays. By retaining counsel experienced in Law Society proceedings at an early stage, you will have access not only to their expertise and reputation, but you will have an objective review of your file and conduct which may help identify issues, obtain necessary supports (such as bookkeeping, addiction counseling, mentoring) and allow you the opportunity to set the tone of your relationship with the Law Society. This is your license to practise. Providing a professional, fulsome and insightful response reflects on you. It will also set the groundwork for your defence should the matter proceed to a Disciplinary Hearing.
If you are contacting the investigator directly, any and all conversations, voice mail messages, emails, etc. will be recorded and noted in their file. If you cannot contain your frustrations, have someone else who is more objective and detached, speak for you.
You should also keep a record of all telephone calls you make to the Society, noting the date, time and person you are speaking with or leaving a message for. Keep fax transmission records as well as email confirmation forms and courier slips. Such documents confirm your contact and may be vital should there be issues regarding the quality and timing of your response and cooperation.
The investigator may request an interview. Having a thorough and complete response with relevant documents may help circumvent the need for an interview or may at the very least, provide a base of organized thoughts and information which would lend to a more concise interview. A refusal to be interviewed may result in an allegation that you are refusing to cooperate with the Law Society.
If the investigation does not disclose misconduct or does not require further proceedings, the file will be closed. Again, you will be notified in writing. If there are some concerns which do not merit a disciplinary proceeding, you may receive a “best practices” letter which outlines how things could have been done to avoid the original situation which led to the complaint. This discussion is not a matter of public record or of your disciplinary history.
Complaints Resolution Commissioner
If a complaint is in fact closed by either Complaints Resolution or Investigations, the complainant is notified and can request that the decision to close the file be reviewed by the Complaints Resolution Commissioner. You will not be asked to provide any information to the Commissioner, although your original information and response will be reviewed. It is therefore critical that you do cooperate and provide information at the early stage of the complaint process. As noted earlier, the quality of your cooperation will ripple through the entire investigation, authorization and disciplinary process should the file proceed to a hearing.
The Commissioner will make a recommendation. If further action is recommended, and if the Law Society agrees that such action is appropriate, you will be advised and you will have an opportunity to respond.
Proceedings Authorization Committee (PAC)
If there appears to be misconduct, the investigator will prepare a memorandum outlining the allegations of misconduct, the evidence gathered and his or her recommendation. This memorandum will be reviewed by Discipline Counsel and materials will then be prepared and sent to the Proceedings Authorization Committee (PAC).
The Proceedings Authorization Committee is composed of five Benchers who determine whether disciplinary proceedings should be authorized or whether a more informal course of action should be taken. PAC is provided with a memorandum prepared by Discipline Counsel who has reviewed the investigation, the Rules of Conduct, any applicable law and the submissions of the lawyer or his/her counsel. This is where the thoroughness of your written representations given during the investigation may be key. You and/or your counsel may also request that Discipline Counsel submit to PAC additional materials in support of your position. Unfortunately, at this time, the information prepared by Discipline Counsel and reviewed by PAC, has not been shared with defence counsel or the lawyer in question. Claims of work product and confidentiality have to date, blocked access to such materials.
Upon reviewing the materials and submissions by Discipline Counsel, PAC decides whether a matter is referred on for prosecution. Such decisions are based on whether there has been professional misconduct or conduct unbecoming; whether there are capacity issues or whether there has been a failure to meet professional standards of competence. There is no record of the discussions by PAC. There is no endorsement or written reasons given for their decision. It is only the result of their deliberations – whether it is to close the file, to require further investigation or to authorize disciplinary proceedings – that will be made known to you.
Rather than have the matter sent to Discipline, PAC may recommend the matter be dealt with by way of an Invitation to Attend. This Invitation is an off the record meeting between one or more Benchers and the subject lawyer and, as such, it is not open to the public. If the Invitation to Attend is authorized before a Notice of Application is issued, it will not be a matter of public record. PAC may also recommend other dispositions such as the issuance of a letter of caution or direct that the matter proceed by way of a Regulatory Hearing as opposed to a Disciplinary Hearing.
If the matter is referred on to Discipline, a Notice of Application will be issued. The Notice sets out the alleged misconduct – much like a criminal information. The fact that a Notice of Application has been issued is now a matter of public record. One can obtain details as to the allegations of misconduct by calling the Law Society.
As the matter unfolds, requests can be made to have further information placed before PAC to see whether they would recommend the continuation of a prosecution based on the new information.
In order to withdraw an Application, Discipline Counsel must return the matter for PAC in order to obtain authorization to withdraw the allegations.
The Proceedings Authorization Committee may recommend that in matters of civility or lack of professionalism, that the lawyer should be mentored by a panel of senior members of the Bar. This recent development now allows members of the judiciary – judges and justices of the peace – to refer a matter to the Society and specifically request that a lawyer be mentored. This option is available where the conduct alleged is serious enough to warrant disciplinary action.
Your participation in the complaints process is vital – you have a DUTY to respond – but that does not mean you must endure the experience alone. While guidance from a colleague may be of some assistance, this is your license to practise and retaining counsel at this early stage to assist you in protecting your license is often crucial in providing objectivity, guidance and to allow at times, for a discussion or a form of mentoring to be put into place which may provide some assurance to the Law Society that this is an isolated occurrence which has been thoroughly addressed by you.
Having the assistance of counsel experienced with Law Society or regulatory matters will also allow you to set the groundwork, tone and evidence needed should the matter proceed to a hearing.
i. Obligation to Respond
As I’ve stated before, you are obliged under the Rules of Professional Conduct to respond to the complaint in a fulsome and timely manner.
A failure to respond or to cooperate can result in further disciplinary action. Such conduct may result in a Summary Hearing which may occur prior to a determination being made on the substantive complaint. Summary Hearings are expedited hearings before one Bencher. One of the goals of the Hearing is to have you respond and cooperate with the investigation. A failure to do so can result in an indefinite suspension until the response is provided. Summary Hearings are publicized on the Law Society’s web site and a suspension is part of a discipline record.
ii. Where Your Response May Lead
Do not use the opportunity to respond as an opportunity to rant. Your response may be shared fully or partially with the complainant who will be given the opportunity to respond to your response. Sometimes, an explanation, an apology, a recognition that you may have not been all that you could be in that situation – goes a long way. Coupled with steps taken to ensure that the conduct does not happen again may be enough to satisfy the investigator that there is no need for disciplinary action.
If your matter is in fact sent on to Discipline, the materials, responses, interviews you give, may find their way into evidence at the hearing. It is not uncommon for transcripts of interviews during an investigation to be part of disclosure against you. It is integral that you recognize that what you present may go beyond investigations. The review of your response by a colleague or the preparation of materials by counsel with an eye to a potential hearing may be invaluable.
Your response should, where possible refer to materials, documents, transcripts and witness statements which corroborate your position. You may be asked to provide books and records. In this case, you may wish to make your bookkeeper or accountant available to the investigator. As noted above, you may be asked to provide an interview. You may ask the investigator what will be discussed in the interview so that you may bring relevant materials with you. You may wish to have counsel attend with you. You may be asked by the interviewer if the interview can be recorded – you may decline and have the interviewer take notes. Any transcript or notes from that interview may find their way into disclosure should the matter proceed to a hearing.
iii. Duty Counsel
If your matter does proceed to a hearing, your first appearance will be at a Proceedings Management Conference (PMC). This is very much like set date court in a criminal matter. A single Bencher presides over the appearance. Disclosure issues, timing for Pre-Hearing Conferences (much like judicial pre-trials – but with a Bencher presiding) and hearing dates are discussed. If you do not have counsel, senior members of the Bar provide volunteer Duty Counsel services to unrepresented lawyers at the PMC. The Advocates’ Society also provides Duty Counsel for unrepresented lawyers appearing at hearings.
So, much like Pandora’s Box, opening that envelope perched quietly atop of a mountain of paperwork, can unleash many possible outcomes. You can have an effect on the outcome of the complaint by participating carefully, thoroughly and completely. This is your reputation. Treat it the same way you insist your clients treat their matters – with professionalism, strategy and objectivity.
 This article is based on information taken from the Law Society of Upper Canada’s website located at www.lsuc.on.ca, as well as information found in “Important information if you are the subject of a complaint” a document provided by the Law Society along with its originating letter advising of a complaint.
 The Law Society of Upper Canada, Rules of Professional Conduct, Rule 6.01
 The Law Society of Upper Canada, By-Law 8 s.2
 The Law Society of Upper Canada, By-Laws 8 s.2(3) & (4)
 The Law Society of Upper Canada, By-Law 8 s.2(5)(b)
 Further information regarding the Discrimination and Harassment Counsel can be found at www.dhcounsel.on.ca
 Complaints Resolution derives its authority to investigate complaints from s.49.3 of the Law Society Act.
 The Law Society of Upper Canada, Rules of Professional Conduct, Rule 6.02
 The Investigations Department derives its authority to investigate complaints from s.49.3 of the Law Society Act.
 The Law Society of Upper Canada, Rules of Professional Conduct, Rule 6.02
 The Complaints Resolution Commissioner derives his authority from the Law Society of Upper Canada, By-Law 11 and s.49.14 to 49.19 of the Law Society Act
 If a Notice of Application is issued and subsequently the Conduct Hearing is converted into an Invitation to Attend, there will be a record of the Application being dismissed and the Conduct Hearing being converted to an Invitation to Attend. The content of what is discussed during the Invitation to Attend is not a matter of public record.
 Regulatory Hearings are a matter of public record.
 The Law Society of Upper Canada, Rules of Professional Conduct, Rule 6.02