ADR, Mediation

Morrow reflects on tenure as LSO's Complaints Resolution Commissioner

By Kirsten McMahon, Associate Editor

Reflecting on the past four years as the Law Society of Ontario's (LSO) independent Complaints Resolution Commissioner, Toronto mediator and arbitrator Bernard Morrow says it was eye-opening to see first-hand how members of the public perceive the delivery of legal services in the province.

Morrow, principal of the full-service dispute resolution firm Morrow Mediation, wrapped up his second two-year term as Commissioner at the end of March. He tells he was first drawn to the role because of his background in public service and interest in dispute resolution.

“The position offered a unique opportunity to apply my skills in another context. In mediation, I meet with all of the parties in a dispute and work with them in an effort to achieve a resolution that they own. As Commissioner, when I was requested to review a complaint, I heard from one party — the complainant — and my mandate was to listen to their story and determine whether their professional conduct concerns about a licensee have been adequately addressed by the LSO through its investigation," he says. “In performing the role, I was fortunate to be supported by a dedicated and passionate team of lawyers and administrative staff."

The regulator’s website states that the Commissioner acts as an ombudsman in the LSO’s complaints resolution process, reviewing complaints against lawyers and paralegals that have been investigated by the LSO, to ensure they are handled appropriately and the results are reasonable.

Where a complainant is dissatisfied with the manner in which an investigation was handled, Morrow says they can ask the Commissioner to review the investigation and the decision to close the file. Where the Commissioner determines that the LSO’s consideration of the complaint and its decision was not reasonable, there's a duty to refer the matter back to the LSO with recommendations for further action.

"The review can be conducted in person, by teleconference or in writing, but the vast majority of complainants prefer either the in-person or phone format. I enjoyed having the chance to meet complainants," he says. "For most, an in-person or phone meeting affords complainants with the first opportunity to share their story with a real person, since most LSO complaint investigations are conducted in writing. I found the dialogue extremely helpful in establishing my credibility and building trust with complainants.”

Morrow, who was appointed in April 2014, says one of the biggest challenges when meeting with complainants is that they're often extremely distraught and emotional.

“To start with, they have gone through a difficult experience with a lawyer or paralegal so they often have a very negative perception of the legal profession," he says.

In addition, complainants have then gone through what can be a lengthy LSO investigation process, he says, and because it’s generally conducted in writing, it’s rather impersonal.

“LSO investigations often took more than a year to complete. If at the end of it all, the complainant received a result they were unhappy with, their level of frustration surrounding the process and the outcome could reach a fever pitch."

It’s at this point, with this backdrop, that Morrow would enter the picture and conduct his review.

“The complainants I met with in-person or over the phone were often desperate, carrying extraordinarily high expectations about the review process. Meetings were typically scheduled for 50 minutes and, in that time, I would first outline my role, jurisdiction and the review process. Then I would encourage the complainant to tell their story — sometimes having to tease it out of them and, on other occasions, giving them the opportunity to vent. Finally, I would engage them in a discussion surrounding their concerns. Not an easy task, but I learned early that for the process to be meaningful I needed to strike a delicate balance between clarifying the limits of my role, establishing credibility and building trust, and giving each complainant a chance to be heard," Morrow says.

"Looking back, many of our meetings went longer than the allotted 50 minutes. And, as challenging as some of these meetings could be, I always felt they were worth the extra time and effort," he adds.

A big hurdle for Morrow during both of his two-year terms was that members of the public were often not satisfied unless the lawyer or paralegal was disciplined.

“They're faced with either the closure of their file, without any regulatory action taken, or 'remedial action,' either in the form of a written review of ‘best practices’ or a formal written caution."

The LSO receives thousands of complaints a year, Morrow says. A big component of the regulator’s mandate is working with the members of the legal profession who have failed to follow the professional conduct rules and help identify where they went wrong and how to improve or avoid those situations in the future.

“Another big challenge involves helping members of the public appreciate the difference between professional misconduct and negligence. A licensee may have made an error in judgment that raises possible negligence, but it doesn’t necessarily follow that the conduct amounts to a regulatory breach. The LSO and, in turn, the Commissioner’s office only have jurisdiction to address regulatory misconduct. Issues of negligence should be addressed through the licensee’s insurer.”

He says the Commissioner’s role highlighted the divide between those within the legal services professions and those who utilize the services.

“Many people mistakenly believe that the LSO exists to protect lawyers and paralegals and no one is looking out for them," Morrow says. “That concerns me a great deal. Serving in the Commissioner’s role gave me the opportunity to clarify the LSO's important regulatory role and demonstrate to members of the public that someone independent of the LSO is genuinely interested in listening to their concerns and bringing them forward in appropriate circumstances."

“And, I think it's heartening and comforting for the public and the legal community to know that there is someone out there who’s holding the LSO and its members accountable,” he adds.

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