Dealing with a law society investigation from start to finish
By AdvocateDaily.com Staff
And while it’s never a pleasant experience, Singer, principal at Singer Barristers Professional Corporation, says the whole episode will pass more smoothly with the guidance of legal counsel who has experience in every facet of the Law Society Of Ontario (LSO) process.
“The earlier you hire a lawyer, the better,” says Singer who has acted for clients in these actions many times. “You don’t want to mess around when it’s your reputation and possibly your licence on the line.”
To help first-timers know what to expect, here is Singer’s overview of an LSO investigation:
The identity of the complainant will differ depending on the case, Singer says. Often it will be a disgruntled former client, but when the concern relates to advertising, he says it’s more likely the alleged infraction was brought to the law society’s attention by a competitor.
For example, one of his recent cases involved acting for a paralegal accused by a group of criminal lawyers of advertising services that are not within a paralegal’s scope of practice.
“The law society can also initiate its own complaint, but that’s very much the exception, in my experience,” Singer says.
Whatever the identity of the complainant, Singer says licensees should act immediately when the law society writes to inform them of the issue and demand a response.
“I don’t care how busy you are, when you get a letter from the law society, responding to it becomes your number one priority,” Singer says, noting that the vast majority of discipline decisions relate to lawyers who failed to respond or co-operate with an LSO investigation.
“I’ve heard all kinds of excuses for failure to co-operate, but there really aren’t any good ones. You have to get it done, and they are usually pretty accommodating if you ask for a bit of extra time,” he says.
“Very often, these proceedings start with something minor, which is all the more reason to co-operate and respond quickly. If the matter is resolved at this stage, there won’t be any public record of the complaint or investigation.”
Singer says it’s not always clear to the licensee from the correspondence exactly what information LSO investigators are hoping to receive back.
“But it’s going to be more obvious to someone like me who does a great deal of this type of work,” he explains.
In addition, he says the early stages of an investigation can also present an opportunity to settle the case without progressing further towards formal discipline.
“The letter might lay out the alleged violation, but in many cases, it’s open to interpretation,” Singer says.
“I’ve also done some advertising cases where the LSO was concerned about certain wording. You can make the changes they suggest and offer to show the new version before it goes live on the website. If it meets their approval, that can be the end of the investigation.”
Singer says one of the biggest mistakes he sees lawyers and paralegals make while under investigation is to treat an interview with LSO officials too casually.
“Lawyers think it’s going to be a chance to explain their position in an informal way, but what they need to understand is that it’s more akin to an examination for discovery,” he says. “There’s an investigator asking questions, usually a court reporter is present to take a transcription, and they’re not going to answer any of your questions.
“Often I'm retained after the interview has been done and the investigation is complete, so we’re working with whatever corners clients have boxed themselves into according to the transcript — during what they thought was a friendly conversation,” Singer adds.
If he’s retained early enough, Singer says he will make contact with the investigator in an attempt clarify the allegations or resolve the complaint before an interview. If one is still needed, he will attend with his client.
“Then I’m going to be in a much better position to represent you at the disciplinary hearing if it goes that far,” he says.
Before the LSO issues a public notice of application for alleged misconduct, the case must be vetted by its Proceedings Authorization Committee, a panel of benchers that decides whether the matter should proceed by way of a formal disciplinary hearing. Unfortunately, lawyers and their counsel are unable to make representations before the PAC, Singer says.
“There’s no way of gauging how often the PAC says yes or no, but I’ve never had a case that went before the PAC that wasn’t authorized,” he says.
After receiving PAC approval, the disciplinary case moves into a series of proceeding management conferences, which Singer likens to scheduling court.
“These can be done over the phone, and if you have a lawyer, you’re not required to show up,” he explains. “Typically, you will set a pre-hearing, which is a form of settlement conference that the licensee will have to appear at.”
Following the pre-hearing, Singer says the LSO and the licensee will often put together an agreed statement of facts
“Depending on the case, there may be a number of pre-hearings if you’re making progress in terms of narrowing the issues,” he says.
The disciplinary hearing breaks down into two distinct parts, Singers says — findings on misconduct and determination of penalty, if needed.
“Very often, an agreed statement of facts will include an admission of professional misconduct, and the reason for that is that most of these allegations are akin to what you would call in criminal law strict liability offences,” he says.
“That sends the case straight into the penalty phase where the arguments will focus on mitigating and aggravating factors.
"If it was an advertising infraction, then the fact that you brought it into compliance goes to mitigation,” Singer adds. “Similarly, if you were dealing with mental health issues or exceptional family circumstances, these are all things that may go towards reducing your penalty.”
Decisions by the LSO’s disciplinary tribunal can be appealed to a larger panel of LSO benchers. If licensees remain unsatisfied, then the next stage is to apply for judicial review of the decision in the Divisional Court, Singer says.