Facing an LSO investigation with counsel is critical: Daviau
By Rob Lamberti, AdvocateDaily.com Contributor
Lawyers should never face a Law Society of Ontario (LSO) investigation without counsel, says Toronto criminal lawyer Lindsay Daviau.
An investigation often begins with a letter from the law society requesting a response, but what might seem like a simple task could put the lawyer in jeopardy if they decide to act for themselves, Daviau tells AdvocateDaily.com.
The law society has the authority to investigate when it receives complaints from the public against lawyers and paralegals. Less serious allegations of the Law Society Act, rules, bylaws and regulations are often dealt with by its Complaints Resolution Department, while complaints concerning serious breaches are referred to its Investigations Department, she explains.
A lawyer might get a letter from the LSO seeking a response to a complaint that outlines serious allegations. The lawyer will also be asked to submit the case files, says Daviau, who practises with Rosen & Company Barristers.
"It typically requests a response to the professional regulations they identified that the lawyer potentially breached," Daviau says. "When a lawyer gets that letter, the first thing they should do is to retain counsel.
"While we're lawyers and we're good at advocating for others, we're not the best advocates for ourselves. We are often too close to the file and another set of eyes is needed before responding," says Daviau, who acts as counsel for lawyers in such proceedings.
Lawyers might be too emotional about the issue and fail to see the "bigger picture," she says.
Daviau says it's important to retain counsel who can look at it with a fresh point of view.
That first response to the LSO sets the tone for the future of the case, so the letter needs to be done correctly, she says.
Daviau says clients will often give her their draft of the letter and she is left thinking, "This is not helpful. You've just defended yourself without addressing the allegations."
She warns the response letter can potentially be damaging to the lawyer.
"It's your first opportunity to think about how you will approach the allegations, so it better be right. It better be accurate and reflect the position you're going to take because it could set the tone for not only what happened, but if it does go to a panel, it could be used against you," Daviau says.
"The issue can be answered quite easily, but counsel might ask why they need a lawyer to do that," she says. "You need to protect yourself and it's better to have someone else represent you.
"Sometimes a letter responding to the issues is all you need, but for the off-chance that it's not enough, you will want to put your best foot forward because it's going to frame how the case proceeds," Daviau says.
There have been times when lawyers acting for themselves failed to include important details or they've not properly answered the question in their response to the LSO, she says.
"It might prolong the matter or put them farther down a path they don't want to be," Daviau says. "Certainly never ignore anything from the law society because you can be disciplined for that as well.
"Because it's the regulator, you're obligated to respond to the issues it's raising so all the more reason to meet counsel early. Do not make that first response without the benefit of legal advice from counsel experienced in dealing with the tribunal and the law society," Daviau says.