Co-operation key to resolving misconduct complaints
By Kate Wallace, AdvocateDaily.com Contributor
This is part three of a four-part series on navigating complaints to the Law Society of Ontario. In this instalment, civil litigator Darryl Singer discusses the investigations and discipline process.
It is nerve-wracking for lawyers and paralegals to receive a letter from the Law Society Disciplinary Committee advising that a complaint has been filed against them, but the good news is most cases are relatively straightforward and resolved without discipline, says Toronto-area civil litigator Darryl Singer.
He points to the recent example of a paralegal client who received a letter stating that his website made claims beyond the scope of his practice.
Singer helped his client draft a response and they had an interview with the Law Society, where the infraction was explained. Singer’s client, realizing his mistake, made changes to his website. Case closed.
“Had they not communicated, the charge of misconduct wouldn’t have been advertising outside of the scope, it would have been a charge of failure to communicate or failure to co-operate with an investigation,” he says. “I cannot stress how reasonable law society investigators are when you work with them.”
Singer says the very worst course of action to take is none.
“I can’t reiterate that enough,” he says.
He cites a recent case in which a groundless complaint of financial impropriety had been levelled against his client.
“He was almost so crippled by fear that he might not have responded,” he says. With Singer’s assistance, they crafted a response that included his trust ledger, communications with the client, and a record of all the work he’d done on the file.
“We bundled it all together and that was the end of it,” Singer says.
Licensees are obligated to respond to complaints.
An investigation typically starts with a letter requesting information and documentation.
“So, you’re going to have to write a detailed response,” Singer says. “I’ve done them for myself, I’ve done them for clients. Depending on the allegations and the nature of the complaint, it could take you six, 10, 12 hours of work.”
Many lawyers don’t do their own accounting, so they may need their bookkeeper or accountant to pull or prepare pertinent documents.
“Sometimes there’s a cost involved, but it is well worth it,” Singer says.
After the first part of the investigation, there may be a subsequent interview, which can take place by phone, at the Law Society's office or in the office of the person being investigated.
“The interview will often involve what seems like an examination for discovery,” Singer says, including a court reporter taking transcripts. Again, participation is mandatory.
“I’ve had lawyers say to me, ‘I don’t want to go.’ Or ‘I want to go, but I don’t want to say anything,’” Singer says. “As a licensee, you have to go and you must give honest answers.”
Depending on the case, investigators may request more documentation or multiple interviews.
If the claim is found to be groundless, the case is closed. If the investigators feel that there was conduct that needs to be addressed but does not warrant formal disciplinary proceedings, the matter may be sent to a regulatory meeting.
“You’d be admonished,” Singer says. “And there would be a public record.”
For more serious cases where discipline may be warranted, a formal application is filed against a lawyer or paralegal. The Tribunal will then hold a hearing to decide whether the allegations have been proven and what order should be made.
Singer advises getting help long before things advance to this stage. In fact, he suggests getting legal help right away, when the letter first arrives.
“Get somebody like me on the case as early as possible, because it will help you navigate the process. We know what they’re looking for. We know the language that they speak and the process, and we can communicate with them,” he says. “You need to think like a client.”
While some cases are opened and closed within a year, many drag on.
He points to one case involving a complex financial transaction that’s been going on since 2012.
“And we are probably six months away from a hearing,” he says.
The delay can be gruelling, especially for those who try to go it alone.
“I have seen clients over the course of an investigation become shells of their former selves,” he says. “It’s incredibly stressful. Hand it off to a lawyer like me and forget about it and get on with your life. In most cases, you’re able to continue working. Go about your business, focus on your practice.”
Stay tuned for Part 4 in the series where Singer will address what lawyers facing misconduct allegations can expect during the investigation stage.
Click here to read Part 1 in the series — Singer’s inspiration for representing lawyers at the Law Society Tribunal.
Click here to read Part 2 in the series — how lawyers can best respond when a complaint has been filed against them.