Civil Litigation

Outside counsel critical for lawyers facing misconduct allegations

By AdvocateDaily.com Staff

In part four of a four-part series on navigating complaints to the Law Society of Ontario, civil litigator Darryl Singer discusses the discipline process.

Even the most experienced litigators need to hire a lawyer adept at handling professional regulation matters if they’re going through the Law Society of Ontario’s discipline process, Toronto-area civil litigator Darryl Singer tells AdvocateDaily.com.

Many lawyers facing professional misconduct allegations don’t understand why they should hire another lawyer, says Singer, principal of Singer Barristers Professional Corporation, but the reasons are simple.

“As a lawyer representing a client, you need to have a requisite level of objectivity, but as a lawyer representing yourself, you’re now in the role of your clients — with all the anger, frustration, emotion, and sense of indignation and injustice your clients feel, and therefore you don’t have the objectivity. Secondly, generally speaking, you won’t have the proficiency to deal with the process,” he says.

“If you talk to me or any of the other lawyers who do a significant amount of work defending at a Law Society Tribunal, they would all tell you that if they were the subject of discipline, they would hire somebody else, notwithstanding that they do this every day,” Singer adds.

If a case is going to be dealt with by the discipline process after a complaint is investigated, a lawyer will receive a letter and a Notice of Application, which will briefly outline the allegations. At that point, if a lawyer hasn’t retained counsel, “you need to do that right away,” he says.

But the “sad reality,” is that many lawyers and paralegals, who are also regulated by the Law Society, simply can’t afford counsel, despite facing suspension or even disbarment, Singer explains.

He says he recently received a phone call from a paralegal who was accused of committing fraud and wanted his assistance, but when she learned how much it would cost to retain him, she changed her mind.

“That’s a very common thing,” Singer says, adding that many people who end up in front of a discipline Tribunal have a mental health or substance abuse issue “that got them into trouble in the first place. And so because of those circumstances, they simply don’t have the resources to hire a lawyer.”

For those lawyers who aren’t represented before a discipline Tribunal, pro-bono duty counsel are available through the Advocates’ Society, he says, adding that many counsel on the roster are also retained privately to act for lawyers and are experienced in handling matters at the Tribunal.

“Although you don’t get somebody who will shepherd you through the process from beginning to end, the advantage of having duty counsel is you will get somebody who will represent you at that hearing,” Singer says.

But there are still lawyers who refuse the assistance of duty counsel, he says, citing several possible reasons: “Stubbornness, pride, ego. Shame is a big part of it. The reality is it’s a very small profession. It’s not uncommon that the people who call me, either to privately retain me or whom I encounter as a duty counsel, are people I already know. So I think shame certainly plays into it.”

Following receipt of the Notice of Application, the first stage of the process is a proceeding management conference, which is essentially a scheduling court, Singer says.

“Typically, when you hire a lawyer, you don’t need to appear at the proceeding management conference because your lawyer will do that for you.”

For lawyers from outside the Toronto area who are handling the conference themselves, they can write to the clerk of the Tribunal a few days before and indicate they would like to attend by telephone, and it can be arranged, he adds.

Either just before or just after the conference, the Law Society prosecutor will provide disclosure, which includes the investigation report, will-say statements from potential witnesses and an expert report if there is one. If disclosure isn’t available, a second conference will be scheduled.

Following that, a pre-hearing conference takes place. At the private hearing, attended by the licensee, the licensee’s lawyer, the Law Society’s lawyer, the investigator and one of the Tribunal members, “very often a deal will be worked out, or if the matter is going to proceed to a full-blown contested hearing, the terms of that hearing are worked out,” such as the number of days required and the list of witnesses, Singer says.

The actual discipline hearing can take a number of forms. A contested hearing will be held if there is no agreement on anything, he says.

“If the lawyer continues to maintain his or her innocence, there is a contested hearing, where the Law Society must prove its case that professional misconduct has occurred.”

If there is a finding of professional misconduct by the Tribunal, a second hearing will take place to determine the penalty.

In cases where a lawyer agrees to plead guilty to professional misconduct and both sides agree on the penalty, a consent hearing takes place and a joint submission is entered. While the Tribunal may not always agree with the penalty submitted by the Law Society prosecutor and the lawyer being disciplined, “there is abundant legal authority that says the Tribunal should not depart from a joint submission as long as it is within the reasonable range of penalty for the infraction, taking into account the precedent that’s been established,” he says.

The third type of hearing is a contested hearing on the penalty only, where the parties agree that the lawyer committed professional misconduct, but they disagree on the penalty, Singer explains.

“The way the Law Society rules are written and the case law has evolved, very often professional misconduct matters are what we would call strict liability. And that means essentially you did it. It doesn’t matter why you did it, you did it and therefore you’re guilty,” he says.

But there can be mitigating factors, such as depression, substance abuse, a physical illness or family issues, he says. “I often tell my clients that it doesn’t make sense to argue the misconduct itself. You did it. Let’s argue those mitigating factors to get a lesser penalty. This is a far better way.”

Showing remorse and pleading guilty, which allows the Law Society to avoid the cost of a contested hearing, can also help mitigate the penalty, Singer adds.

As in any court hearing, the Tribunal panel hearing a discipline case will often reserve its decision. When that happens, the written decision and reasons are sent by email at a later date.

Singer says it’s important for lawyers to be prepared to begin their suspension at the end of their hearing, and requests for deferral are rarely granted.

“You need to assume that if it’s your hearing day and if things don’t go the way you want, you will be suspended effective immediately,” he says.

“You need to make those arrangements going in to ensure your clients are subsequently taken care of. Because if that suspension is imposed immediately, that means the minute you walk out of that hearing room, you cannot practise law.”

Click here to read Part 1 in the series — Singer’s inspiration for representing lawyers and 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.

Click here To read Part 3 in the series — what lawyers can expect during the investigations process.

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