Proactive response best when facing LSUC complaints
By Kate Wallace, AdvocateDaily.com Contributor
This is part two of a four-part series on navigating complaints to the Law Society of Upper Canada (LSUC). In this instalment, civil litigator Darryl Singer discusses how lawyers can best respond when a complaint has been filed against them.
When lawyers learn a complaint about them has been filed to the Law Society Disciplinary Committee, the worst thing they can do is ignore it, either out of dismissiveness or fear, says Toronto-area civil litigator Darryl Singer.
He recounts the recent situation of a colleague who, during the summer, received a letter stating that a client had accused him of fraud.
“This is a guy who has never had an impropriety,” Singer says, noting the lawyer was ultimately found to be innocent, but the seriousness of the allegations rattled him deeply.
“We all know, as lawyers, you could get disbarred for that,” he says.
Singer advised him to compile all relevant documents and helped prepare a thorough response letter showing there had been no impropriety, that the complaint was a trumped-up charge by a disgruntled client, rather than a case of professional misconduct.
“Then it went away,” Singer says. “Had he not responded, who knows where it could have gone?”
Preparing a response can be cumbersome, taking many hours to pull relevant documents, including cheques, emails and opinion letters. But, dealt with promptly and properly, what appears at first to be a very serious complaint can be dispensed with little fuss if it is shown to be groundless.
Luckily, lawyers leave a long, thick paper trail. If one has kept proper records, the proof will be in the paperwork, Singer says.
“One of the best ways to never get reported is to follow best practices,” he says. “If you have good dockets and notes, and have put your opinion to your client in writing, you’re fine. If your accounting is done in accordance with the rules, you don’t have anything to worry about.”
That said, Singer is sympathetic to solo practitioners, those new to practice and lawyers without large support staffs who can fall behind in their record-keeping. He recounts a case in which the lawyer didn’t have an assistant and had fallen a year behind in his monthly reconciliations.
“There was no misappropriation,” Singer says, but when the lawyer was spot-audited, his overdue bookkeeping was discovered.
In that case, Singer’s advice is the same: Don’t hide, respond.
“They’re surprisingly decent if you’re honest with them,” he says. “They’ll often work hard to help you rather than punish you.”
Or, even where discipline is deemed necessary, Singer has seen the society work with the lawyer to limit damage to their practice.
Singer has helped many lawyers navigate the process after a complaint has been made, drawing on his earlier experience representing pharmacists and other professionals in misconduct cases.
He has a special affinity for this type of work because of his own experience with complaints. In his case, they related to a period of inattentiveness to his practice as he struggled with depression, anxiety and addiction. In the end, he pleaded guilty to professional misconduct for failing to reply to communications by the law society and served a 30-day suspension.
“Ultimately, what I was disciplined for wasn’t failing to respond to my clients, it wasn’t any wrongdoing in my practice,” Singer says. “It was failing to respond to the law society. I know now, in retrospect, there’s a reasonable chance that, had I responded up front, the file would have been closed. But they had no choice. I gave them no choice.”
Along with forcing the society to act, he says not responding to a complaint can easily spiral into a deeper investigation, with steeper potential consequences than those of the original charge.
Lawyers are notoriously busy, but Singer says a jam-packed calendar or impending trial is no excuse to ignore the committee.
“You pick up the phone and you call them,” he says.
Explain your workload, and ask for an extension to respond, Singer adds.
“I personally have not seen a single instance of where they have not granted that request as long as you contact them promptly and you have a good reason,” he says.
Singer advises lawyers against whom complaints have been filed to retain counsel.
“The problem is, as a lawyer, we don’t have objectivity when it comes to our own situation. It's helpful to have someone who understands the process walk you through it, step by step. Because I've been there myself and now have helped many others."
Stay tuned for Part 3 of this series where he will address what lawyers facing misconduct allegations can expect during the investigations stage.