The folly of self-representation at an LSO hearing
By AdvocateDaily.com Staff
Lawyers facing discipline hearings before a Law Society of Ontario (LSO) tribunal must overcome their often-stubborn tendencies to “go it alone” with their defence, or they risk facing major professional and financial costs, Toronto civil litigator Darryl Singer tells AdvocateDaily.com.
“My very strong recommendation is that you have a lawyer, and not just any lawyer — such as one of your partners who might do it without charge — but a lawyer like myself who does a great deal of this kind of work,” says Singer, principal at Singer Barristers Professional Corporation.
“When it’s your reputation and possibly your licence at stake, you simply lack objectivity — particularly if the reason for your misconduct is an addiction or a mental health issue.”
In Singer’s LSO practice, 75 per cent of clients have gotten into trouble because of some kind of addiction or mental health problem, he says.
“In those circumstances, you certainly don’t have the ability to represent yourself.”
But it’s also important to be represented by someone who is familiar with this particular type of tribunal, Singer says. “Every family lawyer I know hires another family lawyer to represent them when they get a divorce. So when facing allegations before the law society it's vital to hire counsel with experience handling these issues.”
The Advocates Society also provides free duty counsel for lawyers who can’t afford representation, and Singer also serves in this capacity.
However, he says, “I’m amazed by the number of times I’ve shown up on a scheduled duty counsel day and there is an unrepresented party and they say ‘no thank you, I don’t need your help.’ I don’t really know why. But there’s a sense of stubbornness among lawyers.”
Singer says an LSO tribunal proceeding takes one of three forms:
1) A fully contested hearing. The lawyer is defended against the allegations of misconduct and whatever penalty the law society seeks.
2) A joint submission, where the parties have agreed that the lawyer will plead guilty to the professional misconduct and also agree to the penalty.
3) The form that’s most common in Singer’s LSO practice: the lawyer pleads guilty to the misconduct, the parties enter into an agreed statement of facts, and the only argument is over what the penalty should be.
Under LSO rules, in most cases the offences are akin to a strict liability offence, Singer points out.
“In other words, you did it. All of the things that you’d use as an excuse or a justification go to the issue of penalty, not the offence,” he says.
And the burden of proof in each case is not the high criminal standard of 'beyond a reasonable doubt.'
Singer cites the recent case of a paralegal alleged by the LSO to be practising outside the scope of her qualifications. She shared office space with a family lawyer and helped him with certain files. She was entitled to do so under supervision, but the lawyer had not provided proper supervision.
“She came to me, and the law society was seeking a finding of professional misconduct. She had a very good defence — she was working under supervision, no clients had complained, everything was passed through the family lawyer — but those defences don’t change the fact that on a strict liability basis she was practising outside the scope,” says Singer. “It doesn’t matter why, she just was. So the mitigation would go only to the penalty.”
He advised her to plead guilty to the misconduct and then at the penalty hearing argue against the lengthy licence suspension the LSO wanted.
“The LSO agreed that if we did a joint submission they would only seek a two-month penalty, and my client agreed."
In other cases, the allegation might be a failure to co-operate with the LSO by not answering letters or sending documents.
“You may have many good reasons, including a mental health issue that initially prevented you from responding. Just because you have co-operated by the date of the hearing doesn’t change the fact that you didn’t co-operate from the beginning.
"So you have to plead guilty to that and the arguments go to mitigating the penalty.”
It is in the defendant’s interest to deal with their case as efficiently as possible because he or she is almost invariably required to pay the LSO's legal costs as well as their own, Singer says.
“It’s grossly unfair. The law society has unlimited resources to throw at this thing, and if you’re coming at it on your own you’re just going to be outmatched.”
The costs can be significant — Singer says in his experience a simple matter resolved by joint submission could run $2,000 to $5,000, and a full-blown contested hearing could be in the tens of thousands.
For serious charges like fraud, lawyers face a three-member panel at the tribunal, he says. For lesser offences, a single adjudicator may hear cases. The process is much like in civil court except that the prosecutor tends to advocate for the law society rather than simply lay out evidence in a neutral manner, he says.
In a contested case, Singer says hearings might be spread out over a year, but when there is a joint submission, it may be over in half an hour. The panel typically reserves its decision to a later date.
In a contested case, Singer says hearings might be spread out over a number of months, but when there is a joint submission, it may be over in half an hour. The panel often reserves its decision to a later date, he says.