Law Society Disciplinary Proceedings

Per the Law Society Act, R.S.O. 1990, c.L.8, lawyers in Ontario, and specifically the roughly 31,000 members in private practice are subject to professional discipline by the Law Society, where their conduct is alleged to have been in violation of the Rules of Professional Conduct and/or where a capacity issue is alleged.

An Overview of the Disciplinary Process

1. The discipline process is initiated by a complaint. In 2020, 5,808 complaints were filed. Complaints can be initiated by a member of the public, other lawyers, the judiciary and/or the Law Society itself. Complaints are initially handled by Intake and Resolution in the Professional Regulation Division, who determine whether the subject matter of the complaint falls within the Law Society’s jurisdiction, and involves a concern related to conduct or competence.

The majority of complaints made are resolved at this stage. However, given the volume of complaints and the limited number of lawyers in private practice, they are, unfortunately, part of working in private practice.

2. The next step in the discipline process is a formal investigation under section 49.3 of the Act by the Professional Regulation Department. Of the 5,808 complaints filed in 2020, 903 (15.5%) were referred for investigation.

Law Society investigations differ significantly from police investigations for example, as lawyers (and paralegals) have a duty to co-operate with the investigation. Principally, this means that lawyers are required to produce (and allow the inspection of) records upon request, allow LSO staff entry into their offices, and to answer questions, either in writing, or at the discretion of the LSO, ‘on the record’ in the presence of a court reporter.

Around two thirds of complaints that reach this stage are resolved, and in the 2020 year, only 296 were referred to the ‘Proceedings Authorizations Committee.’

3. For those matters where the investigation identified concerns regarding conduct or competence, the matter is then referred onto the LSO’s Proceedings Authorization Committee. This Committee, comprised of elected Benchers will refer the matter on for prosecution at the Tribunal where it has reasonable grounds to believe that a lawyer has engaged in misconduct or is suffering from incapacity.

From looking (again) at the Law Society’s 2020 Operations Report (pg. 57 Discipline Output) it would appear that the Proceedings Authorizations Committee recommends prosecution of roughly 120-130 cases per year.

4. Formal conduct and capacity proceedings before the Tribunal are commenced with the Law Society filing a Notice of Application and information sheet. The proceedings are governed by the Law Society Tribunal Rules of Practice and Procedure along with the Practice Directions and Guides

There are a number of steps, outlined on the Tribunal page, and which I summarize as follows:

  1. Commencement of the proceeding
  2. Scheduling – Pre-Hearing Conferences
  3. Disclosure, Requests to Admit & Joint Statements
  4. Hearing
  5. Panel decision and reasons for decision, if any
  6. Appeal, if any

Motions

Where motions are brought, such as for an interlocutory suspension, the format is similar to that of civil motions. Specifically, the Law Society will file a motion record, including supporting Affidavits, a Book of Authorities and a Factum. Depending upon the issue, witnesses may be called. Lawyers are well advised to respond accordingly.

The Hearing on the Merits

The hearing itself is something of a cross between a civil motion, and a civil trial. The Law Society will call witnesses, including typically the investigator, and file a Hearing Brief, that is similar in format to a motion record (though an Agreed Statement of Facts may be inserted in place of Affidavits and Exhibits), along with Books of Authorities and a Factum. The hearing, in one or more parts, will cover both the merits (i.e. was there misconduct), and if so, the appropriate penalty in the circumstances.

Why Hire Experienced Counsel?

Though all parties before the Law Society Tribunal are lawyers (or paralegals), who in theory could represent themselves, having sat on the panel at more than 10 proceedings, it was invariably a bad idea. As the old saying goes, “the lawyer who represents him/herself has a fool for a client….” Given the personal nature of the allegations, it’s hard to respond objectively, or to get up to speed on the Tribunal’s jurisprudence while juggling all of life’s other responsibilities, especially if this is well outside your area of practice or you have limited experience with litigation.

That’s where we can help. Having authored the below Law Society Tribunal decisions (along with playing a significant role in redrafting/modernizing the Tribunal Rules), even Chairing the Hearing Panel at times, Michael can assist you in ‘putting your best foot forward and zealously represent your interests, whether that means vigorously contesting the allegations, or attempting to obtain the lowest possible penalty, that will have the least impact upon your life and practice going forward.

By filling out our Contact Form or calling our lawyers at 1-647-495-8995 we can advise whether we may be able to assist at this most challenging of times.

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