Appendix 4 Abeyance Policy
What is an “abeyance?” An “abeyance” is a term of art. As it has developed through Discipline Committee policy and practice, an abeyance does not refer to just any decision to wait for a period of time before moving to the next step in an investigation. Instead it describes a very specific kind of arrangement between the lawyer who requests it and the Discipline Committee who grants it. A lawyer subject to an investigation may make written request to the Discipline Committee to have the matter held in abeyance because of relevant proceedings pending or ongoing in another forum. To date, abeyances have been agreements wherein the lawyer subject to investigation provides the Law Society with protective undertakings, conditional upon the Law Society’s decision to grant the abeyance. The Law Society always retains the discretion to end an abeyance unilaterally at any point and to proceed immediately with its investigation.
On the Law Society’s part, usually an abeyance amounts to temporarily suspending the lawyer’s responsibility to provide a written response in the investigation. An abeyance could also amount to temporarily deferring any decision to authorize a citation or proceed with a hearing, and to taking reasonable steps to maintain the confidentiality of the lawyer’s response in the investigation in the interim.
An abeyance requires the lawyer’s agreement and undertaking not to raise any argument based on delay resulting from the abeyance and to keep the Law Society informed of any progress in the parallel proceeding. Sometimes abeyances require the lawyer’s undertaking not to enter into any confidentiality agreements that would exclude the Law Society’s knowledge of the terms of any settlement. The specific undertakings required of the lawyer can be tailored to fit the circumstances of each case and any specific concerns the Law Society may have, such as interim measures for the protection of the public. The undertakings can also secure in advance any specific consent or cooperation that may be of assistance in the investigation, for example, consent to the Law Society’s obtaining and reviewing the transcript from the lawyer’s examination for discovery.
If granted, an abeyance is in place until the sooner of a specified period of time (usually 6 or 12 months) or the conclusion of the parallel proceeding, but always subject to the Law Society’s right to terminate the abeyance early.
An abeyance may be extended or re-struck in new terms at any time, whether prior to or following the expiration of a previously prescribed abeyance period.
A. The protection of the public interest in the administration of justice requires that the Law Society’s investigations and disciplinary proceedings be completed in a timely manner. There is therefore a presumption that such investigations and proceedings should not be held in abeyance.
B. Notwithstanding the presumption against abeyances, upon receiving a written request from the lawyer subject to investigation, in certain circumstances an abeyance may be warranted. It is important that all reasonably available and potentially useful avenues of investigation have been exhausted prior to agreeing to an abeyance request. In some instances, it may be preferable to first obtain the lawyer’s response in the investigation and then to consider the abeyance of subsequent processes.
C. An investigation must proceed far enough that the Discipline Committee can determine whether interim conditions or practice restrictions should be required during the period of the abeyance, for the protection of the public, a third party or any of the lawyer’s clients.
D. The granting of an abeyance will only be justified if:
(a) there is a contemporaneous parallel proceeding in another forum,
(i) in which there is a significant overlapping of the issues or factual matrix in question in the Law Society’s investigation, and
(ii) from which relevant determinations or information may reasonably be expected to flow in a reasonable period of time;
(b) there is a significant risk that continuing the Law Society’s investigation and discipline processes without abeyance will be inconsistent with the public interest in the administration of justice:
(i) by undermining due process or the administration of justice in the parallel proceeding,
(ii) by resulting in an abuse of the Law Society’s processes, or
(iii) by unduly prejudicing the rights of the lawyer in the parallel proceeding; and
(c) the Law Society’s investigation and ability to protect the public interest can reasonably be expected to benefit as a result of:
(i) evidence becoming available in the course of the parallel proceeding;
(ii) the determinations of the other forum;
(iii) the cooperation and participation of the lawyer subject to investigation unrestrained by concern for effects on the parallel proceeding; or
(iv) specific safeguards for the protection of the public that may be obtained by agreement as part of the terms of the abeyance.
Guidelines for Abeyance Decisions
While each abeyance decision must be made on a case-by-case basis, in determining whether to grant, extend or re-strike an abeyance agreement in accordance with the Principles, the Discipline Committee should have regard to the following list of potentially relevant factors:
1. The presumption that Law Society investigations and proceedings should not be held in abeyance in the absence of compelling justification;
2. Whether all reasonably available and potentially useful avenues of investigation have been exhausted prior to consideration of the abeyance request;
3. Whether any step other than granting an abeyance would adequately address the lawyer’s concern in making the request and enable the investigation to proceed more expeditiously.
4. Any measures required for the protection of the public;
The Parallel Proceeding and the Other Forum
5. Whether there is a reasonable expectation of timely progress toward the conclusion of the parallel proceeding;
6. The extent of the apparent overlap of the Law Society’s concerns with the facts and issues in question in the parallel proceeding;
7. The expertise and powers of the other forum and the potential value and relevance of its determinations;
8. Whether the other forum is the better forum for the determination of any identical issues that may arise in the Law Society’s investigation;
9. Whether the parallel proceeding is likely to be abandoned, settled without admissions, or concluded with no useful determinations or evidence becoming available for the Law Society’s investigation;
The Lawyer and Other Parties
10. Whether the circumstances of the complainant or the lawyer impede his or her ability to fully participate in the Law Society’s investigation or discipline proceeding before the conclusion of the parallel proceeding;
11. Whether holding the investigation in abeyance is likely to prejudice the lawyer, the complainant, a third party, the ultimate investigation, or any subsequent discipline proceeding;
12. Whether continuing without an abeyance would be likely to provide the complainant with access to information that would be privileged in the other forum;
The Abeyance Agreement
13. Whether the lawyer has provided satisfactory undertakings to the Law Society, including any measures required for the protection of the public, such as practice restrictions, supervision or monitoring;
14. Whether the length of the proposed abeyance period is appropriate in light of the circumstances of the matter, the expectation of progress or the changing visibility of progress in the parallel proceeding, and the need for periodic review and re-assessment of further time in abeyance;
The Law Society’s Investigation
15. Whether the proposed abeyance is advantageous for the Law Society’s investigation;
16. Whether and for how long the matter may already have been in abeyance;
17. Any proposals for further investigation that may be carried out during the proposed abeyance;
18. Whether further investigation is required to better inform the Discipline Committee’s decision on the abeyance request;
19. The effect that the proposed abeyance would have on the Law Society’s ability to complete its investigations and carry out its disciplinary processes in a timely manner that is attentive to the protection of the public interest; and
20. Such other factors as may be relevant in the circumstances.
[adopted by the Benchers September 2, 2010]