November 22, 2012

Improper to seek withdrawal of complaint to the Law Society

November 22, 2012; BC Code reference updated December 19, 2012

The Professional Conduct Handbook prohibits a lawyer from improperly obstructing or delaying Law Society investigations (Chapter 13, Rule 3). This includes attempting to have a complainant withdraw a complaint to the Law Society as part of the settlement of a civil dispute, or otherwise offering to pay money to a complainant to withdraw a complaint.

Such offers or agreements interfere with the duty of a regulatory body to protect the public interest by investigating complaints about the conduct or competence of the people it regulates. The agreements are also void and not enforceable in the courts: Re Sandra Thompson Family Trust, 2011 ONSC 7056.

It is a discipline violation for a lawyer to enter into such an agreement or to offer an inducement to withdraw a complaint or to not make a complaint: Law Society of BC v. Gerbrandt, [1993] LSDD No. 190.

Rule 3.2-6 of the upcoming Code of Professional Conduct for BC stipulates that:

A lawyer must not … wrongfully influence any person to prevent the Crown or regulatory authority from proceeding with charges or a complaint or to cause the Crown or regulatory authority to withdraw the complaint or stay charges in a criminal or quasi-criminal proceeding.

A “regulatory authority” includes professional and other regulatory bodies.

While lawyers are free to settle civil disputes to which they are a party, they may not seek as part of that settlement to curtail in any way the right of a person to bring a complaint to the Law Society or to continue it.