Law Society enhances discipline and CPD
G. Glen Ridgway, QC
The people in my office, and many of our lawyers, often ask me, “What does the Law Society do?” While perhaps they are more interested in what I, in particular, am doing for the Law Society, I would like to use this column to speak to what the Law Society is doing.
The Law Society has many functions. Some of these functions are core. They go to the very centre of our purpose. One such function is discipline. This is perhaps the area where we, as a law society, have the most interface with the public and a role most subject to scrutiny. This year, and likely in the next few years, the Law Society is looking at some aspects of our discipline process. Last year’s directive to speed up the investigative portion of discipline is being implemented. We are working to ensure that the time between complaint and referral to the Discipline Committee is one year or less wherever possible.
In addition, task forces are working on two other aspects of discipline.
The task force on the separation of functions (adjudicative/prosecutorial) has completed its work. Under the present structure, Benchers, through the Discipline Committee, authorize the prosecution of allegations against lawyers, and Benchers, sitting on discipline hearing panels, perform the adjudicative aspect of the discipline process. This task force has recommended change. The Benchers have adopted the recommendations of this task force and the necessary rule changes are being drafted. The effect of these changes will be to expand the group of individuals who can serve on discipline panels. Going forward, the three-person panels will be drawn from three distinct groups or pools. One pool will be composed of the sitting elected Benchers. Another pool will be composed of Life Benchers and other lawyers. The third pool will be composed of appointed Benchers, both current and Life, and other non-lawyers. The aim is to have membership from each of those pools on each of the discipline panels.
The dual role of prosecutor and adjudicator has been a sensitive issue for Benchers and the Law Society over the years. It must be said that the task force sees this initial step as an interim one. The ultimate goal is a complete separation between Benchers as prosecutors and Benchers as adjudicators.
This provides an opportunity for non-Bencher lawyers to participate in the adjudicative stage of our discipline process. We already have non-Bencher members participating in the Discipline Committee. The Benchers will seek volunteers to serve in this new capacity, once they have decided on the criteria.
The other task force dealing with discipline matters has made a recommendation with respect to abeyances. There has been a practice of putting our proceedings into abeyance while other proceedings involving the lawyer being investigated are ongoing. This often leads to a long delay and to criticism of our process from both the public and lawyers.
The Benchers have adopted a new approach with respect to abeyances and their use in the future. Certain principles have been adopted, as have the guidelines. These guidelines will be worked through by our Discipline Committee as it implements the new approach to abeyances.
The new principles on abeyances have at their core the following considerations:
1. There will be no presumption to hold matters in abeyance pending other proceedings.
2. Law Society complaint investigations will go as far as possible before abeyances will be considered.
3. No abeyance will be put in place unless appropriate measures dealing with the protection of the public are put in place for this interim period.
4. Abeyances must be justified. There must be a reasonable prospect that the Law Society’s discipline process will cause prejudice by its continuance or that the other proceedings will be useful in providing information for the Law Society’s proceeding.
These principles and the guidelines for the Discipline Committee in determining these matters are posted on the Law Society website (see Appendix 4 of the Benchers’ Governance Policies). It is my view that this approach will serve the public and the profession much better and will ensure a timely and appropriate resolution of complaints.
There is one other topic I would like to address, that being continuing professional development (CPD). By the time this column is published, we will have had our Annual General Meeting, at which there is a member resolution to reduce the CPD requirements for part-time members.
We are now into our second year of CPD. Hopefully, lawyers are a bit more advanced in acquiring their hours than they were in the first year. Our staff spent a great deal of time late last year and early this year in stretching lawyers across the CPD threshold. Staff will not be able to provide a similar level of assistance this year, so it is important to resolve your CPD requirements early.
I can also indicate that the Lawyer Education Advisory Committee will be reviewing CPD now that we have some experience with its operation. It is very unlikely that the hour requirement will be reduced, but there is some consideration of other modifications. For instance, the Barreau du Québec has a 30-hour requirement, but in a two-year span.
I would also like to remind and alert lawyers that, beginning in January 2010, mentoring was included as an activity that earns CPD credits. The Law Society very much wants to encourage mentoring of younger lawyers. This was quite common in the past, but seems to have declined in recent years. Young lawyers in particular are getting less time in court.
It is now possible to obtain six credit hours as a young lawyer who has a mentor and six credit hours for that mentor. For the mentor, that is six credit hours for each lawyer that he or she is assisting, to a total of twelve credit hours.
Please check the Licensing & Membership section of our website for details of the mentoring program and CPD credits in general.