A profession open to the public
William M. Everett, QC
"In the interests of the profession generally, in the public interest and in the interest of being able to demonstrate to ourselves and all who are legitimately entitled to be concerned about how we conduct our affairs, we should, in my opinion, be more open. … I do not see how we can resist the concept that our discipline proceedings should be open to the extent that anyone interested would care to attend … with a proviso that in appropriate circumstances, they may be held in-camera.
— Bencher George S. Cumming, QC (as he then was) in a report to the Benchers, January 17, 1981
Twenty years ago the Benchers made a fundamental philosophical shift toward a more open Law Society discipline process. By 1983, the Benchers had decided that all discipline hearings would be open unless closed by the hearing committee "for good reason," that hearing transcripts would be available at cost and that hearing report summaries would be published to the profession.
The changes were necessary. The early 1980s was a period of regulatory reform, spurred in part by reforms in other jurisdictions and by Bencher concerns over possible government intrusion into the regulatory independence of the legal profession.
Today we recognize, perhaps more than ever, the importance of a self-regulating profession demonstrating that it is open, transparent and acting in the public interest.
This is not necessarily easy. I doubt there is any lawyer, including myself, who likes to read about a colleague facing a discipline hearing or being found guilty of professional misconduct. And if it’s discomforting to read about it in mailings from the Law Society, it’s much more so on the pages of the local newspaper.
For more than 20 years, the Law Society has faced high public expectations for transparency. We have become subject to the provincial freedom of information and protection of privacy legislation and the authority of the provincial Ombudsman (as funding of that office allows). And, of course, we have had lay representatives at the Benchers table since 1988.
The late Jack Webster — as a broadcaster, political observer and one of the first three lay Benchers appointed — brought his own unique perspective to bear. He was passionate in urging the Benchers to adopt a more proactive stance with the media. It was at that time that the Society began issuing news releases on most discipline hearing decisions. From everything I’ve heard, I believe Jack was proud of the steps taken during his term as a Bencher. I wish he could have been part of our journey since.
I believe we will always need to ask ourselves the question: "How open is open?" In other words, what information should we disclose and how proactive or reactive should we be in making disclosure?
For the past three years, the Law Society’s Disclosure and Privacy Task Force has undertaken a systematic review of all regulatory programs to determine what information should be subject to greater disclosure. The Task Force recognizes the importance of balancing interests — those of the public, the profession as a whole, the Law Society, individual lawyers and third parties.
On the discipline front, for example, the Law Society’s process has been open, but not necessarily as accessible as it could be. The Society has routinely disclosed citations, hearing dates and hearing reports on request. However, it was time to take greater advantage of the technology available. We now post on our website a schedule of upcoming hearing dates, accompanied by the text of citations. Lawyers, members of the public and the media can see what is ahead and decide if they wish to attend or track a hearing.
We also electronically publish the full text of hearing decisions and discipline admissions on the website as they are issued — and also keep these archived online for future research. A lawyer subject to a discipline hearing is named in the hearing report, unless a citation is dismissed or an application for anonymous publication is granted. The Benchers have passed rules allowing anonymous publication if there is no suspension or disbarment involved and if publication will cause grievous harm to the respondent or another identifiable individual that outweighs the interest of the public and the Society in full publication. They have rescinded rules that allowed for non-publication of some hearing reports.
We have passed guidelines for hearing panels to follow when naming people in hearing reports. While a respondent lawyer will normally be named, innocent third parties (whose names may appear in evidence before a panel in documents such as audit reports) will not be named because their privacy interests outweigh the need for disclosure.
Though a public process such as a formal discipline hearing merits a fair measure of transparency, what about disciplinary measures falling short of a formal hearing?
Generally speaking, the Law Society’s complaints investigation process is confidential — and the Law Society will update only the lawyer and the complainant involved unless and until a citation is authorized. The promise of confidentiality is important to safeguarding the privacy of complainants, preserving the integrity of the Society’s investigations and ensuring that lawyers are not unfairly prejudiced by publicity arising from unfounded complaints. It sometimes happens that a lawyer's conduct in a courtroom or public venue is reported in the media or a complainant speaks publicly about a complaint. In such cases, the Law Society cannot be put in the untenable position of "denying the obvious." In those cases, we can disclose the existence of a complaint or the status of a Law Society investigation into a lawyer’s conduct if asked.
There are also cases in which complaints are informally resolved. The Discipline Committee, for example, may order that a lawyer attend a conduct review, which is an informal meeting with a Bencher and another lawyer. A conduct review can often help a lawyer identify and overcome problems in practice. Most often, the matter does not proceed to a citation or hearing.
Generally speaking, a lawyer will participate in a conduct review, and derive its benefits, on the understanding that it will remain confidential from persons other than the complainant. However, if the subject of the conduct review is already in the public eye, our rules allow the Society to confirm that a conduct review has been ordered and note its outcome.
For several years, Law Society credentials hearings have also been open to the public, and our rules now specifically provide for online publication of reports and distribution of summaries.
Striking the right balance between a transparent regulatory process and the legitimate privacy interests of lawyers and others will always be a concern. I extend great appreciation to members of the Disclosure and Privacy Task Force for providing guidance to the Benchers as we review our rules and for the hard-working staff who have supported them. I make particular note of the work of Peter J. Keighley, QC (now a master of the Supreme Court) who chaired the Task Force for two years, and am pleased to see this work continued under the new chair, Vancouver Bencher John Hunter, QC.
This year’s Annual General Meeting was the first in recent years at which the Law Society practice fee was not debated. The practice fee was set by a referendum this summer in which a majority of those lawyers voting decided that the CBA fee should be voluntary. While this shift is undoubtedly a challenge for the CBA, I am pleased to see the CBA moving forward with confidence. I wish to thank past President of the BC Branch, Robert Brun, for his professionalism throughout the referendum campaign. I wish all the best to the 2004/ 2005 President, Michael Woodward.
My congratulations to Vancouver Bencher Anna K. Fung, QC, elected by members at the AGM to serve as Second Vice-President in 2005. Anna has all the right qualities to lead the profession and I wish her every success.
I would also like to congratulate Richard R. Sudgen, QC who has been chosen to receive the Law Society Award in 2004. All lawyers are invited to attend the presentation at the Bencher & Bar Dinner in Vancouver on November 17.
I close on a reflective note on our loss of Life Benchers David Gibbons, QC and Henry Hutcheon, QC in recent months. We miss them greatly and will cherish the memories.