Law Society program updates
The Law Society operates more than 20 programs, grouped into six operational areas: Credentials and Education, Insurance, Policy and Legal Services, Professional Regulation, Executive Support and Corporate Services.
Throughout the year, department heads provide reports to the Benchers outlining program goals and key performance measures. In September and October, the Benchers heard from the Professional Conduct and Discipline Department and from the custodianship and trust assurance programs. Below are summaries of those reports.
Professional conduct and discipline
The number of complaints against lawyers continues to drop even as the number of lawyers in the province grows, Chief Legal Officer Howard Kushner and Director of Professional Regulation Stuart Cameron told the Benchers at their September meeting.
Complaints have been dropping steadily for several years, from 1,591 in 2002 to 1489 in 2006, even though the profession has grown from 10,836 members to 11,410 over the same period, Kushner noted.
The Professional Conduct and Discipline Department — which investigates and prosecutes complaints — also reported continued progress in complaints investigations with more files closed than opened from January to August 2007.
Recent changes to the complaints and discipline process include the division of the department into two, specially trained groups to handle different types of complaints.
The investigations group, with six lawyers, examines the more serious and complex complaints. Its goal is to provide “a timely, transparent, fair and thorough review of files” and to determine whether they should be sent to the Discipline Committee or the Practice Standards Committee for further action, Cameron explained. This focused approach ensures efficient and thorough preparation if the case is referred to one of the Law Society’s three discipline counsel for prosecution. The investigations group handles about 25 per cent of complaints.
Frequency of complaints
Yearly comparison of complaints as a percentage of practising lawyers.
The remaining 75 per cent of complaints usually involve service-related problems, such as poor communication, and are handled by the intake and early assessment group. These complaints often do not warrant discipline but do require a response from the Law Society. They are also best dealt with as quickly as possible before the problem worsens. “The goal is to renew and restore communication between lawyer and client where possible,” said Cameron. “Many complainants are more interested in getting their lawyer’s attention than waiting for any disciplinary action to be taken.” The intake group’s three lawyers and two paralegals have all taken training in mediation and inter-personal conflict resolution.
Surveys of complainants — BC is the only law society in the country to survey complainants — show general satisfaction with the Professional Conduct and Discipline Department’s work. In 2006, 75 per cent of complainants expressed satisfaction with timeliness, while 90 per cent were satisfied with courtesy and 65 per cent were satisfied with the level of fairness and thoroughness of the Law Society’s work. A 2006 survey of lawyers who have been the subject of complaints showed even better results with satisfaction rates of 90 per cent or higher in all areas.
“We use the survey results to help us find ways to improve our handling of complaints,” Kushner said. “The success we have had with the surveys has caused other Canadian law societies to look at the merits of adopting a similar program.
The new, in-house custodianship program is expected to reduce the average cost of custodianships in coming years, said Graeme Keirstead, the Law Society’s manager of custodianships and special fund, in his department’s report to the Benchers.
Section 50 of the Legal Profession Act authorizes the Law Society to apply to the BC Supreme Court for appointment of a custodian of a lawyer’s practice when the lawyer is unable to continue practising for reasons such as illness, death, suspension or disbarment, and has not made arrangements for his or her clients.
The number of custodianships has grown in recent years, but remains small. The late 1990s saw approximately six a year while there have been an average of 12 in each of the past four years. Further increases are expected in coming years as the profession ages. Enforcement of trust accounting rules through the new Trust Administration Program and consequential suspensions for financial irregularities are also expected to add to the number of custodianships.
Historical data shows that between 2002 and 2006, the average cost of a custodianship was approximately $120,000.
To reduce costs and to take advantage of in-house expertise and resources such as paralegals and administrative support, the Law Society began using staff lawyers in December 2006 to handle custodianships. The society also requested changes to the Legal Profession Act authorizing the Supreme Court to appoint the society, rather than a specific lawyer, as a custodian. This eliminates the need to reapply to the court for a new custodian if the lawyer handling the custodianship is unable to continue. It also allows the custodianship department to manage its resources better.
Keirstead reported that one of the first in-house custodianships — which began March 1 of this year — is estimated to have saved $30,000 in external fees. The case resulted from a lawyer’s failure to comply with an undertaking to the Law Society to wind-up his practice following a disciplinary suspension. It required a search-and-seizure order and a sheriff’s assistance to take custody of 200 boxes of practice records from the lawyer’s home. There were no accounting records, many of the files were mouldy and some contained rat feces. Law Society staff are now reconstructing the financial records to determine if clients are owed money. Staff have spent more than 1,600 hours (including 700 hours of lawyer and paralegal time) on the file.
The Law Society is further reducing custodianship costs by increasing the use of locums to manage or terminate the practice of another lawyer. These are cases where the society is in a position to seek the appointment of a custodian, but the lawyer has made acceptable arrangements, such as the estate of a deceased lawyer retaining counsel to wind up the practice.
Locums are generally more appropriate where a member is ill or has died, but can also be used when a member is facing a short suspension. “The only cost to the Law Society is staff time spent helping to arrange the locum, providing some limited support and dealing with requests from the public and other counsel in relation to the law practice,” Keirstead explained.
The Law Society seeks repayment of costs incurred in custodianships, although recovery is not always possible.
Keirstead also said he is preparing an information guide explaining how to make arrangements for winding up a law practice. “Only 12 per cent of our members have appointed winding-up caretakers,” he noted. “As the profession ages, we want to make sure lawyers — particularly sole practitioners — make proper arrangements for their practices and clients.”
The Law Society’s Trust Assurance Program will help new law firms understand how to setup their trust accounting systems properly, Chief Financial Officer Jeanette McPhee explained to the Benchers at their October meeting.
In addition to visiting new firms to explain the trust accounting rules, staff auditors provide telephone advice and have a number of publications available — including a bookkeeper’s handbook — to help any lawyer who has questions about trust accounting.
The program, which began in January 2007, eliminates the need for most firms to file an accountant’s report — resulting in a financial saving to firms — and is funded entirely by the Trust Administration Fee.
“Our goal is to ensure that all law firms scrupulously follow the rules relating to the proper receipt and handling of trust funds,” McPhee said.
Trust reports from the province’s 3,300 firms are processed by in-house auditors who assess each firm’s compliance with the trust accounting rules. Firms are then selected for a compliance audit with priority given to those firms who have demonstrated a low compliance and the remaining firms chosen at random.
When fully staffed, the Trust Assurance Department expects to audit each firm at least once every six or seven years.
Up to this point, most firms have shown proper compliance, with seven per cent requiring further follow-up and four per cent being referred to the Professional Conduct Department for further review.
McPhee noted that feedback from law firms has been very positive with almost all lawyers who responded saying they appreciated the auditor’s advice.
“Over the long term, we hope to see a reduction in the number of financial suspensions and the number of referrals to Professional Conduct, along with improved performance on key compliance questions in the trust report filings,” she added.