New summary hearings for regulatory violations

The Benchers have authorized a new hearing process that will provide an efficient, timely and cost-effective mechanism for dealing with lawyers who fail to observe their regulatory obligations.

A similar process used by the Law Society of Upper Canada has resulted in a high level of complainant satisfaction and is seen as demonstrating to the public that complaints are taken seriously.

While the vast majority of lawyers are conscientious practitioners, those who fail to follow Law Society regulations often fall into one of two groups: lawyers who are struggling or “crumbling” and lawyers who are trying to delay the Law Society’s investigation of, or hide, serious underlying misconduct (e.g., refusing to bring accounting records up to date to hide misappropriation).

The usual citation and hearing process is overly cumbersome for dealing with these cases, especially when they need to be resolved as quickly as possible to expedite investigation of an underlying complaint or to expedite an investigative audit of a lawyer’s financial records.

Under the new process, complaints that allege that a lawyer has breached a Law Society rule, breached an undertaking given to the Law Society, or failed to respond to communication from the Law Society can be referred to the chair of the Discipline Committee who has the authority to issue a citation.

New rules confirm that evidence can be presented by affidavit and will allow the hearing panel to deal with verdict, penalty and costs in a single hearing instead of the two hearings now required.

The Law Society expects that most of these hearings will be held in front of a single Bencher rather than a three-member panel.

Additional rules ensure fairness to the lawyer facing the charges by permitting the Discipline Committee chair to refer the allegations to the full committee and by allowing a single-member panel to refer the case to the President to consider appointing a three-member panel with the standard hearing procedures where appropriate.

The summary hearing process is expected to speed up significantly the Law Society’s response to regulatory violations.

The Benchers have previously stated in LSBC v. Dobbin [1999] LSBC 27, that failure to respond to Law Society correspondence is prima facie evidence of professional misconduct and that one letter and one reminder should be enough to elicit a response.

In cases involving breach of an undertaking given to the Law Society (for example, a lawyer who continues to practise real estate law after agreeing not to), the streamlined process will allow the Law Society to step in quickly, enforce the undertaking and ensure protection of the public.

In addition, the summary hearing process will allow the Law Society to deal more expeditiously with lawyers who fail or refuse to keep their financial records as required by the rules and will ensure the public can have confidence in a lawyer’s handling of trust funds.

Amended rules will be posted on the Law Society’s website and copies will be mailed with the next Benchers’ Bulletin.