Procedure for interim suspensions simplified
At their October 2006 meeting, the Benchers approved several changes to the Law Society Rules governing interim suspensions and practice conditions. The changes are designed both to simplify and clarify current procedure and practice under Rules 4-17 and 4-19.
Rule 4-17 provides a summary procedure whereby any three Benchers may suspend or impose practice conditions on a lawyer, with or without notice and pending a hearing, where a direction to issue a citation has been given under Rule 4-13(1), and where the Benchers consider that the lawyer’s continued practice will be a danger to clients or to the public. Rule 4-19 sets out a formal hearing protocol, available to a lawyer or student seeking rescission or variation of an order made under Rule 4-17.
While a Rule 4-17 proceeding is often conducted in a hearing-like manner, it is not a hearing and is not subject to the procedural and process requirements of a hearing. Rule 4-17’s flexibility is important to the Law Society’s ability to move expeditiously to protect the public interest.
The first change codifies the current minimum requirements for taking any action under Rule 4-17’s summary procedure: a proceeding attended by discipline counsel and at least three Benchers, recorded by a court reporter, at which the respondent and his or her counsel may be present.
Next, Rule 4-17 has been revised to confirm the authority of the Benchers to adjourn a referral brought before them, both before and after commencement of the proceeding. Previously, when discipline counsel and respondents were unable to agree on scheduling or adjournment, a formal application had to be made to the presiding Benchers at the date and time set for the referral. Significant expense and inefficiency often followed as the three Benchers, counsel and witnesses were assembled for a referral that might not proceed. Now, a request to adjourn a Rule 4-17 proceeding and supporting reasons must be set out in writing to the Executive Director. The request is then referred to the President or his or her designate, and notice is given to the other party, the complainant and anyone else specified by the Executive Director.
Occasionally, problems with the terms or implementation of a Rule 4-17 practice condition may lead discipline counsel or the respondent to request the presiding Benchers to vary the order (often by consent). However, nothing in the old rule actually permitted such an application or variance. Rule 4-17 has now been revised to provide for summary reconsideration of a condition by the three Benchers who originally imposed it.
Rule 4-19 previously allowed a respondent to apply for such a variation to the three Benchers who imposed the original condition. The Benchers have determined that any application made under Rule 4-19 for variation of a suspension or condition is a review, and as such, should be heard in a formal hearing by a panel of different Benchers than those who imposed the original order. Rule 4-19 has been amended accordingly.
Finally, a rarely used element of Rule 4-17 before it was amended authorized the Benchers to have the respondent examined by a medical practitioner named in the order. In the few cases that arise, the Benchers generally order that the examination be conducted by a qualified medical practitioner, to be approved by a representative of the Law Society (upon confirmation of suitability and availability). The rule has been amended to confirm this established practice. As Rule 4-17 already requires the resulting medical report to be forwarded to the Discipline Committee, the amended Rule requires the Chair or Vice-Chair of that committee to approve the examining practitioner.