Slaw.ca Legal Ethics Column, December 2, 2020
In identifying professional misconduct, legal regulators are heavily reliant on client complaints and receive relatively little help from practitioners. For example, 71% of complaints to the Law Society of Ontario in 2019 were brought forward by members of the public (typically clients) while only 12% came from legal professionals. The problem is that there are many forms of professional misconduct that only professionals, and not clients, can readily identify. Misconduct therefore goes undetected, leaving clients and others to be victimized by bad lawyers who should have been caught after previous offences.
This is especially true in practice areas where clients tend to be legally-inexperienced individuals. An immigration client examining a legal bill often has little basis to say whether it is “fair and reasonable.” A family law client reflecting on the representation she received in her divorce has no real way to know whether it was “competent, timely, conscientious, [and] diligent.”
Lawyers and paralegals are better positioned to perceive these problems and bring them to the regulator’s attention. Experienced immigration paralegals know which of their colleagues do and don’t bill clients fairly. Family lawyers know which lawyers in their community pursue unnecessary litigation at the expense of their clients.
The Duty to Report
Lawyers have a duty to report certain types of misconduct, which listed in Rule 7.1-3. This includes any “conduct that raises a substantial question as to another licensee’s honesty, trustworthiness, or competency as a licensee” and “any situation in which a lawyer’s clients are likely to be materially prejudiced.” It is not clear that this rule is sufficiently understood and appreciated by practicing lawyers. I have personally heard lawyers describe professional misconduct which they would undoubtedly characterize as passing these thresholds, without any sense that reporting it might be an ethical obligation.
Why It’s Hard to Say Something
Why don’t legal professionals complain more often about the bad eggs? I have asked lawyers this question. Some do not think the Law Society will do anything even if they do complain. Others are reluctant to play the role of “snitch” or “tattle-tale.” They perceive that their professional relationships will suffer if they complain about a fellow lawyer, even if the complaint is amply warranted. A complaint might create a grudge which would make it difficult to work with the individual in the future. Ultimately it is not surprising that only 12% of LSO complaints come from legal professionals. But the unfortunate consequence is that bad lawyers and paralegals with inexperienced clients can do a lot of damage to their clients before the regulator catches up with them.
Possible Solutions
Suppose regulators conclude that more reporting from legal professionals would help them detect problems sooner, and thereby save more clients from professional misconduct. Here are a few reforms that might be considered:
- The mandatory reporting rule (7.1-3) could be better publicized to lawyers. It might also be enforced more actively in appropriate cases. A cursory case law search does not reveal any case or reported law society proceeding in which it has been enforced.
- Anonymous reporting could be facilitated. At present regulators generally do have the legal jurisdiction to commence investigations based on anonymous complaints, but pursuing them is difficult for evidentiary reasons and so they are not encouraged. However, if police forces are able to make use of anonymous tips (and encourage people to provide them), it is not clear why regulators cannot do likewise.
- Judges and tribunal adjudicators are legal professionals who are in an excellent position to apprehend professional misconduct, and report it with few if any personal professional ramifications. Arguably, adjudicators should be given a clear duty to report any professional misconduct they observe to legal services regulators.
- Impediments to reporting in certain contexts could be eased. For example, in Ontario prosecutors are forbidden by the Crown Prosecution Manual to personally complain to the law society about defence counsel. According to section D.31 of this document, only the Assistant Deputy Attorney General of the Criminal Law Division may complain about a criminal defence lawyer. There are presumably justifications for this rule grounded in the legal context of criminal defence. However it should be recognized that impeding complaints may mean allowing incompetent defence lawyers to continue seriously damaging the interests of subsequently accused people.
Certain incompetent or rapacious licensees are able to repeatedly victimize inexperienced clients for many years without being apprehended by the Law Society. Scrutinizing the pipeline of complaints – and expanding it to include more information from legal practitioners – should be considered an imperative part of regulators’ public interest mission.
The author is grateful to participants in the Canadian Association for Legal Ethics listserv for their very helpful perspectives on this question.