Canada, Crime, Legal Ethics

The View From Up North: Law Society Investigations Process Should Be Investigated

When it comes to legal ethics, who will guard the guardians?

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One thing I remember best from law school. Professor Ron Delisle said, “Justice must not only be done, but must also be seen to be done.” It’s a bit of an unwieldy sentence, but it encompasses some of the most important concepts in a free society.

Like rule of law. No one is above the law.

Like transparency and independence within our justice system. Our trials are, for the most part, held in open court. We have appellate courts to review the work of judges below them. The Prime Minister can’t tell even the lowest judge how to rule on a case.

Like freedom of the press, which provides oversight and an independent voice to challenge those in power who abuse the system.

The system isn’t perfect, but it works pretty darn well most of the time.

Let me ask, how does a country built around those lofty concepts allow lawyers to regulate lawyers?

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The Law Society of Upper Canada (LSUC) is charged with supervising and disciplining Ontario lawyers. It was created by an act of the Legislative Assembly in 1797. That’s almost a hundred years before Canada was born as a nation, which should tell you something about the anachronism that is LSUC.

LSUC is led by a lawyer (the Treasurer) and supervised by a board of governors knows as the Benchers. Forty of the forty-eight elected Benchers are lawyers. LSUC’s day-to-day operations are run by a professional staff, many of whom are lawyers. The CEO, Robert Lapper, is a lawyer. Three of the four Executive Directors are lawyers. The Director of Policy is a lawyer.

The Ontario government provides Ontario lawyers with a statutory monopoly to practice law. As you’ll recall with most other monopolies, the government steps in with price controls to protect the public from the greedy people who have been granted the monopoly (ask the old telecoms about that). Not so with lawyers. Free to charge whatever they can get.

And, yet, the CBA’s recent Futures Initiative report, which was written to create change within the legal profession, notes one of our biggest problems: “[T]here are still many individuals and communities in Canada with inadequate access to any type of legal services.”

Duh? Lawyers have been granted a statutory monopoly with no price controls. Surprise, surprise, a lot of people can’t afford to engage a lawyer.

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Let’s not even joke about the nobility of the legal profession. It’s a business. Sure, there are still a few noble souls who treat their clients and the system with uberrima fides, the utmost good faith. The remaining lawyers practice law to make a living. Most lawyers make a respectable attempt at being ethical. Most lawyers can give a great speech about striving to put the client and the legal system above profits per partner. But, we all know that lawyers can say pretty much anything that bolsters their position without straining their antiperspirant. In fact, they get paid to make arguments they don’t even believe in.

Bottom line, the people who have the most to gain from the monopoly are the same people that govern the monopoly.

How in the world can we ever inspire public confidence with that system?

Here’s the Toronto Star story that drove this column. A former investigator for the Law Society says that he was unable to effectively do his job because of heavy caseloads and confidentiality rules. John Cottrell worked for LSUC as a forensic auditor from 2007 to 2011. His job was to investigate lawyers for wrongful conduct.

His two biggest issues: first, there was a great deal of pressure to meet quotas, which meant John and his fellow investigators did not feel they had adequate time to investigate claims against dirty lawyers. They felt systemic pressure to meet monthly quotas and finish cases quickly. He stated that he and fellow investigators often simply closed cases to meet quotas.

You mean cases, John, that probably warranted more investigation, but because they weren’t quick and easy, they were closed in favour of cases that might take less time? I’m sure the citizens that brought those quickly dismissed claims felt like their voices were heard. I’m sure they didn’t think for a moment the system was dirty. Lawyers protecting lawyers.

Second, in cases where he was investigating an alleged criminal offense, John was forbidden from communicating with police due to “confidentiality rules.” This included times when the police were already investigating the same lawyer independently. That makes total sense. We wouldn’t want our Law Society to cooperate with the cops to make sure we bring a dirty lawyer to justice.

Earlier this year, another former LSUC employee also made grim allegations. Steve Sherriff was in charge of disciplinary prosecutions from 1982 to 1989. He is of the opinion that LSUC is both legally entitled to, and should, report a lawyer’s criminal conduct to the police. He also said he has serious concerns that the way LSUC handles criminal conduct by lawyers puts the pubic “needlessly at risk.”

So, what do we have? A statutory monopoly, regulated by the people who have been granted the statutory monopoly facing serious allegations that they don’t do enough to protect the public. Not to mention that lawyers are commonly seen as the most powerful people in society. Lawyers prosecute people. Judges sentence them to jail. Lawyers write the laws. We turn to them at our most vulnerable. Divorce. Serious injury. Death of a relative. We put our faith in them that they will place our interests above their own. We place our life savings in their trust accounts. We should rightfully expect uberrima fides.

When they wrong us, we ask a regulatory body run by their brothers and sisters to help make amends. We use other lawyers to chase them, often at great additional cost.

That’s why the allegations in the Star’s story smell worse than the dumpster behind Osgoode Hall. Keeping with our theme, even if the Law Society is effectively regulating lawyers, it certainly can’t be seen to be effectively regulating lawyers when it faces serious allegations like this. Put differently, how can the public have confidence LSUC is protecting it, rather than covering up scandals that might hurt the monopoly?

How did LSUC respond to the Star’s investigation? As expected, it didn’t respond to specific allegations. A spokesperson essentially said that LSUC’s mandate is to protect the public through comprehensive and timely investigations. He added that, in the opinion of whoever asked him to speak on LSUC’s behalf, LSUC meets the challenge.

Thus, LSUC thinks it’s doing an adequate job of investigating claims. No shock there.

How about this imaginary conversation between a concerned citizen and Environment Canada, which is the regulatory body that oversees Canadian environmental compliance:

Concerned Citizen: Hi Environment Canada, I’m worried that your internal policies and investigative procedures actually help companies skirt the law and create more pollution.

Environment Canada: Okay. We’ll conduct an internal investigation and get back to you.

Two days later….

Environment Canada: Hi, Concerned Citizen. We conducted our internal investigation and concluded we’re doing a great job of protecting the environment.

Concerned Citizen: Oh, super. I’m so relieved. Thanks for taking my concerns seriously.

Anybody willing to accept that process?

In the face of serious allegations, should we simply accept LSUC’s statement that it thinks it is adequately protecting the public, or should we demand an independent investigation conducted by non-lawyers?

It could be that Cottrell and Sherriff are disgruntled ex-employees who are taking advantage of a public forum to Brazilian wax their ex-employer. But considering their former positions and insider knowledge, these allegations are too serious to discount as carping.

Time for the Law Society to peel back the curtain and provide some real transparency. Time to show that Ontario lawyers are subject to the rule of law; that they don’t get special treatment because their brothers and sisters are the ones who govern the system.

If LSUC is doing a great job of protecting the public, an independent investigation will confirm it. If it’s not, the public deserves to know this and expect meaningful changes to be made.

That’s the View From Up North. Have a great week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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