Anne Rempel has been dealing with the self-regulatory complaint systems of hospitals, the HNHB-CCAC, and the CIBC regarding elder neglect and financial abuse concerns since 2012. She has been raising similar issues with the LSO complaints system since 2015. See her previous Access Revolution posts on this topic here and here.
The Rules of Professional Conduct state that “A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity” (Rules 2.1-1). The Rules commentary expands on this statement, noting that, “a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety”.
However, in general, the public does not have a positive image of lawyers. A 2018 survey shows that less than 50% of Canadians have a positive view of the profession, ranking lawyers below auto-mechanics at 62%, although above car salespeople at 26%. The public’s negative view of lawyers’ honesty is also apparent from the profusion of jokes comparing lawyers unfavourably with lab rats, or alluding to the “myth” of the honest lawyer. One of themore pointed quips is that there are only three lawyer jokes, while the rest are true stories. In light of this, let’s review some actual complaints about lawyers and the LSO’s responses to them.
Acceptable Behaviour
The LSO’s Rules of Professional Conduct state that lawyers should have a responsibility to their clients and to the communityto “avoid even the appearance of impropriety”. In practice, LSO decisions excuse behaviours by parsing the Rules to give the most favourable possible interpretation of lawyers’ conduct, showing little, if any, regard for the general public.
1. A 2009 Macleans article describes the LSO’s handling of a complaint by Cora MacPhail about a lawyer acting for a local care centre. Cora MacPhail’s son had complained to the care centre and to the local MPP about the care centre’s refusal to provide his elderly mother with a personal care worker while she was confined to a wheelchair following ankle surgery. The lawyer had come to Cora MacPhail’s home seeking information on the matter, but did not disclose that he was a lawyer, instead identifying himself as the care centre’s “director of quality and contracted service delivery”.
Cora MacPhail had wanted an apology for the deception, but instead she got a run-around. The LSO rejected the complaint – twice – deciding that the man was not working in his capacity as a lawyer at the time of the visit.
The matter was then independently reviewed by the Complaints Resolution Commissioner, who referred the complaint back to the Law Society for further review. The Law Society then rejected it a third time.
2. In 2019, Julie Macfarlane, Director of the NSRLP, complained to the Law Society about a lawyer who had recorded a telephone conversation with her without first advising her of his intention to do so. The recording was then transcribed (with a clumsy alteration to make it appear that permission had been obtained) and used as part of a court filing against her.
The LSO rejected this complaint, stating Rule 7.2-3 requires lawyers to inform only their clients or other lawyersof their intention to record a conversation. This courtesy does not extend to the general public.
The LSO also advised Dr. Macfarlane that a lawyer providing a falsified transcript was not their problem, and should be addressed through the courts.
Unacceptable Behaviour
Even when the LSO’s review of a complaint results in disciplinary action, the process appears to have a pro-lawyer bias. The LSO appears to give greater weight to information supplied by lawyers than it does to similar information provided by a member of the public. This affects the priority for action on the matter, the likelihood of the complaint being closed, and the severity of the reprimand.
1. In December 2016 a member of the public complained that her lawyer had counselled her to be dishonest. Her lawyer advised her not to attend her scheduled refugee hearing, but to wait on another floor of the building, so that the lawyer could determine whether the member hearing the matter would likely be favourable. She stated that the lawyer had instructed her to leave the building and telephone the tribunal office to say she was stuck in traffic.In February 2017, the complainant provided the LSO with an audio recording of this conversation.
It was not until a year later, in February 2018, that the LSO sought an interlocutory license suspension, after receiving a submission by Legal Aid Ontario (LAO) in September 2017, which had incorporated the complaint. The LAO complaint covered additional issues and further advised that the lawyer involved had signed a false statutory declaration denying having counselled dishonesty.
The tribunal suspended the lawyer on an interlocutory basis.
Despite solid documentary evidence and the broad implications for other refugee cases, this complaint doesn’t appear to have been taken seriously until LAO added its voice.
2. A member of the public complained that her lawyer, had advised her to act dishonestly following a failed civil action. She stated that the lawyer had advised her that he would bring an appeal to give her time to sell her house and evade the civil judgement against her. Instead of following this advice, she recorded the conversation and included the audiotape of the lawyer’s advice in her complaint to the LSO.
Although the lawyer had advised a client on how to violate the law and avoid punishment, puttinghis client in legal jeopardy if she had followed his advice, this matter was directed to a Regulatory Meeting rather than a Tribunal hearing.
At the Regulatory Meeting in June 2016 the lawyer was counselled about his responsibilities under the Rules of Professional Conduct. No further action was taken.
Matters Before the Courts
The LSO will not generally review a matter that is before the courts. As Malcolm Mercer noted in a 2018 Slaw article, “Law societies tend to defer investigation and prosecution of alleged misconduct in a proceeding until after the proceeding is completed to better ensure that complaints are not used as tactical weapons in proceedings and to avoid interfering with the administration of justice”.
But if a member of the public has supplied credible independent evidence of unethical behaviour by a lawyer, isn’t it in the public interest for the LSO investigate the matter promptly? Whether the unethical actions are deliberate, or arise from ignorance of the correct procedures, the lawyer is likely to repeat them with other members of the public if the behaviours are left unchecked. This could have serious ramifications for the complainant, and for the legal system in general.
For example, if a lawyer is making misrepresentations about the service of documents, the misbehaviour could result in jail time for the complainant for contempt. An investigation subsequent to the event cannot undo the damage to the individual, or to the integrity of the legal process. Similarly, a lawyer selectively editing an audio recording to bolster a claim of admissibility in a defamation suit, as described above, adversely affects both the complainant who is the target, and the public’s confidence in the legal profession.
Illustration by Anne Rempel
In a perfect society in which everyone has the resources for equal access to legal services, the LSO’s course of deferring the opening of investigations until after legal actions are settled could be reasonable. However, that is not the world we live in. In reality, the costs of litigation are likely to result in Joe or Jane Average becoming SRLs, and then being “rolled” by a significant court costs penalty, or by a summary judgement, or by being declared a vexatious litigant. These are all common outcomes for SRLs, which have the spin-off benefit for lawyers of ensuring that deferred complaints will never be investigated. In its attempts to avoid putting a thumb on the scale in favour of the complainant, the LSO is putting a foot on the scale in favour of the lawyer.
It is actions/inactions such as these which perpetuate the public’s low opinion of the legal profession.
Addressing the public’s lack of confidence in the legal profession isn’t as simple as sorting the “good” lawyers from the “bad” ones. To quote Solzhenitsyn, “the line dividing good and evil cuts through the heart of every human being”. Lawyers are no different than other professionals: they will exhibit varying degrees of competence, and varying degrees of honesty. The significant difference is that lawyers self-regulate without external review. As a result, lawyers and the LSO have had little incentive to address the public’s concerns, because the system “works” for them. That is something which needs to change.
You have hit on an issue I have experienced several times. The problem is that nothing is ever done about the self-serving behaviours of these “self-regulating” bodies.
We Canadians are largely ignorant about the hundreds of administrative agencies ABCs that affect all areas of our lives every day; there is so much disinformation about what they can, cannot and must do. Each one gets a specific area of law to enforce. It is how we make complaints and hold our government to account. The only way we redress THEIR wrongdoing is by going to court; the ABCs get full government legal representation. Members of the public get nothing. The judicial imbalance alone is enough to scare most people off.
The number of cases that result from unfair practices and/or unjust and legally indefensible decisions that require judicial review has skyrocketed and forced far too many people, especially SRLs into court in a dispute about governance, against their government, when all they want to do is to see their rights respected. The threat to our democracy and the rule of law is very real.
Our ignorance about these things is understandable given all the confusing disinformation out there; what is not understandable is how lawyers, doctors, judges, police and administrators can cause harm and break the law, that the person who is violated has the full and lone responsibility to remedy the situation in court and how, instead of facing consequences, these actors just get to promise they’ll get the training they should have had before they took their vow to the public.
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This is a very good comment. I will claim to have a better than average understanding of the situation, crediting my first-hand experience, research and background reading. Recently I received a free copy of a new book sent to me by the author, Donald Savoie, in response to an email I sent him. The book’s title is “Democracy in Canada: The disintegration of Our Institutions”. It will be a while before I finish reading it. (By then I anticipate having commenced another action that will be heard by the BC Supreme Court.) Google his name and you’ll find out something about the book and the author. He has had a long career in government administration and notably was involved in what is commonly called the “Gomery inquiry”.
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The index enabled me to find what he had to say about the courts and the judiciary. Not a great deal and I think he was quite surprised by what I shared with him after I’d read as far as the first mention of Beverly McLachlin (on page 95).
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The matter I’m about to pursue with a judicial review petition involves Canada’s former chief justice but I won’t say anything more about that in this comment. If I prevail I expect the judgment will receive very wide attention.
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If the supposedly independent judicial branch was everything the judges claim it is then I think we’d have far less to complain about in the conduct of the executive branch and all it’s quasi-judicial agencies. But I think the truth is that the judges and the quasi-judges did a complete mind meld decades ago.
Dear Anne Rempel!
I appreciate your persistence in exposing the flaws of self-regulatory complaint systems of health professions and legal professions. I believe you have gathered enough stories and data. When are you planning to advocate for dismantling the self-regulation and introducing the public regulation like in England or New Zealand?
Although we are in federal election campaign, I believe we should at least try to make the candidates talk about the access to justice crisis and justice reform. At the candidates’ debate that I go to, I always raise these concerns. Some candidates are embarrassed that they do not know about this fundamental issue while some candidates show willingness to hear more about this issues.
I think we all should try to make this change by using the stories and data that we already gathered.
Koba
Thanks for writing this article, Anne. Based on my experience with the LSO, I feel you’ve hit the nail on the head. For myriad reasons, the legal profession should not be entirely self-regulated, in my opinion. You make a very strong argument for that. The question is this: Is anyone listening aside from SRLS?
law societies are committing criminal obstruction of justice-also they wrote the rules to make a complaint impossible to do and they never give any or proper analysis so when doing judicial review of a law society decision we have to waste court time by giving every possible argue because we dont know why our complaint was denied.
the law society of upper canada was sued in a class action for ignoring complaints.
late last night,, i was quite tired mind you,, and had a glass of wine or two,, but i remember a part of the late news, There is apparently a fellow saying there is now a service, i think it was called ignored unheard, or something like that, They are claiming that if we contact them,, with an issue that has not been raised as relevant in the upcomiing elections,, they will put the matter to the 4 running parties and get their responses to our matter, I think we should contact them,, anyone else think so?? i can do it,, but it would have more weight coming from the national self represented, on behalf of all of us,
Hi Sandra, we are in the midst of sending a series of questions to the parties and some select candidates. We will be posting about the results of this outreach in the coming weeks – we agree that A2J and SRL issues ought to be an election issue, and hope that we can get candidates talking about this.
The Law Societies in Canada have their tentacles in various provincial departments. Just this past week, I received a letter from the chairperson of the Human Rights Commission. She used to work for the Law Society of my province. Years ago, the former executive director of the Human Rights Commission was hired by the province’s department of education.
In that October 15, 2019 letter, the chairperson denied my human rights complaint and closed my file and recommended that “I seek legal counsel” as to whether to apply to the Court of Queen’s Bench for a judicial review. One of the main arguments they denied my complaint was that self-represented litigants are not a recognized human rights class of protected people!