Today’s post comes from Anne Rempel, who has written before for the Access Revolution Blog about the Law Society of Ontario complaints process. This new post examines how effectively – or not – the complaints process serves the public interest. Anne’s detailed data is available on request.
Recently there has been a lot of chatter on social media and in the legal press about how the Law Society of Ontario (LSO) should be operating in the public interest.
The LSO is a self-governing body which is responsible for regulating the competence and professional conduct of Ontario’s lawyers and paralegals in a timely, open, and efficient manner. The Law Society’s website emphasises that “[t]o maintain the privilege of self-governance, the public interest must always be of paramount concern”. In practice, the public interest appears to run a distant third to the interests of the LSO and lawyers. An increasing number of public complaints question the transparency and fairness of the LSO complaints process in a number of areas.
Compliance with national benchmarks
The Federation of Law Societies of Canada sets national discipline standards for the handling of disciplinary complaints. In 2016, the LSO was significantly non-compliant with these benchmarks.
Resolution/referral times
In 2017, the LSO restructured its process, resulting in outward compliance with the resolution/referral benchmark in 2018, but this came at a cost to the public. In the new system, the opportunity for external review of LSO decisions by the Complaints Resolution Commissioner (CRC) has significantly decreased.
Prior to 2017, the Intake department either closed complaints or referred them to the two investigation departments, where they fell under the purview of the CRC. Complaints Resolution received less serious complaints, and more serious ones were handled by Investigations. Under the new structure,
- the two investigations departments have been merged into the Enforcement department, which handles the more serious complaints;
- the Intake department, renamed Intake and Resolution, resolves less serious complaints.
By 2018, Intake and Resolution was handling approximately half of complaints that under the old structure would have been referred for investigation (calculated by comparing the number of total reviews, which is relatively constant, with the number of investigations). Complaints resolved by Intake and Resolution are not eligible for external review by the Complaints Resolutions Commissioner (CRC). As a result of this restructuring, only 31 files were reviewed by the CRC in 2018 – one sixth the number of previous years. The bar graph below shows the plummet in “serious” complaints.
The public’s ability to appeal to the CRC is being virtually eliminated. A further drop will be apparent in the next 12 months when the impact of these structural changes fully kicks in at the CRC stage, which lags about a year behind investigations.
I would argue that restructuring in this way does not advance the public interest or engender public confidence.
Contact frequency for open complaints
The Federation’s national standards require contact frequency with complainants at least once every 3 months in 90% of cases.
In its May 2019 report to Convocation, the Professional Regulation Committee advised that the LSO had not met the benchmark for contact with complainants and subjects for the past 3 years. The report states that the LSO “made a decision that contact with complainants and subjects within a 90-day period is not optimal”. It continues: “it would not be reasonable for the Law Society to expend the resources necessary to meet this benchmark” and that “contact within that time period does not always serve to advance the process for either the complainant or the licensee subject”. The LSO proposes a 5-month (150 day) contact frequency as more realistic benchmark.
There are two problems with the LSO proposal.
- It does not address their worsening performance in this area.
- In 2016, 76% of cases had contact with complainants at least once every 3 months. In 2018, it dropped to 60%.
- This pattern is repeated with the subjects of complaints. In 2016, 71% of cases had contact at least once every 3 months; in 2018 it was 59%.
- The LSO has not consulted with the other parties affected by their proposed changes.
- A May 2019 Law Times article on this matter discusses lawyers’ and paralegals’ (the subjects of complaints) objections to the change. It highlights the negative effects of delay on their health and careers, and argues that fairness and access to justice should not come at the cost of organisational efficiency.
- These objections are equally valid for complainants. The slowness of the LSO complaints process has significant financial and legal ramifications, as well as attendant stress, for complainants. If the subject of the complaint has failed to produce documents, missed court appearances, or misappropriated trust funds, then prolonged delays may mean that the complainant needs to engage new counsel, or become a self-represented litigant. There is a risk that other members of the public who contract the same professional will be similarly affected, if the behaviour raised by the complaint is not corrected in a timely manner.
The voice that has been noticeably absent from all of the discussions about the discipline standards is that of the public, the group whose interest is supposed to be paramount.
What should a lawyer who is the subject of an open complaint be permitted to do?
Balancing the interests of the lawyer being investigated with those of other parties during the investigation of a complaint is a delicate issue. The current balance appears to disadvantage the public. The LSO has a policy of not making information about open investigations publicly available, to avoid being unfairly prejudicial to the lawyer. However, it is unacceptable for the LSO to provide the public, lawyers, and law associations with bad or misleading information.
Currently, the LSO restricts a number of activities when a lawyer is the subject of an open complaint or investigation. They may not:
- Act as an articling principal
- Apply to be, or continue to act as, a Coach or Mentor for the LSO’s Coach and Advisor Network (CAN)
In contrast, during the course of an investigation, and even after a Regulatory Meeting has been scheduled, a lawyer may:
- Train other lawyers at LSO approved Continuing Professional Development (CPD) days
- Join, and continue to act in, local Law Association committees which actively promote members’ opinions or guidance on the area of law being investigated
LSO training days and local law association committees are widely advertised on the Internet. Being a trainer at CPD days or being advertised as a law association’s point of contact for advice to other lawyers gives the general public the impression that the lawyer involved has skills which are held in high regard. This is not appropriate when, at the same time, the LSO considers the lawyer unsuitable for supervising articling students or advising CAN users.
The LSO restrictions should be uniformly applied to all training, coaching, and/or mentoring activities endorsed by the LSO. I would argue that the lawyer should also be required to suspend his/her advisory activities on local law association committees.
If the LSO’s own programmes for providing advice to other lawyers impose restrictions on the subjects of open complaints, then the LSO should afford similar safeguards to the general public.
Compare the LSO approach to advertising
The LSO is aware that the quality of legal practitioners is difficult for the public to assess, and considers it particularly important to eliminate misleading, confusing, or deceptiveadvertising. This is an admirable goal, but the LSO’s priorities in this area are questionable.
In 2018, the LSO brought 9 cases of misleading advertising to the Tribunal. Two of these (Law Society of Ontario v. Weinles, 2018 ONLSTH 105and Law Society of Ontario v. Goldfinger, 2018 ONLSTH 103)involved the inclusion of the word “golden” in the firm name. The LSO considered that “golden” suggested qualitative superiority to other lawyers.A third case (Law Society of Ontario v. Alexiu, 2018 ONLSTH 99) involved an advertised telephone number which ended
with “UWIN”, but the advertisement did not include a disclaimer that not every case would be won.
Although the LSO devotes significant resources to this matter, their priorities are severely out of step with public expectations. Terms like “golden” and “UWIN” are trivial matters – 21stcentury consumers are savvy enough and familiar enough with common advertising practices to take such naming conventions with a grain of salt. In contrast, the LSO permits lawyers to be advertised as trainers for CPD (implying favourable status) while they are under investigation (see above), a practice with a far greater potential to mislead the public.
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I would welcome a wide-ranging review of the LSO complaints process, giving the public a voice in this discussion , and including a commitment to renewing consumer trust.
You are wasting your time to going to the Law Society…to them you are a minion and perceived as wasting their time. YOU WILL NEVER recover the money you paid in fees, even when a lawyer has missed limitation periods three times in a row and abandoned files without notice (all the same client).
The LawPro insurance company is owned and controlled by the Law Society, as is TitlePlus (property title insurance). They are for-profit businesses. LawPro will fight you to the death before it will pay out to a victim of a dishonest and incompetent lawyer, even if the trial judge comments clearly about the lawyer’ failures in the matters the swindling lawyer handled.
Check out Small Claims Court (Ottawa) files 16-SC-142743 and 16-SC-142745 to see how badly you can get ripped off. So far, I extrapolate from their latest cost submissions in my application to have the files transferred to Superior Court, that LawPro has paid some 8 lawyers roughly $35-40,000 to get rid of my two small claims for recovery of wasted fees and costs awards against me (one claim approx. $9,000 and the other approx. $10,000).
The Law Society and LawPro will never allow innocent victims to win their meritorious cases. The Law Society must go, self-regulation must end.
Self-regulation rarely works due to lawyers looking after their own. Only in very egregious incidents, e.g. your lawyer sexually assaulted you and you reported it immediately to the police who took a DNA sample of his sperm will the Law Society disbar him. Him missing deadlines is not that serious in the minds of the Director of Discipline.
The Law Society’s website contents are very misleading. No. 1 priority is the preserving the reputation of the Society’s executives. Second, defend the province’s lawyers. Lastly, pay lip service to protecting the cynical public and that includes former clients.
The provincial must disband all law societies in Canada and take over the regulation of lawyers! There would be LESS corruption.
A lawyer has harassed me from August to December of 2018. He showed up outside my home on numerous occasions in the middle of the night pounding on the door, unannounced. . He even brought his plaintiff to my house in the middle of the night. They stood on the sidewalk smoking, staring at the house. I filed endless complaints and the prick running intake kept saying he couldn’t give legal advice. I never asked for legal advice, I already had a lawyer which he knew. It was a total run around.
My story is well known at the NSRLP & Law Society of Ontario. In my case the legal profession and the Law Society of Ontario ignored their duty to the Rule of Law and the Public Interest to save a few senior Bay Street Club Members. The Law Society knowingly sent an innocent person to prison to protect their buddies. This type of corruption and abuse of position will never stop until complaints and investigations against lawyers are handled by an independent entity outside of the profession and the Law Society of Ontario.
As a self-represented litigant, I provided to the Law Society of Ontario irrefutable, forensically certified evidence that Bay Street lawyers from three of Canada’s largest law firms committed criminal offenses in my case including obstruction of justice, fabricating evidence, perjury & threatening witnesses anonymously via email. The lawyers’ criminal acts resulted in my imprisonment in a civil case costs hearing which I was not notified of and therefore not present for. My evidence has been examined & publicly supported by the NSRLP director, a former federal cabinet minister and Chief of Police, a former section director of the Ontario Centre for Forensic Science, various journalists and several thousand of my fellow Canadians.
My case is also little different from hundreds of other cases and complaints – except that I have professionally collected and certified evidence. Even with that, the Law Society did what it did to me. Ordinary Canadians without evidence gathering skills haven’t a hope in hell of achieving justice from the Law Society of Ontario.
If the LSO truly believes that the quality of legal practitioners is difficult for the public to assess, then it should provide public information or guidelines on how to assess the quality of legal practitioners. For example, some regulatory organizations provide public information on what questions to ask and how to assess the competence of their members.
I agree LSO’s wasting of resources to adjudicate advertising issues is unacceptable when they say they do not have resources to investigate complaints of competence of their members and expect the courts to do that job. Those advertising issues could be resolved without conducting hearing. They just want to show that they are conducting hearing against their members. However, in reality, those hearings are on petty issues. I would be interested in knowing more on the number of competency related complaints made and competency related hearings conducted with comparison to the level of public confidence in the competency of lawyers practising in the community.
For those who are interested in research, I would like to make a suggestion.
Can you please conduct a survey on the level of public confidence in our institutions such as the courts, law society and Canadian Judicial Council?
This may be broken down into confidence in their impartiality, confidence in their competency, confidence in the rule of law, confidence in being heard and etc.
Participants can be asked to rate their confidence in percentage. These percentages can be, then, used to calculate meaningful statistical measures for interpretation.
The participants have to have used the services of these institutions, so that they can correctly rate the confidence level based on their experience. In addition, participants should be only public members (lawyers are not public members for this purpose).
If necessary, later, we can conduct a survey to include public members who did not use the services from these institutions as well, but it may be a lot of work.
If necessary, we can conduct a survey only for lawyers to understand which percentage of the sample have over 50% confidence and which percentage of the sample have below 50% confidence. We can use the result to find if there is any connect or disconnect between what the public believes and what the law professionals believe.
Developing these kinds of evidence may help us advance some of our arguments or causes.
The most important thing everyone needs to know is that your complaint is NOT confidential at all. I made a complaint, sent in my evidence and confidential letters from therapists and doctors to the LSO. They, then, sent the material to the lawyer, which I understand, so he may respond to the allegations.
However, once the material you sent confidentially is in the lawyer’s hands, he/she may do what they wish with it! In my case the lawyer copied everything and sent it to my ex without my permission. The lawyer wasn’t even representing my ex anymore.
The LSO dismissed my original complaint and refused to take my new complaint about the lawyer copying and giving out my confidential material in the complaint!
I took everything to the Complaints Resolution Commissioner (CRC) and had a hearing. Of course the CRC had a lawyer there working for them.
In the end, the lawyer was sent a letter that they should have communicated with me after I wrote a letter asking if they were indeed representing my ex. (they were, but nothing had been filed in the court file)
So, it appears that it is OK for the lawyer you are complaining about to disseminate your “CONFIDENTIAL COMPLAINT” to whoever they choose to once it is in their hands.
BEWARE that your complaint is only confidential with the LSO, and not the lawyer you are complaining about.
Anne Rempel,
You have invested your valuable time researching LSO. I am trying to figure out if I can make use of your research findings. For measuring the strength of institutions, United Nations uses several indicators, some of which are:
16.6.1 Primary government expenditures as a proportion of original approved budget, by sector (or by budget codes or similar)
16.6.2 Proportion of population satisfied with their last experience of public services
16.7.1 Proportions of positions in national and local institutions, including (a) the legislatures; (b) the public service; and (c) the judiciary, compared to national distributions, by sex, age, persons with disabilities and population groups
16.7.2 Proportion of population who believe decision-making is inclusive and responsive, by sex, age, disability and population group
If you have data regarding these indicators, can you please share them with me.
I am in the process of preparing an argument that Law Society of Ontario and Canadian Judicial Council are not maintaining a proper standard of learning and professional competence and not serving the public interest. My initial work can be seen at this link. https://www.linkedin.com/pulse/self-represented-litigants-human-rights-activists-who-konesavarathan?articleId=6557172252121591809#comments-6557172252121591809&trk=public_profile_post
Please let me know if you can contribute with some of your ideas?
Sandra Moore, Donald Best, Sheila McKinnon and everyone who had bad experience with Law Society of Ontario or Canadian Judicial Council! Do you mind sharing your stories with me for use before United Nations Human Rights Committee along with my case? You can contact me at koba19k at hotmail dot com
Whoever cares about rule of law and concerns about Canadian justice system, please review my article and provide your comments or suggestions. It will be very helpful for me to advance the cause. You can find the article at the following link: https://www.linkedin.com/pulse/self-represented-litigants-human-rights-activists-who-konesavarathan?articleId=6557172252121591809#comments-6557172252121591809&trk=public_profile_post
My mother passed away Oct 21 2016. The two executors of the estate are one of my sisters & me. Since there have been several issues with my sister withdrawing funds from my mother’s account, my sister does not want to communicate with me. I have requested information from the lawyers office on numerous occasions without a response. They did inform me several years ago that they will not do any work that they will not be paid for. I requested an accounting of their service to date. They did not respond to my request. Under the law the lawyers office is required to communicate with any executor of the will. My sister has information that could only come from the lawyer. I am pressured for answers from my family. Since the lawyers office has choosen to ignore me, I am not sure how to provide an explanation to other family members. This is humiliating, frustrating, tiring and extremely insensitive . I filed a complaint with the law society of Ontario against the Law firm handling my mother’s estate. A letter was fowarded to me from them in June 2019 indicating a review will follow to determine if an investigation was warranted. I have not had any futher correspondence from their office. I have called the Law Society 3 times regarding the status on my complaint & I have not had a reply to date. This is unbelievable & insensitive!
At this point you can only ask, do Lawyers protect lawyers? Who protects the interest of the average person under the law?
Hire another lawyer to fight a lawyer that is supposed to be regulated by a governing body, managed by lawyers?
What a system!
From reading numerous articles, it seems that Law Societies in Canada will only take action against lawyers who sexually assaulted a client, stole from the clients’ trust accounts, tricked a client to invest in the lawyer’s outside company in return for a promised result, continually refused to respond to the Law Society’s request for information, lied to a client about the true progress of a case, belittled a judge. Otherwise, you’re barking up a tree when you complain about a lawyer’s tardiness, incompetence, conflict of interest, unethical conduct.
WOW! That sounds like it is the truth!!!
Brian,
Send emails, phone and be a squeaky wheel until they respond to you. Even then, it’s so frustrating and usually nothing is done unless the lawyer actually committed a criminal code offense that the police charge him/her for and then he/she is found guilty…only if they can’t bury the complaint will they do anything to their own.
See my post above. Unbelievable really in our great country!
Handed over several communications, with both lawyer and her assistant discussing my case, confirming the retainer was paid to lawyer. Complaint is as my lawyer she acted in the interest of the opposition my spouse.
Her argument was not my lawyer.
My ex-husband started breaking things, stomping, yelling and threatening me. I screamed and lost control until he eventually left the house.lawyer called saying I needed to let him back in, she carried as if she was threatening me. I had a friend call her and ask her if she was my lawyer, she stated yes. He went on to ask her if my lawyer Should be telling a client to let the perpetrator of domestic violence back in to the home.
The most black and white proof I provided is a specific email from my lawyer to my husband which appeared on a common device.she had sent an email to both of us after the violent episode stating she would not be able to correspond with either of us.
This email was from the lawyer to my husband. It was written with specific instruction to not let me see it. It was a settlement draft written up representing his interest and obviously using the knowledge I had provided to her.That email was clearly from her and it clearly showed that she thought she was my lawyer and that she needed to have the dress she prepared for my husband.
Christmas day, my husband daughter are now at these lawyers house. Needless to say I do not want my daughter around this, end result police etc.
I was promised that after the lawyer provided her perspective I would have a chance to review and respond. I was never contacted a gain well over a year past and I was sent a simple letter stating the lawyer was in the wrong and that I notation would be put on her file.
Any suggestions?