Last year, the Law Society of BC (“LSBC”) received approximately 1,100 new complaints about lawyers. About 1,000 complaints were resolved at the staff level, while approximately 130 were referred to either the Discipline Committee or the Practice Standards Committee for further action. Twenty-seven citations were authorized.
A citation is the start of a formal hearing process. The first stage is a determination of facts (i.e. did you do something wrong). The second stage is penalty. Most discipline hearings result in a fine or suspension, but can result in disbarment. Rarely do they result in the lawyer being exonerated.
How a lawyer reacts to an investigation is often as important as the substantive nature of the complaint. Each year, lawyers end up being cited not for the original complaint, but for failure to respond appropriately to the LSBC. These cases range from ignoring correspondence to outright contempt.
The initial intake stage is similar to charge approval at the Crown. Is the complaint within the LSBC’s jurisdiction? Does it provide sufficient detail to justify an investigation? If proven, does the complaint constitute a discipline violation? Is the complaint frivolous or vexatious in nature? The LSBC provides a schematic of the discipline process on their website.
When an investigation is launched, the investigator will likely contact the lawyer by telephone before sending a formal letter. The biggest mistake lawyers make at this stage is not taking the complaint seriously. Even if it is baseless, the self-regulatory role of the LSBC is essential to the independence of the Bar.
The primary purpose of discipline is to protect the public interest. Lawyers are held to a higher standard than other professionals because they hold a special position of trust. This is nowhere more apparent than when dealing with trust funds.
Trust related investigations are often very serious. In most cases, lawyers have either made a mistake or relied too heavily upon support staff. Fortunately, most trust issues are resolved informally, without citation. However, being fully aware of your trust obligations and carefully supervising support staff, can minimize risk.
Where lawyers get into trouble with trust issues is when the errors are repeated or deliberate. Deliberate misuse of trust funds can garner the most extreme penalties. If you are facing an allegation of dishonesty, you must obtain legal advice before providing a substantive response to the LSBC.
TOP FIVE TIPS
- Remain calm. You are at the start of a process that can take years to resolve. You are not alone. Many lawyers have been through this process and prospered. Do not be embarrassed to seek help. The process is stressful, and having the right supports in place will make a huge difference. The Lawyers Assistance Program is a great resource.
- Obtain independent legal advice before making a substantive response. Even if you just have a one-hour consultation with a lawyer who has experience defending counsel, you will be better able to address the investigator’s concerns. The LSBC keeps a list of counsel willing and able to assist lawyers facing discipline.
- Respond respectfully and promptly to any investigation. You do not need to make an immediate substantive response, but you must convey the fact that you take the process seriously. Beware of “excited utterances” as they can come back to haunt you.
- When an investigation is launched, it is not limited to matters arising out of the original complaint. If you are facing an investigation, make sure that your house is in order.
- Be co-operative, compliant and, when necessary, contrite. All lawyers make mistakes. The key is not to compound that mistake.
Michael Butterfield is a lawyer, mediator and arbitrator. He also assists lawyers facing discipline.