This time it’s serious

by Christopher E Hinkson QC

A letter from the Law Society evokes a variety of reactions by members of our profession. Some of the material emanating from the Law Society is informational and thus welcomed by the recipients. Some of the correspondence requires the completion of forms or the provision of a cheque; an inevitable event that most of us accept with resignation, and some with grace.

Then there are the letters to advise of a complaint received by the Law Society or a concern that might lead to credentialling or disciplinary action on the part of the Law Society. Such letters raise annoyance, indignation, fear and even paralysis in their recipients but cannot and should not be ignored.

Given the volume of complaints reviewed each year by the Law Society, there exists a reasonable prospect that an early response to the Law Society may result in something far less unpleasant than a citation. Clearly the letter should be carefully reviewed to determine the nature and extent of the complaint. Often a response is requested within a specific timeframe, and while most of the staff lawyers are prepared to provide extensions of time for a response, it should not be universally assumed that they will do so. Chapter 13(3) of the Professional Conduct Handbook obliges members of the Law Society of BC to reply promptly to any communication from the Law Society. In determining whether or how to do so, consideration should be given to consulting with a colleague or retaining counsel to assist in the response. There are any number of good reasons why you should not reply without objective advice, and little to be lost in seeking such advice. There are, in BC, a number of senior counsel who are experienced in dealing with the Law Society and who provide assistance and counsel to members of the Society for reduced, nominal, or even pro bono rates. Where your professional livelihood is at stake, one is hard pressed to justify economization as a reason for acting without counsel.

It has been my experience that where the Law Society lawyer handling a complaint is advised that counsel are consulted, they will be accommodating in terms of extensions of time and willing to cooperate in the disclosure of information. It is my suspicion that they would sooner discuss these sometimes delicate matters with counsel rather than with the member of the Law Society directly involved.

Once the Law Society has received the member’s response to a complaint, it can pursue other avenues of investigation but ultimately must decide to either take no action on the complaint, to require the lawyer to appear before a Conduct Review Subcommittee, or recommend that a citation be issued against the member. In addition to choosing one of those options the member can also be referred to the Practice Standards Committee.

From the member’s standpoint, an appearance before a Conduct Review Subcommittee is a far less unpleasant experience than becoming the subject of a citation and effective counsel work on the member’s behalf may be successful in persuading the Discipline Committee to refer the matter to a Conduct Review Subcommittee. This does not foreclose the possibility of a citation, but with the assistance of experienced counsel, may see the matter ended before such a Subcommittee.

Some of our members attempt to deal directly with the complaint process up to the time when a citation is issued. It is difficult as counsel for such an individual to have a citation withdrawn, but Rule 4-13 of the Law Society Rules does provide a mechanism for so doing.

If a citation is authorized it must give the member sufficient detail of the circumstances of the alleged misconduct. As soon as the citation is served the Executive Director of the Law Society may disclose the fact of the citation to the public and the subsequent withdrawal or rescission on the citation will be of little comfort to the member if the original issuance has attracted adverse publicity.

As soon as a citation is served a demand for disclosure of evidence pursuant to Rule 4-25 of the Law Society Rules should be made. This disclosure is, in my experience, as broad as that required of any professional discipline body and should always be the subject of a demand.

In the case of a citation issued against George Thomas McNabb by the Law Society of BC (date of hearing December 12, 1998), the Hearing Panel dealt with the issue of costs and found:

…It is our opinion that the approach of the present-day benchers of the Law Society is towards full costs recovered, within the limits of our rules.

The costs have been incurred: it is only a question of attributing the payment to one party or the other. In this case, either Mr. McNabb must pay them or they will be borne by the lawyers of British Columbia collectively. It is plain that Mr. McNabb is at fault in causing this proceeding while other lawyers in British Columbia are blameless.

Whether one agrees or disagrees with this statement of principle, it has clearly been articulated by a panel of Benchers and remains a reality for those facing the discipline process. In the result, it is best, where possible, to work to shorten the hearing process. It has been my experience that counsel instructed by the Law Society are, in almost all cases, amenable to the preparation of an agreed statement of facts and receptive to the conditional admission process set out in Rule 4-21 of the Law Society Rules or the consent to disciplinary action process set out in Rule 4-22 of the Law Society Rules.

Jerry Ziskrout toiled for years as counsel at the Law Society and once provided me with sage advice as to how to handle a member who was unlikely to successfully navigate through the hearing of a citation. His expressed view was that one should bear in mind the three C’s: Candor, Cooperation and Contrition. I commend his advice to those who face citations.

Section 3 of the Legal Profession Act places as paramount in the objects and duties of the Law Society of British Columbia the protection of the public interest. The practice of law in this province remains a privilege as opposed to a right and, as such, demands of each of us conduct which is in keeping with our legal and ethical responsibilities. The adoption of an attitude of defiance, intransigence or procrastination when dealing with the Society is unlikely to engender a spirit of compromise where a member’s conduct has fallen short. None of us can expect to be proficient in all areas of practice and would do well, in my view, to consult those who are considered to be proficient in Law Society matters, if called upon to answer to a complaint, however unjustified we might feel it is.

I think that many of the unpleasant experiences that the members feel they have had with the Law Society could have been avoided or rendered less unpleasant by reasoned and objective responses to complaints, or a less antagonistic approach to those investigating the complaints, or a less adversarial stance on many of the issues, in the event a citation must be faced. The objectivity of independent counsel should assist this process and, in all likelihood, will reduce your anxiety level and the distractions that will invade the other areas of your practice if you try to handle the matter alone.

This is probably advice that you have given your own clients in one form or another and which you would do well to consider, should you get that “letter from the Law Society.”

Chris Hinkson is a Vancouver lawyer with Harper Grey Easton, who often acts as counsel for lawyers who have received a letter from the Law Society.

This article was published in the December 2001 issue of BarTalk. © 2001 The Canadian Bar Association. All rights reserved.