Written by Kate Lunau on Thursday, April 30, 2009 16:00
SPECIAL REPORT: Critics say there’s a problem with how lawyers are regulated
Cora MacPhail doesn’t dislike lawyers. She has close friends who are lawyers; family members, too. MacPhail considers the law to be an honourable profession. Which helps explain why her dealings with the Law Society of Upper Canada (LSUC) left her shaken.
In 2006, MacPhail was confined to a wheelchair for eight weeks following ankle surgery. The retiree, who lives alone in London, Ont., asked for help at home from a local care centre, but due to a mix-up, was at first denied (the centre later apologized, and provided her with services including a personal care worker). MacPhail’s son fired off a letter of complaint to the local MPP, and copied it to the centre; days later, the elderly woman got a knock on her door. It was the care centre’s “director of quality and contracted service delivery,” who questioned her and her son about the letter, she says. The meeting left her feeling uneasy. Weeks later, her son typed the care centre employee’s name into Google and discovered he was a lawyer, not a social worker, as they had believed. On Dec. 4, 2006, MacPhail filed a complaint with the LSUC, which regulates Ontario’s lawyers and paralegals. “He did not disclose who he was—a lawyer,” she wrote in her letter. “I trust you will take action.”
MacPhail, who was hoping for an apology, figured it would be an open-and-shut case. In fact, the process dragged on for almost two years. Her complaint was at first dismissed; when she requested an independent review, it bounced back to the law society instead, where it was rejected again. MacPhail appealed to a higher power, the complaints resolution commissioner, who is funded by the law society to conduct impartial reviews of their investigations. Then she learned the commissioner had a conflict of interest and had to withdraw. When her complaint was finally reviewed, the commissioner’s delegate found in MacPhail’s favour, asking the law society to reconsider. It did—and rejected her complaint a third and final time, deciding the man was not working in his capacity as a lawyer at the time of the visit. (For confidentiality reasons, the LSUC declined to comment on the case.)
MacPhail’s story is just one small example of what critics call a fundamental problem with the way the Canadian legal profession is regulated. Law societies, the regulatory bodies to which every practising lawyer must belong, have the authority to investigate and discipline their own members. But if you feel you’ve been bamboozled by a lawyer, complaining to his or her membership group can quickly undermine faith in the system. A bright, vivacious woman, MacPhail becomes visibly deflated when discussing her case. “It makes you feel very powerless,” she says. “They’re all such pals.”
In other countries, concerns like MacPhail’s have become an impetus for change. In England and Australia, for example, law societies are having some powers stripped away, and independent bodies have sprung up to deal with complaints. Among the Commonwealth countries, Canada’s system of lawyer discipline is fast becoming the exception instead of the rule. “People think it’s Caesar judging Caesar, when it’s the legal profession [handling complaints] itself,” says Steve Mark, legal services commissioner for Australia’s largest state, New South Wales.
In England and Wales, a new law came into effect in 2007 aimed at taking power away from lawyers and putting it in consumers’ hands. The profession’s self-regulating bodies, like the Bar Council and Law Society of England and Wales (which represent barristers and solicitors, respectively), no longer have free rein: the Legal Services Act created an independent body, chaired by a non-lawyer, to watch over them. The complaints process has also been revamped. Instead of seeking redress from the law society or bar council, members of the public will soon be able to go directly to the independent Office for Legal Complaints (OLC). Having a separate body perform this function is crucial to bolster public confidence, says Mary Seneviratne, director of research at Nottingham Law School and one of the OLC’s recently appointed members.
England isn’t the first to move away from pure lawyer self-regulation. In Australia, most states have an independent legal services commissioner to handle complaints. Steve Mark has been in the role in New South Wales since 1994; his office has proved so successful it’s served as a model elsewhere, including in England. As the “sole port of call” for complainants, he can decide whether to handle them in his office (about three-quarters of complaints stay with him), or refer them to the law society or the New South Wales Bar Association. “As an independent body, I can advocate for the consumer and not seem to have a vested interest,” Mark says. And when he chooses to dismiss a complaint, he adds, “it’s not assumed I’m trying to protect the profession.”
In both England and Australia, it wasn’t just bad optics that brought about change; law societies’ track records at investigating complaints were notoriously awful. Prior to reform, Zahida Manzoor, a non-lawyer who serves as legal services ombudsman and legal services complaints commissioner for England and Wales, issued a series of scathing reports criticizing the law society’s complaints-handling arm for being slow, poorly run and providing bad service. When it failed to submit adequate plans to improve, she imposed a hefty fine. “It wasn’t just a problem of perception; they were performing badly,” Manzoor says. In the Australian state of Queensland, where lawyer self-regulation came to an end in 2004, legal ombudsman Jack Nimmo concluded the lawyers’ complaints-handling body was “nothing but a post office box” that forwarded complaints to the lawyer in question, then sent the response back to the complainant.
Canadian law societies don’t have the same problems, argues Stéphane Rivard, a Montreal lawyer and president of the Federation of Law Societies of Canada, an umbrella for the 14 provincial and territorial bodies (Quebec has two). “What triggers government intervention is when you have a lack of rigour [in regulating the profession and investigating complaints],” he says. “That’s not the case here.”
That, however, is up for debate. Canada hasn’t seen reforms comparable to those abroad, but “I’m skeptical it’s because lawyer self-regulation works here,” says Alice Woolley, an associate professor with the University of Calgary’s faculty of law. “There’s been insufficient scrutiny to assess that.” Unlike Australia or England, Canada has no independent legal ombudsman; members of the public must appeal to a law society-funded commissioner. And while the Law Society of England and Wales was criticized for receiving one complaint for every six of its members, turns out the Law Society of Upper Canada, the largest in the country, doesn’t have a much better record. In 2007, the LSUC had 38,879 lawyer members, and got 6,157 complaints, a ratio roughly equal to its English counterpart.
Philip Slayton is a former Bay Street lawyer and author of Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession. He calls the disciplinary record of our law societies a “patchwork quilt” that varies from province to province, and even from one case to another. “I think the idea of a law society disciplining its own members is contrary to the basic principles of justice,” he says. Beyond that, “they’ve done a bad job.”
Take the case of former Law Society of Upper Canada treasurer George Hunter, which Slayton discusses in his book. In 2004, Hunter sat on a law society panel that for the first time disbarred a lawyer for sexually harassing a client (the disbarment was later overturned on appeal). In 2007, after Hunter admitted he himself had engaged in a relationship with a client—one of three extramarital affairs he’d been juggling—the prominent lawyer found himself back before the panel, this time on the opposite end.
Hunter’s former client was not at the hearing, but her impact statement told of depression, anxiety and a diagnosis of post-traumatic stress disorder, the Lawyers Weekly reported. Hunter’s counsel presented the panel with a stack of 27 “glowing reference letters” on his behalf, many of them penned by prominent benchers (members of the law society’s governing board). “Spectators remarked on the irony of benchers urging three fellow benchers to mete out the mildest possible sentence to a former bencher guilty of conflict of interest,” the lawyers’ newspaper reports. Hunter was suspended from practice for 60 days.
Whether it creates a conflict of interest when law societies investigate their members is “open to question,” says Paul Paton, vice-chair of the Canadian Bar Association’s national ethics and professional issues committee, and associate professor at the University of the Pacific’s McGeorge School of Law. But, he adds, “a perceived conflict of interest is often equal, in the public mind, to an actual one.” Most dangerously, that perception can put people off from complaining at all. In one British survey, 81 per cent of people who’d used a solicitor in the previous three years said they’d rather complain to an independent body; if it had to be to another lawyer, 52 per cent wouldn’t complain at all.
It’s unfortunate, says Manzoor, the legal services ombudsman for England and Wales, because a lack of public confidence can undermine the entire legal system. “We’re talking about the rule of law. We’re talking about access to justice,” says Manzoor, who supports independent complaints resolution. “It’s not ‘lawyer knows best’; it’s a service that’s being provided,” she says. “We’ve got to make sure it’s of the highest standard, because it affects the public in such a way.”
Yet, unlike in Australia or England, the Canadian public—and its elected officials—have been surprisingly mute on the subject of legal reform. MacPhail can’t help but wonder whether meek acceptance is part of our culture. “I can recall going to a movie once,” she says. “The lights went out, but the movie didn’t start. Everybody just sat there.” After sitting quietly in the dark for several minutes, waiting in vain for the movie to begin, she says, “we finally got up and told someone.”
With so many Canadians losing faith in the justice system—or feeling shut out of it entirely—change seems inevitable. Legal reforms abroad were intended to empower the public, instead of lawyers; in England and Australia, “change came for good reasons,” Woolley says. “Those reasons exist here.”
Before widespread reform can happen in Canada, though, Paton suggests that public confidence in our legal system might have to hit an all-time low. “I think it will take one more scandal,” he says.