In many ways, Canadian law societies are now more transparent institutions than ever before. The Law Society of Upper Canada, for example, has adopted innovations like live webcasts of Convocation meetings, online Annual Reports and a frequently used Twitter account which allow for easier access and greater insight into what goes on at Osgoode Hall and why. And, of course, for those interested in what happens to lawyers “gone bad”, there is free public access to discipline-related decisions on CanLII.
Disciplinary decisions seem to be, indeed, one of the things that lawyers and the public are most interested in. In recent years, several high profile cases – including the ongoing civility case involving newly elected Bencher Joseph Groia, and the now-dismissed conflict of interest allegations brought against former Hollinger lawyers – have received considerable attention. Just in the past few months, the proceedings against a Toronto lawyer who received a five-month suspension after admitting to professional misconduct in representing refugee claimants has received significant media attention (see, here, here, and here).
Notwithstanding all of this sunlight shining on law society disciplinary processes, there is one thing that continues to trouble me: what about all of the complaints against lawyers that don’t proceed to a public hearing? As noted by the Law Society of Upper Canada in its 2014 Annual Report, most complaints are closed or resolved without formal discipline. Last year, the Law Society received 6155 new complaints and of those complaints:
2,640 cases were closed on the basis of jurisdiction, early resolution or lack of sufficient information to commence an investigation. 1,863 cases were investigated and closed with a staff caution, advice to the licensee on best practices, or the conclusion that the allegation was not established.
In 2014, 273 complaints were closed after a Law Society Tribunal hearing on conduct or capacity. Presumably, many, if not most, of these hearings involved complaints received in prior years. The fact that 6155 complaints were received in one year and only 273 complaints were resolved through a hearing in the same year provides a sense of just how small a slice of the disciplinary process is captured in reported Tribunal decisions.
A similar issue arises in relation to admission to the Bar. As Alice Woolley reported in her article on the good character requirement:
In Ontario, between 2006‐2012, 575 applications raised issues of character. From those applications, however, only 24 hearings have been held and only 2 applicants have been denied admission.
As a general matter, information about cases that do not proceed to a hearing is not publicly available. This means there are many important decisions being made about what level of scrutiny to apply to which lawyers that take place largely outside of the public eye. There are at least two reasons why this is cause for concern. It makes it very difficult for lawyers and the general public to: (1) evaluate whether those decisions are being made in a way that is consistent with the public interest mandate of law societies; and (2) accurately understand what issues are arising between lawyers and members of the public. In other words, looking at the publicly available information provides an extremely narrow and presumably skewed view of how law societies exercise their regulatory mandate.
To be fair, law societies often helpfully publish aggregate data about complaints. The Law Society of Upper Canada Annual Report, for example, details complaints received in relation to firm size, years of practice and areas of law as well as the general categories that complaints fall into (i.e. whether the complaint engages service issues, integrity, governance, financials, conflicts or “special applications”). Moreover, in Ontario, the Complaints Resolution Commissioner also serves an important check and balance function: if a complainant is dissatisfied with the manner in which his or her case was handled, he or she can ask the Commissioner to review the investigation and the decision to close the case. Finally, legislation that governs law societies may contain confidentiality requirements that prohibit benchers or employees from disclosing information in relation to complaints and investigations (see, for example, section 49.12 of Ontario’s Law Society Act)
Apart from this regulatory context, there are good reasons to resist the idea that law societies should publish all information received in relation to complaints. A number of the complaints received are, no doubt, frivolous or malicious. Making such allegations public could be unduly burdensome to the lawyer involved. Moreover, it is likely that many clients who make complaints do not wish to have their identities and affairs made public. Legal proceedings often involve sensitive matters and a desire for privacy is understandable.
The balance between disclosure and privacy, however, doesn’t need to be an all-or-nothing proposition. The decision is not between whether we should maintain the status quo or publish every single detail about every single complaint in a public forum. A middle ground would seem to be feasible. For example, if law societies have internal written policies, informal practices or institutional priorities that they use when vetting whether cases proceed to investigation or discipline, this type of information could be made available to the public without harming the privacy and reputational interests of lawyers or clients.
Another option might be to publish anonymized narrative accounts of complaints received and their resolutions in order to provide a better picture of what happens to cases that do not proceed to formal discipline. Examples of what such anonymized narrative accounts might look like can be found on the website of the Legal Ombudsman for England and Wales. Indeed, as Adam Dodek has noted in a previous Slaw column, the Canadian Judicial Council now posts a sample of anonymized complaints on its publicly accessible website. If it would prove too financially burdensome for law societies to generate anonymized accounts of all complaints received or investigations undertaken, one option might be to annually rotate through certain themes (e.g. conflicts or fees) or practice areas.
The interests of lawyers and the public are engaged when it comes to having more information about complaints. In short, how can we know how self-regulation is working if we can’t see a significant part of it? Why not make more information public? Doing so seems logistically feasible and there is a good regulatory rationale for doing so given the law societies’ public interest mandate.