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When the Badly-Behaved Party Is Opposing Counsel

We are hearing more and more often from SRLs about “sharp practice” when they face a lawyer on the other side of their case.

There are many common elements to these reports, which I find to be largely credible. SRLs believe that their unfamiliarity with the legal system, combined with the tendency of some judges to assume the worst of them – that their cases are without merit, or that they are “vexatious” and abusing the process when they make honest mistakes and misjudgments – is being exploited by counsel on the other side as a matter of strategy.

The challenges of working opposite an SRL

To be fair, a lawyer facing an SRL encounters a situation they have not been trained to deal with, and may find difficult. I have seen responses that include reaching out to the SRL; panicking about their own client thinking they are “helping” the other side; trying to avoid communicating with the SRL because of fears of being called as a witness or otherwise compromised; or cynically exploiting procedural rules, including those on vexatiousness and claims for summary judgment.

But however sophisticated and intelligent the individual SRL, and however experienced (or not) the individual lawyer, there is a huge disparity of power and knowledge between them. Some of this flows from a difference in substantive familiarity, but much also comes from a legal culture that assumes that when lawyers speak, what they say is more credible and important than a member of the public.

It is all too easy for me to imagine that lawyers might sometimes believe that their duty of zealous advocacy to their own client means that they should take advantage of an SRL on the other side. This not the case – “sharp practice” against other lawyers has long been frowned upon and proscribed in the Rules of Professional Conduct – and I cannot see why this duty should be any different when the other side is an SRL. From the Ontario Rules:

7.2-2 A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.

Further, the evidence suggests a dangerous trend of taking advantage of SRLs that is bringing the profession into disrepute.

What types of complaints about “sharp practice” are we hearing?

The types of complaint we hear (and in some cases I have reviewed case correspondence) from SRLs about opposing counsel cover a wide range, but there are some clear themes. Some of the most common complaints include:

  • Rudeness and incivility. This may sometimes be “professional brusqueness” – familiar to the lawyer but not to the SRL – but is often experienced as feeling disrespected and dismissed.
  • Bullying communication. An apparent effort to bully the SRL into dropping their case by the tone of letters and other communications from the other side. This may take the form of dismissive verbal comments, or written communications that adopt a bullying and belligerent tone.
  • Counsel unwilling to engage in a serious settlement discussion. Of course, lawyers sometimes complain with some cause that SRLs will not discuss settlement with them, but then lawyers are trained (and have a professional responsibility) to explore settlement or compromise.
  • An assertion that there is no ethical duty owed to an SRL. I have seen correspondence asserting that the lawyer’s ethical duty is to the court, and that they owe none to the SRL (this is an overlap with “bullying communications” above). While this may be true in terms of liability, it is most certainly not true in terms of the (e.g. Ontario) Rules of Professional Conduct.
  • Misleading information given by the lawyer to the SRL. Whether intentional or not, I have heard many examples of lawyers giving an SRL misleading information about court dates, whether they have received service of documents, and nefarious references to “rules” that do not exist.
  • Refusing to use the SRL’s preferred mode of communication. For example, serving the SRL at home during the day when they have explained in advance that they would not be able to accept service because they would be at work, and have requested another agreed mode of service, such as email.
  • Inadequate notice given under the court rules (unfortunately we have observed the court allowing this when the other side is an SRL).
  • Change of venue. For example, a lawyer moves the venue of the hearing to a courthouse that requires significantly longer travel for the SRL.
  • Perhaps most disturbing are reports of lawyers using applications for summary judgment and / or claims of “vexatiousness” as a default whenever they face an SRL on the other side. This strategy exploits the willingness of some judges to dismiss SRL cases as without merit in an extraordinarily high proportion (95% of cases in our 2015 study), and allow claims regarding “vexatiousness” that conflate SRLs who intentionally behave badly with the merely confused (also clear in the case law).

What happens when SRLs complain about the behaviour of opposing counsel?

A big beef of SRLs is that no formal complaint can be brought about the behaviour of opposing counsel until the proceedings are over. This gives SRLs no immediate recourse for actions or behaviours that they may feel are highly unprofessional and may be damaging their case.

Once the case is over, an SRL can complain about the behaviour of opposing counsel to the Law Society of Ontario (LSO) (apologies for the fact that all my data here is Ontario-based, it would be great if others would check out the numbers in their own jurisdiction).

Since we hear so many complaints from SRLs about the behaviour of opposing counsel, I was curious to find out how they fare when they bring formal complaints forward to the LSO. David Wright, the chair of the Law Society Tribunal, graciously looked through the 150 decisions the Tribunal rendered in 2018 for cases in which SRLs were among the complainants and found as follows:

  • A handful of decisions in transactional cases (e.g. property deals) where a complaint was upheld against a lawyer who had not made clear to an unpresented party on the other side that they were not their lawyer and could not represent their interests (for example).
  • There were 3 cases that involved an SRL as one of multiple complainants in relation to a lawyer’s litigation practice.
    • In Law Society of Upper Canada v. Pascuzzi, the lawyer was found to have failed to adequately respond to communications from a self-represented party to the standard of a reasonably competent lawyer, resulting in a reprimand.
    • In Law Society of Upper Canada v. Colin Cameron Leon Lyle, three SRLs were among a number of complainants, including former clients and colleagues. The Tribunal upheld the complaints of the SRLs that the lawyer, acting as opposing counsel, was rude, threatening, and both verbally and physically aggressive towards them. For this behaviour and the other complaints brought against him, the lawyer was suspended.
    • Finally, in Law Society of Ontario v. Ejidike, a lawyer was found to have lied to a self-represented litigant. For this and multiple other incidents of misconduct, her licence was revoked.

This quick analysis suggests that very few SRLs make it to the hearings stage with their complaints. Of course, Tribunal hearings are a small fraction of the total number of complaints against lawyers received each year at the LSO. The more interesting question is what happens at the initial complaint and investigation stage.

The LSO received a total of 6,500 complaints in 2018 and referred 1,200 of these for investigation, at which point 25% were closed with a caution, and 35% closed because of “insufficient evidence to proceed”. 150 were subsequently sent to the Tribunal for a hearing. I have spent nearly a month asking for statistics that show how many of these complaints are from SRLs, and what happens to them. I have sent many emails and made numerous requests to different people I have been directed to. My final answer: we don’t have that information.

What Can Be Done?

  1. It is very important for regulators to be tracking how SRLs fare in their complaints processes. Whatever arguments might be made about SRL complaints being “spurious” (a reflection of the assumption that their cases are “without merit”), these numbers will tell their own story about how much public confidence we can have in these processes.
  2. I think a case can be made for an SRL Ombudsperson inside each regulator, whose exclusive brief is to investigate complaints by SRLs against opposing counsel. I think that it should be possible for such complaints to be brought while a case is still proceeding. An Ombuds process seems especially appropriate here because it includes the potential for enhanced understanding and education for both parties, as well as the possibility of discipline (perhaps feeding into the hearing process) for egregious and repeated bad behaviour by counsel.
  3. There is a need for leadership by the regulators on this issue. This means sending a clear message to members that “sharp practice” by counsel against an SRL on the opposing side will not be tolerated, is not professional, and will be taken seriously as a disciplinary matter.

Many lawyers are adjusting their practice to work civilly and constructively with SRLs on the other side. Sometimes this brings extra challenges, but this particular manifestation of the SRL phenomenon does not require deep structural changes, just better training and a positive mindset about working with the public. It is important to address the problem of “sharp practice” at an early stage, and assure the public that their complaints will be treated seriously.

Comments

  1. RULE 7.2-2 A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.

    “(P)rocedure exists only to give effect to substantive law, that it is the handmaiden of justice.” John Horn

    Great insight into a problem that only study’s such as Macfarlane’s work, can garner.

    When viewing a slice of the whole, our perspective is limited.

    Upon presenting the rules on the Defenses obligations to SRL, the CM Judge in my matter replied, “ That’s not how I read the rules.”

    Without a doubt, Judges turn a blind eye to and as such, support sharp practice by Defense counsel against SRL, or it wouldn’t happen. This is evidence, that like everything else, these and other tactics are deeply rooted systemic problems that synergistic-ally act against the public interest footing the bill.

    It is well documented that cultural change comes from the top down or the bottom up and Defense counsel, while absolutely responsible for and accountable to their actions, are incentivized and sanctioned in their abuse of SRL by those whose role it is to stop it, Judges.

    SRL walk away with the understanding that we just paid the system to emotionally and financially abuse us.

    ‘If your lawyer isn’t taking you to settlement; their taking you to the cleaners.”
    ©JMGayton 2/19/2019, MH, AB, CA

  2. Hi Julie
    .
    The LSO may not record the information on SRL complaints in the form which you have requested, but they do have the data to derive a good approximation using a 3 step analysis:-
    .
    (i) The Sept 2016 Professional Regulation Committee report (presented at the Feb 2017 Convocation) states that 69% of complaints received are from the public, 13% are from licensees and 18% are raised by the LSO. The report states that these percentages are consistent over the years. The public complaints are the first cut.
    (ii) The LSO Complaint form asks for your relationship with the counsel who is the subject of the complaint. Selecting complaints about opposing counsel would give the second cut.
    (iii) The LSO Complaint form also asks whether you have legal representation. Selecting those who answer ‘No’ is the third cut.
    Public complaints about opposing counsel by unrepresented persons can be reasonably assumed to be complaints made by SRLs.
    .
    However, the overall handling of public/SRL complaints, as compared with complaints from licensees and the LSO itself, should only be the start of the analysis. How the complaints are treated during the process is also revealing.
    .
    The LSO commits to handling complaints in a timely manner and to providing regular feedback. The 2017 report on the LSO’s compliance with the National Discipline Standards (May 2018 Convocation) states that 76% of complaints are closed or referred to a PAC within 12 months, rising to 86% in 18 months. It also states that, for 68% of open complaints, the complainants are contacted at least every 3 months. (The national target is 90%). Well, that might be true for complaints by licensees or the LSO, but it wasn’t MY experience.
    .
    I lodged a complaint in Feb 2015. It was promptly referred to the Investigations section where it stagnated. Every 3 months I nagged. I contacted managers. I wrote to the head of the Regulatory committee. After 19 MONTHS, I was still being told that my complaint was ‘being read’ so I contacted the Hamilton police. That sped up the ‘reading’ and, after more nagging, the complaint was finally referred to a Regulatory meeting in November 2017. This was almost 3 years after I mailed the complaint.
    .
    AND, this wasn’t an isolated incident. I also lodged a complaint about the litigators in this matter in May 2017. That complaint DISAPPEARED. 80 days after the Post Office notified me that the parcel had been delivered, I had not received any acknowledgement from the LSO. My follow-up emails were ignored. (I live in Australia, so phoning or dropping in weren’t options.) I had to email the Treasurer before I received a response. This complaint was also referred to Investigations. 13+ months later I sent another email to the Treasurer advising that I had had no feedback on my complaint and noting that the LSO was well outside its targets for handling complaints. At the end of 17 months, the LSO advised that they had concluded there was no evidence of professional misconduct and my complaint had been closed.
    .
    I feel the LSO processes treated my concerns with disdain, and I suspect that is the common lot for public/SRL complainants. (I’m unimpressed with the LSO’s adjudication on these matters- but that is a separate issue.) My experience also makes me wonder how long the tails of the compliance curves are. The LSO reports that 86% of complaints are referred/closed in 18 months but one of my complaints was 34 months in the process. I doubt this is the longest time to process a complaint but I suspect that the record for the longest complaint resolution is held by public/SRL complainant and not by a licensee or the LSO. It also makes me wonder about the large ‘miscellaneous’ category of Other Staff Closings for complaint resolutions(19%) – are these complaints which have been ‘aged’ or ignored until the complainant finally gave up?
    .
    The LSO had the data to answer these questions, but their Regulatory process seems designed to ‘Protect’ rather than ‘Correct’ so I don’t know whether there is the corporate will to undertake the analysis.

  3. Excellent comment by Ms. Rempel.

    My own long trajectory of litigation was kicked off with a “complaint” not to a law society but to a labour board, but in due course I did complain to the Law Society of B.C., and then much later I presented another complaint to the LSBC on behalf of another person. I’ve submitted complaints to other administrative justice agencies and can report that not one of them has acquitted itself with dignity.

    The first complaint to the LSBC was fairly quickly dismissed. It was about the conduct of a union staff lawyer who had been assigned to work on an employment termination grievance the union had committed to take to arbitration. I claimed that the only work she did on the file was trying very hard to persuade me to walk away from the grievance. The LSBC said that she owed no obligation to me as her client was the union, not me.

    Years later I suggested to another person – a former member of another local of the same union who had had a very similar experience – that a complaint about opposing counsel (the lawyer who represented her former employer in the arbitration) was warranted. And I offered to speak on her behalf in filing a complaint with the LSBC.

    This turned into a potential chapter for the book I ought to be writing. I won’t try to relate here the entire story of what happened, but for now I’ll offer this link – http://www.uncharted.ca/images/users/ssigurdur/pub_letter_haydn_acheson_05_2015.pdf – to a letter I wrote to one of the LSBC’s handful of “appointed benchers”. I did that because I hoped that appointed benchers might take a little more interest than the elected ones in how SRLs are treated by the law society. I never received a reply, but I did note that Mr. Acheson didn’t receive, and I think likely didn’t seek, another bencher appointment.

  4. The Law Society of Ontario and the law societies in every province should cease investigating complaints against their own members. This most serious conflict of interest undermines the profession’s credibility and the public’s trust in our legal system.

    It is no longer acceptable that the Canadian legal profession, that exerts vast influence and authority into every area of life, continues to self-investigate without transparency, independent civilian oversight and external accountability.

    The powerful Canadian legal profession must be brought into compliance with modern standards of independent oversight and external accountability.

    Self-investigation by the lawyers’ unions is a real conflict of interest that is unacceptable by any modern standard and cannot be resolved – except by the establishment of independent organizations in each province to receive complaints against lawyers, to perform professional unbiased investigations and to lay charges where appropriate. The retention of investigative functions by the law societies is indefensible.

    Comparing Police & Lawyer Complaint Procedures

    Are lawyers more honest than police officers… or are they also vulnerable to temptations and pressures?

    For good reason, we don’t allow our police to operate without external oversight and accountability. The stories of police abuse, corruption and incompetence are legion – and in the last few years became a deluge as incidents are regularly documented with solid video and/or audio evidence from mobile phones, security and dashboard cameras.

    Ontario and many other jurisdictions formed civilian investigative units to independently investigate serious police wrongdoing and to lay charges where appropriate.

    And still, we have trouble holding the police accountable.

    Unlike police officers, lawyers do not generally commit crimes in the street while surrounded by surveillance cameras and citizens wielding mobile phones.

    Lawyer misconduct is often done in backrooms or court hallways with a signature, a few words – or a wink and a nod.

    The law societies across Canada are simply a group of friends investigating and ‘disciplining’ the same people they went to school with, socialize with and meet in the workplace and in court. That works out exactly as you think it would and it is never about the public trust no matter how many times the law society executives say the words.

    According to the Toronto Star’s Broken Trust investigation, the Law Society of Ontario covered up and whitewashed hundreds of crimes by lawyers who committed criminal offences against their clients. I can’t think of why it would be different in any other province.

    Canadians must demand laws that will force upon the legal profession real transparency, independent civilian oversight and external accountability to Canadians at large. Self-investigation of lawyers must end.

    Donald Best

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