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If You See Something, Say Nothing: Why Lawyers Don’t Report to the Law Society

In identifying professional misconduct, legal regulators are heavily reliant on client complaints and receive relatively little help from practitioners. For example, 71% of complaints to the Law Society of Ontario in 2019 were brought forward by members of the public (typically clients) while only 12% came from legal professionals. The problem is that there are many forms of professional misconduct that only professionals, and not clients, can readily identify. Misconduct therefore goes undetected, leaving clients and others to be victimized by bad lawyers who should have been caught after previous offences.

This is especially true in practice areas where clients tend to be legally-inexperienced individuals. An immigration client examining a legal bill often has little basis to say whether it is “fair and reasonable.” A family law client reflecting on the representation she received in her divorce has no real way to know whether it was “competent, timely, conscientious, [and] diligent.”

Lawyers and paralegals are better positioned to perceive these problems and bring them to the regulator’s attention. Experienced immigration paralegals know which of their colleagues do and don’t bill clients fairly. Family lawyers know which lawyers in their community pursue unnecessary litigation at the expense of their clients.

The Duty to Report

Lawyers have a duty to report certain types of misconduct, which listed in Rule 7.1-3. This includes any “conduct that raises a substantial question as to another licensee’s honesty, trustworthiness, or competency as a licensee” and “any situation in which a lawyer’s clients are likely to be materially prejudiced.” It is not clear that this rule is sufficiently understood and appreciated by practicing lawyers. I have personally heard lawyers describe professional misconduct which they would undoubtedly characterize as passing these thresholds, without any sense that reporting it might be an ethical obligation.

Why It’s Hard to Say Something

Why don’t legal professionals complain more often about the bad eggs? I have asked lawyers this question. Some do not think the Law Society will do anything even if they do complain. Others are reluctant to play the role of “snitch” or “tattle-tale.” They perceive that their professional relationships will suffer if they complain about a fellow lawyer, even if the complaint is amply warranted. A complaint might create a grudge which would make it difficult to work with the individual in the future. Ultimately it is not surprising that only 12% of LSO complaints come from legal professionals. But the unfortunate consequence is that bad lawyers and paralegals with inexperienced clients can do a lot of damage to their clients before the regulator catches up with them.

Possible Solutions

Suppose regulators conclude that more reporting from legal professionals would help them detect problems sooner, and thereby save more clients from professional misconduct. Here are a few reforms that might be considered:

  • The mandatory reporting rule (7.1-3) could be better publicized to lawyers. It might also be enforced more actively in appropriate cases. A cursory case law search does not reveal any case or reported law society proceeding in which it has been enforced.
  • Anonymous reporting could be facilitated. At present regulators generally do have the legal jurisdiction to commence investigations based on anonymous complaints, but pursuing them is difficult for evidentiary reasons and so they are not encouraged. However, if police forces are able to make use of anonymous tips (and encourage people to provide them), it is not clear why regulators cannot do likewise.
  • Judges and tribunal adjudicators are legal professionals who are in an excellent position to apprehend professional misconduct, and report it with few if any personal professional ramifications. Arguably, adjudicators should be given a clear duty to report any professional misconduct they observe to legal services regulators.
  • Impediments to reporting in certain contexts could be eased. For example, in Ontario prosecutors are forbidden by the Crown Prosecution Manual to personally complain to the law society about defence counsel. According to section D.31 of this document, only the Assistant Deputy Attorney General of the Criminal Law Division may complain about a criminal defence lawyer. There are presumably justifications for this rule grounded in the legal context of criminal defence. However it should be recognized that impeding complaints may mean allowing incompetent defence lawyers to continue seriously damaging the interests of subsequently accused people.

Certain incompetent or rapacious licensees are able to repeatedly victimize inexperienced clients for many years without being apprehended by the Law Society. Scrutinizing the pipeline of complaints – and expanding it to include more information from legal practitioners – should be considered an imperative part of regulators’ public interest mission.

The author is grateful to participants in the Canadian Association for Legal Ethics listserv for their very helpful perspectives on this question.

Comments

  1. Heather Hui-Litwin

    I have enjoyed reading this article. Thank you!

    I would avoid pointing fingers at another professional, even if I could stay anonymous. These days, I find it hard to be so sure of myself. What seems to be bad behaviour based on a limited set of facts, may well be justified when you hear “the whole story”.

    Another reason may well be that to many lawyers, being a lawyer is a “job”, rather than a “calling”. Rarely have I met lawyers who are concern themselves on the higher goals of improving the system for everyone. Worrying about your own practice is so overwhelming that few of us have the time to worry about much else.

    It may be counterproductive to do so by force, that is: impose a rule to force lawyers to report, or else they face punishment themselves. Snitching has such a bad taste that I wonder if LSO would be all that eager to enforce this!

    Perhaps it’s better for the regulator to consider making the disciplinary process more constructive. The process should involve investigation, and allow the licensee to explain herself. I imagine it’s better to find out why the licensee did what they did, rather than simply focus on the bad conduct itself. Maybe there is something about the system that encourages bad behaviour, and blame should not be solely shouldered by the licensee! The outcomes should include support, (eg. education, counselling, mentoring) is provided, not simply punishment (suspension of license). If I see that the process can help rehabilitate the licensee and improve the system, I may be more persuaded to report.

    There is too much of an adversarial attitude in the justice system already. Maybe we can include a more “problem solving” approach. Anyway, just a few thoughts.

  2. Out of curiosity, what percentage of professors report the misconduct of other professors?

    It should be easier for professors to report misconduct of their colleagues as they are typically under the same roof, whereas the vast majority of lawyers are sole practitioners or in small firms. Within firms of any size, any budding misconduct is most often nipped in that bud.

    Lawyers who can hide misconduct from their colleagues are only going to be exposed by frustrated/annoyed clients or by lawyers on the other sides of the matters, and they are going to be cautious lest, as Heather Hui-Litwin points out, they open a bogus can of worms by not knowing the whole story. There is nothing nefarious in this; it is prudent human nature.

    Nothing is perfect. Improvements are always possible, but one must be very careful not to replace one set of problems with simply another, and often worse, set. For example, allowing prosecutors free rein to complain about defense counsel would create a different, and worse, problem. The temptation would be to complain, while in the throes of high dudgeon, about defense counsel who bested them or gave them grief. Requiring a complaint to be first vetted by cooler-headed higher-ups is not a bad thing. It is a good thing.

    One of the great evils in the profession is the billing target. Another, however, is the filling of young minds with victim industry, self-diminishing junk of the kind all too prevalent in the universities including the law schools. Casting no personal aspersions, it would be nice if the universities would spend time cleaning the gunk off the windows of their own glass houses.

  3. I have complained twice about other lawyers, once very early in my career and once fairly recently. The first time involved a lawyer who withheld crucial exculpatory evidence in a civil case where as its defence, the defendant alleged criminal behaviour by a client with dementia. The law society of a western province asked for a great deal of further documentation that was time-consuming to produce, before ultimately closing the file. The second time concerned previous counsel on a file I took over whose serious negligence led to a crucial limitation period being missed. That lawyer ultimately withdrew from practice, but simply getting an investigation by a the law society of a central Canadian province took reminders and follow-up over at least a year, which I only did because I had concluded that lawyer was serious risk to other clients. A lawyer has to be motivated by “the higher goals of improving the system for everyone” mentioned above to undertake the process of making a complaint because it is neither quick nor easy.

  4. “The problem is that there are many forms of professional misconduct that only professionals, and not clients, can readily identify. Misconduct therefore goes undetected…”

    I don’t know that this conclusion is logical. Professionals also know when another professional has stayed on the right side of the line and something that a client thinks is professional misconduct is not so.

    How many complaints by clients arise out of people who think they were treated harshly, that a lawyer was mean to them? That opposing counsel cross examined them toughly.

    I’ve reported a few lawyers over the years. And I’ve also counselled a few lay people that while they’re welcome to make a complaint against another lawyer, their complaint isn’t likely to go anywhere because the person they wanted to report was extremely tough but behaved ethically.

    I don’t assume that lawyers are wrong on this one.

  5. I have been practicing for over 30 years. Once I advised a client to report a lawyer and once another lawyer and I jointly reported another lawyer. On both occasions the misconduct was clear and not in dispute. On both occasions the misconduct was egregious. In neither case was any action taken. Need I say more?

  6. There is a danger that some complaints about other lawyers are not motivated by facts but more by attempts at getting back for being beaten in a matter. I fear that the timid amongst us might be freaked out by ‘being reported’. A lawyer who gives his best client advice that turns out to be wrong may seek vengeance. Not everyone has the same ability. Dragging judges into it is also dangerous because they only hear what is in front of them. It is a matter which should be looked into carefully

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