Column

When Do I Have to Report Another Lawyer to the Law Society?

Some lawyers dread the idea of reporting a colleague in the bar to the Law Society. Others are all too eager to file complaints against other counsel, including out of spite or to try to bring down the “competition”. Most of these lawyers share something in common: they have no idea what their professional obligations are when it comes to filing law society complaints.

Not too long ago, I acted for a lawyer in a discipline hearing that stemmed from a complaint by another lawyer. These two experienced counsel had previously been respected colleagues, but for a variety of reasons their relationship had soured. At the hearing, the complainant lawyer testified that he filed his complaint not because he had an ulterior motive, but because he thought he had a duty to report what he believed to be professional misconduct—and that if he had not reported the conduct in question, which he believed to be improper, he might bear responsibility for failing to report it.

Respectfully, this was incorrect. Our professional conduct rules do not include an overarching obligation to report other licensees to the Law Society if we believe they might have committed professional misconduct—much less a penalty deeming other lawyers “accessories” to that potential misconduct if they fail to report it.

There are, however, certain defined circumstances in which we have a positive duty to report other lawyers to the Law Society.

This column summarizes (1) the specific situations in which lawyers have a duty to report other lawyers to our regulator; and (2) some practical considerations for lawyers who are considering making a complaint to a law society about a colleague in the bar.

A duty to report in certain circumstances

Rule 7.1-3 of the Model Code of Professional Conduct provides that, unless it would be unlawful or would involve a breach of solicitor-client confidentiality or privilege to do so, a lawyer must report:

(a) the misappropriation or misapplication of trust monies;
(b) the abandonment of a law or legal services practice;
(c) participation in serious criminal activity related to a lawyer’s practice;
(d) conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer;
(e) conduct that raises a substantial question about the lawyer’s capacity to provide professional services; and
(f) any situation where a lawyer’s clients are likely to be severely prejudiced.[1]

A few observations about this list:

First, the preamble creates an express exception to the duty for situations where reporting would involve a breach of solicitor-client confidentiality or privilege. The underlying principle here is the same as it is for solicitor-client confidentiality generally—we don’t want people to refrain from seeking legal advice or being candid with their counsel out of fear that disclosure will get them in more trouble. Lawyers who retain counsel to, for example, get advice about what to do now that they’ve discovered (or created) a discrepancy in their trust account need not fear that the attempt to solve the problem will create a bigger one. The general principles of the duty of confidentiality apply.

Second, the obvious common thread amongst these six items is the objective of protecting clients from being severely prejudiced, whether financially; by being left in the lurch if their lawyer has left practice; or by a lawyer in respect of whom there are substantial questions about their honesty, competence, or capacity. The list notably does not include breaches of the Rules of Professional Conduct in general, and one can certainly contemplate various breaches of the Rules (e.g., breaches of the rules on marketing, referral fees, or civility) that would not engage this duty.

Finally, the last three itemized categories are—presumably quite deliberately—framed very broadly. While in each case the conduct that would be captured is limited somewhat by its degree (which must raise a substantial question or likely cause severe prejudice), it is otherwise essentially left to the judgment of the would-be reporter about whether the perpetrator’s conduct is sufficiently problematic to warrant a mandatory report.

Interpreted fairly, this is likely an appropriate balance; if a lawyer observes conduct that raises a substantial question in their mind about another lawyer’s honesty, competence, or capacity to serve clients, our regulators expect us to do our part to assist our self-governing profession and try to protect the lawyer’s current and prospective clients from harm. Absent such a duty, we would be (more) vulnerable to public criticism that the legal profession is a protectionist guild that looks out for our own rather than for the public interest. And if such criticism were to become widespread and/or true, the privileges of self-governance and a (near) monopoly on the provision of legal services could be lost.

On the other hand, the vagueness of these itemized situations in which reporting another lawyer is mandatory also promotes civility and trust within the profession and provides a sort of preliminary screen for conduct brought to the regulator’s attention. Providing greater specificity or a lower threshold for a mandatory report would not only put many lawyers in awkward situations with colleagues over disproportionately minor conduct (such as a technical breach of a marketing rule) but would also force the regulator to expend resources to screen out or investigate reports of potential misconduct that does not actually put clients’ interests in jeopardy.

How does a well-meaning lawyer decide whether to report another for conduct that may raise a substantial question about the other lawyer’s honesty, trustworthiness, competence, or capacity? It is ultimately a judgment call. I like to think that so long as that judgment is exercised thoughtfully and in good faith (i.e., not, for example, to try to protect your friend or law partner from disciplinary consequences), the regulator will not consider the failure to report to be in breach of the Rules.

The Commentary to the relevant rule provides the Law Society’s rationale for the rule, as well as its perspective on what to do if you’re unsure about whether to report another lawyer:

Unless a licensee who departs from proper professional conduct is checked at an early stage, loss or damage to clients or others may ensue. Evidence of minor breaches may, on investigation, disclose a more serious situation or may indicate the commencement of a course of conduct that may lead to serious breaches in the future. It is, therefore, proper (unless it is privileged or otherwise unlawful) for a lawyer to report to the Law Society any instance involving a breach of these rules or the rules governing paralegals. If a lawyer is in any doubt whether a report should be made, the lawyer should consider seeking the advice of the Law Society directly or indirectly (e.g., through another lawyer). In all cases, the report must be made without malice or ulterior motive.

In short, the Law Society’s position is: (a) it is entirely proper to report a minor breach (barring confidentiality issues) because it might be indicative of more serious concerns, and (b) if you’re still not sure, ask the Law Society. I elaborate on the point about malice and ulterior motive below.

As a practising lawyer who cares about public confidence in our profession; has seen how clients’ interests can be severely prejudiced by lawyers’ misconduct; and, conversely, has also seen the toll that unwarranted complaints, investigations, and discipline proceedings can take on lawyers who are subject to them, I like to rely on a general principle. I was recently playing a board game whose rules provided a simple objective and gameplay process, listed a couple examples of what was not allowed, then summed up the rules simply as: “If it feels like cheating, it’s probably cheating”. I would apply a similar approach to the question of whether to make a complaint about another lawyer: if it feels like misconduct that you should report, you should probably report it.

Reporting other lawyers: some practical considerations

A report to the law society can initiate a chain of events with potentially severe consequences for the “reportee”, such as discipline proceedings and a substantial penalty up to and including revocation of the lawyer’s licence to practise. Even if the matter dies in the investigation stage or ends with a dismissal of the disciplinary allegations made, this would occur only after the lawyer has endured significant stress and expended substantial time and possibly money (to retain counsel) to defend themselves.

Sometimes it is in the public interest and a professional duty to report another lawyer. But given the stakes, in my view it should not be done lightly.

First, it is highly advised that the would-be reporter first notify the reportee. It is possible the conduct is not problematic or not as severe as initially understood, but the reporter was missing some context. Indeed, the Law Society of Ontario recommends to any member of the public that they first try to address a potential complaint with the lawyer before reporting it to the Law Society.

As it happens, in the discipline hearing referred to at the beginning of this article, the lawyer who complained was, in fact, missing some important context. What to that lawyer had appeared to be dishonestly was, in context, honest conduct that appeared worse because of an innocent miscommunication. Had the complainant first conferred with the lawyer complained of, it is possible this miscommunication could have been clarified and the concern addressed. Instead, the lawyer was embroiled in conduct allegations, an investigation, and disciplinary proceedings for years after the initial miscommunication occurred. (The complainant’s time and energy to serve as a witness before and during the hearing may also have been saved through early exploration of the matter rather than jumping to the conclusion that a complaint was necessary.)

When raising a potential complaint with another lawyer, I suggest communicating the concern with respect and remaining open-minded to alternative explanations for the conduct at issue. This additional information may influence (in either direction) your opinion about whether the conduct raises a substantial question about the lawyer’s honesty, competence, or integrity or whether the lawyer’s clients will be severely prejudiced.

Of course, sometimes lawyers do bad things and there is no innocent explanation for them. You may try to connect with the lawyer and find that you still have a substantial questions about their honesty, competence, or capacity. Where this is the case, the appropriate course of action is to report the issue to the law society so they can explore it further and hopefully prevent prejudice to the lawyer’s clients or other members of the public.

If you’re thinking about reporting another lawyer, here are some things not to do:

  • Don’t threaten to make a complaint to the Law Society to try to obtain an advantage for your client in settlement discussions or otherwise. (This is not only practically unadvisable—it is specifically prohibited by the Rules of Professional Conduct.)
  • Don’t threaten to complain to the Law Society to gain a competitive advantage over “competitors”, e.g. other lawyers serving the same sub-market of clients. I have seen this sort of behaviour a few times by and against lawyers in competitive practice areas (usually with a “volume practice”) such as personal injury and residential real estate. It is not the Law Society’s job to bring down your business competition, and in my view it is an abuse of the law society process to use it in such a way.
  • Don’t report another lawyer out of spite or frustration about how your last file with them went—unless such frustration arises from a good-faith belief that the lawyer is incompetent, dishonest, or truly lacks the capacity to provide quality service to their clients.
  • Don’t hide behind the mandatory reporting rule to try to justify doing any of the three things noted immediately above. Having read this far in this column, you cannot honestly maintain that you believe you have a professional obligation to report conduct that does not meet the threshold stated in the itemized circumstances (when what you’re really doing is trying to obtain some sort of advantage for yourself).
  • Be aware that, even when you have good faith concerns about an adverse party’s lawyer’s honesty, competence, or capacity, some law societies have a practice of holding complaints in abeyance while litigation involving the complainant and the lawyer is ongoing. The idea here is to guard against both the use of the law society complaints and discipline process for improper purposes (e.g. to gain a tactical advantage in litigation) and the risk of inconsistent findings in multiple proceedings. If you find yourself in this situation, you may wish to inquire with the law society’s complaints department whether they would consider your complaint in the circumstances before making the complaint.
  • Finally, be aware that law societies regularly turn to complainants to serve as witnesses in discipline hearings (when a complaint proceeds that far). They may also wish to interview the complainant; request follow-up documentation or other information; or request updates on how the underlying matter progresses. While members of the public do not have any duty to comply with such requests, as Law Society licensees we have a duty to cooperate with the regulator and respond promptly and completely to its inquiries. In other words: once you make a complaint, you should be prepared to stay involved in the matter.

As always, please feel free to share your views on or experiences with reporting other lawyers, as well as your thoughts on the rules in this regard, in the comments section below.

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[1] Model rule 7.1-3 has been adopted into the conduct rules of all common law provinces, subject to the following variations (as of the date of writing):

  • In British Columbia,
    • (a) is broadened to refer to any shortage of trust funds (regardless of whether any misappropriation or misapplication took place); and
    • Lawyers must report in a further situation: a breach of an undertaking or trust condition is added as (a.1).
  • In New Brunswick,
    • greater particularity is added to (e); it refers to capacity issues stemming from mental, physical, or emotional conditions, disorders, or addictions; and
    • the “catch-all” provision (f) is omitted.
  • In Ontario, all references to a “lawyer” are changed to a “licensee”, meaning the same duties apply with respect to the conduct of paralegals.
  • In Prince Edward Island, (d) is intentionally omitted, meaning there is no duty in PEI to report “conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer.

Comments

  1. Thank you for this thoughtful and balanced perspective. I’m teaching this topic in Legal Ethics about three hours from now so the timing was great for me!

    Brooke I’d be interested in your thoughts on Jocelyn Downie and Elaine Craig’s proposal for mandatory reporting of sexual misconduct: https://www.theglobeandmail.com/opinion/article-everyone-turns-to-lawyers-for-metoo-advice-but-the-legal-community/

  2. Good timing for me as well; a lawyer at my firm wasn’t sure what to do when he saw, half an hour before a settlement conference, that the licence of the paralegal on the other side had been revoked. As it turned out, the paralegal’s client also had qualms and replaced the person with someone qualified to provide legal services, but your post helped us work through the issues we might have had to face.

  3. Very interesting points. Your citations and references are all to LSO Rules, of course, and I understand that is your jurisdiction. Our Rules in Manitoba are similar, yet different. It would be nice to have a comparison between the different Rules from provinces across Canada. (Noel – maybe that is up your alley?)

    I recently finished an audit done by LSM. One of the comments from the auditor referred to our Administrative Fees charged to clients. Our agreement is very clear and I have published exactly why and how we charge these fees. I refer to guidance from the Law Society of Alberta as well as to guidance from LSM. The auditor applauded our transparency and she acknowledged the guidance from the LSM; however, she criticized us for referring to a document from the Law Society of Alberta. We take all feedback extremely seriously.

  4. Brooke MacKenzie

    Glad the column could be useful to you, Noel and Neil!

    @Alastair, I undoubtedly have a bias towards Ontario as it is the jurisdiction where I practise, but I do try to refer to the Federation of Law Societies of Canada’s Model Code of Professional Conduct where possible. In this case while I quoted Commentary from Ontario, the rule 7.1-3 quoted above is from the FLSC’s Model Code, and I’ve discussed jurisdictional differences in footnote 1. In this instance, Manitoba’s rule matched the model rule and Ontario’s rule.

    If helpful, the FLSC’s interactive Model Code (here: https://flsc.ca/what-we-do/model-code-of-professional-conduct/interactive-model-code-of-professional-conduct/) permits users to cross-reference a province/territory’s own conduct rules with the Model Code. I am unsure about how frequently it is updated so it is always a good idea to check with the source material, but it is a reference I turn to often for comparison purposes.

    Thanks, all, for reading and engaging!