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What Do I Do When I Receive a Law Society Complaint?

Receiving notice from a regulator that there has been a professional conduct complaint against you can be overwhelming and stressful. Many lawyers’ minds jump to the worst-case scenario: Am I going to lose my licence? Fortunately, this is a rare outcome. But lesser penalties or remedial consequences can still affect your career, and even if the complaint is dismissed the process can be lengthy and challenging.

Most conduct complaints are resolved without proceeding to discipline at all.[1] This is the goal upon receiving a complaint, and it is often attainable. Your response—or lack thereof—plays an important role in determining whether you may become the subject of public disciplinary proceedings and end up with a discipline record, or whether you can clarify and resolve the issue without a notation on the public record and without risks to your licence and livelihood.

While we all hope we will never be the subject of a Law Society complaint, it can happen to the best of us. If you ever find yourself in this situation, I hope my list of key “dos and don’ts” for lawyers who receive a Law Society complaint will be helpful.[2] Each is discussed further below.

  1. Don’t panic.
  2. Don’t ignore it.
  3. Read it carefully.
  4. Review your file.
  5. Consider retaining counsel.
  6. Respond in a thorough and respectful manner.
  7. Know what happens next.

1. Don’t panic

Receiving a Law Society complaint does not mean you are a bad lawyer. Often, complaints from members of the public are based on a misunderstanding or miscommunication. Sometimes, former clients (or former adversaries) submit a complaint because they are unhappy with the outcome of their matter—regardless of whether that had anything to do with your professional conduct.

Take a breath. While the Law Society completes a preliminary review to screen out complaints that are outside its jurisdiction or that obviously have no merit on their face, it will investigate complaints that raise a suspicion that the lawyer may have engaged in professional misconduct, further to its statutory duty to regulate the legal profession in a manner that protects the public interest.

Importantly, Law Society staff know that, at this point, they have received just one side of the story. Remind yourself that this is just the first step in the process, and you have an opportunity to respond before anything further will happen.

2. Don’t ignore it

If the Law Society has reached out to you about a complaint, ignoring will not make it go away. In fact, under rule 7.1-1 of the Rules of Professional Conduct, you have a professional obligation to respond promptly to a complaint.

Failing to respond to a Law Society complaint is only going to make matters worse. And I don’t mean this solely in the sense that it will annoy the Law Society and prolong the process. If you do not honour your duty to respond under rule 7.1-1, the Law Society will likely commence discipline proceedings against you—in addition to the issues raised in the complaint (which you will still have to face down the road). Failure to respond hearings usually proceed in a summary fashion: the Law Society marshals affidavit evidence of their attempts to contact the lawyer about the complaint, and unless the lawyer provides evidence demonstrating that they did not receive the notice through no fault of their own or were somehow prevented from complying with the request for a response, they are generally found to have committed professional misconduct.

In other words, if you ignore a complaint, you could end up with a discipline record due to your inaction—even if the initial complaint was meritless.

Lawyers are usually given 30 days to respond to a complaint. In my experience, if you require more time—such as to retain counsel, get through a few busy weeks in your practice, or to obtain and review the relevant client file—the Law Society is generally content to provide a reasonable extension. But you (or your counsel) should ask for additional time before the deadline has passed—this is a situation where it is better to ask for permission than forgiveness.

3. Read it carefully

The complaint you receive will generally be made up of various parts: (i) a form completed by the complainant, which sets out their concerns in their own words and may include supporting documents they provided; (ii) correspondence from the Law Society that identifies the regulatory issues they are investigating; and (iii) a list detailing what the Law Society expects you to address in your response, including any supporting documents they want you to provide.[3]

Read all parts of the complaint and associated correspondence carefully. Then read them all again.

On occasion, the complainant raises numerous issues but only some are the subject of the Law Society’s investigation, so you need not necessarily address all issues raised in the complaint itself (for example, sometimes the Law Society declines to investigate issues because they are outside its jurisdiction or because there is insufficient information to support the stated concern). You are, however, required to address all issues identified by the Law Society.

Take the time to ensure you understand what the Law Society is asking for—both in your written response and as regards supporting documents. It is likely to take some time to get the requisite documents together and to consider and draft the appropriate response, so best to get started promptly upon receiving the complaint.

4. Review your file

Refresh your memory on exactly what happened in the relevant matter, and take stock of what documents you have that will help you respond. Take note at an early stage if there are documents the Law Society requires that you do not readily have access to (for instance, if you need to work with your bookkeeper or accountant to assemble financial records, or if the complaint relates to your work at a prior workplace and you no longer have access to the file).

If you want to resolve the complaint as soon as possible, you should provide everything requested with your initial response. If you do not, the investigator will follow up and continue to request the information it requested until it is provided—only to prolong the investigation.

5. Consider retaining counsel

I know this looks like a shameless plug for my legal services, but this column would not be complete if I did not implore lawyers facing a Law Society complaint to hire outside counsel to assist them in preparing a response (I am certainly not the only lawyer who does this work, and I would be happy to connect interested readers with other counsel experienced in this area).[4]

For the last decade or so, my practice has involved helping professionals respond to regulatory complaints. I’ve found that most health professionals (doctors, nurses, chiropractors, psychotherapists, etc.) recognize that responding to a regulatory complaint is out of their wheelhouse and thus retain counsel to assist them (it certainly helps that many of them have the benefit of insurance that will cover the legal costs associated with regulatory complaints, whereas—in Ontario at least—our professional liability insurance is restricted to civil claims for solicitor’s negligence, and does not cover legal expenses for Law Society matters).

Lawyers, on the other hand, are trained in and have spent years honing their writing, advocacy, and analytical skills. Coupled with the lack of insurance coverage, this often leads lawyers to deal with complaints themselves.

This is usually a bad idea.

First, general legal training is unfortunately insufficient to do a good job in specialized areas of practice. Lawyers should consider retaining outside counsel for assistance with regulatory complaints for the same reason they would hire a real estate lawyer when purchasing a home or a family lawyer to draft a cohabitation agreement: to benefit from specialized knowledge and experience (in this case, regarding how the complaints, investigation, and discipline process works in practice and strategies for addressing Law Society concerns).

But even with knowledge in the area, there is a further reason to hire outside counsel to assist: to benefit from an objective perspective.

Truly, if I were faced with a Law Society complaint, I would retain outside counsel to help even though I’ve been dealing with these matters on behalf of others for years. It is incredibly difficult to explain one’s side of the story clearly, without undue emotion, and in a manner that does not come across as overly defensive when you feel under attack; when you personally lived through the situation; and when your licence and livelihood may be at risk. The old adage “a lawyer who represents himself has a fool for a client” might apply here.

I recognize that hiring counsel can be financially challenging for some lawyers facing complaints. On that point I would add two comments:

  • On several occasions I have been retained to assist with a conduct matter late in the game (e. where lawyers or health professionals represented themselves in responding to the initial complaint), and on reviewing the matter have thought that the referral to discipline or lengthy investigation could have been avoided entirely if they had sought counsel earlier on (in which case their response would have been clearer, in a more productive tone, and otherwise more amenable to early resolution). In more than one case, these matters developed into multi-day hearings and legal fees for the discipline process totalled over $100,000. One of these professionals lost their licence. All of this is to say: Retaining counsel to assist with a complaint may be more cost-effective in the grand scheme. Relatedly, in Law Society matters, once a matter is referred to discipline, it is incredibly difficult to exit the process without a discipline record—it is far preferable to stop the discipline process before it starts.
  • Lawyers with financial limitations or experience responding to regulatory complaints in other contexts might consider hiring counsel for limited scope assistance rather than full representation. While this would not be advisable in all situations, lawyers who can competently review and assemble all responsive documents and prepare a strong first draft of their written response for outside counsel’s review could minimize their legal fees while still benefitting from an objective and experienced perspective.

6. Respond in a thorough and respectful manner

Your written representations in response to a conduct complaint are crucial. They should address all regulatory issues the Law Society has raised and explain your perspective on what occurred in a thoughtful and fair manner. More specifically:

  • Let go of any anger or resentment you may have against the complainant. You are the professional here. Even if they may deserve it, pointing fingers at the complainant is not a good look—and uncivil criticism of the complainant can give rise to more professionalism concerns (I’ve seen this more than once).
  • Where the complainant has the facts wrong, set the facts straight firmly but politely; consider using words like “mistaken”, “inaccurate”, or “misunderstanding”, rather than asserting or suggesting that the complainant is lying.
  • If you made a mistake, it may be worthwhile to own up to it in your response. Consider the merits of acknowledging your error and whether the benefits outweigh any associated risks. Making changes to your practice to address a deficit (g. providing a copy of a document the complainant claims they never received; engaging a bookkeeper to assist with books and records issues; or seeking support from a mentor) may also be of assistance.
  • Even if you believe you acted properly, if someone has complained about you, there is often something that, in retrospect, you could have done better. Acknowledging what you’ve learned and what you would have done differently, with the benefit of hindsight, can go a long way—and can still be entirely consistent with denying that you committed professional misconduct.
  • Include documentation in support of your explanation. Rule 3.3-4 provides that where it is alleged that a lawyer has “engaged in acts of professional misconduct or conduct unbecoming a lawyer, the lawyer may disclose confidential information in order to defend against the allegations, but shall not disclose more information than is required”. Section 49.8 of Ontario’s Law Society Act requires lawyers to produce documents the Law Society requires in conduct investigations “even if the information or documents are privileged or confidential”, while also providing that such disclosure to the Law Society does not negate or constitute a waiver of privilege (you may want to seek legal advice about whether and how this applies to your situation).
  • Be mindful of the fact that your response, or parts thereof, may be provided to the complainant. If you have concerns about what is shared with the complainant (for instance, if the complainant was an adversary and you disclose privileged information to explain your conduct to the Law Society, or if you disclose that the former client who complained has serious mental health issues and you believe you have become the subject of their delusional thinking), you can request that the Law Society not share such information.
  • Offer to provide anything further that the Law Society may require to resolve the matter. You have a duty to cooperate either way, so in my view it is better to do so actively than begrudgingly.

7. Know what happens next

The Law Society receives a lot of complaints (approximately 4,000 per year in Ontario), and working through them in a procedurally fair manner takes time. Unfortunately, this matter is unlikely to be resolved promptly after you submit your response. You might not hear anything for a few months or, in some complex investigations, over a year—but no news does not equate to bad news.

It may be helpful to follow up after a month or two has passed to see if the Law Society requires anything further (if you have counsel, they should do so). If you did not provide everything the Law Society asked for, there will likely be some further back-and-forth while you locate and provide the documents required (these documents are usually documents we have a professional obligation to have on file, so an inability to produce them could also create further problems). The Law Society may also receive new information from the complainant or others that could warrant a further response from you.

Do your best to be patient and focus on the rest of your life and practice while the process runs its course (within reason—where investigations stretch years or are grossly disproportionate, you might seek legal advice on potential remedies or next steps).

While many complaints are resolved through correspondence and documentary exchanges, investigators are empowered by s. 49.3 of the Law Society Act to take various additional measures in conduct investigations. These can include attending at your office during business hours, requiring you to attend for an interview (whether in person or virtually), or requiring people who work with you to provide information, whether through an interview or a document request. While investigators have the power to enter your office without notice, this is uncommon in most circumstances—but it may be appropriate where there is a need to act urgently or a reasonable concern that the lawyer may act improperly if they have a heads up (e.g. by seeking to conceal irregularities in their trust account).

In Ontario, conduct investigations can conclude with:

  • the closure of the matter without further action, if the evidence does not raise professional conduct concerns;
  • the provision of written “regulatory guidance” from Law Society staff if minor professional conduct concerns arose, but they do not rise to a level that would warrant discipline (this guidance is not public, but the complainant will be informed that it occurred);[5] or
  • Referral to the Law Society’s Proceedings Authorization Committee (PAC). PAC assesses whether there are reasonable grounds for believing that the lawyer committed professional misconduct, and if so, may authorize the matter to proceed to a discipline hearing.
  • Alternatively, PAC can recommend a remedial, non-disciplinary outcome such as an invitation to attend (a confidential meeting with Law Society benchers to discuss the issues that arose) or a regulatory meeting (a private meeting with benchers to address the issues that arose, of which notice will be published). At present, the lawyer must agree to attend either of these meetings to divert the matter from discipline.[6]

Like it or not, receiving a Law Society complaint is an occupational hazard as a member of a self-regulated profession. It has happened to many excellent lawyers, including those who did nothing wrong, made an honest mistake, or slipped up on an off day.

In the vast majority of cases, a conduct complaint need not lead to career-ending consequences. But the severity of potential outcomes, the length of time it will take to resolve, and the stress the complaint and its repercussions will cause you can all be reduced by taking the complaint seriously and responding effectively when you first receive it.

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[1] According to the Law Society of Ontario’s most recent Annual Report, 4,145 complaints against lawyers and paralegals were referred to the Professional Regulation department in 2022, and 143 discipline notices were filed that year (which would mean about 3.5% of complaints were referred to discipline). While it often takes more than a year for a complaint to wind through the investigation process and be considered for referral to discipline—meaning those discipline notices would have in many cases related to complaints made in previous years—this is nevertheless a useful snapshot of how many complaints are made and how many discipline applications are commenced in a given one-year period. These figures are similar in the three LSO prior Annual Reports that are available online.

[2] As always, these thoughts should be taken as general guidance and information and not legal advice particular to your situation. Moreover, these thoughts are based on my experience with the Law Society of Ontario, and may not apply equally to the law societies of other jurisdictions. If you find yourself faced with a Law Society complaint, please feel free to reach out and I’d be happy to assist or refer you to other lawyers with experience in this area.

[3] In Ontario, as of last fall, the Law Society is communicating to lawyers who are the subject of complaints through a new online portal called LSO Connects. In my opinion (and that of several other defence lawyers I know), at present the portal does not function effectively and unfortunately makes the process of addressing a complaint more difficult for lawyers than it already is. For instance, at the time of writing, different parts of the complaint are found in different places in the portal, and it is challenging for lawyers’ counsel to get access to this information. Take care to review the notice you receive closely to ensure you can find and keep copies of everything you need to prepare a response (and provide it to your counsel, should you retain one).

[4] Relatedly, I wish to thank my colleagues Nadia Liva, Lisa Freeman, and John Dent for their comments on an earlier draft of this article. They are among those I would recommend as counsel for Ontario licensees who are subject to complaints, investigations, and discipline, and I am grateful to benefit from their experience and wisdom.

[5] Incidentally, there is some debate about whether Law Society staff have statutory authority to do this, as the Law Society Act and By-Law 11 specifically empower the Proceedings Authorization Committee to do so, among other remedial measures, but do not similarly provide the authority to implement remedial measures to Law Society staff. Indeed, “regulatory guidance” was previously referred to as a “staff caution”, which risked implying to complainants who were informed that the lawyer had been “cautioned” that the lawyer had been disciplined. It was only after counsel for a lawyer brought this concern to the LSO’s Professional Regulation Committee that the LSO agreed that “staff cautions” should no longer be administered. The term “regulatory guidance” is undoubtedly preferable, but raises the same jurisdictional concern to a lesser extent.

[6] The Law Society of Ontario conducted a consultation in late 2022 and early 2023 about the possibility of expanding PAC’s remedial powers, including by permitting PAC to direct mandatory regulatory meetings and/or compulsory education or remediation programs, both of which would involve public notice. At the time of writing in January 2024, these steps have not been confirmed or implemented. The consultation report notes that the Law Societies of Alberta, British Columbia Manitoba, Newfoundland, the Northwest Territories, Nova Scotia, Nunavut, Saskatchewan, and Yukon have authority to compel lawyers to appear before their equivalents of PAC. See: https://lawsocietyontario.azureedge.net/media/lso/media/about/convocation/2022/convocation-october-2022-professional-regulation-committee-report.pdf

Comments

  1. Brooke, I’ve posted your article to three Facebook lawyer groups I belong to. It will likely prevent some panic attacks.

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