As a Lawyer, When Would You (or Should You) Report another Lawyer for Professional Misconduct?

11/24/2014

{Please note that the Rule discussed in this blog has been amended. My blog post on the amendments can be found here}

In my career I have been fortunate to work and interact with lawyers who are courteous, friendly, intelligent, civil, and formidable opponents. Most lawyers will promptly return my phone calls or emails, consent to requests for adjournments or extensions for filing defences (when appropriate), and use polite language, even in the most heated of arguments.

I have only dealt with a handful of “unprofessional” lawyers. Some lawyers simply refuse to respond to emails, letters, or phone calls. Others think that profanity, derogatory remarks, or excessive yelling helps their argument. Once, when a judge asked opposing counsel why he had not responded to my multiple requests for document disclosure he answered, “Well, I don’t know, I guess sometimes I am just a real bum-hole.” He did not use the word bum. When I witness this behaviour I may complain to a colleague or my husband and think: “Someone ought to report this person to the Law Society”. Then I move on to the next client or the next file and forget about these lawyers and their questionable behaviour.

However, when the newly amended Rules of Professional Conduct (the “Rules”) became effective on October 1, 2014, I reread them in their entirety and was reminded of my mandatory duty to report misconduct. This made me think: Am I under a duty to report this type of uncivil or unprofessional behaviour to the Law Society of Upper Canada (“LSUC”)?

Rule 7.1-3

The new Rules are based on the Federation of Law Societies of Canada’s (“FLSC”) Model Code of Conduct. Rule 7.1-3 (which was old rule 6.01(3)) states:

A lawyer shall report to the Law Society, unless to do so would be unlawful or would involve a breach of solicitor-client privilege,

a) the misappropriation or misapplication of trust monies;
b) the abandonment of a law or legal services practice;
c) participating in serious criminal activity related to a licensee's practice;
d) the mental instability of a licensee of such a serious nature that the licensee's clients are likely to be materially prejudiced;
e) [FLSC not in use]
f) any other situation where a licensee's clients are likely to be severely prejudiced [emphasis added]

Interestingly, the LSUC chose not to implement section (e) of the FLSC’s Model Code which states: “conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer”. Perhaps the LSUC chose not to adopt this section as the wording is very broad and could open the floodgates for potential reports of misconduct.

So, what situations will give rise to a duty to report? The first three scenarios under Rule 7.1-3 seem straightforward and fairly easy to identify. If you are aware of a lawyer who has stolen trust funds, abandoned his or her law practice, or participated in serious criminal activity related to his or her law practice, it is clear that you have a duty to report such behaviour to the LSUC.

However, the scenarios in subsections (d) and (f) raise some questions. Am I qualified to determine whether a fellow lawyer is mentally unstable? Or, am I able to determine if any such mental instability will “materially prejudice” a client? Also, what type of behaviour would fall into the ‘catch-all’ provision of “any other situation” where a client is “likely to be severely prejudiced”?

What is my duty?

Curious about my duty to report, I called the Practice Management Helpline at the LSUC. When I introduced myself as a lawyer writing on this topic I was asked for my LSUC number and advised that the LSUC would not respond to questions about hypothetical situations. So I used real examples from the past and asked for guidance on section (f): my duty to report “any other situation” where a lawyer’s clients “are likely to be severely prejudiced”. The individual I spoke with would not/could not provide me with a clear answer on the examples I provided. Nonetheless, she did parse the sentence for me and suggested that the use of the words “likely to be severely prejudiced” means that the Rule only applies to future client prejudice and not prejudice that has already occurred. In other words, if I am in a situation where I know a lawyer’s client is going to be severely prejudiced due to the lawyer’s actions I must step in and report the conduct to the LSUC, but if the client has already been severely prejudiced then I have no duty to report. This does not make sense to me and I question this interpretation of the Rule.

When I asked if there were any guidelines to help me understand my duty to report I was told that there was only the Commentary to Rule 7.1-3 which states, in part:

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).[emphasis added]

Contrary to the actual Rule, which according to the Practice Management Help Line seems to promote a very narrow interpretation of when there is a duty to report misconduct, the Commentary suggests a much broader duty, or at least an opportunity, for a lawyer to report any breach of the Rules as a whole. In other words, if I am aware of a lawyer who breaches her duty to conduct herself honestly and with integrity, civility, courtesy and good faith,[1] it would be appropriate for me to report such conduct. But, if I am also aware that this conduct will likely severely prejudice that lawyer’s clients, it is not only appropriate for me to report such conduct, I am obligated to do so.

I could not find any LSUC disciplinary decisions that dealt directly with the “Duty to Report Misconduct” Rule 7.1-3 (or its predecessor 6.01(3)), or guidance for the thresholds of “materially” or “severely” prejudiced in this context. However, The Law Society of Upper Canada v. Groia [2] provides some guidance on ‘incivility’ in the profession and examples of the type of behaviour that will amount to professional misconduct in courtroom proceedings:

“In this case, the conduct which is alleged to have ‘crossed the line’ is not mere rudeness, let alone bad manners. Nor is it simply excess rhetoric or sarcastic remarks about opposing counsel.”[3]

“Nevertheless, taken as a whole, many of the comments he made crossed the line: they included repeated personal attacks on the integrity of the prosecutors and repeated allegations of deliberate prosecutorial wrongdoing that did not have a reasonable basis and were not otherwise justified by the context.”[4]

“In our view, determining when uncivil courtroom communication ‘crosses the line’ is, therefore, fundamentally contextual and fact-specific.”[5]

“In assessing the context of courtroom communications, it will be important to consider the dynamics, complexity and particular burdens and stakes of the trial . . . a few ill- chosen words or sarcastic or even nasty comments directed at one’s opponent may not constitute professional misconduct justifying a discipline proceeding, particularly if they reflect a moment of ill-temper and an apology is made. . .”[6]

“In our view, it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel unless they are both made in good faith and have a reasonable basis. A bona fide belief is insufficient; it gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable suspicions of opposing counsel.”[7]

Therefore, while the determination of professional misconduct is very fact and context specific, it must be more than ill-chosen words or sarcastic and nasty comments. Nevertheless, repeated personal attacks on the integrity of other lawyers, and deliberate allegations of prosecutorial wrongdoing were enough in the context of this case to make a finding of professional misconduct.

Will You Report?

Reporting a fellow lawyer for breaching the Rules may result in serious ramifications for that lawyer. However, not reporting misconduct could result in even more serious consequences for that lawyer’s clients if the conduct prejudices their case and legal rights.

If the potential misconduct you witness is a result of a colleague or friend struggling with mental or emotional trouble, or drug or alcohol abuse, approaching that individual may be the best first step. You can remind them about the confidential counselling service provided by the LSUC and run by Homewood Human Solutions.

While most lawyers would be hesitant to report another lawyer, we must remember that we may not have a choice. The best suggestion to deal with any hesitancy is perhaps to call the Law Society’s Practice Management helpline and hopefully they can provide you with some guidance on your specific situation. However, burying our heads in the sand and simply ignoring the misconduct of a fellow lawyer could result in worse implications for that lawyer, the public, and the profession as a whole.

Please note that posts on this blog do not constitute legal advice and are for informational purposes only.

[1] See Rules 2.1-1 and 5.1-5.

[2] 2013 ONLSAP 41 (“Groia”), under appeal.

[3] Groia at para. 8.

[4] Groia at para. 10.

[5] Groia at para. 232.

[6] Groia at para. 233.

[7] Groia at para. 235.

4 Comments

Anne Rempel

9/13/2018 01:46:36 am

Hello Erin
.
Your blog on the Law Society’s interpretation of the duty to report another lawyer for misconduct is consistent with my own experience, which is that Rule 7.1-3 is just window-dressing.
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The reality is that nothing is going to happen to lawyers who misappropriate trust funds (7.1-3a) or act in a manner that prejudices their client (7.1-3f) unless that client has enough money to sue the lawyer directly. Similarly there will be no repercussions for lawyers who fail to report these behaviours. My experience is detailed below.
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At the time you were writing this article, I was writing up a 3-part complaint to the Law Society on these issues. I submitted my complaint in January 2015 and provided documentation to show that:-
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1. The lawyer for my late uncle had not properly assessed his capacity before drawing up Powers of Attorney and Wills for him and his wife; 7.1-3f
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2. The lawyer had acted against my uncle’s interest, 7.1-3f, by:-
(i) drafting unequal Wills which effectively disinherited my uncle
(ii) 6 months later drafting new Powers of Attorney that appointed the executors of his wife’s Will as his PoAs- thereby closing off any legal challenge to her Will. (And there was also another new Will increasing their share of his estate.)
(iii) Either passively or actively enabling $55,000 in RRIFs to be kept in my aunt’s estate despite my uncle being the designated annuitant. He died 13 months after his wife without having received the RRIFs. The fully preserved funds were then added to his estate.
(iv) 9 months after the PoA documents were written, she had actively assisted the PoAs’ efforts to expedite my uncle- HER CLIENT !!-into the first available LTC bed without the PoAs informing him of their intentions or giving any consideration to his wish for in-home care.
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3. Following my uncle’s death, in her capacity as lawyer for the executors, she used $30,000+ from my aunt’s estate to pay the expenses of my uncle’s estate. This enriched the executors who received 1/3 of my aunt’s estate but 1/2 of my uncle’s estate. These were modest estates of ~$200,000 each. (The final ‘misappropriated’ figure was $100,000 although I did not receive the documentation to show this until 2016.); 7.1-3a
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This matter had been litigated, so I had received copies of the lawyer’s trust accounts which I attached to my complaint. For other aspects of the complaint I was still waiting on documents which had been promised as part of Minutes of Settlement- but the Law Society should have been able to access the records directly. My complaint emphasised that, although the lawyer’s deceptive and obstructive behaviour was easiest part of the complaint to document (7.1-3a), it was her behaviour towards my elderly vulnerable uncle that concerned me the most; (7.1-3f). I considered it elder neglect/abuse- either directly or indirectly by enabling the PoAs- and I felt this had serious implications for her contacts with the broader community.
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The Law Society reviewed my complaint and promptly sent it to the Investigations section to be aged. It was prioritised somewhere below “Checking for Navel Lint”.
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TWO YEARS later, the Law Society Investigations section was still contemplating its navel. And on the estates side, I still had not received the documents promised by the Minutes of Settlement so I returned to court. As a result of this action, I received some (but not all) of the outstanding documents in mid-2017.
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These documents showed an even BIGGER problem involving the prestigious boutique legal firm specialising in estates and elder law issues which the executors had engaged for the litigation.
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These litigators had drawn up Minutes of Settlement which included an agreement that I would lift my Notice of Objection on my uncle’s estate and that I would indemnify the executors for their legal fees. In negotiating the Minutes the litigators had asserted that:-
1. There were no serious issues in the administration of the estates and that any allegation of breach of fiduciary would be vigorously litigated.
2. My uncle had not received the RRIFs because the CIBC had not advised that he was the designated beneficiary of the RRIFs
3. The use of $15,000 from my aunt’s estate was a reasonable action and was used to pay my uncle’s final tax since his trust account had insufficient funds at that point.
4. I was also assured that my concerns about a further $30-40,000 in misapplied/missing funds and $25,000 in unpaid taxes on the RRIFs were unfounded. The litigators had made queries about my concerns and I had been promised answers before the signing of the Minutes but deadlines resulted in these answers being incorporated into documents promised by the Minutes.
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By mid-2017 I was aware that the litigators claims were a tissue of lies:-
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1. Not only had the litigators failed in

9/13/2018 01:56:25 am

Hello Erin
My comment appears to have exceeded your character limit. I'll post the last bit in 2 parts.
cont'd...
By mid-2017 I was aware that the litigators claims were a tissue of lies:-
.
1. Not only had the litigators failed in their duty to report the misuse of trust funds- THEY had accepted $25,000 in misappropriated funds for their litigation fees for my uncle’s estate. As a result, the executors’ borrowings EXCEEDED their 1/3 of my aunt’s estate! If the misappropriation of funds wasn’t a breach of fiduciary duty on its own, then this certainly was! How very convenient that the litigators had me lift my Notice of Objection so that the executors had access to additional funds! And wasn’t it convenient that this had the benefit of protecting the payment of the litigators’ fees!
2. The executors and their lawyer HAD been correctly advised by the CIBC that my uncle was the beneficiary of the $55,000 in RRIFs. And they obviously understood this because my aunt’s final tax was calculated as if these assets had been rolled over to her spouse. And, no tax had been paid when they transferred the RRIFs to my uncle’s estate, so I was correct; there was $25,000 in outstanding taxes!
3. It had not been necessary to use my aunt’s funds to make my uncle’s $15,000 tax payment. The lawyer’s trust account for my uncle had $14,900+ in it at the time the payment was made.
4. The litigators HAD received answers to my queries before the Minutes were signed but WITHHELD the documents. These showed a further $30-40,000 in irregular transactions and misplaced funds, as well as $25,000 in unpaid taxes. (Do you think they were concerned that I wouldn’t sign if they told me this??)
.
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I submitted another complaint to the LSO. Once again I emphasised that, while the financial malfeasance was the obvious issue, I was more concerned about the Elder Abuse issues. These money games began in my uncle’s lifetime and were devastating for him; the loss of $55,000 in RRIFs significantly changed the viability of his wish for in-home care.
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AND I emphasised that I know mistakes can happen; but that I felt open discussion and education were the key to addressing the issues.
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The LSO response has been SILENCE. It has been almost 300 days since I was advised that the investigator was writing a report which they expected to be completed in 2-3 weeks. I’ve nagged- but I don’t get an answer.
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Then, in November 2017- nearly 3 YEARS after I submitted it- the LSO held a Regulatory Meeting about my first complaint. They found that the lawyer:-
. Had not taken proper steps to ascertain my uncle’s capacity.
. Had acted where she had a conflict of interest (instance unspecified)
. Had acted inappropriately in using funds from my aunt’s estate to pay my uncle’s estate expenses. You can find the full report at:- http://digital.ontarioreports.ca/ontarioreports/20171215?pg=83#pg83 .
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When I enquired about my Elder abuse concerns I was told that they were not part of the review because my initial submission had not supplied enough information to justify investigation. I was told that if I received any additional information I could resubmit my complaint.
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I found reply this galling- particularly with regard to my uncle not receiving the RRIFs. When I submitted my complaint I didn’t yet have the CIBC advice but I had asked the LSO to check that the lawyer’s claim that it was a CIBC error because during my uncle’s lifetime the CIBC had advised him that they were acting on the advice of the executors but couldn’t given him any further information due to ‘Privacy’. In addition I noted that if the lawyer had properly deposed the Wills she should have been advised of the beneficiary status. Surely the Public interest would have been better served by checking whether there was a problem, rather than the LSO sitting on its thumbs than letting the lawyer’s behaviour continue uncorrected for the next 3 years!
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Armed with the new information I’d received in mid-2017 I submitted another complaint showing that the estate lawyer had lied about the RRIFs. SHE was the person who submitted the asset summary for the Certificate of Appointment as Estate Trustees and that application did not include the RRIFs but the other values matched the CIBC statement which had ‘beneficiary’ marked next to the RRIFs. I provided documentation about a number of other account fiddles as well. I also complained that the current litigator was continuing to withhold documents that had been promised by the Minutes of Settlement. (The litigator unilaterally declared that I have received all documents; my lawyer confirms that they have not been received.)
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9/13/2018 01:58:20 am

part 3...

The LSO was quick on this one; I had a response within 3 months.
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I was told that the LSO only investigates elder abuse when the lawyer takes money directly or advises the Power of Attorney to do so. The enabling and covering-up of financial abuse do not meet the LSO’s threshold for an investigation. And, apparently failure to act in accordance with the grantor’s prior wishes on personal care issues is acceptable even when the lawyer actively assists the PoAs in bypassing their obligations. It hadn’t warranted investigation either. With regard to the continuing failure to produce documents by the Minutes- I was told to go back to court- and once I get the documents I can resubmit my complaint!
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So, as I said, Rule 7.1-3 is window-dressing. The Law Society slow-walks complaints about blatant, thoroughly documented misuse of trust funds. They have no interest AT ALL in addressing the less clearly defined situations where a lawyer’s actions/inactions may prejudice their client’s interests.

Regards

Anne Rempel

Steven Churchill link

2/1/2020 01:45:44 am

Excellent post. I want to thank you for this informative read; I really appreciate sharing this great post. Keep up your work.

As a Lawyer, When Would You (or Should You) Report another Lawyer for Professional Misconduct?

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