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October 5, 2015

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Page 2 OctOber 5, 2015 • Law times NEWS Convocation considering administrative surrender of licences But Galati worries new process could look like an 'escape hatch' from scrutiny BY NEIL ETIENNE Law Times lthough some see it as a potential "escape hatch" from disci- pline and public scru- tiny, Convocation has approved in principle a new option for lawyers and paralegals to administratively surrender their licence. At Convocation on Sept. 24, Malcolm Mercer, chairman of Convocation's professional regu- lation committee, noted the pro- posal is part of ongoing efforts to make the Law Society of Upper Canada's "processes both fair and expeditious." "Essentially, what is proposed is to add another tool to the tool kit," said Mercer, noting it would only apply under limited circumstances. "There is a sub- set of licensees where investiga- tions are made and the licensee reasonably, from their perspective, neither wishes to ultimately de- fend a discipline proceeding nor to continue in practice. "The question is why should we, in effect, create a block where, if the investigation will not end be- cause there is some reason for it to continue and yet the best answer for all concerned is the licensee leave practice, why do we not per- mit that? In limited circumstanc- es, there should be a mechanism by which licensees under investi- gation are permitted to surrender their licences." Mercer said there would be circumstances where the new pro- cess wouldn't be an option, such as situations in which "the scrutiny of a hearing and the potential for a disciplinary penalty is the right thing." "There are circumstances, and there might not be many, where the right answer is not a discipline hearing and proceeding with an investigation," he said. "A circumstance in which a licensee is failing to respond to, or co-operate with, the law society would not generally be appropriate for this pro- cess," he added, noting the new process would only be an option where the public inter- est doesn't require a full pros- ecution and where it might contribute to more efficient proceedings by shortening or not commencing hearings. In addition, Mercer said any bylaw would need to ad- dress how to disseminate in- formation about the potential misconduct or the nature of the investigation, the agreed statements of facts, and the reasons for surrendering the licence. Some benchers, however, were skeptical of the idea. "I have serious concerns about this," said Bencher Rocco Galati. "It could send the wrong message to the public. The Police Ser- vices Act, for instance, allows a member to resign at any time before a disciplinary hearing and that's one regime. And there's the other regime where you can't resign at all, but in- jecting this exception without articulation, I think, sends the wrong message to the public." Galati said he worried the new process "could be per- ceived as an escape hatch to do favours for lawyers." In response, Mercer ac- knowledged the concern but offered a few explanations. "The point, then, is how will the public know that the pub- lic interest has been properly pursued? How will they know we're not hiding licensees who have maybe done bad things and want to slip out the back door?" he asked, explaining that a tripartite agreement between the licensee, law society staff, and a sitting summary bencher would have to be accepted and that all parties would need to approve a publicly posted agreed statement of facts. According to Mercer, the ad- vantages would include reduced time and resources to terminate licences and the creation of ad- ditional options for licencees who may wish to surrender their li- cence but can't do so due to ongo- ing investigations or discipline. As well, the process would allow for termination of licences in circum- stances where it might otherwise be difficult to achieve through a disciplinary process, he suggested. Although not opposed to the proposal, Bencher Gary Lloyd Gottlieb worried about the length of time the licensee's investiga- tion matter and information sur- rounding the surrender would be available online. "I understand the public in- terest is paramount but I think it would be unfair to the lawyer involved to have the misconduct detailed on the public web site in perpetuity," he said. "The solution to that is after a reasonable period of time for the information to be taken off or the alternative that there should be the ability of the lawyer to apply for the particulars to come off of the society's public site." Convocation will need to dis- cuss several bylaw amendments and wording before a taking fi- nal vote on the issue at a future meeting. LT 'There are circumstances, and there might not be many, where the right answer is not a discipline hearing and proceeding with an investigation,' says Malcolm Mercer. A CANADA & USA 1.800.265.8381 | EMAIL | The reason why we are Canada's largest and most comprehensive structured settlement firm has everything to do with our passion for service and performance — without exaggeration, we make life easier for you. Almost as fast as McKellar. Light travels at a speed of approximately 186,282.397 miles per second. Untitled-5 1 2015-01-06 2:04 PM NOTICE Law Times will not publish in print next week. 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