Law Times

Law Times • sepTember 15, 2014 Page 3 www.lawtimesnews.com Law society tribunal Move to non-bencher adjudicators lauded By yaMri taddese Law Times he Law Society Tri- bunal has boosted the number of non-lawyer and non-bencher ad- judicators, a move some ob- servers say creates a fairer pro- cess for those facing disciplin- ary proceedings. Ten lay and 13 non-bencher lawyer adjudicators are now members of the new tribunal that decides the fate of lawyers accused of professional miscon- duct. The revamped tribunal has been operating since March following provincial amend- ments to the Law Society Act last year. The move towards more lay adjudicators followed a March 2012 Law Society of Upper Canada report that imagined a redesign of the tribunal pro- cess. "Qualified and available adjudicators play a central role in the effectiveness, reliability, transparency, and fairness of the tribunal. Self-regulation neces- sitates that lawyers and parale- gals will preside over regulatory proceedings concerning their peers. To ensure the added input of the public, lay appointees are also an integral part of the hear- ings process," according to the report. "Traditionally, only bench- ers sat as adjudicators, but since 2006 the Law Society Act has provided that benchers, licens- ees, and persons approved by the attorney general are eligible to sit on hearing and appeal panels." The change offers some com- fort to accused lawyers who doubt the fairness of a panel made up of members of the law society's governing body, says Bill Trudell, who often acts as counsel for those facing disci- plinary proceedings. "I have had clients who have appeared before tribu- nals where two of the three panellists are benchers and the question posed [was], 'Are they benchers first or adjudicators first?'" he says. "Although benchers work hard and do their best, the ques- tion is a valid one," he adds, not- ing appointing outside adjudi- cators adds "enormous balance" to the tribunal process. "David Wright, the new [tribunal] chair, is clearly lead- ing a fairer, more impartial, and transparent process," says Trudell. "These new adjudicators, properly trained as judges, can only make the system better op- tically and in real terms." Under the previous model, the law society's benchers had to serve on disciplinary hearings as part of the requirements of their position. Now, they must apply for the job if they have a particular interest in it. "The use of bencher adjudi- cators should be predicated not just on the fact of their election, but on the basis of quality and availability. This is essential to a tribunal that is effective, inde- pendent, and transparent," ac- cording to the 2012 law society report. The result is a professional- ization of decisions that come out of the law society tribunal, says University of Ottawa Fac- ulty of Law Prof. Adam Dodek. "The primary role of the benchers is essentially as a board of directors and their role is to make policy decisions for the law society. They don't neces- sarily have any inherent admin- istrative law expertise," he says. Involving members of the public in the disciplinary pro- cess is also important as the mandate of the law society is to regulate the legal profession in the public interest, Dodek adds. "Historically, law societies in Canada had a tendency to find whatever is in lawyers' interest is also in the public's interest, and so opening up themselves to more and more participation by real members of the public I think will provide an important voice, an important perspective, and legitimacy." The 2012 law society report also said the new tribunal would save the regulator money on ap- peals as "an enhanced adjudica- tive model is likely to result in fewer successful appeals." Another benefit of involv- ing more non-benchers in the process is the impact on the public perception of the law so- ciety as a regulator, says Freya Kristjanson, an administrative lawyer at Cavalluzzo Shilton McIntyre Cornish LLP. "Cases are prosecuted by law society staff, so putting in now what's much more clearly an ad- judicative tribunal will help the public perception that we some- times face in any self-regulatory organization," she says. "Members of the public will be better able to see the distinc- tion between law society staff, law society benchers, and those who sit on adjudicative panels." Trudell agrees, referring to recent media coverage that painted the law society as a toothless watchdog that protects its own. That perception is false, says Trudell, but "it can be somewhat alleviated by non-bencher adju- dicators." Still, the law society says not every panel will have non- benchers on it. The structure of hearing panels varies according to type of case at issue, says law society spokesman Roy Thom- as. "Most lawyer hearings have a lawyer bencher, a layperson, and a third person who may be either a bencher or not. Most paralegal hearings have a paralegal, a lawyer, and a layperson, each of whom may be either a bencher or an appointed adjudicator," he says. "These requirements can be departed from in certain cir- cumstances set out in the regu- lation." As the law society makes the transition to its new system, benchers will have an important role to play on hearing panels, according to Trudell. But "as we move towards more and more complex hearings, new help — properly trained and qualified from the outside — comple- ments this existing practice," he says. All bencher and non-bencher adjudicators are equal members of disciplinary panels, Thomas says, adding that non-bencher adjudicators appointed under the new model must have prior adjudicative experience. LT NEWS Advocate Champion Trailblazer Sidney B. Linden Award 2014 Does this describe someone you know? Someone whose long-standing commitment to access to justice for low-income people in Ontario stands out above the crowd? Nominate them for the 2014 Sidney B. Linden Award Nomination forms and more info: www.legalaid.on.ca/SBL For more info call Stephanie Mealing at (416) 204-5428 or mealins@lao.on.ca The submission deadline for nominations is Friday, October 10, 2014 Untitled-3 1 2014-09-10 8:50 AM T 'Members of the public will be better able to see the distinction between law soci- ety staff, law society benchers, and those who sit on adjudicative panels,' says Freya Kristjanson. Non-bencher adjudicators of the Law Society Tribunal David Wright (chairman)*: lawyer Andrea Alexander: layperson Margot Blight: lawyer Marc D'Amours*: lawyer Phillippe Capelle*: lawyer Laura Donaldson*: lawyer Paul Dray*: paralegal Stephen Goudge*: lawyer Lyle Kanee*: lawyer Eva Krangle*: layperson Barbara Laskin: layperson Roger Leclaire: lawyer Michelle Lomazzo*: paralegal Sabita Maraj*: layperson Anna Mascieri-Boudria*: paralegal Jacques Menard: lawyer Andrew Oliver*: layperson Susan Opler*: lawyer Maurice Portelance: layperson Frederika Rotter*: lawyer John Spekkens*: layperson Errol Sue*: paralegal Michelle Tamlin*: paralegal Marilyn Thain*: layperson Howard Ungerman: lawyer Sarah Walker: layperson Eric Whist*: layperson Ted Yao: lawyer * Denotes those appointed after 2012 7 TH ANNUAL ADVERTISING LAW: BEYOND THE CASL WALLS COURSE LEADER: BRENDA PRITCHARD, Gowling Lafleur Henderson LLP TORONTO DECEMBER 2, 2014 • cpdcentre.ca/lexpert

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