Law Times

Law Times • apriL 9, 2018 Page 5 www.lawtimesnews.com Interlocutory suspensions necessary to protect public? Divisional Court rejects LSO appeal on disclosure BY ALEX ROBINSON Law Times T he Divisional Court has dismissed an appeal by the Law Society of Ontario challenging an order that required the regulator to provide more disclosure to a lawyer facing an interim suspen- sion. In Law Society of Upper Canada v. Cengarle, the LSO brought an interlocutory sus- pension motion against lawyer Licio Cengarle for allegations he knowingly or recklessly facilitat- ed a fraud his assistant allegedly ran using his trust account. Before his suspension hear- ing took place, Cengarle brought a motion requesting the law so- ciety disclose all potentially rel- evant materials. In the first decision dealing with the issue, the tribunal or- dered the law society to disclose all documents that were poten- tially relevant to the suspension motion and had been reviewed. The Divisional Court has now dismissed a law society appeal of that decision. Matthew Wilton, the lawyer who represented Cengarle in the proceeding, says the underlying decision will be important for lawyers who face interlocutory suspensions going forward. "The law society in every case will now have to make disclo- sure," he says. The law society brought its appeal as a test case despite agreeing to provide disclosure so that the hearing could proceed in the meantime. Cengarle has since been sus- pended. In its factum for the appeal, the law society argued that in- terlocutory suspension hearings are meant to happen quickly, sometimes with as little as three days' notice. Imposing such disclosure requirements on the law society would delay matters, compro- mise investigations and under- mine the "law society's very abil- ity to protect the public," the law society said. Wilton argued that it would be unfair for lawyers to be "com- pelled to provide disclosure" to the law society against their own interests but receive no disclo- sure in return. The Divisional Court found the issue was moot, as the law society had already provided disclosure, and that the tribunal should be allowed some time for its jurisprudence on the topic to evolve. The Divisional Court dis- missed the LSO's appeal, deter- mining that it could not rule on the matter, as the law society had not appealed through its tribu- nal system before seeking judi- cial review. Increasingly, over recent years, the law society has used interlocutory suspensions to bar lawyers accused of serious misconduct from practising while investigations are ongo- ing. In 2017, the LSO issued 21 notices for interlocutory suspen- sions — a notable increase since 2012, when it only issued three of them. The law society has said that interlocutory suspensions are necessary to protect the public. But some lawyers say such sus- pensions are draconian tools that have devastating effects on lawyers' reputations. Without an interlocutory suspension, allegations against a lawyer would not become pub- lic until they were set to face a hearing, which is often after an investigation is complete. Lawyers say such suspensions can be hard to bounce back from and should only be used sparingly when there is a real demonstrative risk to the public. Interlocutory suspensions take away a lawyer's income while they face legal costs, for what can be lengthy periods of time, law- yers say. Lawyer Bill Trudell, who was not involved in the Cengarle matter, says interlocutory sus- pensions are overused and can often be career ending. He says the starting point for the law society in interlocutory suspension motions should be to provide full disclosure to the accused. "In a criminal law matter, the rule is full disclosure; but if there are sensitive items or security is- sues, then they are often raised with counsel. I would think the same thing should apply at the law society," he says. He adds that if the lawyer does not have counsel, amicus curiae should be appointed for such issues. Wilton says interim suspen- sion motions are very difficult for accused lawyers to win, as the legal test does not have a very high bar that the law society needs to meet. "In Ontario, lawyers are now facing lengthy interim suspen- sions solely on the basis that their right to continue to prac- tice, even prior to a hearing on the merits, would erode public confidence in the administra- tion of justice," Wilton wrote in his factum. Wilton added that given the serious consequences of such suspensions, as well as the fact that it is quite easy for the law society to obtain them, lawyers should be given all "procedural protections under the law" in their defence. Richard Watson, a lawyer who has represented practitioners in discipline hearings, says the result of the underlying tribu- nal decision in Cengarle is that lawyers facing an interlocutory suspension will be entitled to a higher level of disclosure than might have been the case before. "That underlying decision is quite important and quite fa- vourable to lawyers facing sus- pension, as it carefully analyzes and clarifies the disclosure to be made on an interlocutory sus- pension application and impos- es a higher duty of disclosure on the LSO Discipline Department than they wanted," says Watson, who was not involved with the matter. He says the tribunal's de- cision provides some useful guidelines as to what to expect in the way of disclosure in vari- ous circumstances, as well as the underlying rationale for those guidelines. Wilton says the law society has already changed its practices on disclosure in these kinds of motions since the Cengarle de- cision was released. He says he has heard from lawyers working suspension cases in which the law society has made more disclosure than it would have done before the decision was made. "We make this determination cognizant of the Law Society's expressed concern for delay and the assistance that would be pro- vided by a precedent. In the end, each case is different and depen- dent on its own facts," said the ruling. "There is no certainty that any decision made here would be one of wide application. "Moreover, the Law Society Tribunal, in both its manifesta- tions, is an expert Tribunal," ac- cording to the ruling. "The experience and guid- ance of the Tribunal should be fully before the court on this, if not any, application for judicial review." A spokeswoman for the law society says the LSO has no in- tention to appeal the Divisional Court's decision. LT NEWS 0LFKDHO6FKDÀHU3DUWQHU'HQWRQV "This is the A-Z course about arbitration essentials - fabulous!" Gold Standard © Course in Commercial Arbitration Now Registering for the 2018/2019 Course Course and Registration details http://torontocommercialarbitrationsociety.com/ gold-standard-course-arbitration/ Untitled-5 1 2018-04-03 1:20 PM Matthew Wilton says a recent Divisional Court decision will mean the Law Society of Ontario has to provide more disclosure in interlocutory suspension motions. www.twitter.com/lawtimes Follow on

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