Ontario law society takes nearly 3 years on average to begin to discipline lawyers facing serious complaints by Mariya Postelnyak, Aug 19, 2024, The Globe and Mail
People who complain to the Law Society of Ontario about lawyers alleged to have acted unethically, unlawfully or who were incapable of providing proper counsel can wait more than 2½ years before their case is argued in front of a panel.
A law society committee report provided to The Globe and Mail shows that serious and complex cases can take 940 days on average to be referred for regulatory action, which can involve a hearing and may include disbarment.
In addition, the report also shows sizable backlogs for all complaints received, with the number rising to 6,488 in 2023 from 5,813 in 2022.
For those cases with evidence of significant risk to the public, the law society has made efforts to implement interim suspensions while investigations are in progress. But delays can mean that the lawyers in question are able to continue to practise without potential repercussions, and those who complain are often left in limbo, raising questions about the effectiveness of the regulatory body.
In 2023, out of 130 matters referred to the proceedings authorization committee, which deals with serious and complex cases, just eight were authorized for interim licence suspension.
The law society’s disciplinary procedures are in the spotlight in the wake of the death of Arash Missaghi, whose killing in June uncovered decades of alleged mortgage fraud schemes. The law society eventually disciplined five lawyers for assisting Mr. Missaghi, but a Globe investigation revealed that he quickly found new ones to work with.
After the story ran last week, the law society issued a notice indicating it had begun the process aimed at suspending the licences of two more real estate lawyers who worked with Mr. Missaghi more recently. The notice said that if the two are allowed to continue working, there would be “a significant risk of harm to members of the public.”
Lawyers Frederick Yack and Shahryar Mazaheri will face hearings this week that will determine whether they can continue to practise law.
Lawyers for both men have denied wrongdoing by their clients.
Alisa Pogorelovsky, whose husband Alan Kats killed Mr. Missaghi after her family was allegedly defrauded by him of more than $1-million in life savings, filed a complaint with her husband about the two lawyers earlier this year.
But the complaints involving lawyers for Mr. Missaghi are not the only ones that have highlighted the law society’s delays.
Toronto lawyer couple Nicholas Cartel and Singa Bui had their law licences placed under interim suspension by the law society earlier this year as it investigates complaints of fraud by former clients.
The law society tribunal found strong evidence of “mishandling and/or misappropriation” of client trust funds by Ms. Bui and Mr. Cartel since at least 2023. But the couple were still able to keep working for months after an initial complaint with the society was filed.
Mr. Cartel has appealed his suspension, though Ms. Bui has not. Neither the couple nor their representatives could be reached for comment.
In an e-mail statement, law society spokesperson Jennifer Wing said regulatory investigations can be affected by many factors, but that the failure of lawyers to co-operate with investigations is a significant reason for delays.
Christian Leuprecht, a security expert at Royal Military College and Queen’s University, said the delays in resolving complaints provide incentives to bad actors.
Regulators “want to ensure due process, but this is too long,” he said. “This is what the bad actors count on: to outrun the administrative clock.”
Waiting times for these particular cases have risen to 940 days on average in 2023 from 699 in 2019.
John L. Hill, a retired lawyer and professor of constitutional law at Osgoode Hall Law School who researched Ms. Bui and Mr. Cartel’s case for Canadian law journal Law360, said the law society needs to take more intermediary steps when a complaint is initially filed.
“Lawyers, like everyone else, have a right to be presumed innocent of charges levelled against them,” Mr. Hill said. “But where I see that falling apart is when it’s seven months before investigators even showed up to start asking questions – there should be at least a telephone call to find out what the nature of the problem is, some sort of investigation; treat it with priority.”
Ultimately, the province’s attorney-general may have to weigh in on what is a reasonable length of time if the law society is unwilling or unable to come up with deadlines, Mr. Leuprecht said.
“Perhaps the legislator needs to step in and prescribe, by law, how long a process may take – not telling them how to run the process, but they can say, ‘You know, you must have an initial finding within 90 days or whatever, so it’s reasonable.’ ”
In its report, the Law Society of Ontario’s professional regulation committee pointed to staffing shortages and a transition to a new case-management system as the reason behind the long waiting times and backlog in cases.
“Staff addressed the unanticipated workload of an additional 685 cases that were merged with existing cases” and “2,873 ‘ghost’ cases where the complainant did not complete the online complaints form or was timed out,” the report stated.
The law society made efforts to confront the backlog by adding at least two new full-time roles.
Michelle Gallant, a professor at Robson Hall Faculty of Law at the University of Manitoba and a former commissioner of the Manitoba Law Reform Commission, said that while the law society is limited in how it can respond to complaints promptly without exposing its members to harm, the society should be able to warn its members internally.
“Law societies ought to have more flexibility, and ought to be able to respond in time, at least, to notify other lawyers,” she said. “They can’t communicate publicly, but it can communicate to its members.”
Ms. Gallant said that if there’s a trend that law societies are facing challenges in self-regulating, it can be damaging to the law profession and puts its ability to self-govern into question.
Refer also to:
2023: Finally! More than four years after quitting Ernst vs Encana, Murray Klippenstein (lawyer bencher LSO) stops using me, my image and “environmental protection” case as free advertising for his firm (that he said was destroyed along with his career by working to kill his self regulator’s Statement of Principles) Will his self regulator, that he is on the board of, punish him or direct him to make amends? No! Of course not.
