R Mendleson: Javad Heydary case prompts questions about law society’s policy of secrecy

Rachel Mendleson

Toronto Star, published December 16, 2013

Embattled Toronto lawyer Javad Heydary has never before faced disciplinary action from the Law Society of Upper Canada, but it is impossible to know whether he has been the subject of previous investigations, because the regulator does not disclose that information.

That would not be the case if Heydary, who fled the country in November amid allegations that more than $3 million in trust funds was missing, had practised in Oregon. In that state, a list of every complaint lodged against lawyers, subsequent investigations and the outcome of those probes is only a phone call away for clients, journalists or anyone else who wants to know.

For the complete story on the Toronto Star website, click HERE.

Kateri Walsh, spokeswoman for the Oregon State Bar, said the decision in 1976 to open disciplinary records has significantly bolstered public trust.

“When people can come in and see complaints from the beginning, we are better able to make our case that we are diligently pursuing our public protection obligations,” Walsh said. “I don’t think it serves us well to have people speculate about what may or may not have happened.”

The openness of the Oregon Bar Association is hardly commonplace in the U.S. and Canada, where as a general rule, regulators follow the same policy as the Law Society of Upper Canada, which only discloses allegations that result in disciplinary action. (The same is true of the Ontario College of Teachers and the College of Physicians and Surgeons of Ontario.)

But the case surrounding Heydary is raising questions about whether keeping a tight lid on allegations serves the public good.

As the Star reported, documents Heydary filed in court in 2009 state that his former partner alerted the Law Society to allegations he mismanaged trust funds. A Law Society spokesman has said he cannot confirm a complaint was lodged, because the society does not make public complaints or investigations “unless and until a matter has resulted in formal discipline.”

The Law Society did not respond to questions from the Star for this story.

Toronto lawyer Ben Hanuka said it is generally fair to keep complaints that don’t result in discipline confidential, because many are “groundless” and would “unfairly damage the lawyer’s reputation.”

However, when there is a basis to be concerned about a lawyer’s practice, Hanuka said there is “a problem with this confidentiality rule.”

“(There) is no way of knowing the basis for the Law Society’s decision not to reprimand the lawyer,” he said in an email. “Without transparency, it is impossible to have a full picture of the lawyer’s dealings.”

(Hanuka himself was the subject of an unsuccessful lawsuit by Heydary for “conspiracy” to take over a client.)

David Sterns, another Toronto lawyer, has a similar view. As Sterns points out, Heydary was a savvy online marketer, which made him able to “attract a lot of potentially unsophisticated clients.”

“Is there a heightened duty in this case? I would think that there’s room for some discretion by the Law Society as to when it is appropriate to let the public know that there are concerns,” Sterns said.

The Law Society seized control of Heydary’s practice on Nov. 25. Court documents state that Heydary is the subject of Law Society investigations into “serious allegations of professional misconduct,” including “misappropriation” and “mishandling trust funds.” Most of that information, however, does not appear to have been published on the regulator’s website, which notes only that Heydary’s practice is under “trusteeship.”

All of this, according to Philip Slayton, a former legal scholar and Bay Street lawyer who has become a vocal critic of the profession, is evidence that lawyers should not be responsible for disciplining other lawyers.

“Despite their protestations, the law society is not there to protect the public,” said Slayton, who wrote the 2007 book, Lawyers Gone Bad. “The law society is there to protect their members.”

There are other models. In the mid-’90s, concern about impartiality, among other issues, prompted the government in New South Wales, Australia, to create an independent body to oversee the discipline of lawyers. Similar reforms have since come into effect in the Australian states of Victoria and Queensland as well as in England and Wales.

“The independence of the decision-making is unquestioned,” said Jim Milne, acting commissioner of the Office of the Legal Services Commissioner in New South Wales. “If you make a decision in this office, it can be appealed to the court, but it’s uninfluenced by the profession directly.” 

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