A Salyzyn: Law Society Complaints: What We Don’t Know and Why This Is a Problem

Posted to SLAW June 10, 2015

In many ways, Canadian law societies are now more transparent institutions than ever before. The Law Society of Upper Canada, for example, has adopted innovations like live webcasts of Convocation meetingsonline Annual Reports and a frequently used Twitter account which allow for easier access and greater insight into what goes on at Osgoode Hall and why. And, of course, for those interested in what happens to lawyers “gone bad”, there is free public access to discipline-related decisions on CanLII.

Disciplinary decisions seem to be, indeed, one of the things that lawyers and the public are most interested in. In recent years, several high profile cases – including the ongoing civility case involving newly elected Bencher Joseph Groia, and the now-dismissed conflict of interest allegations brought against former Hollinger lawyers – have received considerable attention. Just in the past few months, the proceedings against a Toronto lawyer who received a five-month suspension after admitting to professional misconduct in representing refugee claimants has received significant media attention (see, herehere, and here).

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LSUC Response to Toronto Star Article re prosecuting lawyers

Posted to the LSUC website

For the Record: Toronto Star coverage

The Toronto Star’s recent coverage of the regulation and disciplining of lawyers by the Law Society is unbalanced and misleading. Many of the cases cited in the Star’s stories, as well as their principal sources, are significantly outdated. The Law Society provided, in writing and through interviews, enhancements to our regulatory policies and practices implemented over the past several years that improve public protection, increase transparency, and ensure a more efficient exchange of information with law enforcement agencies. Most of these facts were ignored.

The Star cites a list of more than 200 lawyers’ cases, stretching back over a decade, and implies that most, if not all, involved a criminal offence. What the Star says is a criminal offense, however, is untested, and would be disputed in many cases, particularly by the police.

Protecting the public interest

In their focus on criminal prosecution, the Star ignores the essential facts of the Law Society’s role and mandate as the regulator of the legal profession. The Law Society is charged with protecting the public interest by investigating and disciplining lawyers who have broken the Rules of Professional Conduct. In every one of the cases cited by the Star, the Law Society took regulatory action against these individuals. Our prosecution can result in the revocation or suspension of the lawyer’s licence to practice. We moved to protect the public from future harm that might be done to clients by an individual as a legal professional. We removed the lawyer’s ability to provide legal service, and to earn a living as a lawyer. This is our area of responsibility. Criminal investigations and prosecutions are outside our jurisdiction.

In fulfilling our obligations to the public as the regulator of lawyers and paralegals, the Law Society regularly reviews and updates its policies and practices to ensure that they fulfil our mandate and authority. We sought, and obtained, legislative amendments over the last several years that make it easier for us to protect clients by suspending a lawyer’s licence earlier in the investigation process. We have significantly increased the transparency and public access to disciplinary information, again increasing the protection of the client’s interest and allowing greater and more timely access to information for the police.

Cooperation with the police

The Star asserts that other law societies are more proactive in contacting law enforcement agencies when a lawyer may have committed a criminal offence. All law societies are committing to providing the police with information to the full extent under the law. The Star fails to provide any evidence that the public are better protected in any other jurisdiction.

There are many more police forces in Ontario than other provinces. As a result, we need to reach out on a regular basis to a large number of police services, including the RCMP and OPP, in order to provide information about cases, trends, and access to Law Society information. Law Society staff also meet with and assist members of police forces on individual cases on a regular basis.

There are a number of references in the Star stories to notification of police that leave the impression that the Law Society does not talk to the police. This is echoed in a radio interview with Toronto Star reporter Kenyon Wallace. In an appearance on the Jerry Agar show on May 5, 2014, Mr. Wallace commented on his own piece from Star on May 5. Mr. Wallace indicated that the Law Society of Upper Canada told him that we do not provide information to the police about lawyers under investigation, suspension or who have been disbarred.

Mr. Wallace’s assertions are factually incorrect. He mischaracterizes information provided to him clearly and in writing by the Law Society.

The facts:

  • The Law Society has a proactive relationship with police forces in Ontario, through which we explain to their members exactly where and how to find disciplinary information we post on our website about every lawyer and paralegal facing a disciplinary hearing. Law Society staff also meet regularly with members of police forces on individual cases police are investigating. We not only make the police aware of the possibility of criminal activity, we also help police to gather evidence, and, where appropriate, we encourage clients to work with the police.
  • Information about every lawyer and paralegal facing a disciplinary hearing is freely available and can be instantly referenced by any member of the police, or the public.
  • In 2013, for example, Law Society staff presented at 17 different events with police forces. The purpose of these meetings is to ensure that the police know where and how to access law society discipline information quickly and easily, so as to assist police in their investigations.

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.

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LSUC: Information for Lawyers Acting for Police Officers in Ontario SIU Investigations

The original document can be accessed on the LSUC website by clicking HERE

Ontario Regulation 283/11, made under the Police Services Act, came into force on August 1, 2011, and amends Ontario Regulation 267/10, Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit. Ontario Regulation 267/10 prohibits subject officers, who are police officers whose conduct appears, in the opinion of the Special Investigations Unit (“SIU”) director, to have caused the death or serious injury under investigation, from being represented by the same legal counsel as witness officers. Witness officers are police officers who, in the opinion of the SIU director, are involved in the incident under investigation but are not subject officers. Section 6 of Ontario Regulation 267/10, as amended, provides that to the extent that it is practicable, the chief of police shall segregate all police officers involved in the incident from each other until after the SIU has completed its interviews, and that “a police officer involved in an incident shall not communicate directly or indirectly with any police officer involved in the same incident concerning their involvement in the incident until after the SIU has completed its interviews” (emphasis added).

To the extent that a lawyer may be jointly retained by two or more subject officers or witness officers, the lawyer should be aware of rule 2.04(6) of the

Rules of Professional Conduct, which addresses joint retainers. The rule provides that where a lawyer accepts employment from more than one client in a matter, the lawyer shall advise the clients that: (i) the lawyer has been asked to act for both or all of them; (ii) no information received in connection with the matter from one can be treated as confidential so far as any of the others are concerned; and (iii) if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely.1

Lawyers who act for more than one officer with respect to an investigation by the SIU must comply with the requirements of both the joint retainer rule and Ontario Regulation 267/10, as amended. A lawyer retained to act for multiple officers must observe the law and not defeat the purpose of section 6 of Ontario Regulation 267/10 by serving as a conduit between segregated officers jointly represented by the lawyer. Further, the law requires that a lawyer retained to act for multiple officers must not disclose anything, confidential or otherwise, said by one segregated officer to any other segregated officer until the SIU has completed its interviews.

A lawyer who is unable to comply with section 6 of Ontario Regulation 267/10 and the lawyer’s obligations under Rule 2.04(6) would effectively be unable to accept a joint retainer in such circumstances. As the rule requires that a lawyer cannot treat information as confidential as between joint clients and the regulation requires that the police officers not indirectly communicate with each other concerning their involvement in the incident, it is difficult to see how segregated police officers can properly be jointly represented. Lawyers should also review the Ontario Court of Appeal decision in

Schaeffer v. Wood, which discusses issues relevant to the Rules and regulation. The Supreme Court of Canada granted an application for leave to appeal this decision on June 28, 2012.


FN 1. There is a limited exception to this rule for joint retainers in the lending context that is not relevant here.


LSUC sends ‘unhappy message’ with Groia ruling: Cherniak

From Legal Feeds

Written by Glenn Kauth

Posted date June 29, 2012

The Law Society of Upper Canada has sent a “very unhappy message to the bar” with its decision finding Joe Groia engaged in professional misconduct, according to his lawyer.

The comment from Earl Cherniak comes as a law society hearing panel ruled on Groia’s actions in the proceedings against former Bre-X Minerals Ltd. vice chairman John Felderhof. It found “Groia’s attacks on the prosecution were unjustified and therefore constituted conduct that fell below the standards of principles of civility, courtesy, and good faith required by the Rules of Professional Conduct.”

For the full story, click HERE.

LSUC: Proposed Amendments to the Rules of Professional Conduct

The Law Society is considering amendments to the Rules of Professional Conduct as a result of the implementation of the Federation of Law Societies of Canada Model Code of Professional Conduct and is seeking the comments and views of lawyers on the proposed amendments prior to Convocation’s consideration of the proposals. The submission deadline is August 31, 2012.

The Federation of Law Societies of Canada, which is the national coordinating body of Canada’s 14 provincial and territorial law societies, recently approved its Model Code of Professional Conduct (“the Model Code”). The Law Society of Upper Canada’sRules of Professional Conduct (“the Rules”) were used as the basis for the Model Code. Since October 2011, the Law Society’s Professional Regulation Committee has been reviewing the Model Code for the purpose of implementing it in Ontario.

While implementation of the Model Code would result in a series of minor and clarifying changes to the Rules, some of the changes are more substantive and, in certain cases, introduce new standards.

• Information report explaining the more substantive proposed amendments to the Rules
• Appendix 1 – Blackline version of the current Rules showing proposed changes 
• Current Rules of Professional Conduct

Written submissions in response to the call for input should be sent to the Law Society no later than August 31, 2012 to:
Professional Regulation Committee
Model Code Implementation
Policy Secretariat
The Law Society of Upper Canada
130 Queen Street West
Toronto, ON M5H 2N6
or by email to jstrawcz@lsuc.on.ca