The Law Society's Investigative Powers

And what they mean to you

The Law Society's Investigative Powers

Snapshot of complain investigations: Your duties and the Law Society's powers

Lawyers must respond fully and substantially to all requests (Rule 3-5[7] of the Law Society Rules [the “Rules”]). Over the last few years, the Rules have been expanded to clarify lawyers’ obligations to cooperate.

The Rules now require lawyers to produce files, documents or records for examination or copying. In addition, lawyers may be required to attend an interview or have their staff respond to questions and provide information (Rule 3-5[8]).

Records and information must be produced to the Law Society even if subject to solicitor-client privilege (ss. 87 and 88 of the Legal Profession Act [the “LPA”], Rule 3-5[11]). The Law Society must in turn protect members’ clients’ privilege.1

If a lawyer fails to fully cooperate with any investigative steps, he or she could be subject to a summary citation (Rule 3-8[4]) or suspension (Rule 3-6).

In extraordinary cases, a lawyer may be subject to conditions, limitations of practice or suspension even before the investigation has concluded (Rule 3-10). Similarly, the Law Society may seek medical examination of a lawyer to determine a lawyer’s ability to practice law (Rule 3-11).

The LPA also enables the Law Society to make an order requiring a person to attend and/or produce documents or records. A person subject to such an order is liable to contempt for failing to comply. Note that this section is not limited to lawyers.

What do these broad powers mean to lawyers?

While the Law Society’s investigative powers may seem onerous, they are standard fare in modern professional regulation regimes. These types of powers are consistently upheld by the courts.

Complaint investigations used to involve an exchange of correspondence between the Law Society, the lawyer and the complainant. With its expanded powers, in addition to seeking written responses, the Law Society is much more likely to demand production of files and conduct interviews of the lawyer and any other relevant witnesses.

The importance of a complete, thoughtful and balanced response to a complaint cannot be overstated. It will be well worth the time and effort.

If you are asked to attend for an interview, here are a few points to keep in mind:

1. Your statements at the interview will be treated as admissions.

2. Prepare carefully for the interview. Know your file and the complaint correspondence. Make sure you understand the issues being investigated.

3. A regulator’s disclosure obligations are much lower in an investigation than in a discipline hearing. Consider whether there are documents you want to obtain from the Law Society in advance of the interview.

4. You have a professional obligation to tell the truth. Lawyers who attempt to mislead the Law Society during an investigation may be subject to disciplinary action. Lawyers who make mistakes because they are not well-prepared create a painful and time-consuming diversion to the investigation process.

5. After the interview, get a copy of the transcript of the interview and review it. If you made a mistake, notify the Law Society of the correction.

Lastly, and perhaps most importantly, consult counsel. The CBA has a list of lawyers who are familiar with the Law Society’s investigation processes.

1   A lawyer is not required to produce records or information that are subject to privilege between him or her and his or her own lawyer.