May 14, 2012

Misconduct: When Non-Responsiveness Becomes Ungovernability

Administrative Law
Inquiry and Investigations
Professional Regulation

A professional being disciplined for professional misconduct or unprofessional conduct who fails to respond to investigative communications from his or her regulatory body may, if this silence is contrary to a duty to reply promptly to its communications, , result in even more severe discipline based on the professional’s “ungovernability.” This is illustrated in the recent discipline decision of Law Society of Upper Canada v. Slocombe, 2012 ONLSHP 22 (February 6, 2012).

In this case, the Law Society of Upper Canada received five complaints about a lawyer. In relation to these five complaints, the lawyer failed to provide the Law Society with a complete response, documents, books and records as requested by the Law Society. The Law Society sent 10 letters, made 3 follow-up telephone calls, and went to see the lawyer at his office, attempting to investigate the complaints. Although the lawyer did, at one point, advise investigators he intended to respond, he said he had “personal issues that he is dealing with.” When investigators attended at his office, he gave them a number of responses explaining his failure to respond, and said he would produce materials by a specific date, but he did not provide materials by that date, and had still failed to provide materials by the time of his hearing.

The Law Society disciplined the lawyer for breach of article 6.02 of the Rules of Professional Conduct, which stipulates that, “6.02 A lawyer shall reply promptly to any communication from the Society.” This rule mandates responses to communications from the Law Society as part of an investigation under s.49.3 of the Law Society Act, which authorizes the Law Society to conduct an investigation into a licensee’s conduct concerning possible professional misconduct or conduct unbecoming a licensee. A majority of the panel considered previous authority establishing that every licensee “is obliged to co-operate with the Society in an investigation of him or her… [this] is a fundamental component of the arsenal that the Society calls upon to protect the public interest.”

The Law Society submitted that the lawyer’s approach had been the “antithesis” of cooperation, that he was ungovernable, and sought a penalty of revocation. The panel recognized the essence of ungovernability as being a lawyer’s unwillingness to abide by the authority of the Law Society, and to demonstrate that they abide by that authority. The panel considered a number of factors:

(a) nature, duration and repetitive character of the misconduct;

(b) prior discipline history;

(c) character evidence;

(d) existence or lack of remise;

(e) the degree of willingness to be governed by the Society;

(f) medical or other evidence to explain the misconduct;

(g) the likelihood of future misconduct having regard to any treatment being undertaken or other remedial efforts; and

(h) the member’s ongoing co-operation with the Law Society in addressing the outstanding matters.

The Law Society found that failing to co-operate could result in a range of penalties, but in the face of a total lack of co-operation, “there is little choice in penalty.” It stated that, “Simply put, governability is required in order for lawyers to have the ongoing privilege of being licensed to practise law in Ontario.” [29] Accordingly, a majority decided to revoke the lawyer’s licence.

One dissenting panelist reasoned that, “Revocation of licence in absentia, for non-response or non-cooperation with the Law Society is a penalty on the extreme side of spectrum. Considering the Lawyer’s past record of 33 years, complaints occurring in a very short period of time, avoiding to deal with a serious matter, a brief mention of personal and health issues on two occasions, giving one final opportunity appears to be both appropriate and humane.”  Accordingly, he recommended a three-month suspension and if the lawyer has not provided all requested documents by the end of that period, his licence would then be revoked.

Law Society of Upper Canada v. Slocombe, 2012 ONLSHP 22 (February 6, 2012).