Cora MacPhail doesn’t dislike lawyers. She has close friends who are lawyers; family members, too. MacPhail considers the law to be an honourable profession. Which helps explain why her dealings with the Law Society of Upper Canada (LSUC) left her shaken.
In 2006, MacPhail was confined to a wheelchair for eight weeks following ankle surgery. The retiree, who lives alone in London, Ont., asked for help at home from a local care centre, but due to a mix-up, was at first denied (the centre later apologized, and provided her with services including a personal care worker). MacPhail’s son fired off a letter of complaint to the local MPP, and copied it to the centre; days later, the elderly woman got a knock on her door. It was the care centre’s “director of quality and contracted service delivery,” who questioned her and her son about the letter, she says. The meeting left her feeling uneasy. Weeks later, her son typed the care centre employee’s name into Google and discovered he was a lawyer, not a social worker, as they had believed. On Dec. 4, 2006, MacPhail filed a complaint with the LSUC, which regulates Ontario’s lawyers and paralegals. “He did not disclose who he was—a lawyer,” she wrote in her letter. “I trust you will take action.”
MacPhail, who was hoping for an apology, figured it would be an open-and-shut case. In fact, the process dragged on for almost two years. Her complaint was at first dismissed; when she requested an independent review, it bounced back to the law society instead, where it was rejected again. MacPhail appealed to a higher power, the complaints resolution commissioner, who is funded by the law society to conduct impartial reviews of their investigations. Then she learned the commissioner had a conflict of interest and had to withdraw. When her complaint was finally reviewed, the commissioner’s delegate found in MacPhail’s favour, asking the law society to reconsider. It did—and rejected her complaint a third and final time, deciding the man was not working in his capacity as a lawyer at the time of the visit. (For confidentiality reasons, the LSUC declined to comment on the case.)
MacPhail’s story is just one small example of what critics call a fundamental problem with the way the Canadian legal profession is regulated. Law societies, the regulatory bodies to which every practising lawyer must belong, have the authority to investigate and discipline their own members. But if you feel you’ve been bamboozled by a lawyer, complaining to his or her membership group can quickly undermine faith in the system. A bright, vivacious woman, MacPhail becomes visibly deflated when discussing her case. “It makes you feel very powerless,” she says. “They’re all such pals.”
In other countries, concerns like MacPhail’s have become an impetus for change. In England and Australia, for example, law societies are having some powers stripped away, and independent bodies have sprung up to deal with complaints. Among the Commonwealth countries, Canada’s system of lawyer discipline is fast becoming the exception instead of the rule. “People think it’s Caesar judging Caesar, when it’s the legal profession [handling complaints] itself,” says Steve Mark, legal services commissioner for Australia’s largest state, New South Wales.
In England and Wales, a new law came into effect in 2007 aimed at taking power away from lawyers and putting it in consumers’ hands. The profession’s self-regulating bodies, like the Bar Council and Law Society of England and Wales (which represent barristers and solicitors, respectively), no longer have free rein: the Legal Services Act created an independent body, chaired by a non-lawyer, to watch over them. The complaints process has also been revamped. Instead of seeking redress from the law society or bar council, members of the public will soon be able to go directly to the independent Office for Legal Complaints (OLC). Having a separate body perform this function is crucial to bolster public confidence, says Mary Seneviratne, director of research at Nottingham Law School and one of the OLC’s recently appointed members.
England isn’t the first to move away from pure lawyer self-regulation. In Australia, most states have an independent legal services commissioner to handle complaints. Steve Mark has been in the role in New South Wales since 1994; his office has proved so successful it’s served as a model elsewhere, including in England. As the “sole port of call” for complainants, he can decide whether to handle them in his office (about three-quarters of complaints stay with him), or refer them to the law society or the New South Wales Bar Association. “As an independent body, I can advocate for the consumer and not seem to have a vested interest,” Mark says. And when he chooses to dismiss a complaint, he adds, “it’s not assumed I’m trying to protect the profession.”
In both England and Australia, it wasn’t just bad optics that brought about change; law societies’ track records at investigating complaints were notoriously awful. Prior to reform, Zahida Manzoor, a non-lawyer who serves as legal services ombudsman and legal services complaints commissioner for England and Wales, issued a series of scathing reports criticizing the law society’s complaints-handling arm for being slow, poorly run and providing bad service. When it failed to submit adequate plans to improve, she imposed a hefty fine. “It wasn’t just a problem of perception; they were performing badly,” Manzoor says. In the Australian state of Queensland, where lawyer self-regulation came to an end in 2004, legal ombudsman Jack Nimmo concluded the lawyers’ complaints-handling body was “nothing but a post office box” that forwarded complaints to the lawyer in question, then sent the response back to the complainant.
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