PRACTICE RESOURCES

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The Law Society of Ontario has published something called Guideline for Lawyers Who Have Been Suspended or Given an Undertaking Not to Practice. This document is a near-exhaustive list of all the things you cannot do while under suspension.

Sadly, the LSO does not publish anything which tells suspended lawyers the things they could, should, or might want to do while serving their suspension. This is too bad, particularly for those lawyers who have addiction or mental health issues which led them to the behaviors which the LSO deemed worthy of suspension. Furthermore, most lawyers I have assisted as they go through the LSO discipline process end up suffering some form of depression or anxiety when they are suspended. Whether the suspension is short or long, one cannot blame the suspended lawyer for feeling anxious about his or her reputation; continuation of the practice and service of the clients while suspended; how they will be viewed by the Bench and Bar when they return to practice; how they will address future client inquiries about their suspension, since the information lives forever on the LSO public database. Since there is nothing formal, I have compiled some brief examples of the things I recommend to my clients.

Here are 5 things you can do while under suspension if you should find yourself in that situation:

1. Internalize. Don’t blame the LSO, the complainant, or other circumstances. Take a hard look at what you and only you could have done to avoid the complaint that led to your suspension. Make a pact with yourself to put some sort of system in place to ensure the same thing doesn’t happen again. For example, if client complaints led to discipline, start using your enforced free time to develop better communication protocols to be introduced upon your return to the office.

2. Continuing education. Use your time wisely. You do not have to take formal CPD programs, but your weeks or months off could be used to catch up on the latest case law developments, read new texts or articles on your area of law, or even start learning a new area of law. Consider also taking some non-law lessons in things like time management, technology, marketing and other things that are adjunct to but at the same time integral to good practice.

3. Take some “me time”. Many lawyers run into practice trouble simply as a result of being burned out, or struggling with substance abuse, mental health issues, financial pressures, marital issues etc. Use the down time productively to go for therapy, exercise, catch up on your Netflix queue, or just spending time with loved ones and reconnecting with friends.

4. Plan for your return. To many lawyers spend all their suspension time moping around (understandable). But better to spend your time thinking about where you want your practice to go upon your return. Consider the time off as sort of a forced reset. You now have time to draft and think about implementing a new marketing plan, business plan, office manual etc. We all talk about these things, and in the context of either a practice that is too busy, or one without enough cash flow, but somehow these things never get done. You can’t practice law during your suspension, so might as well use the quiet time to attack these things that there likely won’t be time to deal with once you return.

5. Commit to doing things better. You typically ended suspended for one or more of these issues: addiction, mental health, poor client management, poor financial management, dabbling in an area where you had no expertise, failing to reply to lawyers or the Law Society. Whatever the reason, the corollary of that got you there is the way to avoid it. Addiction- stick to treatment. Mental Health- commit to counselling and follow through. Client or financial management problems- implement and maintain better systems.

When facing suspension, the goal should be to come back to your practice refreshed, relaxed, and with a plan that will allow you to hit the ground running and never look back. When I faced a suspension stemming from an addiction resulting in an abject failure on my part to reply to client and Law Society communications, it forced me to take the entire month of August off. It was the first time in my career that I took more than a week away from the office. Ever since, I take the entire month of July off, two weeks at Christmas, a week at March Break, another week or so in August, and occasional long weekends throughout the year. The experience of suspension was life changing. I now practice with more breaks, spend more time with my kids, and am able to keep up the hectic pace of a busy litigation practice with mental clarity because I know that my clients will not disappear. It goes without saying that the Law Society proceeding was instrumental in my seeking the help I need to overcome addiction and depression and I have worked without failure over the last ten years to maintain by health.

A parting note, there is an important step to take before the suspension is imposed. If you are showing up for a hearing, and suspension is a possibility, regardless of how you feel your case will go, you need to take steps prior to that day to have a system in place for your files to be handled. This is easy if you are part of a firm with other lawyers, but if you are a sole practitioner then you will need to have a lawyer ready to step in. If you do this in advance of the suspension, even to the point of talking to clients with pending matters likely to be reached during your suspension, the suspension will get off to an easy start, as opposed to the added stress of transition adding to whatever issues already led you to the discipline panel in the first place.

Darryl Singer is Head of Commercial and Civil Litigation at Diamond & Diamond Lawyers LLP. He regularly represents lawyers and other professionals at disciplinary tribunals.

** This article  was originally published by The Lawyers Daily

The term, “malpractice” is not commonly used in Ontario, it being a more popular term stateside, but it is an excellent descriptor of the wide array of activities that the Law Society governs and enforces as a matter of discipline. The term, “malpractice” is imprecise, even in those jurisdictions that actively use the term, and probably includes both negligence as well as professional misconduct (and, as we shall see, the line between the two can often blur), but this article will focus entirely on professional misconduct rather than professional negligence per se. 

As a bencher of the Law Society of Ontario, I have had the privilege of sitting on the Proceedings Authorization Committee (“PAC”) for my entire time at the Law Society. It is a unique and ideal vantage point from which to observe professional misconduct since all matters that proceed to discipline must first be presented to, and ultimately authorized by, PAC. 

I have been asked to provide this article on lawyer discipline for the Federation of Ontario Law Association’s Practice Resource website. It is based on a similar, slightly narrower (in context) paper to be delivered at the 16th Annual Real Estate Law Summit hosted by the Law Society. Given the genesis of the article, there is a slight real estate flavor to the text, but the article is intended for all Ontario lawyers, regardless of practice area and regardless of sector (yes, in-house and public sector lawyers can also be disciplined for malpractice!). In terms of style, I have left it relatively “breezy” and somewhat deliberately bereft of detailed examples or rule citations (details of discipline examples makes the paper unnecessarily “personal”, and rule citations are easy enough to find if one really needs to know the exact wording of a given prohibited conduct). 

This article has three substantive sections. Firstly, there is a discussion of some miscellaneous comments on discipline, including a discussion on the likely nature of complainants, some observations about the role of PAC, the requirement for good character, and “conduct unbecoming”, a form of malpractice that occurs outside of the practice of law. 

Secondly, there is a discussion of some of the discrete types of conduct that Ontario lawyers are being disciplined for (although, curiously, files rarely manifest as discrete malpractice occurrences – more often, a lawyer subject to discipline has breached several rules at once). These are not the “top” malpractice events in terms of severity – those are more obvious and do not require much in the way of observation (e.g. criminal conduct, misappropriation of money, sexual offences, conflicts of interest, etc.). Likewise, the matters discussed in this section of the paper are not the “top” malpractice events in terms of frequency -- those too are relatively obvious and do not require much in the way of observation (e.g. failure to report, failure to pay fees, failure to meet CPD requirements, etc.). Given the fluid nature of website publication, I am hoping to grow this section of the paper over time, as more discipline matters of interest cross my plate.

Finally, this paper concludes with a discussion of what I call the “hierarchy of discipline” – in effect, a summary of, and observations on, the progressive discipline remedies available to the Law Society in responding to malpractice. This is a useful read for all lawyers. 

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