The Advisory: Volume 9, Issue 3, December 2011

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Alternative Measures for Conduct Complaints

By Kevin Feth, QC, Bencher and Chair, Conduct Process Task Force #1: Alternative Measures, Law Society of Alberta

In February 2011, the Conduct Process Task Force reported to the Benchers its conclusion that not all conduct unbecoming a member of the Law Society should be addressed through the formal disciplinary process. The Task Force recommended more robust alternative measures to divert members from the statutory conduct process where diversion would serve the public interest. As well, it recommended that under some circumstances, the Executive Director should be empowered to make the diversion to alternative measures.

A new Task Force – Conduct Process Task Force #1: Alternative Measures – was assigned to review and recommend alternatives to the formal Hearing Committee process found in Part 3 of the Legal Profession Act. Specifically, the new Task Force was invited to develop principles describing the situations for which alternative measures are appropriate, and the kinds of measures that would match those situations.

Public Interest Served by Redress and Remediation

In many circumstances, the public interest is best served by a process which is faster and less adversarial, and which focuses on redress and remediation rather than punishment. Since complainants are not technically parties at a disciplinary hearing, alternative measures provide complainants with more direct input into the resolution of complaints.

The original Task Force also found that the underlying causes of misconduct frequently involve circumstances that are receptive to remediation. The personal circumstances of a lawyer at risk (e.g. one who suffers from addiction, disability, emotional distress or incompetence) might be better addressed through a process emphasizing self-disclosure and rehabilitation rather than sanction.

While sanctions can advance an agenda of specific and general deterrence, they do not necessarily provide the optimal tool for managing and correcting human frailty, noted the original Task Force in its report to the Benchers.

A regulatory system that is fair, transparent and timely, and which acts in the public interest, must also examine mechanisms that assist the respondent lawyer in avoiding the repetition of mistakes, while respecting human dignity.

Alternative Measures Should be Readily Available Earlier in Process

The consensus within the new Task Force is that alternative measures should be more readily available earlier in the conduct process (i.e. before a complaint advances to the Conduct Committee). Access to the array of measures should be less complicated.

The new Task Force is assessing the circumstances under which a referral to alternative measures should be explored, the screening criteria to be considered by a decision-maker in referring a member, new models of alternative measures, and the optimal process design.

The discussions to date suggest that the alternative measures and process design being contemplated will not require any additional legislative change beyond that already proposed by the Law Society.f

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