The Advisory: Volume 9, Issue 3, December 2011
Statutory Amendments Sought to Streamline Discipline Process
By James Eamon, QC and Kevin Feth, QC, Benchers and Co-Chairs, Conduct Process Task Force, Law Society of Alberta
Amendments to the Legal Profession Act would enable the Benchers to implement more streamlined complaints and discipline procedures through rule making.
The Law Society of Alberta, through the Conduct Process Task Force, has actively sought to assess, enhance and improve its conduct (complaints and discipline) process. In its thorough review, the Task Force found that overall there is an appropriate level of transparency and publicity, but improvements are possible in timeliness and efficiency without sacrificing fairness.
The Task Force concluded that the Law Society should streamline its processes and implement alternative measures to resolve conduct complaints and address problems affecting a lawyer’s practice or performance in cases where the public interest would be better served than by streaming the matter to a complaint hearing, all without compromising the fairness owed to participants.
We have developed several recommendations for proposed statutory amendments which would be needed to fully realize our objectives and presented them to Government. Bill 22, the Justice and Court Statutes Amendment Act, 2011, if passed, would make several amendments to the conduct and discipline process under the Legal Profession Act.
The recommendations of the Task Force were based on ensuring that the Law Society’s conduct process remains fair to the lawyer and complainant and is, transparent, timely and properly serves the public interest in the ethical conduct of all lawyers. Benchers will have the opportunity to debate rules implementing the recommendations.
The recommendations, in summary are:
- Empower the Benchers to make rules regarding alternative measures, such as mediation or referral to a treatment program.
- Authority to make rules for an enhanced practice review process, including direct referral prior to a matter being brought to a Conduct Panel.
- A settlement power, to be overseen by a single Bencher, and other possibilities for single-person hearing committees, again to be prescribed by rules.
- Related to #3 above, an expedited process for guilty pleas and sanctions.
- Permitting the Benchers to appoint non- Benchers to hearing committees.
- Repealing the direct appeal on reprimand cases to the Court of Appeal, and interposing an appeal to the Benchers.
- Permitting the Law Society to appeal to the Benchers and the Court of Appeal in appropriate circumstances.
Many of the recommendations are currently reflected in Bill 22.
Currently, Hearing Committees which consider whether a lawyer’s conduct is deserving of sanction may only consist of Benchers, or a Law Society President or former Bencher who was President or elected at least twice as a Bencher within the past 10 years.
Bill 22, if passed in the current form, will authorize the Chair of the Conduct Committee to appoint “three or more persons, at least one of whom must be a Bencher or former Bencher” as a Hearing Committee. Where a lawyer tenders an admission of guilt to the Conduct Committee which is accepted, the chair may also appoint a single Bencher Hearing Committee.
On November 24, 2011, the Benchers resolved to adopt the recommendations of the Task Force. These included that non-Bencher adjudicators will be appointed to hearing committees when, through conflicts or scheduling difficulties the requisite number of current Benchers cannot be found, and the hearing delayed as a result; that former Benchers only will be considered for such appointment; and, that a single Bencher will only be appointed as a Hearing Committee where the lawyer and Law Society agree to make a joint submission on sanction. We expect the Benchers will make rules reflecting these principles.
Finally, included in the amendment package, but unrelated to the conduct process, the amendments will permit conditions on membership as necessary to permit reciprocal mobility between Alberta and Quebec.
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