of self regulation? - The Law Society of Upper Canada

Moreover, critics also argue that when discipline proceedings are instituted the
penalties are too lenient because lawyers are too sensitive to their colleague’s
situation…there but for the grace of god go I… 149 The previous discussion of Mr. Hunter
is but one example of this. Another concern is that few lawyers are ever disciplined for
excessive billing, a common practice that is the most significant complaint from
clients. 150
Still others argue that the complaints processes run by law societies are not
especially consumer friendly. 151 Furthermore, even if people do pursue their concerns, the
disciplinary system occupies the field, crowding out other remedial avenues (civil or
criminal). The consequence is that discipline is a sop, it funnels complaints away and
often miscreant lawyer get off the hook, or receive only minimal discipline. 152
6. Reactive and Inefficient Institutional Culture
Because the self-regulatory process is beholden to the lawyers themselves in the
form of fees, law societies are significantly underfunded and understaffed. Consequently
they operate reactively, primarily on the basis of complaints, rather than actively seeking
out problematic behaviour, before it is too late. While law societies are empowered to
conduct spot audits and can commence an investigation without a complaint, these
actions are the exception rather than the rule.
149 Seneviratne, Legal Profession, supra note 2 at 124-125, 131-132, 140. MacKenzie notes that in the Lang
Michener case five partners who were members of the executive who failed to make timely disclosure of
Pilzmaker’s conduct only received a reprimand. Supra note 71 at 27-1. Another variation of this concern is
when highly respected lawyers appear on behalf of their miscreant colleagues in dis cipline proceedings to
wax eloquent about their good character and how the egregious behaviour is out of character. See Downie
and Devlin, Book Review, “Lawyers Gone Bad” (2008) Canadian Literary Review. (forthcoming).
150 Woolley, supra note 55.
151 Seneviratne, supra note 2 at Ch. 5.
152 See e.g. Brockman & McEwen, supra note 121.
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