Communications with the Law Society
(a) Communications from the Law Society
Section 7.1-1 of The BC Code states: “A lawyer must reply promptly and completely to any communication from the Society.” The Benchers, on a number of occasions, have considered the importance of this duty.
In Re Dobbin,  LSBC 27 at para. 20 the Benchers put the duty to respond to communications from the Law Society in context:
If the Law Society cannot count on prompt, candid, and complete replies by members to its communications it will be unable to uphold and protect the public interest, which is the Law Society’s paramount duty. The duty to reply to communications from the Law Society is at the heart of the Law Society’s regulation of the practice of law and it is essential to the Law Society’s mandate to uphold and protect the interest of its members. If members could ignore communications from the Law Society, the profession would not be governed but would be in a state of anarchy.
The Benchers went on to observe at para. 25:
Frequently, the member’s failure to respond to Law Society communications is a sequel to a prior, frustrating failure to respond to client communications or to other lawyers’ communications. Procrastination in responding to the Law Society, or willful failure to respond to the Law Society, may be symptomatic of other practice problems involving delay on files or other dereliction of professional duty. The Law Society is put in an impossible position in dealing with disgruntled clients or disgruntled other lawyers, by a member’s intransigent failure to respond. There is no doubt whatever that a persistent, intransigent failure to respond to Law Society communications brings the legal profession into disrepute. As a result, it is the decision of the Benchers that unexplained persistent failure to respond to Law Society communication will always be prima facie evidence of professional misconduct which throws upon the Respondent member a persuasive burden to excuse his or her conduct.
If you receive a communication from the Law Society that requires a response:
- Do not ignore the communication! This is not a circumstance where it is better to beg forgiveness than ask permission. If you require additional time to respond, contact the Law Society staff lawyer who initiated the investigation and explain your circumstances. If you are granted additional time to respond, make sure you respond within that time. In any event, properly diarize the matter to ensure you respond, and that you do so within the time requested for a response.
- Consider whether you need to seek the advice of counsel. One of the advantages of seeking advice from a colleague, or retaining counsel, before responding is that it provides an objective perspective. It is prudent to seek advice of counsel in circumstances where the Law Society has requested a written response.
- Remember that the majority of complaints the Law Society receives about lawyers do not lead to disciplinary measures. By failing to respond to a communication regarding a complaint the Law Society might determine is unfounded, or outside its jurisdiction, a lawyer turns a potential problem into an actual problem. Don’t make a neutral situation bad, or a bad situation worse, by failing to respond in a timely manner to Law Society communications.
- Review your response to ensure the tone and content are appropriate. While you do not want to fail to respond, or delay in responding, you should avoid improper responses. Pause, reflect, and craft a measured response.
- In your response, stick to the facts and strive for accuracy – this is not the time to show how many adjectives you know.
- If the complaint involves allegations of negligence, contact a claims counsel at the Lawyers Insurance Fund. (Note: Your obligations in this respect are not contingent on a complaint occurring; see section 7.8-2 of the Code of Professional Conduct for BC. The terms of the insurance policy triggers a lawyer’s obligation to report potential claims to the insurer; section 7.8-1 establishes the duty to report to the client.
If you follow these steps you will, at the least, avoid being cited for failing to respond to the Law Society. For matters that do proceed to citations, the Hinkson article recommends the lawyer be candid, cooperative, and contrite in his or her dealings with the Law Society. It is wise to follow this advice.
(b) Complaining about another lawyer
Unless you are dealing with a situation where you are required to report another lawyer to the Law Society (see 7.1-3 of the BC Code) think twice before complaining to the Law Society about another lawyer. Assess whether the situation is something that can be managed through effective communication with the other lawyer. Try and resolve impasses by being constructive. If you decide you might complain, consider whether the complaint will jeopardize your client’s position by making the other lawyer antagonistic, obstinate, or intentionally cause delay. You may wish to wait until the client matter is resolved. You can also discuss the issue in advance with a Law Society Practice Advisor to assist in assessing these issues.
Under no circumstances should you threaten a lawyer contrary to 3.2-5 of the BC Code or make complaints to the Law Society in an effort to improve your client’s position. The purpose of making the complaint is because you reasonably believe the other lawyer has engaged in conduct that falls below the requisite standard of the profession, not to improve your client’s position, to settle a grudge, or to make life difficult for the other lawyer.