Complaints Process & Role of Designated Representative
May 28, 2020
Designated Representatives play an important role in facilitating various communications from the Law Society with the members of the firm, one such area pertains to complaints against members of the firm. The Law Society has several fundamental tasks when investigating complaints including: to protect the public and satisfy their demand that a self-regulating profession is accountable for its members’ actions and, to determine when allegations are unfounded.
The Law Society has a duty to respond to all complaints. Every complainant who alleges impropriety or misconduct is entitled to a response, and in order to respond, the allegations are generally put to the member. In some instances, there may not be specific allegations of misconduct, but Professional Responsibility Counsel may still require information from the member to assist in responding to the complaint. Professional Responsibility Counsel make every effort to resolve complaints as fairly and efficiently as possible, and timely communications are integral to that resolution process.
Pursuant to Rules 905 and 1102, and in support of the Law Society’s fundamental tasks and duties, commencing June 1, 2020, Designated Representatives will receive a copy of any new complaint opened for investigation against a member of their firm as well as copies of subsequent communications regarding the progress or outcomes in relation to the complaint matter.
The Role of the Designated Representative in the Complaint Investigation Process
Your involvement in this process as Designated Representative is two-fold: firstly, to facilitate the member’s ability to respond to the complaint as required and in accordance with necessary timelines, and secondly, to create awareness with the firm’s leadership of existing complaint areas within their firm and identify needs or areas for growth for the member or the firm. However, be aware that most complaint matters require little to no intervention and are resolved in the initial stages of the investigation. Most often, receipt of a complaint is not indicative of significant practice management or conduct issue on the part of the member, or a cause for your concern as Designated Representative. Rather, complaints often relate to such things as a lack of communication or understanding and issues of timeliness. These types of issues are frequently and effectively resolved through the complaint investigation process.
The responsibilities of the Designated Representative do not include an advocacy role on behalf of the firm member engaged in the complaints process. Rather, your role is to facilitate communications and the process when necessary. This means that communications will continue to occur directly between the member and Professional Responsibility Counsel with a copy provided to you as Designated Representative. However, Professional Responsibility Counsel may contact you directly in the event that the member is unable or unwilling to provide appropriate or timely information as may be required in response to the complaint matter. Where a member whose conduct is the subject matter of a complaint has left the firm and no longer has access to relevant file materials you may be asked to provide the requested information to Professional Responsibility Counsel. In such circumstances, as the Designated Representative, you are not personally responsible for the complaint, rather your assistance would be required to facilitate access to the necessary information by either or both, the past member of the firm and Professional Responsibility Counsel, as the circumstances may direct.
Overview of the Complaints Process
Investigation of a complaint is often initiated by a letter of complaint; however, this is not always the case. An investigation may also be launched by a telephone call, a court judgment or an audit report.
The first step in an investigation is usually to seek an explanation and/or clarification from the member. Professional Responsibility Counsel requires the member’s response, detailing an account of the circumstances which resulted in the complaint, within 10 business days. This deadline has been extended to 30 days given the recent outbreak of COVID-19 and closure of offices. In addition, members are currently being encouraged to send all correspondence, via email, to Professional Responsibility Counsel. If the member needs an extension of this time to respond, they must contact Professional Responsibility Counsel to make a request. If a response is not forthcoming, the Law Society may initiate disciplinary proceedings on the member’s failure to reply. In such circumstances, Professional Responsibility Counsel may contact you directly for assistance in collecting a response from the member.
Once the member’s response is received, it will be evaluated by Professional Responsibility Counsel and, in most cases, a copy will be forwarded to the complainant for further comment. The complainant is then asked to respond within 14 days to avoid delays in the handling of the complaint. Professional Responsibility Counsel will then review all the materials and determine what, if any, further steps are required. In some cases, a third party may be contacted and/or searches conducted (ISC, Court Registries, etc.).
In some cases, the complaint may involve certain unfulfilled tasks or other problems which Professional Responsibility Counsel may attempt to resolve through informal mediation. The Law Society may take into consideration any attempts to resolve or rectify such issues when rendering their decision.
After the necessary information has been obtained and considered by the Law Society, Professional Responsibility Counsel will take one of the following courses of action:
(a) if the matter raises an issue of competence, a practice advisor may be appointed, and/or the matter may be referred to the Competency Committee;
(b) if the matter raises an issue of conduct potentially requiring discipline, the matter will be referred to the Conduct Investigation Committee; or
(c) if the matter does not raise an issue of competence or discipline, Counsel may:
(i) refer the matter to the Ethics Committee for determination of “grey area” ethical issues;
(ii) issue a formal caution, advising the Member as to future conduct; or
(iii) direct that no further action be taken in the circumstances.
Where Professional Responsibility Counsel decides to take no further action, the complainant has the opportunity to apply for review of that decision. The complaint file will then be forwarded to the Complainants’ Review Committee for review and direction.
As Designated Representative, you will receive a copy of any new complaint against a member of your firm, as well as copies of subsequent communications regarding the progress or outcomes in relation to that complaint.