The Society is making significant adjustments throughout its operations, in preparation for a new model of legal services regulation in Nova Scotia. The Professional Responsibility department has been introducing Triple-P (principled, proportionate, proactive) concepts into its response to complaints against lawyers where appropriate. Most committees this department supports have also been moving in this direction over the past year.
The Professional Responsibility Policies and Procedures Committee (PRPPC) has been reviewing alternatives to the traditional disciplinary system, including practice assistance programs that are offered in other jurisdictions. The majority of complaints received by the Society relate to competence and quality of service issues that may be better addressed through diversionary processes. It is hoped that the adoption and implementation of such processes will allow complaints to be managed in a manner that works at the root of the problem and results in behavioural changes, in a way that our traditional system does not.
Some examples to illustrate the changes underway:
- In a recent complaint involving a law firm, the Complaints Investigation Committee (CIC) decided to create an education program tailored to effectively address the weaknesses that were identified in a firm’s systems.
- In another case of long-standing trust account management problems with a senior practitioner who is due to retire next year, the CIC decided to assist the member in winding down the practice and monitoring the trust account, rather than pursuing any other practice conditions, which, in relation to relative risk, would not be in the lawyer’s or the public’s best interests. In these ways, the CIC is also focusing on proportionality when making decisions in the public interest, and tries to be creative in its decision making in an effort to be ‘proactive’ while still having to be ‘reactive’ to complaints.
- Another area being examined is the extent to which the Society may be able to implement restorative justice concepts in the complaints resolution process. Too often, complaints arise from broken relationships and there can be great impact from working to repair these relationships, rather than further harming them through the name-shame-blame process that often ensues from complaint investigations. Lawyers do not usually appreciate the harm their actions can cause to clients’ trust and sense of self-worth, and often measure ‘harm’ by the value, if any, placed on an error, or whether or not the case for the client was ‘won’ or ‘lost’. We hope to devote more time to working with lawyers and clients to identify and repair underlying harm, and restoring healthy solicitor-client relationships where possible.
- The Fitness to Practise Program allows for earlier identification of capacity issues and diversion of lawyers into the program before major public protection issues arise. The agreements between the lawyers and the Committee are flexible and creative, prepared in a manner that is intended to ensure the public is protected while assisting the lawyer in regaining his or her health and thereby supporting the Society’s object of rehabilitating its members. This process has helped lawyers avoid more formal discipline, including hearings, and the requirements that a lawyer must comply with are proportionate to the level of risk that has been identified.
All of these efforts involve ‘changing the conversation’ with lawyers and the public, and this will be a work in progress. See other examples in our operational update from February 2016.