A complaint has been filed against you – what now?
- The Society’s Director of Professional Responsibility reviews the complaint and it is assigned to a member of our Department of Professional Responsibility.
- We will either dismiss, investigate, or attempt to resolve the complaint. Under Regulation 9.2.2, we may dismiss a complaint without investigation if:
(a) the complaint falls outside the Society’s jurisdiction;
(b) the complaint is premature;
(c) the complaint alleges a technical breach of the Act, the Rules or the Code of Professional Conduct but has no substantive consequence or is of insufficient regulatory concern
(d) the complaint is made for a collateral or improper purpose, including:
- for the purpose of harassing a member of the Society,
- for providing relief which is more appropriately available through civil litigation, by a party adverse in interest to a client of the member complained of,
- for the purpose of harassing such client or the member,
- or as a form of discovery or for the gathering of information in another proceeding;
(e) the complaint lacks substance or a factual basis;
(f) there has been significant delay in bringing the complaint forward;
(e) or it is otherwise in the public interest to do so.
- If we investigate a complaint, often the first step is to send the complaint to you, the member, and invite your response. We appreciate responses that are organized, consider what ethical rules may be engaged, and help to address each allegation made by the complainant, with reference to file materials or documented instructions/advice where appropriate.
Resolving a Complaint
When we attempt to resolve a complaint, we will call you to let you know a complaint has been filed and to discuss next steps. We only attempt to resolve complaints where it is appropriate and seems possible to do so.
If there is something you are willing to do to help resolve the complainant’s concerns, please mention that as soon as you become aware of the complaint. Note that attempting resolution may be a mitigating factor with respect to the complaint, but may not necessarily assuage all ethical concerns raised.
We can attempt to resolve a complaint when we first receive a complaint or at any stage of an investigation.
Dismissing a Complaint without investigation
We can dismiss a complaint when we first receive a complaint or at any stage of an investigation. If we dismiss a complaint, you will receive a copy of the letter we sent to the complainant outlining the reasons why it was dismissed, as well as a copy of the original complaint.
I’ve been asked to respond to a complaint
When we receive a complaint and have had an opportunity to review it, we often ask the lawyer for a response. We might ask for a response because we have limited jurisdiction to dismiss a complaint without any investigation; because we feel it is important to give a lawyer a chance to tell us what happened from their perspective and recollection; and/or because the complaint warrants an initial investigative action.
We appreciate responses that are organized, consider what ethical rules may be engaged, and help to address each allegation made by the complainant, with reference to file materials or documented instructions/advice where appropriate.
What should I include in my response?
You will be provided a copy of the complaint. You should consider what, if any, obligations you may have owed to the complainant, the Court, opposing counsel, etc. and which rules may have applied in the circumstances. We appreciate responses that are organized and help to address each allegation made by the complainant, with reference to file materials or documented instructions/advice where appropriate.
We may receive and use information or documents that are confidential or subject to solicitor-client privilege and we have the same obligations as the lawyer does with respect to confidentiality and privilege.
What happens when you receive my response?
Once we receive a member’s response, we review it with a mind to whether any of the Rules in the Code of Professional Conduct may have been breached.
Dismissal
At any stage of the investigation, the Executive Director may dismiss the complaint for any of the reasons enumerated in Regulation 9.2.2(a) through (g).
Letter of advice
We can also determine that your conduct does not amount to professional misconduct, professional incompetence or conduct unbecoming, but that the lawyer could benefit from some professional guidance. In that case, we would issue a letter of advice setting out how your behaviour or actions may have fallen below the preferred standards.
Resolution
It is always an option to try to resolve a complaint. If there is something you are willing to do to help resolve the complainant’s concerns, please mention that when you become aware of the complaint. Note that attempting resolution may be a mitigating factor with respect to the complaint, but may not necessarily assuage all ethical concerns raised.
Further investigation
We may ask you to respond further, or forward your response to the complainant and ask for their response. We can also exercise any of our authority under Regulation 9.2.8, which includes referring the complaint to the Complaints Investigation Committee for direction or obtaining further information, either orally (typically in an interview or meeting) or in writing, from you, the complainant or any other person.
How do I know how serious the complaint is?
The seriousness of a complaint is fact specific/fact dependent. Just because you are being asked to provide a response, does not necessarily mean the complaint is serious. If you are concerned about the complaint, you can always call us to discuss your concerns.
What is going to happen as a result of this complaint? / Possible Complaint Outcomes
If a complaint is not resolved, dismissed, or results in a Letter of Advice, the complaint would typically be referred to the Complaints Investigation Committee for their direction or decision. The Complaints Investigation Committee can do any the following under Section 36 of the Legal Profession Act:
Powers of Complaints Investigation Committee
36 (1) The Complaints Investigation Committee and the Fitness to Practise Committee have all the powers conferred by this Act and the regulations in the discharge of their functions as well as the powers, privileges and immunities of a commissioner under the Public Inquiries Act.
(2) The Complaints Investigation Committee may do one or more of the following things during or after an investigation:
(a) require a member of the Society to attend before it for purposes of assisting with the investigation or for any other purpose consistent with the objects of the professional responsibility process;
(b) dispose of a complaint in a manner prescribed by the regulations;
(c) issue a reprimand with the consent of the member of the Society;
(d) authorize the Executive Director to lay a charge against a member of the Society;
(e) recommend approval of a settlement agreement to a hearing panel;
(f) order a financial audit of the practice of a member of the Society to be carried out by a person or persons qualified to do so;
(g) order a review of the practice of a member of the Society to be carried out by any person or persons;
(h) where a review conducted pursuant to clause (g) identifies inadequacies in the member’s practice or conduct that pose a substantial risk that the member will face disciplinary action in the future, assist the member to remedy those inadequacies;
(i) require a member of the Society to submit to an assessment or examination, or both, to determine whether the member is professionally competent;
(ia) require a member of the Society to submit to a medical assessment;
(j) receive reports from the audit, review, examination or assessment referred to in clauses (f), (g), (h), (i) or (ia);
(k) after providing a member of the Society with an opportunity to be heard, and where it is in the public interest to do so, direct the member to comply with any reasonable requirements specified by the Complaints Investigation Committee as a result of its consideration of the audit, review, examination or assessment referred to in clauses (f), (g), (h) or (i);
(l) direct that there be an application pursuant to Section 50 regarding the trust account of a practising lawyer;
(m) by resolution, appoint a receiver pursuant to Section 51;
(n) by resolution, direct that the Society apply to the court for the appointment of a custodian pursuant to Section 53;
(o) in addition to the other powers conferred by this subsection, where the member of the Society complained against is a law firm, require the law firm to do what the Complaints Investigation Committee reasonably requires to assist in an investigation
The Complaints Investigation Committee can also suspend a practicing certificate or impose conditions or restrictions on a practicing certificate in accordance with Section 37 of the Legal Profession Act.
The Fitness to Practise Program
The Fitness to Practise Program (FTPP) may be open to a lawyer when there is evidence showing that their capacity to practice law is impaired. “Capacity” is defined in section 2(ga) of the Legal Profession Act as “a member’s ability to practise law with reasonable skill and judgment that is not substantially impaired by a physical, mental or emotional condition, disorder or addiction.”
The FTPP recognizes that discipline may not be the best or most effective response when a lawyer’s skill and judgement is substantially impaired. It takes an evidence-based approach to assessing whether a member can continue to practice, and if so, what conditions or restrictions will allow them to do so responsibly. If the FTP Committee determines, together with the member, that the member cannot continue to practice law, the Committee will guide the member through the process of a withdrawal from or winding down of their practice.
Contact us
If you want to reach us, please contact our Executive Assistant Suzanne Burgess at sburgess@nsbs.org or call 902-422-1491 and you will be directed to the staff member who has carriage of your file.