Bencher May Not Represent Attorney In Bar Investigation
Counsel for an accused attorney in a bar matter has been removed by the Tribunal Hearing Division of the Law Society of Upper Canada.
The investigation involves real estate transactions.
The Lawyer was called to the bar in 1988, and is a partner in a Toronto law firm where he has practised for over 20 years. The Lawyer first learned of the investigation that resulted in this proceeding in January 2014. On February 22, 2017, the Law Society served a Notice of Application on the Lawyer, alleging, among other things, that the Lawyer knowingly assisted in dishonesty or fraud in connection with three real estate transactions.
On February 28, 2017, the Lawyer retained Mr. MacKenzie to act as his counsel in this proceeding. Mr. MacKenzie is undoubtedly a recognized expert in professional responsibility and discipline, having authored a leading text on the subject and having acted for numerous lawyers involved in discipline proceedings, and for the Law Society, prior to his election as a bencher in 1995.
As a consequence
This is a motion brought by the Law Society for an order removing Gavin MacKenzie as counsel for Barry Mitchell Polisuk (the “Lawyer”). The basis for the motion is that Mr. MacKenzie is a former Treasurer of the Law Society and an ex officio bencher, and Convocation policy prohibits a bencher from representing a licensee in a discipline proceeding. In the alternative, the Law Society submits that Mr. MacKenzie’s representation of a licensee in this proceeding may be perceived as a conflict and as having an undue influence on the outcome of the proceeding. Counsel for the Lawyer submits that Mr. MacKenzie has now resigned from his position as ex officio bencher, and accordingly nothing precludes him from acting on behalf of the Lawyer.
We have decided to grant an order removing Mr. MacKenzie as counsel for the Lawyer. We agree with the Lawyer that Mr. MacKenzie is entitled to resign as an ex officio bencher. However, at the time he accepted the retainer in this matter he was in breach of the Law Society’s policy which prohibits a bencher from representing a licensee in a discipline proceeding. Although Mr. MacKenzie has now resigned, a reasonable cooling-off period following his resignation as bencher is required before he can resume acting on behalf of licensees in proceedings before the Law Society Tribunal. It is open to Convocation to consider what a reasonable cooling-off period should be. However, the short period of time that has passed since Mr. MacKenzie’s resignation on April 19, 2017 is not sufficient. In these circumstances, Mr. MacKenzie’s representation of the Lawyer is not compatible with the principles of self-regulation which require that the Law Society act in a fair and transparent manner, and be perceived by the public to be so doing.
Benchers are disqualified
Counsel for the Lawyer, submits that the 1995 Report was adopted at a time when discipline hearings were presided over exclusively by benchers, who sat on discipline committees and in Convocation. It is for this reason that Convocation prohibited benchers from appearing as counsel before “committees of benchers or Convocation.” Although the policy was never repealed, conduct hearings today do not take place before a committee of Convocation, but rather before the independent Law Society Tribunal. Accordingly, the Lawyer submits that the 1995 Report does not preclude benchers who are not adjudicators with the Law Society Tribunal from representing licensees before the Tribunal.
We do not agree. The language of the 1995 Report specifically refers to “discipline” proceedings. The 1995 Report was clear that “even the slightest perception of a conflict of interest in these proceedings much be scrupulously avoided at every stage of the proceeding.” The clear intent of the 1995 Report was to preclude benchers, including ex officio benchers, from representing licensees in discipline proceedings.
This position was made abundantly clear in April 2011 when Convocation considered and approved a proposed policy respecting the prohibition on representation of licensees. This policy was made on the recommendation of the Professional Regulation Committee.
Here
These concerns do not end on the day after a bencher leaves office whether by resignation or otherwise. The public’s perception of a bencher appearing as counsel for a licensee in a discipline proceeding the day after leaving office is no different than the day before they left office. This raises the same concerns about undue influence, and could serve to erode public confidence in self-regulation. It is generally recognized that a reasonable cooling‑off period is required before a former member of a board or tribunal can appear in proceedings before that board or tribunal. This is provided for in the Tribunal’s Adjudicator Code of Conduct, which specifically provides for a one-year cooling-off period. We conclude that, the Law Society Tribunal does have the discretion to preclude former benchers from acting for a licensee in a hearing, where there has not been a reasonable cooling-off period.
In the circumstances of this case, we are of the view that it is appropriate to exercise our discretion and preclude Mr. MacKenzie from representing the Lawyer in these proceedings. We do so for two reasons.
First, at the time Mr. MacKenzie entered into a retainer to represent the Lawyer in these proceedings, he was in breach of the Law Society’s policy with respect to conflict of interest. Although he was acting in good faith throughout, it was incumbent on Mr. MacKenzie to satisfy himself that he was not in a conflict of interest prior to entering into a retainer with the Lawyer.
Second, the fact that Mr. MacKenzie ultimately addressed the conflict by resigning from his position as an ex officio bencher, does not, in our view, cure the problem. As discussed above, a reasonable cooling-off period is required before a former bencher can resume representing licensees before the Tribunal.
(Mike Frisch)