Paralegal Must Cooperate With Practice Audit

A Tribunal Hearing Division of the Upper Canada Law Society suspended a paralegal license.

This case is about the duty of paralegals and lawyers to be responsive and co-operate with their regulator, the Law Society, whatever their views on how it is doing its work. The respondent Paralegal, Benjamin Mbaegbu, has refused to respond in writing to questions about a practice audit because he objects to the manner in which the auditor interacted with him and he would like a “second opinion.” He has also refused to schedule a follow-up audit unless a different practice auditor attends. A licensee cannot set terms on fulfilling his or her professional obligations to the Law Society. When he refused to respond completely and to schedule a second audit, Mr. Mbaegbu committed professional misconduct.

What is more, I reject Mr. Mbaegbu’s evidence about what happened during the practice audit. Mr. Mbaegbu testified before me that the practice auditor raised his voice, taped their interactions, insisted on continuing all day despite the fact that he had initially only said it would be several hours and rifled through his files. I find, on a balance of probabilities, that these events did not occur as Mr. Mbaegbu says they did. The practice auditor made clear in advance, orally and in writing, that the practice audit would take all day. I find that he did not yell, deny breaks or go through his cabinet as Mr. Mbaegbu says.

At the end of the hearing, I ordered that Mr. Mbaegbu be suspended for one month, with the suspension to continue indefinitely until he co-operates with the Law Society, including allowing its choice of practice auditor to conduct the audit. These are my reasons.

The opinion details the conduct and finds misconduct

A licensee cannot choose who will conduct a practice audit, practice review or investigation. I found above that Mr. Williams did not raise his voice or prohibit breaks. But even if he did, this would not permit Mr. Mbaegbu to refuse to co-operate with the regulator or insist that there be a different auditor. There is no right, as Mr. Mbaegbu suggests, to a second opinion and if licensees were entitled to demand a different reviewer, investigator or adjudicator, the regulation of the legal professions would be much more complicated and expensive. Moreover, a second opinion likely would not be different. Practice audits, no matter who conducts them, involve the same analysis of aspects of a paralegal’s practice against a determined set of criteria.

…Tribunal penalties should be consistent. It is well-established that the penalty for failure to respond where the licensee has no discipline history and the licensee has not completed the response by the date of the hearing is generally a one-month suspension, followed by an indefinite suspension. A licensee with no discipline history can usually avoid a suspension by responding before the hearing, but if he or she attends the hearing with his or her obligations unfulfilled, a suspension will be ordered, unless there are exceptional mitigating circumstances such as a health issue. There is no reason to depart from that principle here, which has previously been applied to failure to co-operate with a practice audit: see Law Society of Upper Canada v. Taskiran, 2016 ONLSTH 94 (CanLII).

A 30-day suspension was imposed. (Mike Frisch)