Law society probes hamstrung by heavy caseloads...
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Oct 01, 2014  |  Vote 0    0

Law society probes hamstrung by heavy caseloads and gag rule, ex-auditor says

John Cottrell, a former investigator with the Law Society of Upper Canada, said staff probing lawyer misconduct faced “a lot of pressure” to close case files quickly, and were barred from sharing information with police even in cases of suspected criminal

OurWindsor.Ca

The investigators responsible for protecting the public from bad lawyers are stymied by heavy caseloads and confidentiality rules that prohibit them from sharing information with police, according to a former investigator for the Law Society of Upper Canada.

John Cottrell, who worked for the law society in Toronto from 2007 to 2011, said staff were under “a lot of pressure” to meet monthly targets and complete cases quickly. He was a forensic auditor, part of a team that included investigators, auditors and investigative counsel working on files.

“In the end, most of us were just looking to close files,” said Cottrell, 65. “That was the easiest way to meet your quota, was to close.”

Cottrell said he is taking the unusual step of speaking out about his concerns because he considers it a “public duty.”

In cases where there was evidence of an alleged criminal offence — such as a lawyer stealing trust funds from clients — investigators were “not allowed” to communicate with police because of confidentiality rules, he said.

“I don’t agree with it. I think you should be able to provide the police with information and documents if necessary to assist,” he said. “We’re supposed to be protecting the little guy, and yet we’re really protecting the lawyer … It’s disheartening to see.”

A Star investigation earlier this year revealed that more than 230 lawyers were sanctioned by the law society in the past decade for criminal-like activity that included stealing from their clients. While most were reprimanded, suspended or disbarred by the profession’s regulator, fewer than one in five were charged criminally, the Star found. Most avoided jail.

The law society did not respond to specific allegations, but said in general that the regulator’s “mandate to protect the public requires both comprehensive and timely investigations.”

“Our investigators meet this challenge,” spokesman Roy Thomas said in an email. “In the course of these investigations, we receive confidential information. We co-operate and report to appropriate authorities, including police, through a designated process.”

Over the past decade, Thomas said the law society has made the disciplinary process more transparent, and pushed through amendments to legislation to allow the society to “report (lawyers) to authorities in cases of serious risk of harm.”

He said the law society meets “regularly with police forces all across the province.”

“We continue to look for additional opportunities to make our protection of the public even stronger,” he added.

In a statement on its website in May, the law society called the Star’s investigation “unbalanced and misleading,” and said the society has a “proactive relationship” with police.

But during his time at the law society, Cottrell said neither investigators nor their managers were allowed to share information with law enforcement, even in cases where police were conducting a parallel criminal investigation.

Before working at the law society, Cottrell spent 30 years investigating securities fraud and insider trading at the Ontario Securities Commission. Some of his high-profile cases included Argosy Financial, which defrauded 1,000 investors out of $27 million in the 1970s, as well as the notorious penny-stock dealers of the late ’90s and early 2000s.

Cottrell said the desire to conduct thorough investigations at the law society was thwarted by the need to meet quotas. In his case, as a forensic auditor who handled more complex financial cases, he was expected to close four cases per month. He said investigators had quotas of between six and eight cases per month.

A case was considered “closed” when the complaint was dismissed during the investigation, or when a disciplinary hearing was concluded, he said.

“If you took a case to a hearing, you might be required to sit in a hearing in support of litigation counsel … for a week, but the clock is still ticking on your files,” he said. “You don’t get any credit for that until the file is closed.”

Cottrell would not discuss the details of specific cases, citing confidentiality rules. But the pressure to meet targets put tremendous stress on investigators in his department, he said, and meant that there was rarely time for more than a “peripheral investigation.”

“The cases that go through (to a hearing) are investigated well. But, essentially, when you are pushed to do an investigation quickly, the result is that you tend to take shortcuts,” he said. “It was understood (among investigators) that lawyers weren’t being admonished for their actions.”

When Cottrell worked at the law society, he said there were about 25 forensic auditors and investigators — “too few … to complete all the files that were assigned,” he said.

The law society receives roughly 4,700 complaints each year. Of those, about 3,100 are authorized for full investigation, and 100 go on to a formal disciplinary hearing.

Cottrell is the second former law society employee to raise doubts about whether the professional regulator is adequately protecting the public. In May, former Brampton Crown attorney Steve Sherriff, who was in charge of disciplinary prosecutions at the law society from 1982 to 1989, told the Star that the law society can — and should — report bad lawyers to law enforcement.

“I am not confident that the public gets fair warning of criminal conduct by lawyers,” he said. “I continue to have serious concerns that the public is needlessly at risk.”

At the time Cottrell left the law society in October 2011, he was carrying nearly 50 cases, documents show. That is roughly 10 times as heavy as his caseload at the Ontario Securities Commission, where he was typically assigned to about four cases at once, and there was no quota, he said.

During his first few years at the law society, Cottrell said he got positive feedback from his managers. That changed in late 2010, when he was placed on a “performance improvement plan” because of the length of time he took to complete files, documents show.

Ultimately, he decided he didn’t need the money — or the stress. He said he started closing cases more quickly to bring his numbers up. Within a few months of getting off the improvement plan, he resigned.

Toronto Star

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