No holds barred! Sweeping investigatory powers hold lawyers accountable.
A recent BC Supreme Court decision in favour of the Law Society of BC highlights the extent to which the protection of the public limits defences available to professionals facing investigation.
The lessons to professionals are simple and powerful:
- Entry into a profession is voluntary.
- Acceptance of regulatory oversight is mandatory.
- Cooperation is required.
- Practising one’s profession is a privilege, not a right.
- Non-compliance with professional standards and ethics may result in rigorous regulatory action.
- Protecting and maintaining the public’s trust is paramount.
In A Lawyer v. LSBC, 2021 BCSC 914, a compliance audit of a lawyer revealed trust accounting concerns, which led to an investigation into the firm’s books, records and accounts, including all electronic and hard copy records (ten computers and the principal lawyer’s, as well as some associates’ smartphones, were captured by regulatory scheme).
The lawyer was granted anonymity but held not entitled to s. 8 Charter protection (the full-scale search and seizure was found to be reasonable).
In fact, the Court held that the judicial review was brought on prematurely and not available in the administrative decision to investigate based on reasonable suspicion of professional misconduct. Even the approval of a charge (citation) following investigation is an administrative decision, not a reviewable outcome, because it may (or may not) result in an allegation.
Absent exceptional circumstances, recourse to the courts arises only after all internal regulatory processes have been exhausted and a discipline hearing panel has made an adjudicative decision.
The Court held that Law Society staff was not obliged to disclose the privileged legal opinion, nor specific conduct allegations, used to obtain the investigation order from an elected Board member (Bencher).
Reason: The regulator’s duty of fairness and transparency is minimal at the investigative stage, as there is not yet a case to meet. The duty to disclose the regulator’s case does not arise until a charge (citation) is approved, which is not inevitable.
The Court relied on several Supreme Court of Canada decisions that emphasized a regulator’s important gatekeeper functions to protect an often vulnerable public. That is particularly the case with professionals whose financial transactions are not subject to FINTRAC oversight.
The Legal Professions Act and its subordinate legislation contain a particularly rigorous investigation scheme not contained in all regulatory statutes.
Legal analysis is required to determine whether a given regulator is acting within its statutory mandate in each particular case.