Law society probes hamstrung by heavy caseloads and gag rule,
ex-auditor says
Toronto Star
By: Rachel Mendleson News reporter, Kenyon Wallace News reporter,
Dale Brazao News
01 October 2014
RACHEL MENDLESON
TORONTO STAR
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.
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