Allegations Of Ineffective Assistance Of Counsel Against Law Society Duty Counsel Dismissed

• Law Firm: Gardiner Roberts LLP
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Author: Mr James R.G. Cook
• Published date: 05 April 2023

Lawyers facing disciplinary proceedings before the Law Society of Ontario may have duty counsel appointed to represent their interests. A Divisional Court decision shows that duty counsel have the same obligations of competence as any other lawyer retained to act in a matter and may be subject to the same scrutiny for whether their representation of the lawyer was effective in the circumstances: Deokaran v. Law Society of Ontario, 2023 ONSC 1702 (CanLII).

In the discipline proceedings at issue, the Law Society alleged that the lawyer had engaged in professional misconduct in failing to reply promptly and completely to the Law Society's communications in connection with two separate investigations. There was no dispute that the Law Society's investigator had sent the lawyer a number of letters requesting information in the two investigations, and set a final deadline to respond for June 11, 2018.

The lawyer's position was that she had provided a comprehensive response to the Law Society by letter which she personally delivered to the Law Society mailroom on the June 11, 2018 deadline. This position was advanced in an affidavit signed by the lawyer and dated August 22, 2018, with a copy of her response materials attached as an exhibit.

In response, the Law Society filed reply material on August 23, 2018, including evidence about its mailroom practices and copies of e-mail exchanges between the investigator and the lawyer. The Law Society's position was that the lawyer did not deliver her response on June 11, 2018, and that the first time the lawyer claimed to have delivered the material was actually when she served her affidavit on August 22, 2018.

The Law Society further took the position that even if the response was delivered on June 11, 2018, the lawyer's response was inadequate and did not amount to a defence to the allegations.

At the discipline hearing conducted on August 24, 2018, the lawyer was represented by duty counsel. At the commencement of the hearing, duty counsel consented to the filing of the Law Society's reply evidence and confirmed, on the record and in the lawyer's presence, that the lawyer had instructed him to proceed and was not requesting an adjournment.

The primary dispute at the hearing was factual, namely did the lawyer deliver her response to the Law Society mailroom on June 11, 2018? The Hearing Division heard evidence on this issue and rejected the lawyer's defence. The adjudicator made adverse findings regarding the lawyer's...