These motions were voted in unanimously by benchers as part of the Law Society of Ontario’s (LSO) April 25 Convocation. Right off the top, benchers voted to have put in place sanctions for new sole practitioners who do not finish the regulator’s mandatory practice essentials course (PEC) within the set period.
The penalty could be administrative suspension.
The PEC will become available on Jan. 1, 2025, and will apply only to those who declare themselves as sole practitioners for the first time as of that date and onward.
According to a report from the LSO’s Professional Development and Competence Committee, the PEC will be delivered to applicable members via “self-paced modules.” It will total around 30 hours of study and contain “significant points of interaction, practical training and evaluative components.”
The PEC is currently in the “content development” phase. When completed, it will include narration, audiovisual features, interactive elements and assessments.
The PEC and non-compliance penalties will also apply to sole practitioner paralegals.
Bencher and committee chair Atrisha Lewis noted an LSO task force found that sole practitioners make up a third of lawyers in private practice. However, they are subject to 75 per cent of complaints resulting in disciplinary proceedings.
Atrisha Lewis
There was some concern raised about the penalizing of struggling sole practitioners who may not be able to afford the course’s price tag, which is currently set at $250.
In response, Lewis said that the cost is reasonable for 30 hours of content and the “two years of [continuing professional development] satisfaction” the course will provide.
As for the sanctions, Lewis said it is hoped the program “will be seen as something … helpful, and not just a burden.” She said there will also be “flexibility for extenuating circumstances.”
“The law society will have the same discretion with respect to penalties relating to the practice essentials course that we do with regards to [continuing professional development] enforcement, so there [is] the ability for extenuating circumstances to be considered.”
Benchers also decided to vote yes to lawyers in private practice being required to have a contingency plan in place that would see clients’ matters handed to another lawyer should they suddenly have to stop providing legal services due to developments such as serious illness or death.
This new regulation would also apply to paralegals.
A report from the LSO’s Professional Regulation Committee noted that in most circumstances, members “have arrangements in place to ensure the protection of client interests and property in the event that they suddenly or unexpectedly cease practising law or providing legal services, whether due to death, disability or other cause.”
(Lawyers working in firms already have that taken care of in that the firm itself would deal with the client’s file.)
But not all sole practitioners have a plan in place.
“Unfortunately, the experience of the Law Society’s Trustee Services department is that some sole practitioners and those working in cost and space-saving type arrangements fail to plan for sudden or unexpected events that may impair their ability to maintain their professional obligations to clients,” states the report.
In these cases, it has been the LSO stepping in when a member has unexpectedly had to stop providing services, taking it upon itself to “protect and distribute client trust monies and other property, assist with the wind-up of the business and transition client files.”
But this presents problems: One, by the time trustee services finds out it needs to intervene, “it is often weeks after the licensee has actually stopped working.” Two, trustee services “does not have any of the necessary information about the licensee’s practice to intervene immediately and must take the time needed to access digital records and files and locate trust accounts.”
As a result, this could seriously interrupt — and possibly jeopardize — a client’s matter.
Bencher and committee chair Megan Shortreed called it a “longstanding problem.”
“The requirement seeks to address a longstanding problem that is only getting worse as the professions age — and they are ageing — which is that too many licensees in private practice — in particular sole practitioners — fail to plan for sudden or unexpected events that might impair their ability to work and to maintain their professional obligations to clients,” said Shortreed, who described the solution as “the least burdensome way to address this problem and protect clients’ interests.”
She said a plan would contain information about client files, property and trust funds in order “to allow for another licensee to administer the return or transfer of those files, property and trust funds to the client or to another licensee.”
Shortreed said lawyers will have access to a “template plan … to assist licensees with compliance.”
Part of the plan also requires lawyers to appoint an “administrator licensee” to handle the transfer of a client’s matter.
The LSO’s finance committee also submitted a report that day, detailing a good financial outlook for the regulator in 2023. The LSO’s revenues exceeded “expenses from operations” by $3.1 million — quite a change from 2022, when expenses exceeded revenues by $6.1 million.
“The combined positive results from operations and the unrealized increase in the fair value of investments resulted in the Society ending the year with total revenues exceeding expenses by $9.0 million,” the report states.
“The good news is that the law society ended 2023 with positive financial results and our financial position is solid, positioning us well for the upcoming year,” said committee chair Sidney Troister.
The April 25 Convocation and links to the reports can be found here.
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