Learning to Surf in the Sea of Self-Doubt: Your First LSUC Complaint

  • December 16, 2016
  • Lionel Tupman

Let’s be clear about one thing from the start of this article: I have not, as of writing this, been the subject of a complaint to the Law Society of Upper Canada. However, I have been threatened in a most convincing way and as I will describe below, it was terrifying.

The punch line is that I came through it. I survived – despite my worst apprehensions and sleepless nights.  However, I have some tips for dealing with your first (likely inevitable) LSUC complaint - which awaits you at some point in your career - and indeed, how to see the silver lining.

But First – how did it feel physiologically to be convincingly threatened with a complaint?

I had known what to expect.

If you are a lawyer, you are probably detail oriented, smart, a high achiever with a type-A personality, and you are probably used to succeeding at most things in your life. You hate receiving criticism and when you do, you will do everything in your power to immediately remedy whatever fault has been found in your conduct, performance or behavior.

When someone complains about you to the LSUC, you will promptly receive a letter from the LSUC notifying you that a complaint has been made, outlining the allegations, and requesting that you deliver a response within the specified time period. When you receive this letter, you may feel panicked and hopeless, because unusually for you in your life, you cannot control the external decision-making body which now determines if you are at fault. It is a sobering experience. Physiologically, I had the following symptoms:

  • racing heartbeat;
  • profuse perspiration;
  • panic; and
  • strangely, an inability to think clearly at all.

This stage passes, don’t worry. Once you get through the initial shock, proceed to step 1 below.

1.  Breath.  Relax.  Re-read the complaint.  Repeat as needed.

Most lawyers do not intend to conduct themselves in a manner which would warrant a complaint to the LSUC, and in many cases, complaints are filed by (a) disgruntled clients who are attempting to “shake you down” on your recent bill; (b) disgruntled opposing parties in litigation who are displeased with the result in litigation and believe somehow that you pulled a “fast one”; (c) disgruntled clients who are unreasonable people or who have unreasonable expectations; or (d) disgruntled opposing counsel who are upset with your conduct, wrongly or rightly. 

In some instances, the allegations advanced in an LSUC complaint are baseless, exaggerated, or fabricated.  This is why it is important to read the complaint thoroughly and to be certain that what is alleged is accurate before jumping to a worst case scenario in your head.

Once you are certain what exactly is being alleged, and you have thought through the potential errors or facts in the complaint, go to step 2.

2. Start preparing your response.

Immediately start preparing your responding letter/response to the complaint. As a lawyer, you must respond promptly to LSUC communications. Likely, moreover, a timeline for your response to the complaint will be contained in the complaint letter you receive. The worst thing you can ever do is sit on a complaint and ignore it, because the complaint is not going to go away unless you address it. Even if you have a busy practice, or you are preparing for an appeal or trial, you must make time to respond to the complaint.

If you simply do not have time to respond within the prescribed timeline, it is always a good idea to write to the LSUC, referring to the complaint, and advise that you are preparing a response which will be delivered on “X-date”. At least then, the LSUC knows you have received the complaint, you are working on a response, and you will provide it as soon as you can. The timeframe that you propose must, however, be reasonable, i.e., do not say, “you will have my response next year”.

Start by reviewing all documents and correspondence related to the complaint, and to save yourself time, start tabbing documents and correspondence as you go, just as you would in preparing an Affidavit for a client. In this case, you are your own client, and you must take every complaint seriously and defend it vigorously on your own behalf.

Set out the relevant documents and correspondence in a logical order, i.e., initial consultation notes/records, followed by the retainer agreement, followed by angry emails from the client, draft pleadings, more angry emails from the client, and ultimately, the correspondence which led (if applicable) to the termination of the retainer. The process is substantially the same in circumstances where the complaint is made by an opposing party or opposing counsel. 

The more comprehensive your response in terms of documentary evidence produced, the more credible your defence. It is as simple as that.

3.  Write a logical narrative and give specifics.

Very often, clients’ or lawyers’ complaints allege wrongdoing on the basis of facts taken out of context.  Perhaps you did guarantee a pleading would be drafted within a week and then you failed to deliver it on time.  But perhaps also, you made that promise before the client dropped five boxes of documents on your desk and fundamentally altered the facts you were told in the consultation. Context is everything, so if you are able to give these type of details, and provide dates, times, locations, parties to conversations, and so on, your response will be significantly more credible.

Your response can take any format you please, but a generally accepted format is to draft a response in the form of a Reporting Letter, with tabs enclosing documents and many headings to break up the narrative. This will make your response easy to read, and will permit the LSUC to efficiently review the documents which you enclose in support of your side of the story.

A brief word about the content of your response: BE HONEST. As a lawyer, you are an officer of the Court.  You have an ethical and moral obligation to be honest about what happened, and these duties extend to the seductive, yet disastrous decision to “cherry-pick” the facts which tend to exonerate you. 

The safest route to follow in defending yourself is to be full and frank in your disclosure. Admit wrongdoing or shortcomings where applicable, and deny only what you can honestly and credibly deny. If indeed you did something wrong, your acceptance and willingness to atone may go a long way to establishing your credibility and deservingness of a second (or third) chance. What the LSUC will not countenance, and what, as a lawyer, I do not approve of (as many of my peers will agree), is dishonesty. It is a common societal trend to not take ownership for one’s failures.  A LSUC complaint is not the time to try this trend on for size.

4.  Go home, go for a run, or engage in your favourite hobby.

Life goes on even after LSUC complaints. In many instances, the LSUC will investigate the complaint, review your response, and determine whether sanctions should result or whether the complaint should be dismissed.  Either way, you cannot control the process, and in the meantime, you still have a career, and more importantly, a spouse, children, parents, siblings, hobbies, and other reasons to get back to normal.

Early in my career I worked for a very large law firm in which one of the senior partners referred to the apprehension of failure felt by young lawyers as the “sea of self-doubt”. So said the partner, “the sea of self-doubt is deep, dark, and full of the monsters of your imagination. Don’t waste your time there.” 

This concept is rather applicable to an LSUC complaint. When a former client threatened to report me (and other lawyers at my firm) to the LSUC, even though I knew I had not done anything wrong, I questioned whether I was any good as a lawyer. I questioned whether I should have gone to medical school; whether I should have continued my previous career as a professional musician; whether I would be the next headline of the Law Times; whether my family would consider me a failure; whether my fiancĂ© would think less of me; whether my political party would ever sign my nomination papers again, and so on. In other words, I was sinking quickly into the sea of self-doubt. 

To make matters worse, the day I received the threat, I had to attend a family wedding. I spent the whole event trying to figure out how to tell my family and my fiancé that I might be in trouble. It was not fun at all.

In retrospect, this was a big mistake. I should have shaken it off, ordered a cocktail, grabbed my saxophone and played Disco Inferno with the wedding band – because life went on, and so did my practice. The threatened complaint was baseless, and unfortunately, I wasted good, valuable hours of my life at an event I will never be able to relive, on someone’s unreasonable complaint. Live and learn…

5. Don’t forget:  this happens to everyone.

My partner and mentor at my firm was the first person to hear about the threatened complaint when I received it. She sensed instinctively the horror I must have been feeling, and gave me the sound advice which follows:  “this happens to every lawyer at some point in their career, and if they aren’t getting complained about, they are not working [or in our case, litigating] hard enough.”

To be clear, no one wants to be complained about to the LSUC, and more importantly, no one should engage in conduct which precipitates a bona fide complaint. But complaints to the LSUC are a fact of life for lawyers, whose business depends, in many instances, on working with litigious people – both clients and lawyers alike – who are apt to complain when they are displeased, and who may, believe it or not, have a hard time seeing both sides of a tough situation. Clients in litigation, for example, are people who place blame; that’s why they retained you in the first place. What would ever make you think you would be insulated from their criticism?

6.  Why everyone should go through a complaint process at least once.

Never will you appreciate the importance of complete, detailed dockets, memos, notes, and records of telephone calls until you have to review your file in preparing your response. You will ask yourself, “I am sure I received those instructions, why can’t I find the memo to file indicating the client told me so?” 

To put it simply, the threat of a complaint made me a much better lawyer. It showed me how deficient my note taking was; how much more detailed my dockets could be; and how clients can twist your words in the absence of written records. The process of preparing a response forces you to self-assess and critique your own work. You are now the “Defendant”. Just as you might tell a client, “your case would be great if you only had a memo of the meeting you allege took place”, you will find yourself saying, “if I had a reporting letter, I could show that I warned the client of the risks which have now resulted in the claim”. 

Unfortunately, if you have not papered and prepared your file well enough, you may not have the documents you need to prove your side of the story.

Hence, a complaint and the process of responding to it is highly educational.

Conclusion – What I learned.

The moral of the story is that receiving, defending, and dealing with LSUC complaints is a part of the business of being a lawyer. The best we can do is to do our best and conduct ourselves with civility, honesty, professionalism and courtesy and deal with the fallout if and when it happens.

I am not looking forward to the next time someone complains about me to the LSUC. But I know it will happen, and just as sure as I am of that, I am sure of the steps I must take to respond and address the complaint. I will take a breath, review the complaint, and calmly and coolly prepare my response to show the LSUC that I was not at fault. If I am at fault, though, I will own it. And when all is said and done, I will go home for the day and get on with my life and my career.

About the Author

Lionel Tupman is a partner and lawyer at WEL Partners. Lionel’s practice focuses on a broad range of estate and trust related litigation matters, including professional liability, breach of trust and administrative litigation with a particular focus on matters involving breaches of fiduciary obligations. 

In 2014, Lionel ran as a candidate for the Ontario Provincial Parliament, and he remains active in politics at the federal and provincial levels, regularly appearing before legislative committees to make submissions on proposed legislation.

When he is not in the office or at court, Lionel can be found playing saxophone in his blues band, which performs regularly at venues around Ontario for various charitable causes.

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