A helpful kind of interference

When Ishwar Sharma, a Toronto criminal and immigration lawyer practising in the heart of Little India, received a phone call from a practice management reviewer from the Law Society of Upper Canada to schedule an appointment, his heart began thumping. Sharma had misgivings and was filled with apprehension over the notion that an outsider working for the profession’s regulatory body was going to spend a day at his office, asking questions and sifting through books, files, and records to ensure his practice management was in compliance with established standards. “And there you are standing exposed,” says Sharma wryly.

It didn’t help that Sharma knew his practice could benefit from a small facelift. A sole practitioner who took over his father’s busy general practice eight years ago, Sharma instinctively felt from the outset that his office lagged behind. Putting his finger on what, aside from knowing it could use a technology upgrade, proved elusive. Continuing legal education courses didn’t really provide clues. Then, slowly, almost imperceptibly, complacency set in. “As a lawyer practising for a few years, you somewhat become complacent in the sense that you feel that you are doing everything well. Clients are happy. Practice is going OK,” says Sharma, whose clients are principally of Indian or Filipino origin. “But I realized very quickly as the reviewer began making suggestions that there was a lot of room for improvement.”

Far removed from the much-dreaded practice reviews, which are usually prompted by complaints and information received in the course of investigations or audits, practice management reviews are designed to assist lawyers in evaluating their practices and improving their skills and competencies. Besides providing practical mentoring and advice over common concerns such as communication, file and time management, quality of service to clients, technology, and professional and personal issues, practice management reviewers try to raise awareness of the available practical resources and tools. “It’s a rather convivial process,” says Thierry Usclat, a Montreal lawyer specializing in labour and workers’ compensation who conducted more than 80 practice management reviews last year for the Barreau du Québec. “We’re not there to conduct investigations or conduct an exhaustive analysis of each of their files. We’re there to help them out, give suggestions, recommendations, and with the younger lawyers especially, give them some coaching.”

After the review, appraisers write up a report. Depending on the evaluation, the file can be closed if all is well, lawyers can be subjected to further monitoring and provide proof that deficiencies have been addressed, or a formal investigation can even be launched if the review discloses misconduct or failure to meet standards of professional competence. The latter was the case for 33 Quebec lawyers in fiscal 2007-2008.

The Barreau was the first Canadian law society to introduce a practice management program because the Professional Code, which governs Quebec’s 45 professional corporations, compels self-governing regulatory bodies to monitor the professional competence of its members and ensure compliance with the rules of ethics through discipline and professional inspection. Like all other professional orders, the Barreau was required to establish a professional inspection committee.

“A professional corporation has a duty to protect the public, and one of the ways to achieve that is through prevention — and that’s what professional inspections are all about. It’s best to put a stop to poor practices now rather than see a lawyer end up before the syndic (or investigating officer) a couple of years down the road,” says Usclat. Every year the Barreau dispatches a nine-page evaluation guide to up to 1,500 lawyers which must be completed, and based on the responses, the Barreau then draws up a list of 800 lawyers it will visit. In other words, Quebec lawyers can expect to be reviewed every five to seven years.

Driven, in part, by a healthy dose of self-preservation, other law societies are or will be following in its footsteps. Indeed, Canadian law societies have paid heed to painful lessons drawn from across the Atlantic. Increasing public distrust of the legal profession prompted England to enact the Legal Services Act, 2007, which effectively ended the authority of the legal profession’s self-regulatory bodies, after more than a decade of discussion and debate. Closer to home, the Supreme Court of Canada’s 2004 ruling in Finney v. Barreau du Québec served as another wake-up call. Its finding that the conduct of the Barreau “was not up to the standards imposed by its fundamental mandate, which is to protect the public,” was not lost on Canadian law societies. As Diana Miles, the director of professional development and competence at the Law Society of Upper Canada, puts it: “If a regulatory authority in any profession is not appropriately overseeing the competence of its professionals, there is the potential that the government or others may take a look and say that’s not adequate and may request that you make changes.”

Law societies are not taking that chance, and are now more aggressively launching preventative initiatives. Nearly 18 months ago, the LSUC expanded its quality assurance program to include random practice management reviews. After meeting its objective of conducting 250 reviews in 2007, and 400 last year, the LSUC slightly altered its selection criteria. Instead of randomly selecting members who are in the first eight years of private practice, the LSUC will target sole practitioners, with solos making up at least half the members chosen to be reviewed. The reason, says Miles, is approximately 50 per cent of sole practitioners in the first few years of their practice face complaints or negligence or insurance claims. “We discovered when reviewing lawyers [working] in larger firms that there is a significant internal infrastructure to help support them in their practice activities. So they don’t need as much assistance as lawyers working in smaller environments,” says Miles, who is hoping to complete 500 reviews this year.

The Law Society of British Columbia also has gotten into the act, though it has taken a completely different tack. It decided nearly 18 months ago to use its trust assurance program as “Geiger counters” to determine if lawyers should be subject to practice reviews, says Kensi Gounden, manager of standards of professional development with the LSBC. “The trust assurance program is the detector,” explains Gounden. “We use accountants as our resource to bring issues back to us to determine if there should be a practice review. We believe that by adopting this integrated approach, we are more agile and can deal with the serious problems really quickly, and the less serious ones in a different time frame.”

Expected to join the ranks is the Law Society of New Brunswick, which is planning to unveil a practice management program that will be operational next January. Far more modest in scope, the N.B. law society expects to review between 25 and 35 lawyers, at least in the first two years of its operation.
The Law Society of Manitoba, which considered implementing a similar initiative three years ago but decided against it because benchers did not see the justification behind introducing a program that would intrude into “their day-to-day lives,” may yet establish a practice management program in the future, says CEO Allan Fineblit. “We’re aware of what other people are doing,” adds Fineblit. “We’re always looking for best practices, and that’s why it would not surprise me if at some point in the future, based on the experience of other jurisdictions, we adopted a similar initiative.”

All of which bodes well for lawyers, if one is to go by Mireille Vincent, a Montreal lawyer who was reviewed twice in the span of eight years. A family law practitioner, Vincent says while a practice management review is in some ways intimidating, intrusive, and time consuming, she is grateful for the experience. “The practice reviewer gave me precious suggestions that I applied immediately after she left,” says Vincent.

That’s a sentiment echoed by Sharma. He spent a few thousand dollars to implement a series of recommendations made by the reviewer, and he has no regrets. He has installed a new computer backup system, acquired a speech recognition software program that has saved him precious time, changed the signage to more accurately reflect his practice, and implemented a host of small but invaluable recommendations made by the reviewer that let him better serve his clients. “When I was selected for the practice management review, I asked myself, ‘why me?’ Now I realize I was one of the lucky few who was able to benefit from this exercise.”

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