Cooperation with One’s Regulator Must be Prompt

All practitioners have an obligation to cooperate with their regulator. At what point does a delay in providing information to the regulator demonstrate a lack of good faith cooperation? In Law Society of Ontario v Diamond, 2019 ONSC 3228, http://canlii.ca/t/j0l82 the Court said that it depends on the circumstances of the case. However, a failure to provide clearly requested documents for a period of four to six months (despite cooperation in providing other documents quickly), where the documents are required to be readily available, could constitute a failure to cooperate in good faith. The Court said:

It is consistent with the purpose of the Rule respecting that duty and the positive obligation it imposes on lawyers, that it is not sufficient for a lawyer to have genuine or honest belief that they are fulfilling their duty to co-operate. The efforts to co-operate must be measured against the objective standard of reasonableness….

To find otherwise would allow a lawyer who has not taken the time or made reasonable efforts to understand and comply with their obligations to be immunized from regulation by the Law Society. This would be contrary to the public interest. As noted in Ghobrial, supra, at para. 9, when it comes to the licensee’s duty to respond to Law Society requests for information completely and promptly “it is essential that the licensee treat the response as a priority….

Similarly, in the duty to co-operate context, a lawyer cannot be found to have acted in good faith to provide a complete and prompt response when the basis for their delay is their ignorance of their professional obligations or their negligence in making the efforts they are required to make to provide the requested information promptly….

There is nothing unreasonable about the Appeal Division’s analysis of the concept of “good faith”. It does not hold lawyers to a standard of perfection. It imposes a duty on them to make every reasonable effort to comply with their obligations. This is consistent with the purpose of the Rule….

This decision reinforces that a practitioner’s duty to cooperate with their regulator means a prompt and complete response to each request.

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