As most professionals know, regulators have considerable authority to regulate their members. Professionals often wonder what rights they have when their regulator makes inquiries, inspects their practices, or investigates allegations of misconduct, incompetence or incapacity.

Quite apart from a regulator’s legal entitlements in these areas, it is often the case that the best approach to take when a regulator makes enquires is to co-operate with the regulator to the extent possible. Resisting reasonable enquiries, and certainly obstructing representatives of the regulator, not only generally makes the regulator more suspicious, but responding in this matter will often result in separate, and independent allegations of misconduct. As a general proposition, self-regulation generally requires that members of professions co-operate with their regulators. Having said that, certain principles should be kept in mind when a regulator makes enquiries of its members.

First, many professions actually make it a ground of misconduct to fail to respond to an enquiry from their regulator within a certain period of time. Members are usually therefore obliged to make some form of response.

Second, many regulators have programs involving inspections. It is invariably a requirement that members co-operate in both the scheduling of inspections, where advance notice is given, and during the inspection process itself. Co-operation is generally required because inspections often cannot be completed without it.

However, investigations involving alleged misconduct or incompetence are a different matter. For example, concerning the complaints process, regulators will often send either a summary of a written complaint about the member, or a copy of the complaint itself, and ask the member to respond within a certain period of time, usually thirty days. While it is almost invariably in the member’s interest to respond to a complaint, members are generally not required to respond to a complaint unless there is a specific rule requiring them to do so. These rules often appear in misconduct regulations or in a similar context. Even in the absence of such rule, however, it is difficult to imagine a situation in which a member would not be well advised to provide at least some form of response to the regulator.

Attendance of an investigator is, again, another matter. Assuming that they are properly appointed, investigators typically have fairly extensive powers of investigation, and members are often under a positive obligation to co-operate with an investigator. However, practitioners often have a number of questions about the process. While specific advice will depend entirely on the statutory regime in place in any particular profession, there are a number of general propositions that apply to most of these situations.

First, members of professions often wonder whether an investigator is required to provide advance notice of attending at a member’s practice. As a general rule, the answer is that investigators are not usually obliged to provide notice, but they are generally obliged to tell practitioners the purpose of their visit.

Similarly, members of professions sometimes wonder whether they have a right to counsel, and the right to be advised of that right. Again, it is a general rule that investigators are not required to advise professionals of a right to counsel. However, members are generally entitled to retain counsel if they wish to do so. If so, sometimes an issue arises as to whether the practitioner is entitled to ask the investigator to come back once the right to counsel has been exercised. There is no clear answer to this question, as it will depend on the statutory scheme in place, the nature of the investigation and the reasonableness of the request for counsel on the part of the practitioner. If for example an investigator is concerned about the imminent destruction of documents or the safety of others, arguably an investigator is entitled to proceed before the member has the right to retain counsel. However, investigators will sometimes agree to return once the member has consulted with counsel, in part on the basis that investigators are encouraged to act fairly.

Another issue that sometimes arises is the amount of disclosure that an investigator gives to a member during the course of an investigation. While investigators usually advise members of the purpose of their investigation, and give the member a general sense of the allegations, investigators are probably not obliged to provide them with a detailed account of the allegations.

Similarly, investigators are generally not obliged to disclose any information that has been learned to date. The Courts have said repeatedly that the duty of fairness and therefore the duty of disclosure is much lower during the investigative phase of a proceeding than is the case prior to a formal hearing, such as a proceeding before a Discipline Committee

While most statutory regimes prohibit any person, including the practitioner, from obstructing an investigator, or withholding or concealing anything relevant to the investigation, practitioners generally do have the right to silence to the extent that they are not otherwise obliged to provide information. This means that a person is usually entitled to not assist in the investigation, or to request a brief delay to retain counsel for example. While some investigators have the power to compel practitioners to answer questions under oath, that power is rarely exercised, particularly when the investigator attends at a member’s office.

Finally, in cases where practitioners actually want to defend themselves to an investigator, investigators are generally not obliged to provide a practitioner with an opportunity to do so. Having said that, many regulators make it a practice to formally seek a practitioner’s response, often toward the end of the investigation.

Enquiries or visits from regulators can be an intimidating process. Regulators realize this and usually are quite understanding when practitioners react with concern, particularly when the regulator makes an unannounced visit, such as during an investigation. However, practitioners do have certain rights and, in appropriate cases, would be well advised to consult with colleagues, professional associations or counsel to ensure that their rights are adequately protected.

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