Remedial Orders

Professional regulators often make orders or enter in agreements to resolve concerns about a member’s conduct. Sometimes these are called sanctions and sometimes even penalties (although this is discouraged because this language reinforces the misconception that professional regulation is quasi-criminal in nature). These orders or agreements can arise during the screening phase of an investigation (e.g., a complaints or investigation committee disposition), discipline or professional conduct hearings, notices of proposals to restrict registration or even in quality assurance processes.

Escaping the Criminal Sentencing Paradigm

Regulators have tried to escape the paradigm created by the criminal sentencing process. Orders or agreements are not intended to be punitive. Retribution is not a consideration. However, the reality is that all too often such orders or agreements look like criminal penalties (e.g., suspension and fines).

It is true that reprimands are commonly used and provide peer persuasion for the member to re-think his or her assumptions and conduct. It is also correct to say many regulators use terms and conditions with increasing frequency. Typical terms and conditions include educational upgrading, supervision, treatment and counselling. However, even these remedies have direct criminal sentencing forebears. Reprimands often look like the stern lecture given by many judges during the sentencing phase of criminal trial. Terms and conditions are quite similar to probation orders that are commonly issued today.

In addition, often minimal creativity is employed. For example, reprimands are frequently brief and formal with little remaining peer suasion. This trend may become more pronounced if reprimands are rendered in public (like some regulators are now doing in order to make the process more transparent) unless a real effort is made. While terms and conditions tend to be more flexible, they can also focus on the remediation of the member through educational means. While commendable, greater innovation is possible.

Remediation of the Member

For example, remediation could more frequently include, in addition to education, peer support. While a “mentor” is sometimes used in terms and conditions, it is rare to see a peer support network mentioned. Requiring a peer support network could be an ongoing commitment with regular conversations to discuss concerns that arise. If the content of the discussion was not automatically reported to the regulator, the member might be more willing to candidly participate in the process.

Some regulators have tried to direct members to write a reflective paper of what they have learned through the experience. Publishing part or all of the paper in the regulator’s newsletter would be an excellent way to educate other members on avoiding a similar fate. The most memorable part of the Bar Admission Course I took was watching a videotape of a disbarred lawyer explaining how he slipped into “borrowing” trust funds during a temporary fiscal crisis. I understood for the first time how someone could fall into that trap.

Similarly, a term and condition that the member divulge the finding / concern to his or her employer may be an appropriate way to ensure that the member has the supports in place to prevent future lapses.

Remediation for the “Victim” and Public

One assumption that is rarely challenged is that the remediation is of the member only and not for the victims of the conduct. The traditional view is that the power to impose terms and conditions does not involve requiring the member to make an apology unless he or she volunteers to do so. But why not? Mandating an apology can have a powerful remedial impact on the person who suffered the consequences of the behaviour. It also reinforces the notion in the member’s mind that it is the client (and public) that is to be the beneficiary of his or her professionalism.

And why must apologies always be in writing? What about a verbal apology (in the right case and with the right safeguards)? Better still, what about allowing the victim to say what impact the conduct had on him or her? As we know from our own personal relationships, we often change our behaviour only when we appreciate how our conduct is affecting others.

Terms and conditions can also be directed to remedy the harm done. In one notable case a member acknowledged having writing inaccurate reports that were used to deny individuals insurance benefits. A term and condition was negotiated in which the member wrote to each individual stating that the report was inaccurate and suggesting that they might take the matter up with the insurance company. While that order was controversial, it was also innovative and effective.

Professions that are supposed to have a shared ethos of client-centred practice should include client-centred orders and agreements in their regulatory process. Remediation is not confined to the practitioner.

FOR MORE INFORMATION

This newsletter is published by Steinecke Maciura LeBlanc, a law firm practising in the field of professional regulation. If you are not receiving a copy and would like one, please contact: Richard Steinecke, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON  M5H 2Y4, Telephone: 416-626-6897 Facsimile: 416-593-7867, E-Mail: rsteinecke@sml-law.com

WANT TO REPRINT AN ARTICLE

A number of readers have asked to reprint articles in their own newsletters. Our policy is that readers may reprint an article as long as credit is given to both the newsletter and the firm. Please send us a copy of the issue of the newsletter which contains a reprint from Grey Areas.