Law Society failing vulnerable refugee claimants
Imagine that a lawyer takes on thousands of refugee claimant clients. Instead of helping clients prepare documents setting out their claims, the lawyer leaves them to be prepared by an interpreter. These documents are too brief to be effective, contain incorrect information, fail to address central aspects of the refugee definition, and are riddled with spelling and grammatical mistakes.
The lawyer also fails to submit supporting documents, submits documents past deadlines, and submits incorrect documents. Sometimes, the lawyer sends inexperienced junior associates to represent clients, who meet for the first time just minutes before refugee hearings.
Imagine, then, that some of the lawyer’s clients complain to the Law Society of Upper Canada, the self-governing body for the legal profession in Ontario. And imagine that the Law Society finds that the lawyer committed systematic professional misconduct resulting in many refugee claimants receiving inadequate service.
What penalty do you think the Law Society should impose?
This was the question at a Law Society Tribunal penalty hearing last week in a case involving Toronto lawyer Viktor Hohots. At that hearing, the Law Society Tribunal decided a five-month suspension of the lawyer’s licence is the appropriate penalty. In addition, the lawyer will be restricted from practising refugee law for two years — though this will not have much impact because the lawyer was removed from the list of counsel authorized to accept Legal Aid Ontario funded refugee law clients last year.
In other words, for systematic failures in representing large numbers of clients in high-stakes refugee claims — for what the Law Society Tribunal characterized as failing “to meet virtually all of the attributes of a competent lawyer” — the penalty is little more than a slap on the wrist.
This penalty sends a clear message to lawyers: no matter how badly they serve clients, no matter how many clients are negatively affected, and no matter the stakes involved, there will be no serious consequences.
This penalty also sends a clear message about whose rights are valued in Canada’s legal system, lawyers or their clients. This is especially true for the group of clients that Hohots specialized in: Hungarian Romani refugee claimants. In Canada’s recently revised refugee determination system, such claimants are subject to expedited procedures. Their refugee hearings are held within weeks of arrival, they are denied access to the appeal at the Immigration and Refugee Board, and they can be deported while the Federal Court is still reviewing the legality of their refused claims. In contrast, lawyers facing disciplinary proceedings are entitled to robust procedural protections, including multiple levels of appeal. And, if they are found to have committed professional misconduct, no big deal — just take a five-month vacation and get right back to practising law.
The process followed by the Law Society in this case also sends similar messages. The disciplinary proceedings took years to run their course — years during which clients of Hohots were deported by the hundreds. Moreover, during much of this period, Hohots continued to represent refugee claimants, paid for at public expense through Legal Aid Ontario. When Legal Aid Ontario sought permission to intervene in the penalty hearing to present arguments about the context and impact of the misconduct, the Law Society Tribunal said no.
The tribunal similarly refused participation to organizations that have worked with Romani refugee claimants, the Canadian Romani Alliance and Romero House. These organizations wanted to present evidence about factors that made Hungarian Romani refugee claimants especially vulnerable, and about the devastating consequences that poor quality legal services have had on individual refugee claimants and on the broader Romani community. They also wanted to argue that the penalty imposed should include restorative justice measures, such as requiring Hohots to help seek redress for clients who were harmed by his misconduct.
The upshot of last week’s Law Society decision is that, in one of the clearest recent cases of systemic misconduct affecting large numbers of vulnerable clients in high-stakes proceedings, the Law Society — after taking years to consider the matter — could not bring itself to impose a meaningful penalty.
Law is a self-governing profession in Ontario. This involves a basic exchange: the government grants the Law Society a monopoly on the provision of legal services and in return the Law Society must ensure that its members provide high-quality legal services. The Hohots case shows that the Law Society is not upholding its end of the bargain. It is time to consider whether self-governance is still a viable model for Ontario’s legal profession.