Several weeks ago, the Ontario Superior Court of Justice issued a ruling on a case entitled In the Matter of the Sandra Thompson Family Trust dealing with a private dispute and an associated complaint to the Law Society of Upper Canada. 

The case involved the administration of a family trust set up by one Elizabeth Thompson who subsequently died.  The beneficiaries of the trust were her daughters, Sandra and Nancy.  After her mother’s death, Sandra Thompson filed a complaint with the Law Society concerning what she believed to be serious mismanagement of the trust by one of the trustees, a lawyer. 

Before the complaint to the Law Society could be the dealt with, litigation arose between the lawyer/trustee and his co-trustee on the one hand, and the Thompson daughters on the other.  The essence of the dispute had to do with the fees being charged by the two trustees. 

The provision relating to the withdrawal of the complaint to the Law Society was not valid or enforceable.

The dispute proceeded to a pre-trial conference at which time it was settled.  Part of the settlement included a term that the daughters would provide the trustees with a release including all pending and possible future complaints filed with the Law Society against the lawyer/trustee. 

In all other respects, the settlement was not unusual.  Both sides made some compromises in their positions in order to settle.  However, Sandra Thompson subsequently declined to withdraw her complaint to the Law Society.  The trustees brought a motion before the court for an Order directing Ms. Thompson to comply with the Minutes of Settlement and withdraw her complaint.  The lawyer/trustee argued that the settlement agreement was valid and enforceable and that the withdrawal of the complaint was one of the factors which he had taken into account when agreeing to compromise his claim and settle. 

The court ruled that the provision relating to the withdrawal of the complaint to the Law Society was not valid or enforceable and as a result, the settlement agreement as a whole was set aside. 

The court determined that while the Minutes of Settlement would ordinarily been seen as a binding contract between two private parties, the determinative concern was the public interest.  The court ruled that it is improper for a person to require that a complaint about his or her conduct be withdrawn in exchange for a payment or a benefit as part of a private settlement.  After referring to a number of other Law Society cases as well as cases decided by the Ontario College of Physicians and Surgeons, the court even referred to the decision from the Supreme Court of New Jersey in which that court said:

“Public confidence in the legal profession would be seriously underminded if we were to permit an attorney to avoid discipline by purchasing the silence of compliance.”

Clearly, professionals finding themselves on the wrong end of a complaint cannot expect to be able to extricate themselves by a private agreement with the complainant.  At the same time, complainants should know that if they make a complaint to a professional governing body, they cannot use the promise of a withdrawal as leverage to extract a financial benefit from a professional.