The Advisory: Volume 8, Issue 2, April 2010
Summary of Disciplinary Matters
Includes Hearing Reports issued between October and December 2009
In this Summary of Disciplinary Matters for the period October to December 2009, the Law Society of Alberta seeks to educate and inform lawyers on its role as a self-regulator in the public interest.
The Law Society completed 12 hearings and issued four reports during this time. The hearing reports issued may correspond to the hearings held during this period, or may reflect hearings held in earlier periods. Several of the reports are summarized below. All hearing reports are available at www.lawsociety.ab.ca
Disbarment of A.
An Alberta lawyer’s failure to respond to Law Society efforts to investigate three separate complaints ultimately led to his disbarment on March 3rd, 2010.
The crux of the hearing held before a Committee of Law Society Benchers is the ability of the Law Society to regulate this lawyer in the public interest
In its written report, the Hearing Committee summarized that A. “had a positive obligation to respond to the demands of the LSA in respect of all matters pertaining to the three complaints which form the background to this hearing.” The Committee found that A. conducted himself in such a manner as to compel the Committee to conclude that A. is ungovernable.
The three separate complaints which the Law Society was unable to investigate were:
- the alleged participation of A. in impugned investments and an investment program that was alleged by the RCMP to be a ponzi scheme;
- an alleged claim that A. had defrauded a client in his representation of an off-shore investment; and
- an alleged investment of complainant funds in an investment program run by a corporation which is no longer operating and which is under RCMP investigation.
The Law Society was unable to complete its investigations as A. did not make himself available for interviews. The Law Society attempted to contact A. by email and by letter. The Hearing Committee found that A., although having been properly and sufficiently served, did not respond to the Law Society. A. faced the Hearing Committee on five citations.
A. had no previous record. “The right to practise law carries with it obligations to the LSA and to its members,” the Committee said in its report. “The minimum obligations in our view are compliance with rules and communication with the Society as might reasonably be expected. This Member has persistently failed to comply with the rules.”
“The Member has demonstrated through his conduct that he does not accept governance and we regard this as a very serious matter,” the committee continued in its report. “Maintaining the confidence of the public in the absolute integrity of members of the Law Society of Alberta is paramount.”
The Hearing Committee disbarred A. to “maintain the reputation of the profession and in order to sustain public confidence in the integrity of the profession.”
“Our primary obligation is to the people of the Province of Alberta,” the Committee wrote. “The Member has, by his actions and inactions, left us in a position where the Law Society of Alberta is unable through its investigatory arm to assure the public that this Member is amenable to our discipline and acts with propriety and acts responsibly.”
The Hearing Committee was comprised of Benchers Frederica L. Schutz, QC, Chair; John Higgerty, QC; and James A. Glass, QC.
Reprimand and Fines for B.
An Alberta lawyer was reprimanded for breaching trust conditions and failing to be candid with another lawyer. The Chair of a Law Society Hearing Committee reprimanded B.’s actions of disregarding trust conditions to the detriment of the best interests of his clients and which disparaged the entire legal profession.
B. is an experienced practitioner with an interest in criminal law and civil litigation. The complaints and resulting citations arose out of B. receiving two files from the same firm pertaining to a motor vehicle injury accident and a criminal matter on explicit trust conditions.
In the matter of the accident injury file, B. did not forthwith advise his predecessor of the successful completion of the file, and he advanced some settlement monies to the client prior to an agreement on an apportionment of fees between the lawyers and in breach of trust conditions imposed on him by the other lawyer.
On the criminal file, which was essentially Crown disclosure documents, B. took no steps to apply to remove his predecessor from the record despite the explicit trust conditions that he attend Provincial Court by a certain date and rmake that application.
In reaching its decision, the Committee took into account that B. had no prior record and had admitted guilt on three of the four citations, which significantly reduced the time required to deal with them. The fact that B.’s partial advance of funds to the client had not placed his predecessor in the position of losing any fees also mitigated in B.’s favour. B. also acknowledged that his conduct was deserving of sanctions.
On Citations one and four, B. was fined $4,000 for each breach of trust conditions. On citation 3, B. was fined $3,000 for failing to be candid with another lawyer. Citation 3 was dismissed. The Committee further ordered that B. pay the costs of the Hearing.
The Hearing Committee was comprised of J. Roy Nickerson, QC, Chair; Frederica Schutz, QC, and Norma Sieppert (a public representative to the Benchers).
Reprimand and Fine of C.
In exercising “poor judgment” in supervising and giving work to a student when he knew the Law Society had determined he was not fit to serve as a principal to a student-at-law, an Alberta lawyer was reprimanded and fined.
During an October 2009 hearing before the Hearing Committee, C. verbally entered a Statement of Admission of Guilt on the following amended citation:
“It is alleged that after you knew on or about October 2, 2006 that you did not have the permission of the Law Society to act as principal to a student at law, you continued your relationship with (the student) in a manner consistent with a principal and student-at-law relationship and that such conduct is conduct deserving of sanction.”
Counsel for both C. and the Law Society jointly submitted to the Hearing Committee that C. was not trying to mislead the Law Society in providing work to and guidance to the student. The Hearing Committee noted that C. deliberately gave work to and supervised the student when he knew that the Law Society had determined he was not fit to serve as a principal to a student-at-law. Since the student’s actual principal was located in another office, across the city, C. had de facto supervision of the student, provided opportunities for the student to work on his files, including attendance at court, and served in a mentorship role.
“The Law Society governs the profession in the public interest,“ noted the Hearing Committee in its report. “To protect the public, the Law Society has adopted an apprenticeship program and rules to ensure that students are properly trained. That training involves the development of basic skills, but also the education of the student in ethical attitudes, duties and courtesies associated with the practice of law.”
“A key aspect of those ethical attitudes is respect for the governance provided by the Law Society, including its directions about suitability to serve as a principal to an articling student,” the Committee reasoned.
In its decision, the Committee wrote that the Panel of Credentials and Education Committee before which C. eventually appeared, made the following observations in its April 13, 2007 report:
“A student-at-law is uniquely in need of support and supervision. A student-at-law is also uniquely susceptible to starting off in the profession on the wrong foot if exposed to poor professional judgment and poor practice management.”
The Hearing Committee found that the conduct of C. implied that the Law Society’s governance of the profession was a technicality that could be “ignored or circumvented.” The Committee noted that C. could have sought out one of the Law Society practice advisors, the staff lawyer dealing with his application or any other resources available through the Law Society. “The need to seek guidance was even more acute,” the Committee stated in its report, “knowing as the lawyer did, that he was acting as a role model for an impressionable student.”
C. was reprimanded, fined $1,000, ordered to pay partial costs of the Hearing in the sum of $1,000, and was referred to the Practice Review Committee for a general practice assessment.
The Hearing Committee was comprised of Kevin S. Feth, QC, Chair; Dale Spackman, QC, and Sarah J. King-D’Souza, QC.
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