The Advisory: Volume 8, Issue 3, June 2010
Summary of Disciplinary Matters
Includes Hearing Reports issued between December 2009 and April 2010
In this Summary of Disciplinary Matters for the period December 2009 to April 2010, 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 seven hearings and issued 12 reports during this time. The hearing reports issued may correspond to the hearings held during this period, but 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.
In the face of persistent and intentional conduct contrary to conditions imposed by the Law Society’s Directors (Benchers) on his law practice in 2006, a Hearing Committee disbarred an Alberta lawyer (A.) on March 3, 2010.
A. was brought before the Hearing Committee on 53 citations in a 20-day hearing that began on February 9, 2009 and continued through to March 3, 2010.
The Hearing Committee noted in its sanctioning report that “when the Member was not suspended by the Benchers in the fall of 2006, the conditions imposed were intended to protect the public, and that the Member had a duty to the Law Society and to the public to adhere to them. The Member’s breach of the imposed conditions was a breach of his duty to the public, as well as a breach of his obligations as a governable member of the Law Society. The convictions for failing to respond to clients, to other lawyers and the failure to meet trust conditions were further evidence of ungovernability.”
The Committee also expressed: “The citations for failing to serve clients support disbarment.”
To summarize the citations against A., they related to the following:
- failure to respond on a timely basis to his clients, to another lawyer, and to the Law Society;
- breach of trust conditions imposed by another lawyer;
- failure to cooperate to the Law Society by not providing his file to them;
- failure of A. to respond to the Public Trustee’s Office;
- breach of conditions imposed by the Benchers of the Law Society;
- deceiving or seeking to deceive the auditors of the Law Society;
- failure to follow the Law Society Rules regarding filing S and T forms;
- failure to comply with the Rules of the Law Society and Rules of Court in rendering an account on a contingency agreement;
- failure to follow accounting rules and rectify deficiencies, and
- acceptance of cash from a client in excess of that permitted by Law Society rules.
In the sanctioning process, Counsel for the Law Society submitted that “the best interests of the public, and the standing of the legal profession are both best protected by an independent and self-governing profession.” He argued that “if a Member is unwilling to accept governance then they should not be offered the privilege of membership in the Law Society.”
The Hearing Committee ordered that A. be disbarred.
In determining costs, the Committee considered that the Law Society discontinued or did not seek conviction on some of the citations, and that A. admitted guilt on others. Some citations were dismissed. The Committee concluded, however, that the length of the Hearing was principally A.’s responsibility due to the number of applications and arguments. The Committee ordered A. to pay the entire costs of $31,748.
The Hearing Committee was comprised of Brian Peterson, QC, Chair; Fred Fenwick, QC; and Scott A. Watson, QC.
Reprimand and Fines for B.
An Alberta lawyer who lied to a client, putting her client at risk, was suspended by a Hearing Committee of the Law Society for seven days, fined $10,000 for five citations and directed to pay hearing costs.
As well, B. was requested to co-operate fully with the Law Society’s Practice Review and comply fully with all recommendations and direction made by Practice Review.
Despite an older, earlier record of two findings of conduct deserving sanction, four mitigating factors were considered by a Hearing Committee when it agreed to the sanctions. These factors were that B.:
i. co-operated during the investigation;
ii. admitted guilt on three of six citations;
iii. co-operated during the hearing; and
iv. had been subject to scrutiny of the Law Society since June 2008.
B. is an experienced practitioner who was handling a divorce and custody file. The complaints and resulting citations arose out of B. lying to her client about the status and outcome of a case management meeting.
B. did not take appropriate steps to resolve the complications arising out of the initial lie to her client, which led to subsequent actions to conceal her behaviour. She failed to respond in a timely way to her client’s instructions and inquiries in a timely and courteous manner.
B. admitted guilt on citations 1, 3 and 6 and the Hearing Committee found B. guilty of those citations. The Committee found B. guilty of citation 4 in not attending the Case Management meeting fully prepared, in not requesting an adjournment in circumstances where it was clear that certain orders were going to be made that were prejudicial to her client and in B.’s active avoidance in dealing with her client and the access issues.
The Committee also found B. guilty of citation 5 in not responding to the client’s emails requesting information.
In her defence, B. submitted that she was not involved in defrauding her client and offered to make restitution by not charging her client fees. She admitted to very poor judgement in lying to her client and then attempting to cover it up. She said she maintains a busy practice with approximately 130 clients, and that a suspension would have a significant impact upon them.
A suspension of seven days was directed by the Committee to ensure that B.’s existing clients are not affected by the suspension.
In reaching its decision, the Committee noted an aggravating factor was that “these factors do nothing to engender respect for the law or lawyers by the public”.
The Hearing Committee was comprised of James Glass, QC, Chair; Larry Ackerl, QC; and Larry Ohlhauser, MD.
Reprimand for C.
Failing to properly account for funds in trust, failing to return the balance of funds owing to a client in a timely manner and failing to pay a judgment of the Court resulted in an Alberta lawyer being reprimanded by a Hearing Committee.
The Law Society’s counsel noted that the Law Society seeks to take a purposeful approach to sanctioning as it strives to protect the public and maintain the reputation of the profession. Counsel argued the sanction on two of the three citations against C. would discourage future behaviour which will have the effect of protecting the public from similar conduct.
C. was retained in the spring of 2002 by the complainant on a variety of legal matters and the relationship ended March 26, 2003 as the client requested his files be returned to him by April 3, 2003. C.’s own evidence showed that by June 10, 2003, she held $3,380.73 of the complainant’s money in trust at the same time C.’s legal bills were being examined by the taxing officer of the Law Society.
A Hearing Committee found that C. failed to return the balance of those funds to the complainant in a timely manner. Neither the ongoing taxation of C.’s accounts nor the intervening audit of her accounts by the Law Society permitted C. to delay the performance of her obligation to repay those funds to the complainant.
Rule 4 of Chapter 14 of the Code of Professional Conduct provides: “Upon withdrawal or dismissal, a lawyer must promptly render a final account and must account to the client for money and property received from the client.” The commentary related to this Rule provides that “unreasonable delay in accounting to the client, returning money or property to the client or delivering the file to a successor lawyer is unethical conduct.”
In its report, the Hearing Committee noted that it is also the lawyer’s responsibility to keep track of the name of individual or other entity C. received the funds from and to whom they are owed. Clients do not bear any responsibility to verify the accuracy of what funds are held by the lawyer as a precondition to having them repaid.
On the third citation, the Committee found that C. “failed to pay a judgment of the Court, thereby breaching the Code of Professional Conduct.”
Mitigating factors include C. not having a previous disciplinary record and she pled guilty to Citation 3, which saved the complainant, who suffers from brain injury, from the aggravation and inconvenience of attending as a witness. C. agreed to pay the complainant $3,380.73 by December 15, 2009 which she has fulfilled. She has entered into a written undertaking in favour of both the complainant and the LSA to retire the balance of the judgement owed to the complainant by the end of 2011.
The Chair of the Hearing Committee delivered a reprimand and also ordered C. to pay $8,000 in hearing costs.
The Hearing Committee was comprised of Scott A. Watson, QC, Chair; James A. Glass; and Frederica L. Schutz.
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