The Advisory: Volume 8, Issue 4, October 2010

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Summary of Disciplinary Matters

Includes Hearing Reports issued between May 2010 and August 2010

In this Summary of Disciplinary Matters for the period May 2010 to August 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 20 hearings and issued 14 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.

Reprimand of A.

An illness and subsequent significant personal events caused a lawyer with a 25-year career to avoid Law Society filing requirements as a coping strategy.

A. faced three citations in his hearing before a Committee of Benchers, all related to failure to file Form S and Form T for 2006 to 2008, and Form T for 2004 and 2005. As well, he was cited for failing to respond to the Law Society on a timely basis, and failure to follow the accounting rules of the Law Society of Alberta.

In her arguments to the Hearing Committee, Counsel for the Law Society indicated that the most serious citation was in regards to A.’s failure to complete and file the Form Ts. She submitted that the duty to hold trust funds and deal with them appropriately is one of the most important fiduciary obligations lawyers have towards the public. While there is no concern regarding misappropriation of any funds in relation to A., the completion and submission of the Form Ts to the Law Society instills trust and confidence by the public.

The Hearing Committee noted that A. had no prior disciplinary record, had cooperated with the Law Society and had made significant efforts to remedy the difficulties he encountered with his accounting records.

The Committee reprimanded A. and imposed conditions including that A. will install and use accounting software in his practice, will have his General Ledger account made current by July 15, 2010 and will remedy any GST matters outstanding. A. was also directed to pay ¾ of the actual costs of the hearing.

The Committee Chair specifically noted the importance of lawyers to comply with the Rules of the Law Society of Alberta and the Code of Conduct. The Rules regarding the handling of trust accounts is a hallmark of a selfgoverning profession. He noted that absolute compliance with the Rules in that regard is critical to maintaining the public’s confidence in the profession.

The Hearing Committee was comprised of James Glass, QC; Ron Everard, QC; and John Higgerty, QC.

Suspension of B.

A Hearing Committee of the Law Society was guided by the public interest, which seeks to protect the public from acts of professional misconduct, in imposing a one-year suspension on B. and directing her to pay actual costs of the hearing.

B. was found guilty on four citations and that such conduct is deserving of sanction. Essentially the citations were that B. failed to:

  • serve her clients in that she failed to render competent and timely services to the clients; 
  •  implement her client’s instructions and that she failed to keep her clients informed as to the progress of the file;
  • be punctual in fulfilling commitments made to her clients and she failed to respond on a timely basis to her clients; and
  • be candid.

Counsel for the Law Society indicated that B. had no disciplinary record but submitted that the citations are serious. Counsel said that B. took a retainer and didn’t do the work. Counsel said B. created a fictitious Statement of Account to try to justify her inaction, and he said she misled her clients and was not candid or punctual in any way.

In determining an appropriate sanction, the Hearing Committee is guided by the public interest, which seeks to protect the public from acts of professional misconduct.

In McKee v. College of Psychologists (British Columbia), the BC Court of Appeal articulated the following principles:

“ In cases of professional discipline there is an aspect of punishment to any penalty which may be imposed and in some ways the proceedings resemble sentencing in a criminal case. However, where the legislature has entrusted the disciplinary process to a self-governing professional body, the legislative purpose is regulation of the profession in the public interest. The emphasis must clearly be upon the protection of the public interest, and to that end, an assessment of the degree or risk, if any, in permitting a practitioner to hold himself out as legally authorized to practice his profession. The steps necessary to protect the public, and the risk that an individual may represent if permitted to practice, are matters that the professional’s peers are better able to assess than a person untrained in the particular professional art or science.”

The Hearing Committee concluded that the appropriate sanction be suspension of B. for a period of one year. In addition, B. is directed to pay the actual costs of the hearing.

The Hearing Committee was comprised of James Glass, QC; Ron Everard, QC; and John Higgerty, QC.

Reprimand of C.

Moving from an office sharing arrangement with other lawyers into a sole practice operating out of his home was a significant factor for an Alberta lawyer who fell behind on trust reconciliations, late filings to the Law Society and GST payment arrears.

A Law Society audit identified accounting deficiencies in C.’s lawyer’s practice which resulted in two citations being laid. C. admitted guilt to the two citations and a Hearing Committee of the Benchers issued a reprimand and directed C. to pay hearing costs.

C. maintained a small practice which generated only a modest income. His conduct had been referred to the Conduct Committee which directed him to participate in a Mandatory Conduct Advisory with a Bencher. After the meeting, C. was genuinely apologetic and he ceased to practice on his own. He then joined another firm in a profit sharing arrangement. In that firm, he had no responsibility for or signing authority on the firm’s trust accounts, thereby removing himself from any risk of deficient accounting practices.

In the hearing, C.’s lawyer noted that during C.’s office sharing arrangement with other lawyers, he had no difficulty with his Law Society filings and compliance with the accounting rules. When the association broke up, and C. began practicing from home, his bank statements were not properly forwarded to his home address, and he fell behind in his reconciliations and filings due to the lack of bank statements.

After beginning practice under the auspices of another firm, the Law Society conducted a Rule 130 follow up audit. By then, his trust account had been closed. C. was asked to file Form Ts for previous years and provide accounting records (all non-trust) and also to provide a Compliance Confirmation. C.’s view appeared to be that delivery of the general bank records and Confirmation was no longer necessary as he was no longer in independent practice and not responsible for his current firm’s accounting.

In its report, the Hearing Committee noted that to protect the public, lawyers are expected to be conscientious and diligent in protecting their clients’ interests, including the safekeeping of money entrusted to the lawyer.

“ The security of trust funds is a paramount concern for the Law Society. To ensure that the public is being properly served, the Law Society has adopted a rigorous system of accounting and banking rules governing the creation and maintenance of a lawyer’s bookkeeping and trust accounts.”

The report went on further to say: “The audit process of the LSA, and the Rules concerning accounting, banking and reporting functions are directed at protecting the reputation of the legal profession, which is dependent on sound financial practices to maintain public confidence.”

The Committee noted that by his admission of guilt and testimony, C. has demonstrated that he understands the errors he committed and that he is contrite. C. has practiced for approximately 27 years and has no prior disciplinary history.

The Hearing Committee was comprised of Kevin Feth, QC; Ron Everard, QC; and Dr. Miriam Carey.

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