The Advisory: Volume 8, Issue 5, December 2010
Summary of Disciplinary Matters
Includes Hearing Reports issued between September 2010 and November 2010
In this Summary of Disciplinary Matters for the period September 2010 to November 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 16 hearings 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 under Lawyer Regulation/Hearings & Outcomes/Hearing Reports.
Reprimand of A.
In issuing a reprimand to A. for failing to transfer files in a timely basis, disclosure of confidential information of his clients and breaching Law Society accounting rules, a Hearing Committee recognized that A.’s personal challenges and his efforts to correct them are significant mitigating circumstances.
A sole practitioner since 2000, A. has no disciplinary record with the Law Society.
A. had been referred to the practice review process of the Law Society of Alberta in June 2009. His personal circumstances were noted in the hearing. The committee understood that he needed to focus on his well being and pursue remediation in order to break the cycle.
The Hearing Committee concluded that A. has difficulties with file management and organization and with focusing on issues in his practice. These difficulties manifested themselves in the accounting deficiencies and in the inappropriate conduct described in citations 1 and 2. The Committee found there was no element of dishonesty or bad faith in his conduct.
The practice problems were either caused or contributed to by A.’s personal and emotional situation and the challenges he faced in his practice. The primary focus of his efforts to date in the office is getting existing files in order. He has hired staff to assist him in his practice.
With respect to disclosure, the Committee wrote in its report that “unjustified disclosure of a client’s confidences is a serious matter because the public trust in lawyers and the solicitor and client relationship is dependent on lawyers keeping their clients’ secrets. The fundamental importance of solicitor and client privilege and the relationship between a solicitor and his or her client, and its role in the administration of justice, has been emphasized many times by the Supreme Court of Canada.”
The Committee noted in its report that in “speaking for the Court in Pritchard (at para. 17), Justice Major stated: As stated in R. v. McClure,  1 S.C.R. 445, 2001 SCC 14, at para. 2:
Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented. The privilege is jealously guarded and should only be set aside in the most unusual circumstances, such as a genuine risk of wrongful conviction.”
In its report, the Committee noted that “deterrence of other members and denunciation is served by the reprimand, our re-affirmation of the fundamental importance of solicitor and client privilege, and the potential for significant additional sanctions as demonstrated in the Bissett and Belzil decisions.”
A. was reprimanded and ordered to pay hearing costs.
The Hearing Committee was comprised of Jim Eamon, QC; Kevin Feth, QC, and Sarah King- D’Souza, QC.
Disbarment of B.
Observing the fundamental importance of maintaining the reputation of the solicitors’ profession as one in which every member may be trusted to the ends of the earth, a Hearing Committee disbarred B. for misappropriating trust funds of more than $100,000, and also for deceiving or attempting to deceive his clients and the Law Society.
The misappropriations of client trust funds by B. involved total funds in excess of $100,000, occurred over a period of almost three years and involved an element of deceit and “hiding” by B. to disguise the misappropriations by the creation of false invoices and payment details.
The Committee heard of the personal and professional difficulties B. found himself in. Professionally, B. had sought a stable position. He acknowledged being under enormous stress due to his personal problems, and testified that he did not remember a lot of what had brought him to this hearing. B. had been suspended in 2007.
In hearing the submissions of both the Law Society’s counsel and counsel for B., the Committee’s concluding opinion was that the B. still showed lack of integrity and basic honesty which does not equate to good character. The Committee noted in its report that B. stole money from client trust funds over an extended period of time through a calculated scheme including transferring funds from one client trust account to another and creation of false invoices (a supply of which were created by him for future use). B. was not candid with the Law Society investigator with respect to the transgressions which had occurred prior to the investigation.
Based on the evidence, the Committee was not convinced that B. has been cured of his underlying psychological conditions and there is no certainty that B. would not relapse and engage in similar conduct if he were to enter a new codependent relationship.
The Committee ordered a referral of this matter to the Attorney General and ordered that B. pay actual hearing costs.
The Hearing Committee was comprised of Dale Spackman, QC; Sarah King-D’Souza, QC and Larry Ohlhauser, MD, Public Representative.
Fine of C.
The Law Society became aware during a routine Rule 130 audit that an Alberta lawyer was charging extra fees to clients who were covered by the Workers’ Compensation Board contrary to a WCB agreement with him.
During the audit, the Law Society understood that C. had entered into a “side deal” fee arrangement with his clients contrary to his agreement with WCB and without full disclosure to the clients; and that C. did not send the WCB client letter to two WCB covered Worker clients whom he represented in civil actions.
C.’s difficulties arose with the Law Society for two reasons. Firstly, C. did not refuse to sign the consent letters for WCB. Rather, he signed the consent letters and returned them to WCB thus, entering into the agreement with WCB. He did not advise WCB that he did not agree with the contents of the letters regarding fees. Secondly C. did not send either client the Client Letter which clearly states “because the Workers’ Compensation Board is the client, you will not be responsible for payment of any fees or disbursements related to this action except as they relate to claims other than personal injury claims. All fees and disbursements are to be paid from money recovered in the lawsuit”.
Prior to the hearing, C. agreed he would repay the monies he received in contravention of the Agreement.
The Hearing Committee found that C. had breached the Agreement in that having consented to the Agreement, C. did not send the Client Letters to clients and engaged in “side deals” with clients.
The Committee noted it was mindful of lawyers' professional responsibility and their duty to the public as stated in the Lawyers & Ethics: Professional Responsibility and Discipline, by Gavin McKenzie (at pages 26-1): “The purposes of law society discipline proceedings are not to punish offenders and exact retribution, but rather to protect the public, maintain high professional standards, and preserve public confidence in the legal profession.”
C. was fined $1,000 and ordered to pay costs.
The Hearing Committee was comprised of Neena Ahluwalia, QC; Rose Carter, QC and Wayne Jacques, a Public Representative.
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