The Advisory: Volume 9, Issue 1, March 2011
Summary of Disciplinary Matters
Includes Hearing Reports issued between December 2010 and February 2011
In this Summary of Disciplinary Matters for the period December 2010 and February 2011, the Law Society of Alberta seeks to educate and inform lawyers on its role as an independent regulator in the public interest.
The hearing reports issued may correspond to the hearings held during this period, but may reflect hearings held earlier. Some of the reports are summarized below. All hearing reports are available at www.lawsociety.ab.ca under Lawyer Regulation/Hearings & Outcomes/Hearing Reports.
Suspension of A.
For failing to fulfill a financial commitment and respond to the Law Society, Counsel for the Law Society submitted to a Hearing Committee that suspension of an Alberta lawyer was appropriate to protect the public and to impress that she would be meticulous in her future compliance with required standards.
The two citations arose from a matter in which A. ordered, and was invoiced, for a transcript of a motion A. had before the Federal Court of Canada. A. was sent numerous account reminders. The Hearing Committee heard that A. did not deny owing the money and did not dispute receiving any of the invoices. To date, the invoice remains unpaid.
Counsel for the LSA submitted that the Hearing Committee should have regard to:
- The need to maintain the public’s confidence in the integrity of the profession and the ability of the profession to effectively govern its own members; and
- specific deterrence of the member in further misconduct.
Counsel for the Law Society submitted that the lawyer’s word is her bond and the public must be entitled to rely upon same without question.
In McKee v. College of Psychologists (British Columbia), the BC Court of Appeal articulated these principles which equally apply to the disciplinary process for the legal profession:
“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 Hearing Committee directed that A. who has no previous disciplinary history, be suspended for three months and pay the actual costs of the hearing within 30 days of the date of the issuance of these reasons.
The Hearing Committee was comprised of James Glass, QC; Steve Raby, QC; and Larry Ohlhauser, MD, Public Representative.
Reprimand and Fine for B.
The privilege of holding trust funds is one of the most venerable duties a lawyer has to his client and it is essential that all lawyers strictly comply with the Rules that have been implemented by the Law Society to ensure the public’s trust and confidence, a Hearing Committee wrote in its report on the reprimand and fine of an Alberta lawyer.
At the core of this Hearing is the issue of governability, the Hearing Committee noted, after hearing about B.’s failure to follow the accounting rules of the Law Society and failure to respond to the Law Society.
Counsel for B. explained his client had a small practice, primarily representing government agencies or clients who qualified for Legal Aid. As a result she did not hold retainers. By the year 2002, B. no longer had any need for a trust account.
B. was in a serious automobile accident in 1999 requiring surgery. This was followed by extended periods of convalescence. Counsel for B. stated that “the last thing on the Member’s mind was to complete her accounting.”
The Hearing Committee heard of several exceptions found in a Rule 130 audit conducted by the Law Society. Following the audit, B. was asked to provide a compliance confirmation to the Law Society which she failed to provide. A follow-up audit revealed that B.’s trust books and accounting records had not been reconciled since July 2006. B. was asked to sign an undertaking. A follow-up audit determined further exceptions and B. was requested to provide a compliance confirmation which she again failed to provide. B. was advised the matter would proceed to the Conduct Committee Panel.
In its report, the Committee noted that as an independent profession, the Law Society must be able to govern lawyers. The failure of lawyers to comply with the Rules of the Law Society should not be tolerated because this is an indication of B.’s unwillingness or reluctance to be governed by their professional body.
“In this matter there were many opportunities for B. to bring her accounting into compliance,” noted the Committee. “None of these opportunities were taken. Furthermore, if B. had familiarized herself with the Rules relating to trust accounts, she could have applied at any time for an exemption from the Executive Director from the Rules relating to trust accounts, based on the advice of Counsel for B. that she did not require a trust account for purposes of her practice.”
The Committee stated that the failure of B. to comply with the Rules and B.’s failure to respond to the Law Society can only be interpreted as neglect or refusal by B. to be governed by the Law Society.
“The Member’s failure to comply with the Rules continues; and the Member must be encouraged through sanction to comply with the Rules and refrain from further misconduct,” the Committee wrote. The Hearing Committee issued a reprimand and imposed a fine on B.
The Hearing Committee was comprised of Anthony Young, QC; Dale Spackman, QC ;and Larry Ohlhauser, MD, Public Representative.
Reprimand of C.
In reprimanding a suspended Alberta lawyer, referred to as C., the chair of the Hearing Committee indicated that lack of proper communication with clients is clearly the most significant root cause of complaints to the Law Society of Alberta.
The Chair noted in the hearing report that even if C. was properly completing certain work on the file, if the client is unaware that that work is being completed, the client obviously concludes that the work is not done.
C. was reprimanded and directed to pay costs of the hearing for failing to respond to communications from his client on a timely basis.
This matter arose out of C.’s representation of a client, R.B., whom C. had acted for at least as far back as 2003. In particular, R.B. was having difficulty with child support issues and the enforcement of same through the Director of Maintenance Enforcement. It was clear that the majority of his complaints related to the period from March, 2008 through August, 2008.
Ultimately, C. was suspended in late August of 2008, R.B. was able to get his file from the custodian of C.’s practice and move the file over to another lawyer who resolved the matter in relatively short order.
During the sanctioning phase of the hearing, Law Society counsel tendered two hearing reports from 2007 and 2009. The 2007 hearing result was a conviction on failing to report that criminal charges had been laid against him. The result was a reprimand, a fine of $500.00 and one-half of the actual costs of the hearing. The 2009 hearing report indicated that C. was guilty of failing to respond in a timely manner to communications from a client, from another lawyer and the+ Law Society failing to cooperate with a successor counsel. As a result, C. was reprimanded, fined $2,500.00 and costs of the hearing.
In sanctioning C. the Hearing Committee Chair also noted that even if the client is a demanding client in an acrimonious matrimonial situation, the failure to maintain adequate lines of communication brings the profession into disrepute. In this particular case, subjectively, if not objectively, the client felt abandoned and blamed C. for his plight. In some of the correspondence, the client went so far as to indicate that C. had ruined his life.
The Chair indicated that C. would have a very difficult road ahead of him in order to become reinstated. He would have to convince the Law Society hat his health issues are behind him and he would have to deal with all of the outstanding fines and costs owed to the Law Society. The Chair indicated that if C. were to overcome all of these significant hurdles, it could potentially all be for naught if C. did not learn the valuable lesson of ensuring proper and timely communication with his clients in the future.
The Hearing Committee was comprised of Steve Raby, QC; Rose Carter, QC; and Wayne Jacques, Public Representative.
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