Réunions de règlementation

THE REGULATORY ISSUES

REGULATORY MEETING OUTCOME

The Regulatory Issues

The Lawyer was alleged to have engaged in improper advertising. She fully cooperated with the Law Society to address all advertising issues and was in full compliance by 2018. The Lawyer (who is a sole practitioner practising through a professional corporation) is the senior counsel and named principal in the personal injury litigation law firm “Sokoloff Lawyers”. She has practiced personal injury law, virtually exclusively, for more than 30 years.
 
Some of the Lawyer’s online marketing raised potential concerns regarding the Rules of Professional Conduct as they related to the advertising of second opinion services (which was permitted at the time the content was posted, but later prohibited by a subsequent rule change); comments that the Lawyer specialized in personal injury when she was not a certified specialist in civil litigation (the Lawyer subsequently applied to become a certified specialist, but was refused admission to the Law Society’s certified specialist program so long as the advertising investigation remained outstanding); and also described her firm as “Toronto’s Top Multi-Ethnic Personal Injury Firm”, which might suggest a qualitative superiority to other lawyers.

Regulatory Meeting Outcome

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicable Rules of Professional Conduct. The Lawyer fully cooperated with the Law Society investigation and advised the Proceedings Authorization Committee that the aspects of the firm’s advertising identified above have been removed and that the firm’s website and other online marketing has been fully compliant with the Rules of Professional Conduct since 2018. The Lawyer further advised that some of the content would have been removed much earlier, but the relevant social media accounts were no longer within the Lawyer’s control.
 
The members of the Committee reminded the Lawyer of the prohibition against marketing that does not comply with the Rules of Professional Conduct. They recognized that the Lawyer addressed the Law Society’s concerns immediately after being advised of the investigation, but reminded the Lawyer of her obligation to review and analyze advertisements and marketing prepared by staff and third-party marketing agencies before engaging in mass-marketing practices, directed at the public.
 
The members of the Committee agreed that the discussion was useful, and that the process made it unlikely that there would be improper marketing by the firm in the future. The Committee concluded that having addressed the regulatory issue, there will be no further action regarding this matter.
 
(Counsel for the Society, Tushar Pain / Counsel for the Lawyer, William Trudell and Daniel Goldbloom)

The Regulatory Issues

 The Lawyer was alleged to have engaged in sexual harassment of a staff member, conduct unbecoming, and failing to act with courtesy and civility to his staff.

Regulatory Meeting Outcome 

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place between members of the Proceedings Authorization Committee and the Lawyer concerning the regulatory issues and the applicable Rules of Professional Conduct.
 
With respect to the sexual harassment, the Lawyer was reminded that, as a person in a position of authority, his conduct, including dinners, and other expressions of his feelings, would lead a reasonable person to expect that his conduct would cause “insecurity, discomfort, offence, or humiliation”, contrary to Rule 6.3-3. The Lawyer’s conduct deeply and negatively impacted the health of the staff member who was sexually harassed.
 
With respect to the failure to act with courtesy and civility, the Lawyer’s behaviour involved several colleagues over a period of several months and included striking inanimate objects in frustration and anger, shouting, and making disparaging comments about staff that others found demeaning. This conduct was not in keeping with the Lawyer’s general responsibility under Rule 7.2-1 to be courteous and civil with all persons in the course of his practice.
 
The Lawyer acknowledged the conduct and took responsibility for his actions and the pain he caused the specific staff members. The Lawyer was reminded not to engage in such unbecoming and unprofessional conduct. His conduct was antithetical to the responsibilities set out in the Rules of Professional Conduct.
 
The members of the Proceedings Authorization Committee agreed that the discussion was useful, and that the Lawyer is unlikely to conduct himself similarly in the future. The members of the Proceedings Authorization Committee concluded that having addressed the regulatory issues, there will be no further action regarding this matter.
 
(Counsel for the Lawyer, Ian Smith)

The Regulatory Issues

The Lawyer is alleged to have acted contrary to ss. 5.1-5 and ss. 6.3.1-1 of the Rules of Professional Conduct.

While acting as Legal Aid Ontario (“Legal Aid”) duty counsel, the Lawyer had an interaction with a court clerk which made the clerk feel uncomfortable and upset. He made repeated derogatory comments about the clerk in his response to Legal Aid’s investigation of the clerk’s concerns. Some of the comments could be viewed objectively as sexist because they reflected negative stereotypes about women, even if the Lawyer did not intend them to be so. The Lawyer was removed from all Legal Aid Panels in 2018 as a result of the interaction and the nature of his responses to the Legal Aid investigation.
 
The Lawyer believed the clerk harmed him by making unsubstantiated allegations and his responses were justified. However, on reflection, the Lawyer agreed he should have responded differently to Legal Aid and he regretted it.

 Regulatory Meeting Outcome

 Pursuant to the Law Society's policy on Regulatory Meetings, a discussion took place concerning the regulatory issue and the applicable Rules of Professional Conduct.

The Committee communicated their concerns that the Lawyer made the clerk feel uncomfortable and upset. Also, even allowing a substantial degree of latitude to the Lawyer to defend himself against allegations of misconduct, his communications to Legal Aid were unprofessional because they included many gratuitous insulting comments which were not reasonably necessary to respond to the Legal Aid investigation.
 
The Committee noted that the Lawyer acknowledged his approach to the Legal Aid investigation did not help him and that in hindsight he would do it differently. He suffered financially due to his removal from Legal Aid panels. The Lawyer recognized his failure to comply with his professional obligations and has accepted responsibility for his actions.
 
The members of the Proceedings Authorization Committee agreed that the discussion was useful and concluded that having addressed the regulatory issue, there will be no further action regarding this matter.
 
The Lawyer attended and was unrepresented

The Regulatory Issues
The Lawyer made anonymous sexually harassing phone calls to a member of the public (the
“complainant”) between 2004 and 2005. The complainant was also a licensee at the time this conduct
took place.

Regulatory Meeting  Outcome
Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the
regulatory issues and the applicable Rules of Professional Conduct (the “Rules”).

The members of the Proceedings Authorization Committee (the “Committee”) reviewed the Lawyer’s
conduct, as well as evidence including the Lawyer’s admission that he made anonymous sexually
harassing phone calls to other members of the public, in addition to the complainant, prior to June
2005. The Law Society does not have any evidence that the Lawyer engaged in this conduct after June
2005.

The Committee acknowledged the evolution in society with respect to encouraging victims of sexual
harassment to report their experiences to governing authorities and institutions. The Committee
advised the Lawyer that sexual harassment of any kind, to any individual, is unacceptable and runs
contrary to  the professional obligations of a licensee pursuant to Rule 6.3-0 and 6.3-3 of
the Rules. The Committee advised the Lawyer that such conduct committed in a licensee’s personal or
private capacity not only reflects adversely on a licensee, but also brings discredit upon the
legal profession, pursuant to Rule 1.1-1 of the Rules. The Committee also reviewed the negative
impact and lingering effects that the Lawyer’s conduct had on the complainant, including making the
complainant feel unsafe, anxious and upset.

The Lawyer acknowledged that his conduct could have formed the basis of allegations that he engaged
in conduct unbecoming of a licensee and sexual harassment, contrary to the Rules. The Lawyer
acknowledged that his conduct was inappropriate and unacceptable. The Lawyer further acknowledged
that his conduct had a negative impact on the complainant and could have negatively impacted other
individuals to whom he made these sexually harassing phone calls.

The Committee concluded that having addressed the regulatory issue, there will be no further action
regarding this matter.

The Lawyer appeared via videoconference with his counsel Matthew Wilton
Counsel for the Law Society: Jasmeet Kala
 

Questions règlementaires

L’avocate débutante du cabinet s’est trouvée en situation de conflit d’intérêts lorsqu’elle a agi contre un ancien client sans son consentement dans une affaire connexe portant sur un litige concernant le décès d’un membre de sa famille. Un juge de la Cour supérieure de justice de l’Ontario a par la suite déclaré que le cabinet de l’avocate avait agi en conflit d’intérêts dans le cadre d’une motion en vue d’obtenir le retour d’un certificat de fiduciaire de la succession, et que le cabinet aurait dû s’abstenir de continuer à agir contre l’ancien client. Le directeur du cabinet de l’avocate a alors pris des mesures immédiates pour engager un autre avocat à ses frais afin de continuer à agir pour les autres membres de la famille dans le cadre de la motion en vue d’obtenir le retour du certificat de fiduciaire de la succession.

Résultat de la réunion de règlementation

Conformément à la politique du Barreau en matière de réunions de règlementation, les membres du comité d’autorisation des instances (le « Comité ») ont discuté  des questions règlementaires et des règles du Code de déontologie applicables avec l’avocate. Les membres du Comité ont noté que d’après la preuve, le cabinet de l’avocate avait agi en conflit d’intérêts et que le tribunal avait considéré que cette situation portait atteinte à l’administration de la justice.

Le comité d’autorisation des instances a rappelé à l’avocate sa responsabilité de veiller à éviter les conflits d’intérêts. L’avocate a reconnu que le cabinet avait agi en conflit d’intérêts. L’avocate s’est dit résolue à être attentive à l’avenir aux conflits potentiels et réels et à la nécessité du consentement.
Les membres du comité d’autorisation des instances conviennent que la discussion a été utile et que l’avocate ne se retrouvera probablement pas dans une situation similaire à l’avenir. Le comité d’autorisation des instances a conclu qu’après avoir abordé la question règlementaire, aucune suite ne sera donnée à cette affaire.

(Conseiller pour le Barreau, Paul Pape/Conseiller pour l’avocate, William Trudell)

Questions règlementaires

 Le parajuriste se serait présenté à la Cour des petites créances pour représenter le plaignant alors que celui-ci n’était pas autorisé à fournir des services juridiques en raison de l’absence de preuve d’assurance. De plus, le parajuriste aurait fait de la publicité trompeuse, confuse et mensongère sur son site Web, y compris en suggérant qu’il fournissait des services juridiques au-delà de la portée autorisée de son permis P1.

 Résultat de la réunion de règlementation

Conformément à la politique du Barreau en matière de réunions de règlementation, les membres du comité d’autorisation des instances (le « Comité ») ont discuté des questions règlementaires, des règles du Code de déontologie des parajuristes et des règlements administratifs applicables avec le parajuriste. Les membres du Comité ont rappelé au parajuriste son obligation de souscrire une assurance adéquate et de ne fournir des services juridiques qu’avec le statut requis, et l’interdiction de faire du marketing et de la publicité trompeuse, confuse ou mensongère ou susceptible d’induire en erreur, de prêter à confusion ou de tromper.

Les membres du comité d’autorisation des instances conviennent que la discussion a été utile et que le parajuriste ne se retrouvera probablement pas dans une situation similaire à l’avenir. Le comité a conclu qu’après avoir abordé la question règlementaire, aucune suite ne sera donnée à cette affaire.

(Le parajuriste a participé par vidéoconférence avec son représentant juridique, Frank Alfano)

The Regulatory Issue

 The Lawyer was alleged to have failed to serve his client by failing to notify his client in a timely manner of the Lawyer’s inability to provide services through a Legal Aid Certificate.

Regulatory Meeting Outcome

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issue and the applicable Rules of Professional Conduct.  The Lawyer failed to promptly notify his client of his inability to provide services to the client through a Legal Aid Certificate.  The Lawyer was not on the Legal Aid panel as required for the client’s specific matter.  The Lawyer continued to provide services to the client, eventually billing him privately for this time.
 
The Lawyer acknowledged that he could have been more prompt in letting his client know that he was not approved to be on the Legal Aid panel.  He further acknowledged that he continued to provide legal services for some time while his client had a valid Legal Aid Certificate but he was not approved to be on the panel. He said he did so as he felt he was obliged to be ready for a specific hearing in the event he was not allowed to get off the record by the Court. 
 
The presiding benchers reminded the Lawyer of his duty to perform all aspects of the legal services undertaken on a client's behalf to the standard of a competent lawyer in accordance with Rule 3.1-2. The Lawyer should have clearly communicated his inability to provide services through the Legal Aid Certificate at the earliest opportunity and advised his client of options to retain new counsel who could honour the Legal Aid Certificate, rather than continue to provide services privately.
 
The presiding benchers agreed that the discussion was useful, and that the Lawyer is unlikely to conduct himself similarly in the future.  The presiding benchers concluded that having addressed the regulatory issue, there will be no further action regarding this matter.
 
(The Lawyer was unrepresented and appeared in person)

 

The Regulatory Issues

The Lawyer was alleged to have engaged in fee-splitting with a non-licensee, failing to supervise staff and failing to assume complete professional responsibility for his law practice.

From 2008-2011, the Lawyer engaged the services of a non-licensee, who was remunerated for introducing clients to the Lawyer’s firm and processing their accident benefit files.  The non-licensee also met with clients at a satellite office of the firm without the Lawyer’s direct supervision.

Regulatory Meeting Outcome

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicable Rules of Professional Conduct.  The Lawyer acknowledged difficulties in being present to supervise his staff while running a busy litigation practice.  The Proceedings Authorization Committee noted that it was improper for the Lawyer to have permitted a non-licensee to meet with clients at the satellite office of the Lawyer’s firm without his direct supervision.  The Committee reminded the Lawyer that fee-splitting arrangements with non-licensees, however characterized, are prohibited.   

The members of the Proceedings Authorization Committee agreed that the discussion was useful, and that the Lawyer is unlikely to conduct himself similarly in the future.  The Committee concluded that having addressed the regulatory issues, there will be no further action regarding this matter.

(Counsel for the Society, Emma Seth /The Lawyer was unrepresented and appeared in person)

The Regulatory Issues

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicableRules of Professional Conduct. The Lawyer fully cooperated with the Law Society investigation and advised the Proceedings Authorization Committee that the firm’s website now identifies the employee as a spokesperson and non-licensee. A similar disclaimer has been added to the firm’s television advertisements. The firm is in the process of editing videos to include a similar disclaimer, but this process has not yet been completed. He also advised that all TTC ads with the Blue Jays designation have been taken down and the references to the sponsorship in internet advertising (within their control) have been removed.

The members of the Committee reminded the Lawyer of the prohibition against marketing that is misleading, confusing or deceptive or likely to mislead, confuse or deceive. They recognized that the Lawyer addressed the Law Society’s concerns immediately after being advised of the investigation, but reminded the Lawyer that the use of the employee and the sponsorship agreement with the Blue Jays might mislead, confuse or deceive.

The members of the Committee agreed that the discussion was useful, and that the process made it unlikely that there would be marketing by the firm that might mislead, confuse or deceive in the future. The Committee concluded that having addressed the regulatory issue, there will be no further action regarding this matter.

 
(Attending for the Society, Gerry McCleary, Division Coordinator/ Counsel for the Paralegal, Nadia Liva and the Paralegal appeared in person)

The Regulatory Issues

The Paralegal was alleged to have provided legal services outside the scope of his license and to have failed to communicate with his client with respect to a construction lien matter.  

Regulatory Meeting Outcome

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicable Rules of Professional Conduct.  The Paralegal had accepted a retainer to act on a construction lien matter of some urgency, but was not initially aware that construction lien matters fall outside the scope of a paralegal licence.  While the Paralegal was reviewing the file, he failed to respond to communications from his client.  Upon realizing he could not act, the Paralegal withdrew from the retainer and later offered a refund to his client.  The client was able to retain new counsel and was not prejudiced. 

The members of the Proceedings Authorization Committee drew the Paralegal’s attention to his obligation to know the limits and restrictions of his licence, because members of the public assume a legal professional is permitted to provide the legal services for which they have been retained.  They also reminded the Paralegal of the requirement that he communicate with his clients in a timely and effective manner.

The members of the Proceedings Authorization Committee agreed that the discussion was useful, and that the Lawyer is unlikely to conduct herself similarly in the future.  The Committee concluded that having addressed the regulatory issue, there will be no further action regarding this matter.

(Attending for the Society, Gord Gregus, Investigator /The Paralegal was unrepresented and appeared in person)

The members of the Proceedings Authorization Committee agreed that the discussion was useful, and that the Lawyer is unlikely to conduct herself similarly in the future.  The Committee concluded that having addressed the regulatory issue, there will be no further action regarding this matter. 

The Regulatory Issues

While subject to a discipline suspension, the Lawyer was alleged to have failed to properly handle and divest himself of his trust account and failed to clearly inform his client that he was suspended and unable to provide legal services.  The Lawyer was also alleged to have failed to accurately disclose receiving trust funds from his client on his 2015 Lawyer’s Annual Report.

Regulatory Meeting Outcome

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicable Rules of Professional Conduct.  While he had informed his client of his suspension and referred him to another lawyer, the Lawyer acknowledged that the client likely did not understand what he told him due to a language barrier.  The Lawyer acknowledged he should not have received money in trust while suspended, and the potential misleading statement regarding trust funds on his 2015 Annual Report, but indicated the statement was made in error.

The Proceedings Authorization Committee reminded the Lawyer that licensees who have been found to have engaged in professional misconduct and suspended must divest themselves of the trust funds they hold on behalf of clients in a timely fashion.  Suspended licences must also inform their clients or prospective clients that they are unable to continue with or accept a retainer due to the suspension, while ensuring that any barrier to communication such as language is overcome and that the client fully and completely understands.  The members of the Committee also noted that it is essential that licensees present accurate information in the Annual Report.

The members of the Committee agreed that the discussion was useful, and that the Lawyer is unlikely to conduct himself similarly in the future.  The Committee concluded that having addressed the regulatory issue, there will be no further action regarding this matter.

(Attending for the Society, Christopher Wight, Forensic Auditor / The Lawyer was unrepresented and appeared in person)

 The Regulatory Issues

The Lawyer was alleged to have failed to serve clients with applications to the Indian Residential Schools Adjudication Secretariat under the Independent Adjudication Process, and to have failed to be honest and candid with the clients regarding the status of their applications.

Regulatory Meeting Outcome

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicable Rules of Professional Conduct.  The Lawyer acknowledged that she did not file applications for compensation with the Indian Residential Schools Adjudication Secretariat for some of her clients, and that she did not submit required documentation necessary for the applications of some of her clients to be considered.   She also acknowledged that she did not provide information with honesty and candour to some of her clients about the status of their applications. 

The members of the Proceedings Authorization Committee reminded the Lawyer of her obligation to perform all functions conscientiously, diligently and in a timely and cost-effective manner, and in particular, the requirement that lawyers recognize limitations in their ability to handle a matter or some aspect of it, and take steps to ensure the client is properly served.   The Committee also noted that the Lawyer’s duty of candour to her clients required her to inform her clients of information known to her that may affect the interests of the client in the matter.

The members of the Proceedings Authorization Committee agreed that the discussion was useful.  In addition to the Regulatory Meeting, the lawyer undertook to surrender her licence effective August 15, 2017.

(Counsel for the Society, Margaret Drent / The Lawyer was unrepresented and appeared in person)

The Regulatory Issues 

The Lawyer was alleged to have failed to comply with her personal undertaking to pay out and discharge a private mortgage following the closing of a commercial real estate transaction, contrary to Rule 7.2-11 of the Rules of Professional Conduct. 

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicable Rules of Professional Conduct.  The members of the Proceedings Authorization Committee noted that the Lawyer gave the undertaking and it was not fulfilled, and reminded her of her obligation under the Rules not to give an undertaking that cannot be fulfilled and to fulfil every undertaking given.   They also directed the Lawyer to the Law Society’s Real Estate Practice Guide for Lawyers, which provides that lawyers should not give or accept personal undertakings respecting discharge after closing in the case of private mortgages, in the absence of any express provision to the contrary in the agreement of purchase and sale.

The Regulatory Issues

The Lawyer was alleged to have acted in a conflict of interest.  He represented two clients in separate matrimonial matters.  The two clients began a relationship with each other.  The Lawyer represented both of them in drafting a cohabitation agreement. 

The Lawyer was also alleged to have engaged in conduct unbecoming a lawyer, when, just prior to one of the clients making an assignment in bankruptcy, the Lawyer substantially increased the amount of the legal fees owed to him by the bankrupt client and allowed himself to be appointed an inspector in the bankruptcy in an attempt to maximize his own recovery in the bankruptcy, which would limit the recovery of the bankrupt client’s former spouse, who was also a creditor in the bankruptcy.  The Lawyer’s conduct attracted adverse comment from judges who made decisions in the bankruptcy litigation.

Regulatory Meeting Outcome

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicable Rules of Professional Conduct.  The members of the Proceedings Authorization Committee noted that the evidence showed that the Lawyer acted in a conflict of interest, and that the Lawyer’s conduct had attracted judicial criticism. 

The Committee reminded the Lawyer of his obligation to be on guard against conflicts of interest.   The Committee also reminded him of his obligations to conduct himself appropriately when his own financial interests are intertwined with those of his clients.  The Lawyer acknowledged that he had not dealt with the conflict issues in the matrimonial matter as he should have, and expressed his resolve to be mindful in future of the need to balance his own financial interests with his professional obligations.

The members of the Proceedings Authorization Committee agreed that the discussion was useful, and that the Lawyer is unlikely to misconduct himself similarly in the future.  The Committee concluded that having addressed the regulatory issue, there will be no further action regarding this matter.

 (Counsel for the Society, Louise Christofolakos / The Lawyer was unrepresented and appeared in person)

The Regulatory Issues

The Lawyer failed to appear in court on behalf of her client, a young offender. Neither the lawyer nor her client appeared on the next remand date.

The Judge then set a date for the hearing into the Lawyer's conduct.

The Lawyer was late when the Judge rendered judgment with respect to the Lawyer's conduct. The Judge's findings were critical of the Lawyer's deliberate failure to appear for judgment on time.

The Judge later discovered that the Lawyer had been appearing on behalf of clients elsewhere in the Courthouse at the time he rendered judgment.

The Lawyer was alleged to have failed to treat the Court with courtesy and respect, to have failed to comply with a Court Order to appear, to have made ill considered criticisms of the conduct of another lawyer, and to have attempted to mislead the court, contrary to Sub-rules 4.01 (1), (2) & (6), 6.01, 6.01(1) and 6.03(1) of the Rules of Professional Conduct.

Regulatory Meeting Outcome

Pursuant to the Law Society's policy on Regulatory Meetings, a discussion took place concerning the regulatory issue and the applicable Rules of Professional Conduct.  The members of the Proceedings Authorization Committee noted that the Lawyer had changed her practice when dealing with multiple court matters to ensure that the Court is aware of that she is present in the Courthouse and to ensure that she has agents to attend if she is unable and that duty counsel are aware if she unable to attend.

The Committee reminded the Lawyer of her obligations to the Court and her clients when she has multiple matters scheduled on the same day, and of her obligations to be courteous, forthright and respectful to the Court and other counsel at all times.

The members of the Proceedings Authorization Committee agreed that the discussion was useful, and that the Lawyer is unlikely to misconduct herself similarly in the future. The Committee concluded that having addressed the regulatory issues, there will be no further action regarding this matter.

(Counsel for the Society,Elaine F. Strosberg/ Counsel for the Lawyer, David Midanik)

The Regulatory Issue

The Lawyer was an Assistant Crown Attorney who was alleged to have failed to conduct himself in such a way as to maintain the integrity of the profession, contrary to Sub-rule 6.01(1) of the Rules of Professional Conduct when he became involved in providing assistance to an accused person facing sexual assault allegations. 

During the winter and spring of 2009, the Lawyer gave advice to a friend, who in turn was helping the accused, who was facing sexual assault charges.  Over the course of several months, the Lawyer had a number of conversations with the friend specifically regarding the criminal case.  In one conversation, the Lawyer implied to his friend that he had influenced the assignment of a favourable judge to the trial, something he had not done. On the morning the verdict was to be rendered, the Lawyer allowed his friend and the accused to wait in his office in the Court House before Court opened.  On one occasion, the Lawyer made telephone contact with a news reporter on behalf of counsel for the accused.

Regulatory Meeting Outcome

Pursuant to the Law Society's policy on Regulatory Meetings, a discussion took place concerning the regulatory issue and the applicable Rules of Professional Conduct.

The Committee noted that the Lawyer has acknowledged that he exercised poor judgment, that his behavior was inappropriate, and that it reflected poorly on him and on the office of the Crown Attorney.  The lawyer has suffered both financially and reputationally.  His conduct resulted in an investigation by the Ministry of the Attorney General during which time he was suspended from his position.  The conclusion of the investigation was ultimately followed by the Lawyer's resigning as Assistant Crown Attorney, a position of which he was proud.  The Lawyer's actions have had a considerable impact on his professional and personal life.  The Lawyer recognized his failure to comply with his professional obligations and has accepted responsibility for his actions.

The members of the Proceedings Authorization Committee agreed that the discussion was useful, and concluded that having addressed the regulatory issue, there will be no further action regarding this matter.

(Counsel for the Society, Lisa Freeman/Counsel for the Lawyer, Paul Cavalluzzo, LSM.  Counsel in attendance for the Lawyer at the Regulatory Meeting, Nadia Liva)

The Regulatory Issue

During the spring and summer of 2004, the Lawyer was the lead Assistant Crown Attorney in the prosecution of several co-defendants.  The charges included substantive counts relating to drug trafficking, weapons and criminal organization/conspiracy offences.  During the Preliminary Inquiry, the Lawyer had two ex parte discussions with the presiding Judge which were relevant to the proceedings.  The Lawyer was alleged to have failed to disclose the fact of the meeting and the nature of the conversations to defence counsel, contrary to Rules 4.01(3) and 6.01(1) of the Rules of Professional Conduct.  

At the conclusion of the Preliminary Inquiry, the presiding Judge discharged the defendants with respect to the charges of criminal organization/conspiracy.  Approximately four months later, the criminal organization/conspiracy charges were reinstituted against some, but not all, of the defendants.  The ex parte communications were not disclosed to defence counsel until approximately fourteen months after the communications took place and eleven months after the criminal organization/conspiracy charges were discharged.   

The Judge hearing a stay application brought by defence counsel dismissed it after finding that the circumstances surrounding the Lawyer’s conduct and disclosure issues did not amount to an abuse of process warranting a stay of proceedings.  However, the Judge made several negative comments about the conduct of the Lawyer.  The Law Society became aware of the matter in April, 2009. 

Regulatory Meeting Outcome

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issue and the applicable Rules of Professional Conduct.

The Lawyer acknowledged that she took part in two ex parte meetings with the presiding Judge, which were not disclosed to the defence during the Preliminary Inquiry.  The Lawyer stated that it is now very clear to her that it was improper and a breach of her disclosure obligation as Crown Counsel not to have immediately disclosed the fact and content of the ex partecomments by presiding Judge to defence counsel.

The Members of the Proceedings Authorization Committee noted that the Lawyer’s conduct had been the subject of an investigation by the Ministry of the Attorney General which found that it was improper and a breach of the Lawyer’s disclosure obligation as Crown Counsel not to have immediately disclosed the fact and content of the ex parte comments to defence counsel.  The Lawyer was disciplined in accordance with the Ministry of the Attorney General’s internal policies.  The Lawyer also advised the Committee that her conduct has fundamentally shaken her professional reputation, has impacted on her family life and has been a source of tremendous regret and angst.

The Committee agreed that the discussion was useful, that the Lawyer has not misconducted herself similarly since 2004, and that the Lawyer is unlikely to misconduct herself similarly in the future.  The Committee further noted that the Lawyer continues to be given responsibility commensurate with her experience as an Assistant Crown Attorney.  The Committee concluded that having addressed the regulatory issue, there will be no further action regarding this matter.

(Counsel for the Society, Lisa Freeman/ Counsel for the Lawyer, Philip Downes.  The Hon. Sydney L. Robins, Q.C., LSM attended as a Bencher at the invitation of the Proceedings Authorization Committee.)

The Regulatory Issue

The Lawyer was alleged to have engaged in conduct unbecoming a lawyer licensee contrary to s.33(1) of the Law Society Actbecause he was convicted by Madam Justice Livingstone, in the Ontario Court of Justice for Ontario in London, Ontario on September 22, 2008 of twice breaching section 239(1)(d) of the Income Tax Act and twice breaching section 327(1)(c) of the Excise Tax Act.

Regulatory Meeting Outcome

Pursuant to the Law Society’s policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicable Rules of Professional Conduct.

The Committee made reference to the fact that the Lawyer’s convictions under the Income Tax Act and the Excise Tax Act reflect negatively on the legal profession as a whole and tend to bring the administration of justice into disrepute.

The Committee drew the Lawyer’s attention to sub-rules 6.11(3), 1.02 and 6.01(1) of the Rules of Professional Conduct. The Committee reminded the Lawyer that he has a duty as a senior member of the Bar to conduct himself in his professional and personal capacity in a manner consistent with the legal profession’s traditions of honesty, integrity and high ethical standards.

The Lawyer acknowledged that he conducted himself in a manner that was inconsistent with the Rules of Professional Conduct. In particular, he acknowledged that his convictions under the Income Tax Act and the Excise Tax Act reflect badly on the legal profession.

The members of the Proceedings Authorization Committee agreed that the discussion was useful, and concluded that having addressed the regulatory issues, there will be no further action regarding this matter.

(Counsel for the Society, Janice Duggan/the Lawyer attended in person and was unrepresented)

The Regulatory Issues  

The Lawyer was alleged to have engaged in sharp practice on or about July 20, 2007, when he instituted default proceeding in court file no. 07-CV-329949PD3, without notice to the defendant's lawyer.

The Lawyer was also alleged to have written letters dated July 6 and 12, 2007 to the defendant's lawyer and others regarding court file no. 07-CV-329949PD3, in July 2007, in a manner that was uncivil and inconsistent with the proper tone of the professional communication from a lawyer.

Regulatory Meeting Outcome  

Pursuant to the Law Society's policy on Regulatory Meetings, a discussion took place concerning the regulatory issue s and the applicable Rules of Professional Conduct.

The members of the Proceedings Authorization Committee were of the view that it was improper for the Lawyer to institute default proceedings without notice to the defendant in the face of pending motions for orders:

1. to dismiss the action for lack of jurisdiction; and
2. to extend the time for the filing of the Statement of Defence

and contrary to the arrangement not to note the defendant in default, which the defendant's lawyer believed to be in place in mid-May 2007.

The Committee also noted that the Lawyer's conduct was aggravated by the two letters the Lawyer wrote to the defendant's lawyer and copied to other members of the bar.

The Committee made particular reference to the comments on the Lawyer's conduct that were made in two decisions in the underlying litigation by the Hon. Mr. Justice Newbould, who wrote that the Lawyer's actions were "misleading in the extreme" and that ".....the correspondence that I have discussed are actions that should not be condoned but rather censured. The Rules of Professional Conduct and the Principles of Civility adopted by the Advocates' Society are intended to prevent the kind of correspondence that was sent…."

The Committee drew the Lawyer's attention to sub-rules 4.01 (6), 6.01 (1), 6.03 (3) and 6.03 (5) of the Rules of Professional Conduct . The Committee reminded the Lawyer that even in acrimonious, high-profile litigation, a lawyer's obligation is to avoid sharp practice, to act in good faith and to treat opposing counsel and all persons with whom the lawyer has dealings in the course of litigation with courtesy and civility. The Committee noted that the Lawyer is a senior member of the bar with the ability to influence junior lawyers as they develop their practice styles.

The Lawyer acknowledged that he conducted himself in a manner that was inconsistent with the Rules of Professional Conduct. In particular, he acknowledged that it was improper to institute default proceedings without notice to the defendant in the circumstances of this case, and that his letters to the defendant's lawyer were uncivil. In light of his discussions with the Committee, the Lawyer has committed himself to observing the principles of civility.

The members of the Proceedings Authorization Committee agreed that the discussion was useful, and concluded that having addressed the regulatory issues, there will be no further action regarding this matter.

(Counsel for the Society, Amanda Worley/the Lawyer attended in person and was represented by Sylvia Tint)  

The Regulatory Issues  

The Lawyer was alleged to have failed to treat the Ontario Racing Commission (the "ORC") with courtesy and respect, and failed to conduct himself in such a way as to maintain the integrity of the profession, contrary to subrules 4.01(1), 4.01(6) and 6.01(1) of the Rules of Professional Conduct.

While cross examining a witness in a hearing before the ORC's Hearing Panel, the Lawyer addressed the chairman of the panel in terms that were discourteous and disrespectful of the panel and the chairman.

Regulatory Meeting Outcome  

Pursuant to the Law Society's policy on Regulatory Meetings, a discussion took place concerning the regulatory issues and the applicable Rules of Professional Conduct. The Lawyer conceded his conduct fell short of the standard expected of lawyers. He agreed his comments were very unfortunate and he regrets having made them. He indicated that the incident should never have happened, had never happened before and he hopes that it will never be repeated.

The members of the Proceedings Authorization Committee noted that at a meeting of the ORC held to review the Lawyers conduct before the ORC's Hearing Panel, the Lawyer had apologized three times for his remarks at the hearing.

The Committee reminded the Lawyer that while appearances in before tribunals can be stressful, and sometimes challenging, a lawyer's obligation is to maintain a civil and respectful demeanour at all times even if he or she feels provoked or that he or she has been treated unfairly. The Committee concluded that having addressed the regulatory issues, there will be no further action regarding this matter.

The Regulatory Issue  

The Applicant was alleged to have, while a law student working for the defence during the criminal trial of R. v. Richard Wills, contacted a witness on August 30, 2007 and arranged a three-way conversation with the witness and the accused. During the conversation, the accused attempted to prompt the witness's memory. The witness denied making the utterances suggested by the accused and said that he would not repeat them in court.

The Background Issues  

The following incidents that were alleged to have occurred while the Applicant was a law student could have been the subject of a good character hearing, and are relevant as background to the regulatory issue considered:  

• On February 28, 2007, the Applicant disregarded courthouse security procedures and arranged for Mr. Wills' two teenage children to attend within a secured area of the courthouse to visit Mr. Wills, without the knowledge or permission of court staff.  
• On May 31, 2007, the Applicant, who was sitting next to Mr. Wills while court was in session, saw that Mr. Wills had typed a message on a laptop screen indicating that if the press had any questions, the defence lawyers could answer them. The message was visible to the public. The Applicant failed to alert counsel or the court to the incident.
• On June 4, 2007, defence counsel retained a friend of the Applicant as a photographer to reproduce autopsy photographs for defence presentation. On the instructions of counsel, the Applicant instructed the photographer to take confidential autopsy photographs of the murder victim for reproduction at Japan Camera Centre, and the photographer performed that task.

Regulatory Meeting Outcome  

Pursuant to the Law Society's policy on Regulatory Meetings, a discussion took place concerning the regulatory issue and the applicable Rules of Professional Conduct. The Proceedings Authorization Committee noted that the Applicant has many letters of reference from upstanding members of the community, and that his conduct during the trial appeared to be a diversion from his usual character.

During the meeting, a discussion with the Applicant and his counsel took place. The Applicant stated that the process of the Law Society's investigation delayed the consideration of his admission to the bar, and he assured the Committee that he will never engage in similar conduct again. The Committee is satisfied that the Applicant now appreciates that he made errors in judgment during the course of the R. v. Wills trial.

The Committee is satisfied that the discussion was meaningful, and that the Applicant will never misconduct himself in the future. The Committee concluded that there will be no further action in this matter because it has now addressed the regulatory issue.

(Counsel for the Society, Elaine Strosberg/ Counsel for the Applicant, Stephen Traviss)