The Law Society recently decided to publish summaries of conduct reviews on an anonymous basis. This publication is intended to assist lawyers by providing information about ethical and conduct standards.
The Discipline Committee may order a conduct review pursuant to Rule 4-4, rather than issue a citation to hold a hearing regarding the lawyer’s conduct, if it considers that a conduct review is a more effective disposition and is in the public interest. The committee takes into account a number of factors, which include:
- the lawyer’s professional conduct record;
- the need for specific or general deterrence;
- the lawyer’s acknowledgement of misconduct and any steps taken to remedy any loss or damage caused by his or her conduct; and
- the likelihood that a conduct review will provide an effective rehabilitation or remedial result.
The lawyer charged expenses related to two personal ventures to two client files in his firm’s general account, and then drew funds on the firm’s line of credit to pay those expenses. The two personal ventures were the writing and distribution of two novels, and the fictional client name was one of the characters from each novel. The lawyer did not obtain any additional credit from his bank by recording the expenses the way he did and the expenses were legitimate business expenses, but not related to the practice of law. The purpose of the conduct review was to ensure the lawyer is aware of his obligation to exercise absolute integrity in the operation of his books, records and accounts, and to keep the legal activity of the firm separate from any other business activity.
The conduct review related to the lawyer’s responsibilities to properly supervise staff as required by Chapter 12 of the Professional Conduct Handbook. The lawyer employed a legal assistant, who was subject to a consent order obtained by the Law Society following an unauthorized practice investigation. The order prohibited him from giving legal advice or holding himself out as qualified to provide certain legal services. The lawyer was aware of this order. The legal assistant filed documents in Small Claims Court using his personal letterhead (rather than the firm’s letterhead), signed a trial statement certifying the truth of facts of which he had no personal knowledge, and sought to represent the claimant at the trial, without anyone in the firm being aware a trial had been set. The lawyer conceded that there was a breakdown in normal office procedures. The subcommittee emphasized the lawyer’s responsibility to supervise his employees and the vigilance required in such supervision. It also addressed the need for proper office systems to be in place to ensure the responsible lawyer is aware of all documents received from the court and reviews all legal documents prior to them being filed.
The lawyer was in a conflict of interest when he acted against the interests of a former client, contrary to Chapter 6, Rule 7 of the Professional Conduct Handbook. The lawyer provided legal services in the purchase of a property for parents of a son and daughter. After the purchase, he prepared a trust agreement on behalf of the son and daughter, by which the parents held the property in trust for them. When the father died some years later, legal title passed to the mother as the joint owner. The son then registered the property jointly in his name and that of his mother, following which he mortgaged the property and used the proceeds for his own benefit. When the daughter discovered what her brother had done, she commenced litigation to recover her equitable interest. The lawyer agreed to represent her and continued to do so, despite requests to cease acting made by two different lawyers acting for the son.
The subcommittee discussed with the lawyer the principle that a lawyer has a duty to give undivided loyalty to every client, and that Chapter 6, Rule 7 restricts the circumstances in which a lawyer may act against a former client. It drew to his attention that, once the issue of a conflict of interest was raised, he should immediately have taken steps to discuss the matter with a trusted colleague, a senior lawyer, a Bencher or a Law Society practice advisor.
The lawyer breached an undertaking imposed on her by opposing counsel in a family law matter, which required her to apply for a desk order divorce on specific terms and discharge a certificate of pending litigation. The lawyer was discharged by her client before the terms of the undertaking were fulfilled, following which she advised opposing counsel that she could not fulfill her undertaking. The lawyer acknowledged that she had accepted an undertaking that was not within her power to fulfill, and had done so when she was unfamiliar with the area of law and lacked paralegal support, but wished to finalize a settlement for her client. Prior to the conduct review, the lawyer had taken steps to ensure she now has adequate support. The subcommittee emphasized the solemnity of undertakings and the need to ensure, prior to acceptance of an undertaking, that the lawyer is personally able to fulfill it.
The lawyer pleaded guilty to driving a motor vehicle without due care and attention, after a minor accident. The subcommittee reviewed with the lawyer the high standard by which members of the profession must operate, and commented favourably on his decision to cease drinking alcohol and on his heartfelt and sincere apology at the time of the incident and at the conduct review.
The lawyer failed to comply with a court order relating to the priority of disbursement of funds that he received from the sale of his client’s matrimonial home. The lawyer complied with the first two terms; the third permitted payment of his client’s costs. The lawyer prepared bills of costs, the total of which exceeded the amount of the remaining funds. He sent them to the opposing party and asked him to endorse his approval, stating that should he refuse or neglect to do so, “we will not be doing anything further and the Court file will remain incomplete.” When the opposing party did not respond, the lawyer took that failure as “agreement” and paid the remaining trust funds to his client. The lawyer was trying to save his client from incurring the further expense of having the bills of costs assessed and did not receive any benefit from his actions. Despite his good intentions, he paid out funds in breach of the court order, which he realized after discussion. He agreed that he ought to have proceeded to have the bills of costs assessed. The subcommittee emphasized the requirement for every lawyer to comply scrupulously with the terms of a court order.
The lawyer breached his undertaking given in a real estate conveyance that required him to use diligent and commercially reasonable efforts to obtain the discharge of a builder’s lien in a timely manner. The lawyer failed to take any steps to discharge the lien, even after the vendor’s representative followed up by letter and email, and did not take any steps until after a complaint was made to the Law Society. At the time, he was unfamiliar with real estate practice and relied on the erroneous advice of a conveyancing paralegal that the lien would discharge by the effluxion of time.
The subcommittee cautioned the lawyer that the purpose of a conduct review is to change behaviour and discussed with him steps he needed to take to ensure that the conduct does not occur again, including the importance of fulfilling undertakings and vigilantly supervising staff.