The publication of conduct review summaries is intended to assist lawyers by providing information about ethical and conduct standards.
A conduct review is a confidential meeting between a lawyer against whom a complaint has been made and a conduct review subcommittee, which may also be attended by the complainant at the discretion of the subcommittee. 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.
CR #2011 – 36
This conduct review addressed a lawyer’s conduct in failing to keep a client reasonably informed about the status of her matter. The lawyer agreed to act for her on a pro bono basis to deal with costs owing by her after her condo was sold in foreclosure and to obtain payment out of the balance of the funds held in court. The lawyer was required to provide a reasonable quality of service under Chapter 3 of the Professional Conduct Handbook, regardless of whether he was paid. He failed to do so, by not returning the client’s repeated phone calls and emails. The lawyer accepted the subcommittee’s recommendation that he take the online Communications Toolkit course.
The conduct review was ordered after a compliance audit revealed a lawyer failed to comply with the accounting rules (Part 3, Division 7 of the Law Society Rules). His practice did not maintain supporting documents for the trust and general accounts, did not use a cash receipt book, and the general account was used as a personal account. Due to sloppy accounting, he also erred by reporting in his trust report that all PST had been paid, when it was not. The subcommittee recommended the lawyer take the on-line Small Firm Practice Course, hire a bookkeeper and review with her the Trust Accounting Handbook, a resource available on the Law Society website.
The conduct review arose from a lawyer’s payment of settlement funds to his bankrupt client rather than the trustee, contrary to an undertaking imposed by the trustee as a condition of the lawyer retaining conduct of the action. The lawyer wrongly thought that he was relieved of the undertaking when the client was discharged from bankruptcy. The lawyer acknowledged that he made two mistakes: he carelessly agreed to an undertaking when he did not fully understand its terms and he failed to determine if he was actually released from the undertaking by the fact of the discharge. The subcommittee cautioned him that he should not practise in any area of law with which he is not familiar.
The conduct review addressed a lawyer’s conduct in making submissions that contained incorrect statements drawn from a misleading medical opinion. The lawyer ought to have known that the report and his submissions were not true, but he did not, as a result of an oversight and his lack of diligence in reviewing the file. He did not review the file thoroughly because of his client’s limited ability to pay for legal services and now recognized the problem that created.
The conduct review arose as a result of aggressive and combative comments made by a lawyer when responding to a complaint brought by another lawyer. The subcommittee reminded the lawyer of the obligation in the Canons of Legal Ethics to conduct himself with courtesy and good faith and scrupulously avoid personal remarks. It observed that the lawyer was able to express himself well and could apply that skill to defuse rather than escalate a situation. The lawyer acknowledged that he should have treated the complainant and Law Society staff in a more straightforward and collegial way. He agreed to take the online Communications Toolkit course.
This conduct review also addressed a lawyer’s lack of civility in sending a letter in which he referred to another lawyer as a liar and a disgrace to the profession. The subcommittee advised him that if he believed that another lawyer had acted unethically, the appropriate response was to complain to the Law Society, not to make rude and disrespectful comments.
This conduct review addressed the ongoing nature of the duty of undivided loyalty to a client and a lawyer’s conduct in acting in a situation adverse to the interest of a former client where the matter was not “substantially unrelated.” One of two co-accused in a drug trafficking charge was a former client of the lawyer, whom he had represented a few years earlier on a similar charge. The lawyer acted for the other co-accused. The two co-accused were adverse in interest because each claimed the other was the principal offender. At trial, the lawyer cross-examined his former client. The former client was convicted based on the judge’s assessment of credibility; the current client was acquitted. The lawyer accepted that his retainer by the current client was not substantially unrelated to his representation of the former client, given the defences advanced, and was contrary to Chapter 6, Rule 7 of the Professional Conduct Handbook. He altered his file management practices to ensure that he avoids this kind of potential conflict of interest.
The conduct review arose from a lawyer acting in a conflict of interest, by giving advice and providing services to clients involved in a business venture. When their interests diverged, he breached his duty of undivided loyalty by accepting service of legal documents based on the instructions of only one client. He also drew an indemnity agreement for one client in connection with the breakdown of the business venture. The lawyer failed to properly advise each client of the effect of his joint representation of them, contrary to Chapter 6, Rule 4 of the Professional Conduct Handbook. The subcommittee reviewed with him that rule, as well as Rule 7 which sets out the circumstances in which a lawyer may not act against the interests of a former client.
The conduct review was directed following a lawyer’s failure to provide a reasonable quality of service to his legal aid client in a family law matter and, in particular, his failure to promptly return phone calls from the client and from the Legal Services Society and to attend in court on behalf of his client, resulting in a final order being made against her. The lawyer’s conduct was inappropriate and showed a lack of knowledge. He missed the court date in part because he had prepared and filed a Notice of Change of Solicitor, but he did not deliver it to the opposing party, erroneously believing that the Supreme Court registry would ensure it was delivered and that the address for service of the opposing party was insufficient. He did not understand the significance of an order stating that the hearing date would be peremptory upon his client. The lawyer acknowledged that he had learned from the complaint and would voluntarily restrict his practice to the area of family law in Provincial Court, with few exceptions.
This conduct review addressed a lawyer’s conduct in pleading guilty to harassment of his former girlfriend pursuant to s. 265 of the Criminal Code and to a breach of a no-contact order pursuant to s. 145(3) of the Criminal Code. The conduct was related to a medical diagnosis of anxiety and depression. The lawyer had obtained treatment and learned to identify problems or trends in his life and health that could indicate further difficulties and to take appropriate steps when those occurred.
This conduct review addressed a lawyer’s conduct in preparing a codicil to a will in circumstances where he could be perceived to have an indirect financial interest. The codicil included a bequest to the lawyer’s father, which had a value of approximately $25,000. The client and the father had been friends for many years. The subcommittee reminded the lawyer of the conflict of interest rules in Chapter 7 of the Professional Conduct Handbook.
The conduct review arose from a compliance audit, which disclosed a failure by a lawyer to comply with the accounting rules in Division 7 of Part 3 of the Law Society Rules and to maintain his books and records in accordance with them. The subcommittee noted that the integrity of self-regulation depends on lawyers complying with the accounting and trust assurance rules, which were implemented to protect the public. The subcommittee observed the presence of factors that often lead to conduct issues: as a new lawyer, he became an “overnight generalist” without adequate experience, training or support; he had no prior law office management experience when he opened his own office; and he practised from two locations in different communities, which strained his limited time and resources. As a result of the compliance audit and subsequent investigation, the lawyer restructured his practice to close one location and put in place appropriate financial and accounting controls. The subcommittee urged the lawyer to develop relationships with other colleagues who are willing to assist with questions that arise in practice.
This conduct review was ordered after a lawyer missed two court dates, resulting in prejudice to his client, who was arrested following issuance of a bench warrant. The subcommittee reviewed the lawyer’s conduct in failing to properly serve his client in accordance with the standards set out in Chapter 3, Rule 3 of the Professional Conduct Handbook. The lawyer advised that he had taken steps to avoid future problems, by hiring a new receptionist and providing clear instructions about handling messages.
The conduct review addressed a lawyer’s breach of an undertaking in a real estate transaction. The lawyer acted for the purchasers and, when an issue about an encroachment arose, he gave an undertaking to hold funds in trust and only pay them out when a revised subdivision plan was accepted or as required for disbursements to resolve the encroachment issue. The lawyer released the funds to his client, without receipts or any other proof that the clients had incurred expenses to resolve the encroachment, and also without notifying the vendor. The subcommittee impressed on the lawyer that, when he is not certain of the wording or meaning of an undertaking, he should take steps to clarify the meaning with the person to whom it was given, before taking any steps. The Canons of Legal Ethics also require a lawyer to be candid and courteous in relations with other lawyers, and in this case the lawyer should have consulted with the vendor’s legal counsel before he paid out the holdback.
This conduct review addressed a lawyer’s failure to comply with the accounting rules. The rule breaches included failures to maintain a trust transfer journal or accounts receivable records, to perform trust account reconciliations in a timely way, and to send the CDIC letter to banks in which his firm had trust accounts. This lawyer had set up his practice in a small community when he had little training in office procedures and accounting. He became overwhelmed by the volume of work. The subcommittee reminded the lawyer of the importance of compliance with the accounting rules and also expressed concern over the careless completion of his 2009 trust report, which contained inaccurate responses. As a result of the audit and investigation, the lawyer hired a chartered accountant to do his bookkeeping and took steps to restrict his practice.
The conduct review arose from a lawyer’s conduct in acting as general counsel for two companies with adverse interests, which placed him in a position in which he could not give undivided loyalty to each client, as required by Chapter 6, Rule 1 of the Professional Conduct Handbook. The subcommittee explained that, even though the two companies were working cooperatively with common management, there was a fundamental conflict between the legal and commercial interests of each, in particular because of the debtor-creditor relationship between them. The lawyer should therefore not have acted for both, despite the fact that there was no dispute between them when he agreed to do so, because he was not in a position to give full and impartial advice to each client without at least potentially compromising the interests of the other. The lawyer acknowledged that he had made a mistake and needed to be more alive to potential conflicts.
The conduct review was ordered after a judge made comments in a decision that questioned the integrity of a lawyer who had testified as a witness. The subcommittee reviewed with the lawyer the judge’s comments, the evidence at trial, the lawyer’s testimony, and the lawyer’s explanations about the matter. Lawyers are reminded that they are officers of the court and are required to act with the utmost integrity, whether appearing as counsel, a witness or a party.