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.
This conduct review addressed a lawyer’s conduct in failing to properly maintain his books and records in accordance with Part 3, Division 7 of the Law Society Rules. During a compliance audit, it was observed that the lawyer had:
- deposited client retainers directly into his general account prior to all the work being completed, instead of his pooled trust account as required by Rule 3-51,
- failed to maintain a duplicate receipt for cash received, contrary to Rule 3-61,
- failed to reconcile his trust accounts in accordance with Rule 3-65, and
- failed to maintain all his required accounting records in accordance with Rule 3-68.
The subcommittee reviewed these rules and their role in protecting the public interest. The lawyer completed the Small Firm Practice Course and explained the changes he had made to ensure compliance with the Rules.
The conduct review was ordered following a compliance audit that revealed a lawyer had accepted an aggregate of cash of $7,500 or more on one client matter over a period of approximately two years. The lawyer acknowledged he was aware of Rule 3-51.1, but had forgotten an earlier payment he received in 2008. The lawyer advised he had changed his practice and no longer accepts cash.
This conduct review arose from complaints made in two different matters. On one matter, a lawyer sent an email to approximately 600 recipients, of whom over 100 were clients. In doing so, the lawyer disclosed confidential client information, because the names of clients and their email addresses were accessible to all the recipients. The lawyer further failed to protect confidential information by disposing of a binder of client materials in the courthouse garbage following a fee review. The lawyer also threatened to issue a second, higher bill, if the client commenced a review, which the subcommittee advised was inappropriate conduct.
On the second matter, the lawyer ceased to act for a client on a contingent fee basis on a personal injury matter. He then sent a bill for an amount approximately two-thirds of the estimated value of the claim, but the contingency fee agreement did not specify any basis for billing if the lawyer ceased to act. The lawyer explained that his bill was an estimate, and he intended to settle the account when the claim was settled. However, he did not tell the client that when he sent the bill. The lawyer also failed to prepare the client for discovery and to communicate to the client who would attend with him. The subcommittee reminded the lawyer of the importance of clear and timely communication with clients.
The subcommittee observed a pattern of impulsive responses by the lawyer, both to clients and to the Law Society. Some of these responses were inaccurate, which the lawyer explained was due to a heavy workload. The lawyer was referred to Practice Standards.
The conduct review addressed a lawyer’s conduct in assisting a client to breach a term of a consent order issued under s. 67 of the Family Relations Act, by arranging for the execution and registration of a mortgage against the client’s interest in the matrimonial home. This mortgage secured the lawyer’s fees. The lawyer was unaware of the order because it was made at a judicial case conference that her articled student attended. The lawyer did not review the file prior to instructing the preparation of the mortgage. She acknowledged that she had, in effect, counselled her client to breach the consent order. Prudence and good practice required the lawyer to carefully review the file when re-assuming conduct of it. She should further have immediately discharged the mortgage when asked to do so by opposing counsel.
This conduct review was ordered in respect of a lawyer’s involvement in a fraudulent scheme. A long-time friend induced him to enter into a joint business venture, through which the friend perpetrated a fraud. The lawyer played a role by affixing his barrister and solicitor seal on documents used in the fraud. His seal was not required, but gave an appearance of authenticity and credibility to the documents. The subcommittee advised that, when a lawyer becomes involved in a business with others, he must be on guard to ensure that he is not used to mask or facilitate inappropriate conduct. The lawyer ought to have paid much more attention to the business, the way it was being conducted, and the use of his seal. His involvement, however inadvertent, reflected poorly on the entire legal profession. It was contrary to the Canons of Legal Ethics set out in Chapter 1 of the Professional Conduct Handbook and to Chapter 2, Rule 1 of the Handbook, which requires that a lawyer not engage in dishonourable or questionable conduct that casts doubt on his professional integrity or competence or reflects adversely on the integrity of the legal profession, regardless of whether that conduct occurs in the lawyer’s private life, extra-professional activities or professional practice.
A lawyer appeared before the subcommittee to discuss concerns about the quality of service he provided to his client in two foreclosure matters, including his delay in advancing the interests of his client and acting in an apparent conflict of interest. The subcommittee reviewed the facts with the lawyer and the apparent pattern of inattention and lack of timely action, particularly his delay in responding to communications from clients and other lawyers. The subcommittee also discussed the conflict of interest that arose when the lawyer acted in a foreclosure matter for three defendants in which, if the mortgage were found invalid, the interests of the defendants would have been directly adverse because two defendants would have a third party claim against the other defendant. Further, the lawyer had not obtained any formal waiver or acknowledgement in writing to act jointly for the defendants, as required by Chapter 6, Rule 4 of the Professional Conduct Handbook. The subcommittee strongly recommended that the lawyer avail himself of remedial resources, including professional development courses focussing on time management, client relations, practice management and ethics.
The conduct review addressed a lawyer’s failure to pay a practice debt in a timely manner. Chapter 2, Rule 2 of the Professional Conduct Handbook requires lawyers to meet professional financial obligations incurred or assumed in the course of practice, including the fees or charges of witnesses, sheriffs, registrars and court reporters. The lawyer did not pay the cost of a transcript until 18 months after it was incurred, but did pay it prior to the Discipline Committee ordering the conduct review.
The conduct review arose from a lawyer’s failure to respond to another lawyer’s correspondence. He represented the executor of an estate, and failed to respond to six inquiries made over a two-month period by counsel for a person with a potential claim under the Wills Variation Act. Chapter 11, Rule 6 of the Professional Conduct Handbook requires lawyers to respond promptly to any communication from another lawyer that requires a response. The subcommittee also cautioned the lawyer about his use of intemperate language, when he responded to the complaint to the Law Society by stating the allegations were “spurious.”
A lawyer breached an undertaking he gave to the Law Society as a condition of admission that he would not practise as a sole practitioner. He complied with the undertaking for several years, then his law partner left, leaving him to practise alone. His breach was discovered during a compliance audit. The subcommittee stressed that his undertaking was a solemn promise that he must scrupulously honour, despite the passage of time. By the time of the conduct review, the lawyer had remedied the situation and was practising as an associate. The lawyer acknowledged that he had breached his undertaking.
A lawyer appeared before the subcommittee to discuss her five-month delay in endorsing a court order in a family matter regarding the sale of the matrimonial home and custody of the children. Her client was retaining new counsel, and the lawyer wrongly believed that she was entitled to endorse the order and return it to the client’s new lawyer. The subcommittee reminded the lawyer of her professional obligation to promptly endorse and return the order, regardless of her personal circumstances or her client’s instructions. The lawyer also failed to respond to at least seven communications from opposing counsel regarding the status of this order. On two occasions, the lawyer appeared to have assured opposing counsel that the order would be endorsed and returned promptly, when it appeared she had no intention of doing so. Her failure to respond to opposing counsel’s letters and to do so in a forthright manner was a breach of her professional obligations.
The conduct review arose from a lawyer’s conduct in a summary trial application, in which he made submissions that called into question the integrity of opposing counsel and suggested that counsel was misleading the court. The court found that there was no evidentiary basis for the lawyer’s statements. The subcommittee reminded the lawyer of Rule 4(1) of the Canons of Legal Ethics that requires a lawyer’s conduct towards other lawyers be characterized by courtesy and good faith. Conduct that offends this expectation rarely assists the client in litigation. The lawyer agreed that he needed to choose his words carefully, and to err on the side of caution. If he had concerns about another lawyer’s conduct, he would discuss them with the lawyer before making allegations.
The conduct review focussed on two bills rendered by a lawyer. The lawyer became involved on behalf of his clients in a discussion about the preparation of a new will for the mother of one of the clients, but he never prepared the new will. The mother later commenced a civil action to recover money she had provided to the clients, which they asserted was a gift. At that time, the clients paid the lawyer a retainer for the purpose of defending the civil action, but he was unable to act on their behalf due to a conflict. However, the lawyer issued a bill purportedly for preparation of wills, then withdrew the retainer from trust to pay that bill. Several months later, the clients disputed the bill and asked for return of the retainer. The subcommittee advised the lawyer that his conduct was improper because he had paid this bill from funds expressly paid for another specific purpose, contrary to Rule 3-57(7). Further, the bill did not provide a reasonably descriptive statement of the legal services and $75 was allocated to disbursements that were not itemized. This bill did not satisfy the requirements of s. 69 of the Legal Profession Act.
The lawyer subsequently testified in the civil action. He told the defendants’ counsel of the amount of conduct money required for his attendance, which was paid to him. However, he later sent another bill at his regular hourly rate for the time away from his office while testifying. The subcommittee explained that he ought to have discussed fees for attendance at the time the conduct money was discussed. Further, when he issued the bill for his witness fees, it appeared to be retaliation against the clients, because it was issued shortly after they asked for the return of their retainer funds. The subcommittee reminded him of the importance of handling trust funds in accordance with the Rules and ensuring that his billing practices met the requirements of the Act and Rules.