THE LAW SOCIETY OF ALBERTA HEARING COMMITTEE REPORT
IN THE MATTER OF THE Legal Profession Act, and in the matter of a Hearing regarding the conduct of RUELLEN FORSYTH-NICHOLSON a Member of The Law Society of Alberta
INTRODUCTION AND SUMMARY OF RESULT 1.
On February 8, 2010 a Hearing Committee of the Law Society of Alberta (LSA) convened at the Law Society offices in Calgary to inquire into the conduct of the Member, Ruellen Forsyth-Nicholson. The Committee was comprised of James Glass, Q.C., Chair, Larry Ackerl, Q.C. and Larry Ohlhauser, MD. The LSA was represented by Lindsay MacDonald, Q.C. The Member was present throughout the hearing and was not represented by counsel.
2.
The Member faced six citations: 1)
IT IS ALLEGED that you lied to the complainant, and that such conduct is conduct deserving of sanction.
2)
IT IS ALLEGED that you failed to follow the complainant’s instructions, and that such conduct is conduct deserving of sanction.
3)
IT IS ALLEGED that you failed to keep the complainant informed as to the progress of the matter, and that such conduct is conduct deserving of sanction.
4)
IT IS ALLEGED that you failed to provide competent services to the complainant, and that such conduct is conduct deserving of sanction.
5)
IT IS ALLEGED that you failed to respond in a timely way to your client and to opposing counsel, and that such conduct is conduct deserving of sanction.
6)
IT IS ALLEGED that you failed to treat your client with courtesy and respect, and that such conduct is conduct deserving of sanction.
3.
At the commencement of the hearing, the Member presented the Hearing Committee with a Partial Admission of Guilt (Exhibit 29) with respect to citations 1, 3 and 6.
4.
On the basis of the Partial Admission of Guilt with respect to citations 1, 3 and 6, the other evidence received at the hearing and for the reasons that follow, the Hearing Committee finds that citations 1, 3, 4, 5 and 6 are proven and the member is guilty of
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2 conduct deserving of sanction. The Hearing Committee finds that citation 2 is not proven and is accordingly dismissed. 5.
The Hearing Committee concluded that the sanctions on the citations should be a suspension of 7 days, fines and that the Member pay the costs of the hearing.
JURISDICTION AND PRELIMINARY MATTERS 6.
Exhibits 1-4, consisting of the Letter of Appointment of the Hearing Committee, the Notice to Solicitor, the Notice to Attend and the Certificate of Status of the Member, established the jurisdiction of the Hearing Committee. The Certificate of Exercise of Discretion was entered as Exhibit 5. These Exhibits were entered into evidence by consent.
7.
There was no objection by the Member or counsel for the LSA regarding the constitution of the Hearing Committee.
8.
The entire hearing was conducted in public.
9.
The Chair of the Hearing Committee noted that the Member was representing herself, that she had previously been made aware of the Pro Bono counsel list and that it was her intent to represent herself and was ready to proceed.
CITATIONS 10.
The Member faced six citations: 1)
IT IS ALLEGED that you lied to the complainant, and that such conduct is conduct deserving of sanction.
2)
IT IS ALLEGED that you failed to follow the complainant’s instructions, and that such conduct is conduct deserving of sanction.
3)
IT IS ALLEGED that you failed to keep the complainant informed as to the progress of the matter, and that such conduct is conduct deserving of sanction.
4)
IT IS ALLEGED that you failed to provide competent services to the complainant, and that such conduct is conduct deserving of sanction.
5)
IT IS ALLEGED that you failed to respond in a timely way to your client and to opposing counsel, and that such conduct is conduct deserving of sanction.
6)
IT IS ALLEGED that you failed to treat your client with courtesy and respect, and that such conduct is conduct deserving of sanction.
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3
EVIDENCE 11.
As noted above, Exhibits 1-5 (the jurisdictional exhibits) were entered into evidence by consent.
12.
Exhibits 6-28, all relevant to the citations were entered into evidence by consent.
13.
The Member provided a Partial Admission of Guilt in relation to citations #1, 3 and 6 dated and signed by the Member February 4th, 2010. The Hearing Committee reviewed the Partial Admission of Guilt in relation to citations #1, 3 and 6 and accepted the Admission of Guilt as outlined in the final paragraph of Exhibit 29. Accordingly, the Hearing Committee finds it to be in a form acceptable to the Hearing Committee and pursuant to s.60(4) of the Legal Profession Act the admission is deemed for all purposes to be a finding of the Hearing Committee that the conduct of the Member deserving of sanction in relation to citations #1, 3 and 6. The Partial Admission of Guilt was entered into evidence as Exhibit 29 by consent.
FACTS 14.
Counsel for the Law Society of Alberta called (“S.E.”) and S.E.’s current legal counsel.
15.
The Member gave evidence on her own behalf.
16.
S.E. was involved in acrimonious divorce proceedings that had commenced in January 2004. The action had seemed to have stalled and, upon the recommendation of her counsel in early 2008, S.E. changed counsel to the Member.
17.
S.E. and the Member had a lengthy initial meeting in March 2008 where three main issues were discussed:
18.
1)
That very little progress had been made regarding the action in the past four years;
2)
That access to the parties’ six-year-old child by S.E.’s husband was a major issue. S.E.’s husband was ordered to have supervised access but allegedly was not exercising same in any meaningful manner. In addition, an Order granted by the Honourable Mr. Justice Wilkins in June 2007 required the parties’ child to be assessed by a child psychologist to determine future visits between the child and S.E.’s husband. The assessment was apparently still outstanding; and
3)
To determine if a previously ordered Restraining Order was still in effect.
The Member recommended and S.E. agreed, that the action should be referred to a case management justice so that it could proceed expeditiously and with consistency.
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4
19.
The Member was successful in having the Honourable Mr. Justice Hawco appointed as the case managing justice.
20.
The first case management meeting was scheduled for April 15, 2008. S.E. was aware of the date for the Case Management meeting and requested that she be permitted to attend. The Member advised S.E. that, based upon her previous experience with case management meetings generally and with Justice Hawco specifically, that S.E.’s attendance was not necessary, as the first Case Management meeting was more a meet and greet as between counsel and the Justice. The Member indicated that nothing of substance occurred at these first Case Management meetings. On this basis, S.E. agreed to not attend.
21.
The Member called S.E. the same day after the Case Management meeting had concluded and inquired as to the suitability of the daughter of S.E.’s husband to supervise access. S.E. objected, indicating that she wanted the initial access supervised by a professional because a long period of time had passed since her son’s last contact with his father and also because her husband had a history of alcohol abuse and there was a subsisting Restraining Order against him. The Member advised S.E. that she should prepare herself for the likelihood of an access order being granted and requested S.E. to provide information for an Affidavit outlining her concerns regarding access. The Member advised that Mr. Justice Hawco would consider submissions regarding access.
22.
The Member misled S.E. during this conversation regarding what had actually transpired during the April 15, 2008 Case Management meeting with Mr. Justice Hawco. In fact, Mr. Justice Hawco had made an Order regarding access on April 15, 2008 and that the same would be supervised by the daughter of S.E.’s husband. Mr. Justice Hawco advised the Member that if S.E. had serious concerns regarding the daughter being the supervisor that she could appear before him with Affidavit evidence indicating the problem. Mr. Justice Hawco also directed the parties proceed with the divorce.
23.
The transcript from the proceeding (Exhibit 1, Tab A) also confirms that the Member did not advise the Honourable Mr. Justice Hawco of the existence of Justice Wilkins’ previous Order and that the Restraining Order as between S.E. and her husband was still in place.
24.
The Member testified that she felt ambushed at the Case Management meeting, in that her experience with Justice Hawco was that he would request an Agenda and a Notice of Motion/Affidavit for subsequent Case Management meetings. She indicated that she felt mentally ill after case management and that she decided to not deal with the issue with the client. She indicated that this was partly cowardice on her part and partly pride. She saw the “opening” that Justice Hawco left to review the Order and hoped that she might be able to cover up what had actually happened at the Case Management meeting prior to the ordered access occurring. The Member failed in that regard as well as she could not bring herself to deal with S.E.’s file.
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5 25.
S.E. began to put together notes for the Member to draft an Affidavit regarding her concerns about access between her husband and son.
26.
S.E. received a copy of a letter dated April 30, 2008 from her husband’s lawyer to the Member (Exhibit 6, Tab C), in which he asked whether the Member had signed and filed the draft Order that Justice Hawco had granted. S.E. was very concerned that orders had been granted without her knowledge or input and she e-mailed the Member on May 5th and subsequently met with her on May 6th to discuss her concerns regarding this letter. S.E. has reported that the Member told her that the other lawyer’s letter was not accurate and stated that no applications had been heard and that no Orders had been granted by Justice Hawco. S.E. provided the required information with respect to her proposed Affidavit regarding access and she also signed divorce documents which severed the corollary relief issues from the divorce. S.E. stated that she had not wanted the corollary relief issues severed from the divorce but the Member told her that that had been Justice Hawco’s direction and that she had no choice in the matter.
27.
On May 6, 2008 (Exhibit 6, Tab E), S.E. sent an email to the Member confirming their discussion and specifically confirming the Member’s assurances that:
No application had been made by the other lawyer or by the Member at the Case Management meeting; The draft order prepared by the other lawyer was not correct and that Justice Hawco had not granted an order directing access at specified times during the May long weekend and during the weekend of June 7th; A decision on access would be made after Justice Hawco had reviewed S.E.’s Affidavit, which was being prepared; Justice Hawco had directed that the corollary issues be severed from the divorce and that the Member had told S.E. that she was required to sign the consent order to sever the issues in order to move forward;
S.E. also requested that: 28.
She be advised of and be in attendance at all future case management meetings; She be provided with a copy of the proceedings from the Case Management meeting; and She and the Member jointly review all incoming and outgoing correspondence.
S.E. received a call from the Member’s office, advising that the next case management meeting was to be on May 29th. S.E. then emailed the Member on May 8th (Exhibit 6, Tab F), asking whether the date of May 29, 2008 had been agreed to by opposing counsel and seeking confirmation that:
No applications would proceed prior to May 29, 2008; and No access would occur prior to May 29, 2008.
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6 29.
As the Member did not immediately respond, S.E. sent a further email on May 12, 2008 requesting her response to the previous email. She also asked whether the Restraining Order from 2006 was still in effect and when she might expect to receive a copy of the proceeding notes of the Case Management Meeting (Exhibit 6, Tab G);
30.
On May 13, 2008, the Member responded, apologizing for her delay as she had recently experienced an urgent health issue (Exhibit 6, Tab G), and advised that based on her review of the file, the Restraining Order continued to be in effect and that she had not been aware that S.E. was seeking a copy of the transcript of proceedings and that she would need Legal Aid’s approval for the disbursement;
31.
Since the Member did not answer all of her questions from her May 8th email, S.E. sent another email on May 12, 2008 and requested the Member answer her questions again on May 13, 2008;
32.
The Member responded on May 14, 2008 stating that she did not recall receiving S.E.’s May 8th email (Exhibit 6, Tab H). She also stated that the other lawyer had called her that afternoon “about access this weekend….I assume they are still interested in having some access this long weekend, as he originally proposed. …[I] cannot guarantee that someone, like his daughter, will not be standing on your doorstep this weekend. I will call you when I know more. I am going to advise you, however, that it is VERY likely that access is GOING to be ordered, and if you can discuss this with the daughter, and maybe even invite her to come and refamiliarize herself with you and your son, that may ease the way…”;
33.
Upon receipt of the Member’s email on May 14, 2008, S.E. called the Member’s office and left two voice mail messages. She then sent an email at 11:31 pm (Exhibit 6, Tab I) asking about the status of her file, asking why the Member was not communicating with her and questioning the Member’s truthfulness. S.E. advised the Member that, if she was not being completely honest with her, the matter should be brought to Justice Hawco’s attention;
34.
On May 15th at 12:03 pm, S.E. again emailed the Member seeking a response to her earlier email. The Member responded approximately one half hour later accusing S.E. of harassing her and her staff for making unwarranted accusations (Exhibit G, Tab J), and went on: I had previously advised you, and still do advise you that I anticipate that ACCESS WILL BE ORDERED, and it will. I cannot tell you when or under what conditions, since that is why we did the Affidavit that I spent over two hours with you, creating and revising on May 5th.
35.
The Member then went on to state that she had never disobeyed S.E.’s instructions and that Justice Hawco did not need the Member’s agreement in order to make an access order. She further advised that since she had other urgent client matters to attend to, she
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7 would not therefore be calling S.E. that morning as S.E. had demanded and concluded by suggesting that S.E. contact Legal Aid to obtain new counsel. 36.
The Member, upon reflection, saw these responses as vindictive and transferring her fear and anger regarding her health issues to S.E.;
37.
On May 15, 2008 S.E. sent an email to the Member. She disputed the Member’s characterization of her contacts with the Member and her office, continued to express her concerns regarding the access issue and, again, requested the transcript from the Case management meeting (Exhibit 6, Tab K);
38.
On May 16, 2008, the Member contacted S.E. by telephone and confessed that she had been lying to her since the Case Management meeting of April 15, 2008. The Member admitted that Justice Hawco had ordered access for the May long weekend (which was to start the next day), with access to be supervised by the daughter of S.E.’s husband. The member telephoned again shortly afterwards to advise that she had again spoken to the other lawyer and that she was advising S.E. to allow the daughter of her husband to come into the house the following day to let her and the child become reacquainted and that afterwards the child would visit her husband. S.E. refused to permit this to occur and asked the Member to do something. The Member indicated that she was away in Canmore and there was nothing she could do. The Member then advised the other lawyer that access would not occur as she had not told S.E. of the Order and the Member offered to pay the husband thrown-away costs for the weekend;
39.
S.E. sent a lengthy email to the Member that same day (Exhibit 6, Tab L), confirming their telephone discussions from that morning. This email set out her extreme unhappiness with the Member on a number of points and advised that because there had been no time to prepare the child for a visit, she would not allow the access to proceed;
40.
Prior to when access was to occur on May 17, 2008, S.E. and her son left for the weekend in order to avoid the possibility of coming in contact with her husband;
41.
The Member responded to S.E. by email on May 20, 2008, advising that she disagreed with S.E.’s view of what had occurred. She acknowledged that she had lied to S.E. in advising that Justice Hawco had not given an order directing access, but she had not lied with respect to any other matter. She had thought that she would be able to change or vary the access order before the May long weekend and, when she found that she was not going to be able to do so, she telephoned S.E. and admitted her misconduct. She stated that she could not release her file to S.E. due to Legal Aid requirement, but could transfer the file to another lawyer and that she would continue to act, at least nominally, until arrangements had been made for new counsel (Exhibit 6, Tab M). The Member filed a Notice of Ceasing to Act that day;
42.
S.E. sent an email to the Member on May 20, 2008, confirming that as of May 15, 2008, the Member was no longer her lawyer (Exhibit 6, Tab M).
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8 43.
S.E. was able to retain new counsel, who was able to have the access initially ordered by Justice Hawco varied. Justice Hawco directed that the matter proceed by way of a Practice Note 7 assessment in keeping with the previous order of Justice Wilkins and left the existing orders regarding access in place.
44.
The Member offered to S.E.’s new counsel that she would attend before Justice Hawco to explain herself but was advised that the same was not necessary. The Member also advised that S.E.’s husband had not yet taken the Member up on her offer to cover his thrown away costs for the weekend access that did not occur. The Member also did not remit any invoices to Legal Aid for any of the work that she had done on S.E.’s file.
SUBMISSIONS ON CITATIONS Citation #1 45.
Counsel for the LSA submitted that the evidence clearly confirms that the Member is guilty of Citation #1. In fact, she has admitted same. Counsel points out that there were repeated lies over a lengthy period (one month) and that the same were not harmless. The lies put S.E. at risk of being in contempt of Court or subjecting S.E.’s child to a dangerous situation.
46.
The Member confirms that she lied to S.E. and noted that she entered a guilty plea to same. Citation #2
47.
Counsel for the LSA submitted the Member failed to follow the instructions of S.E. S.E.’s instructions were very clear in that she did not want access to occur until Justice Wilkins’ order of June 2007 had been complied with. The transcript of the hearing before Justice Hawco makes it clear that the Member did not make Justice Hawco aware of the order of Justice Wilkins.
48.
The Member submits that it was impossible for her to follow the instructions of S.E. as there was a supervised access order and the order of Justice Wilkins only provided for the assessment of the child and did not change the access order. Citation #3
49.
Counsel for the LSA points out the admission of guilt by the Member to this action. It is related to the hearing before Justice Hawco and regarding everything that occurred at that hearing.
50.
The Member confirms that she failed to keep S.E. informed and noted that she entered a guilty plea to same.
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9 Citation #4 51.
Counsel for the LSA submits that the evidence supports a finding of guilt in regards to this citation. He points out that the Member had S.E.’s file well in advance of the initial meeting with S.E., that she had reviewed some of the Affidavits on the file and was aware of Justice Wilkins’ order prior to the first Case Management meeting. Despite this, the Member attended the Case Management meeting without her file, she didn’t make Justice Hawco aware of Justice Wilkins’ order, did not make it clear that the Restraining Order was still in effect and when it became clear that Justice Hawco was going to make orders relative to access, did not seek an adjournment to go get her file. In addition, counsel for the LSA submits that the evidence of the Member indicating that she did not deal with getting the mater of access back before Justice Hawco in a timely fashion is also supportive of a finding of guilt.
52.
The Member submits that incompetence does not equal not being successful on every application. The Member submits that she was mistaken as to her expectation that Justice Hawco would follow a different procedure than he had before. The Member submitted that her ability to obtain a Case Management order and to get the 2007 order finally entered as indicative of her competence in dealing with this file. Citation #5
53.
Counsel for the LSA submits that this citation is made out given the fact that S.E. was frequently emailing the Member requesting to be advised what was going on. He submits that the Member’s responses were certainly not timely given the issues at hand and given the Member’s lack of response is because she is suffering the burden of her earlier lie.
54.
The Member submits that she responded in a timely fashion for most of the things that happened on the file. She concedes that she was not timely in responding to the access issues as this involved her lie. The Member also indicates that she ceased having correspondence with opposing counsel upon S.E.’s instructions. Citation #6
55.
Counsel for the LSA submits this citation made out on all of the facts of this case and upon the admission of guilt entered by the Member.
56.
The Member confirms that she failed to treat S.E. with courtesy and respect and noted that she entered a guilty plea with respect to same.
CONCLUSIONS ON CITATIONS 57.
The Hearing Committee, having accepted the admission of guilt from the Member on citations 1, 3 and 6 does find the Member guilty of those citations.
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10 58.
The Hearing Committee finds the Member guilty of citation #4 in not attending the Case Management meeting fully prepared, in not requesting an adjournment in circumstances where it was clear that certain orders were going to be made that were prejudicial to her client and in the Member’s active avoidance in dealing with S.E. and the access issues.
59.
The Hearing Committee finds the Member guilty of citation #5 in not responding to the client’s emails requesting information and in relation to opposing counsel given her admission that she ceased doing so upon her client’s instructions.
60.
The Hearing Committee is not satisfied that the evidence supports a finding of guilt in relation to citation #2 and, accordingly, the same is dismissed.
SUBMISSIONS ON SANCTION 61.
Counsel for the LSA entered an estimated statement of costs. With the consent of the Member, this was entered into evidence as Exhibit 30.
62.
Counsel for the LSA also entered the Member’s Record. This was also entered into evidence by consent of the Member as Exhibit 31.
63.
Counsel for the LSA provided the Hearing Committee with three decisions: LSA v. Smith [2007] LSDD No 142 LSA v. Castle [2007] LSDD No 38 LSA v. Geisterfer [2008] LSDD No 166.
64.
In the LSA v. Smith decision, the Hearing Committee found that the Member had perpetrated a series of lies over an extended period. “The actions of the Member in this case showed a fairly calculated effort to mislead the client over an extended period of time, which as perpetuated even when another member of the firm became involved in the file. The Committee was not satisfied that the Member’s behavior was solely the result of stress, and in fact, the member did not explain his behavior on that basis. The lack of any clear explanation for the Member’s dishonesty was troubling to the Committee, as was the fact that the Member did not bring the matter to the attention of his firm when he left, and only addressed the situation when he was contacted by the firm.”
65.
The Hearing Committee in LSA v. Smith suspended the Member for 30 days.
66.
In the LSA v. Castle decision the Hearing Committee found that the Member had intended to mislead a Court regarding the nature and extent of her involvement in an appeal.
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11 67.
The Member in LSA v. Castle had a previous related sanction and was fined $2,500.00 plus 75% of the costs of the Hearing.
68.
In the LSA v. Geisterfer decision, the Hearing Committee found that the Member had misled other Members. In relation to that citation, the Hearing Committee stated: “With respect to Citation 3, the Hearing Committee notes that deliberate deception connected with the practice of law would ordinarily give rise to a suspension, at minimum (as was the case, for example, in Law Society of Alberta v. Smith [2007] L.S.A. 24. Honesty and integrity are fundamental to the practice of law, and instances of deception will usually involve the need for a clear general and specific deterrent, and the denunciation of the misconduct. However, as noted above, the mitigating factors weigh against a suspension in this case.”
69. Counsel for the LSA then submitted that the Member’s record, albeit older has two previous findings of conduct deserving sanction. He submitted that a short suspension (30 days) is in order in relation to this matter and at the very least a fine, reprimand and costs. 70. The Member submitted that the three decisions referred to by Counsel for the LSA could be distinguished: a) b) c)
LSA v. Castle – the Member not only misled the Court she did something she ought not to have done in the first place LSA v. Smith – the Member’s lie continued for approximately one year LSA v. Geisterfer – the Member did not protest a forged letter that he knew was in existence. He participated in misrepresentations to other Members and a Member of the police that ultimately resulted in a substantial loss of over $100,000.00.
71. The Member submits that she was not involved in defrauding S.E. She offered to make restitution by not charging S.E. any fees. 72. up.
The Member admits very poor judgment in lying to S.E. and then attempting to cover it
73. The Member submits that her admission to the lie in a very public and upfront manner is quite different from one who lies in the weeds hoping the lie will never be discovered. In addition, there was little cost or difficulty resulting to S.E. as a result of the lie. 74. The Member indicated that she maintains a busy practice with approximately 130 clients and that a suspension would have a significant impact upon them, particularly if a suspension was immediate.
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12 DECISION AS TO SANCTION 75.
In determining an appropriate sanction, the Hearing Committee is guided by the public interest, which seeks to protect the public from acts of professional misconduct.
76.
In McKee v. College of Psychologists (British Columbia), [1994] 9 W.W.R. 374 at page 376, the British Columbia Court of Appeal articulated the following principles, which are equally applicable to the disciplinary process for the legal profession: “In cases of professional discipline there is an aspect of punishment to any penalty which may be imposed and in some ways the proceedings resemble sentencing in a criminal case. However, 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 of risk, if any, in permitting a practitioner to hold himself out as legally authorized to practice his profession. The steps necessary to protect the public, and the risk that an individual may represent if permitted to practice, are matters that the professional’s peers are better able to assess than a person untrained in the particular professional art or science.”
77. Various factors may be taken into account when deciding how the public interest should be protected, including: a) the nature and gravity of the proven misconduct, including the number of times it occurred; b) whether the misconduct was deliberate; c) whether the misconduct engages the Member’s honesty or integrity; d) the impact of the misconduct on the client or other person affected; e) general deterrence of other members of the legal profession; f) specific deterrence of the Member from engaging in further misconduct; g) punishment of the Member; h) whether the Member has incurred other serious penalties or financial loss as a result of the circumstances; i) preserving the public’s confidence in the integrity of the profession’s ability to properly supervise the conduct of its members; j) the public’s denunciation of the misconduct; k) the extent to which the offensive conduct is clearly regarded within the profession as falling outside the range of acceptable conduct; and l) imposing a penalty that is consistent with the penalties imposed in similar cases. 78. In addition, the Hearing Committee considers mitigating circumstances that may temper the sanctions to be imposed, including: a) the Member’s attitude since the misconduct occurred; b) the prior disciplinary record of the Member including whether this is a first offence; c) the age and inexperience of the Member; d) whether the Member has entered an admission of guilt, thereby showing an acceptance of responsibility; e) whether restitution has been made to the person harmed; and f) the good character of the Member, including a record of professional service. 79. In the present case, the Hearing Committee had regard to the following matters that influenced their decisions as to sanction:
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13 (a)
Mitigating factors: i) the Member was co-operative during investigation; ii) the Member admitted guilt on three of the citations; iii) the Member was co-operative at the hearing; and iv) the Member has been subject to the scrutiny of the LSA since June 2008
(b)
Aggravating factors: i) as the Member lied to the client and the lie did place the client at risk; ii) the Member’s record; and iii) that these factors do nothing to engender respect for the law or lawyers by the public.
80. Taking into account all of the foregoing factors and evidence, the Hearing Committee concluded that the sanction should be a short period of suspension, fines and that the Member should pay costs. 81. Following submissions from the Member and counsel for the LSA, the Hearing Committee determined that the suspension of the Member should be for a period of seven days. Further, to ensure that the Member’s existing clients are not adversely affected by the suspension, the Hearing Committee defers the commencement of the suspension to April 12, 2010. 82. The Hearing Committee also agrees that fines are appropriate for the Member’s conduct. The Hearing Committee is mindful that the maximum fine could be $10,000.00 per citation. The Hearing Committee has determined that the appropriate fines in relation to these matters are as follows: Citation 1: Citation 3: Citation 4: Citation 5: Citation 6: Total:
$ 5,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 2,000.00 $10,000.00
83.
The Hearing Committee agrees that it is appropriate to make a condition that the Member co-operate fully with the Practice Review and comply fully with all recommendations and directions made by Practice Review.
84.
The Hearing Committee also directs the Member to pay the actual costs of this hearing.
85.
The Hearing Committee notes that it has no issue with respect to the Member’s governability.
86.
The Member is given time to pay the costs and the fines of six months from February 8th, 2010.
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CONCLUDING MATTERS 87.
No referral to the Attorney General is required in this matter.
88.
A separate notice to the profession is required in respect of this matter.
89.
The decision and the transcript in this hearing are to be made available to the public with the names of the complainant, clients, third parties or other employees to be redacted. All of the Exhibits, apart from the Jurisdictional Exhibits (Exhibits 1-5) shall not be made available to the public on the basis that the production of same would breach solicitorclient privilege.
Dated this 29th day of March, 2010
James A. Glass, Q.C, Bencher Chair
Larry Ackerl, Q.C., Bencher
Larry Ohlhauser, MD, Lay Bencher
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