Legal Profession Offences (Sentencing Cases)

Digests

Nova Scotia Barristers’ Society v. Rodgers, 2021 NSBS 2 (CanLII), <https://canlii.ca/t/jgfpr Nova Scotia Barristers’ Society v. Boudrot, 2019 NSBS 4 (CanLII), <https://canlii.ca/t/jgfpm Faminoff (Re), 2017 LSBC 4 (CanLII), <https://canlii.ca/t/gx5j9 The Nova Scotia Barristers’ Society v. Lyle Howe, 2017 NSBS 4 (CanLII), <https://canlii.ca/t/hsgxt Edward Dent (Re), 2016 LSBC 5 (CanLII), <https://canlii.ca/t/gnbxt> Nova Scotia Barristers’ Society v. Peter van Feggelen, 2013 NSBS 1 (CanLII), <https://canlii.ca/t/fzshv Law Society of Upper Canada v. Atienza, 2013 ONLSHP 73 Murray Lessing (Re), 2013 LSBC 29 (CanLII), <https://canlii.ca/t/g10gr Nova Scotia Barristers’ Society v. Van Feggelen, 2010 NSBS 2 (CanLII), <https://canlii.ca/t/2dp5v Nova Scotia Barristers’ Society v. Muttart, 2009 NSBS 4 (CanLII), <https://canlii.ca/t/2fd2j Nova Scotia Barristers’ Society v. Wood, 2009 NSBS 1 (CanLII), <https://canlii.ca/t/269n1 Nova Scotia Barristers’ Society v. David, 2009 NSBS 3 (CanLII), <https://canlii.ca/t/269n3 Nova Scotia Barristers' Society v. Morrison, 2007 NSBS 6 (CanLII), <https://canlii.ca/t/269mz Nova Scotia Barristers' Society v. Murtha, 2007 NSBS 1 (CanLII), <https://canlii.ca/t/1vhgk Nova Scotia Barristers' Society v. Cragg, 2007 NSBS 7 (CanLII), <https://canlii.ca/t/1vhgn Berge (Re), 2007 LSBC 7 (CanLII), <https://canlii.ca/t/1qbkg [48] In Law Society of BC v. Oldroyd, 2007 LSBC 26, the respondent was found to have misappropriated client trust funds, misled another lawyer regarding the misappropriated funds, breached an undertaking to another lawyer in respect of the trust funds and breached a Law Society accounting rule by failing to produce his books, records and accounts to the Law Society for its investigation. The respondent did not attend either the Facts and Determination or the Disciplinary Action phase of the hearing. The panel quoted from the Ogilvie case the passage that is cited above in paragraph 46 of this decision, and commented at paragraph 10 that the respondent’s conduct clearly justified the penalty of disbarment. Nova Scotia Barristers' Society v. Cain-Grant, 2007 NSBS 9 (CanLII), <https://canlii.ca/t/269n0 Racette, Re, 2006 LSBC 29 (CanLII), <https://canlii.ca/t/1nzl4 Nova Scotia Barristers' Society v. Rideout, 2004 NSBS 11 (CanLII), <https://canlii.ca/t/1spjt Hordal, Re, 2004 LSBC 36 (CanLII), <https://canlii.ca/t/1l6mp Smith, Re, 2004 LSBC 29 (CanLII), <https://canlii.ca/t/1l6nk McGuire, Re, 2006 LSBC 20 (CanLII), <https://canlii.ca/t/1n8bn Nova Scotia Barristers’ Society v. Bremner, 2004 NSBS 6 (CanLII), <https://canlii.ca/t/1mngc [13] In Law Society of BC v. Hammond, 2004 LSBC 32, 15 counts of misconduct were found to be established, the most serious of which were two in respect of misappropriation of client funds and four for breaches of undertaking. The lawyer did not defend. A three-Bencher panel ordered he be disbarred. Law Society counsel referred to the panel’s statement at para. 25, “A careful review of the authorities with respect to instances of misappropriation which did not lead to disbarment indicates that in each such case there were exceptional circumstances.” Mr. McKinley relied especially on the following quotation at para. 23 of the panel’s Decision on Penalty, from Gavin MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline (Carswell, 1993) at page 26-1: Law Society of BC v. Guthrie, [2003] LSBC 06, Discipline Case Digest 03/01, as the exception that proves the rule. The lawyer had discovered that $458.34 remained in a trust account for a file that had been closed eight months before when the client demanded return of the files. Ms. Guthrie drew up a bill in that amount for file retrieval services to the client, and transferred the funds to her general account. She did not send the bill to the client. She voluntarily reported her improper taking of the funds. The penalty, imposed by a single-Bencher panel, was a four-week suspension and costs. The panel added (para. 27) that “it should be clearly noted that it is only in the most extraordinary of circumstances that a misappropriation will not lead to a disbarment.” Counsel for the Respondent noted that Ms. Guthrie’s withdrawal for fees, like all but a handful of the Respondent’s, reflected services that had been rendered to the client; the problem in both cases was that they had not been billed. We note, however, that the principal issue with most of the withdrawals in the present case is not the lack of a bill (though that was a factor in some of them), but the lack of funds in the relevant sub-ledger to cover the withdrawal. Nova Scotia Barristers' Society v. Block, 2003 NSBS 3 (CanLII), <https://canlii.ca/t/1spjp> https://www.canlii.org/en/ns/nsbs/doc/2002/2002nsbs6/2002nsbs6.html?resultIndex=33&resultId=c43d3b86d83f472bbf059a75d49822a4&searchId=2024-02-22T20:49:57:337/1615b4abbbfe4bb091f97c37ff5eb11c&searchUrlHash=AAAAAQAUcGVuYWx0eSBPUiBwZW5hbHRpZXMAAAAAAQ [14] The remaining two disbarment cases the Law Society relied upon were Law Society of BC v. Kierans, [1999] LSBC 13, Discipline Case Digest 00/4, and Law Society of BC v. Donald, penalty report dated December 7, 1993, Discipline Case Digest 94/4. Mr. Kierans had taken for his own use $5,500 held in trust for a beneficiary who had not yet been located. He had, as well, improperly charged executor’s fees and legal fees that he had no right to charge. In upholding the hearing panel’s order of disbarment, the Benchers on Review said at para. 51, “The hearing panel reviewed a range of authorities which indicate that disbarment is an appropriate penalty for misappropriation. There appear to be few exceptions to this generally accepted proposition.” The Benchers referred to several cases in which such an exception had been made, each of which was very dissimilar to the case before them and the case before us. In Donald, the lawyer made five withdrawals totalling $15,400 from his client’s trust account by forging his client’s endorsement on the cheques. He replaced funds, but at one point between withdrawal and replacement, there was a $8,800 shortfall and the citation charged him with misappropriating that amount. Respondent’s counsel noted, in relation to Kierans, that the lawyer’s conduct had been overt, deliberate and deceitful, and that the Benchers concluded the only way to protect the public was through his disbarment. On Donald, he noted that the lawyer did not defend and, by the time disbarment was ordered, had ceased being a member of the Society. [10] Law Society of BC v. Peters, [1999] LSBC 38, Discipline Case Digest 00/5, concerned a lawyer who had misappropriated $7,000 on trust for a client by seven withdrawals over seven weeks. The lawyer had made notations on the cheques to divert suspicion and avoid detection. A single-Bencher panel ordered disbarment, and the penalty was upheld on Review by the Benchers. Mr. McKinley stressed the similarity to the present case in that there were a number of withdrawals because Ms. Peters needed funds and, as she herself had put it (Decision on Facts at p. 8), “she simply took the path of least resistance.” Although there was evidence that Ms. Peters was well on the way to recovering from substance abuse problems that had contributed to her actions (Decision on Penalty at para. 9), the Benchers on Review said at para. 17, “The evidence is lacking in both quantity and quality to support an inference that Ms. Peters’ struggles with her problems have been crowned with success or that they may be crowned with success in the future.” Mr. McKinley suggested that the Respondent’s situation was not dissimilar, in that there was no assurance that the Respondent would not in the future come under stresses like the ones that had led him to misappropriate funds, or that he would not respond to such stresses in a similar way. Mr. Hinkson, in turn, emphasized a number of distinguishing features of the Peters decision. The lawyer had deliberately taken all the trust funds belonging to a client and then set out to deceive those who might review the accounts. He argued that, whereas in Peters the Benchers found there was no evidence she might not do the same thing again, we should find that there was such evidence in the present case. It had been conceded in Peters that, when she misappropriated the funds, the lawyer was not suitable to practise law, but the same did not apply here. There was no suggestion that there was anything the matter with the Respondent’s service to his clients. Nova Scotia Barristers’ Society v. Ayres, 1998 NSBS 1 (CanLII), <https://canlii.ca/t/1spjw Nova Scotia Barristers’ Society v. Rose, 1996 NSBS 6 (CanLII), <https://canlii.ca/t/1spj1 Nova Scotia Barristers' Society v. Calder, 1996 NSBS 2 (CanLII), <https://canlii.ca/t/1sphx Nova Scotia Barristers’ Society v. Steele, 1995 NSBS 8 (CanLII), <https://canlii.ca/t/1sphs [11] Counsel for the Law Society referred us to the English Court of Appeal’s decision in Bolton v. Law Society, [1994] 2 All E.R. 486, for the proposition that it is no answer to an argument for a particular penalty that the lawyer who has committed serious misconduct is otherwise a good man. The penalty, according to the Court (at 492), should not necessarily be understood as punishment, especially where the lawyer has been punished already by criminal sanctions. Rather, the disciplinary penalty may be imposed for either or both of two non-punitive reasons. One is to minimize a risk that the lawyer will repeat the offence, by deterrence or by removing the lawyer temporarily (in the case of suspension) or indefinitely (in the case of disbarment) from practice. “The second purpose,” according to the Court, “is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth.” (ibid.) The Court added (at 493) that the severe effect of the penalty (in that case, suspension) on a lawyer’s ability to carry on his livelihood “does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member.”

Case Name	Prv.	Crt.	Sentence	Summary
2023
LSO v. Suh, 2023 ONLSTH 152 (CanLII)	ON
LSO v. Schulz, 2023 ONLSTA 1 (CanLII)	ON
2022
LSO v King, 2022 ONLSTH 6 (CanLII)	ON	AT		Find summaries of case.
LSO v Dakin, 2022 ONLSTH 23 (CanLII)	ON	AT		Find summaries of case.
NSBS v McKeough, 2022 NSBS 1 (CanLII)	NS			Find summaries of case.
NSBS v Brogan, 2022 NSBS 2 (CanLII)	NS	AT
2021
LSO v Ljiljanic, 2021 ONLSTH 5 (CanLII)	ON	AT		Find summaries of case.
LSO v Dinning, 2021 ONLSTH 85 (CanLII)	ON	AT		Find summaries of case.
LSO v Zaitzeff, 2021 ONLSTH 108 (CanLII)	ON	AT		Find summaries of case.
LSO v Campbell, 2021 ONLSTH 112 (CanLII)	ON	AT		Find summaries of case.
LSO v Decock, 2021 ONLSTH 121 (CanLII)	ON	AT		Find summaries of case.
LSO v Ferguson, 2021 ONLSTH 124 (CanLII)	ON	AT		Find summaries of case.
NSBS v Rhyno, 2021 NSBS 4 (CanLII)	NS			Find summaries of case.
NSBS v Robinson, 2021 NSBS 3 (CanLII)	NS			Find summaries of case.
2020
Colpitts, 2020 NSBS 2 (CanLII)	NS			Find summaries of case.
2019
LSO v. Kamal, 2019 ONLSTA 20 (CanLII)	ON			Find summaries of case.
2017
LSUC v. Ghaneshirazi, 2017 ONLSTH 208			suspension
2016
LSUC v. Venn, 2016 ONLSTH 72 (CanLII)	ON			Find summaries of case.
2015
NSBS v White, 2015 NSBS 1 (CanLII)	NS	AT
LSUC v. Dale, 2015 ONLSTH 27 (CanLII)	ON	AT		Find summaries of case.
LSUC v. Chin, 2015 ONLSTH 198 (CanLII)	ON	AT		Find summaries of case.
2014
LSUC v Farant, 2014 ONLSTH 201 (CanLII)	ON	AT		Find summaries of case.
NSBS v Whitehead, 2014 NSBS 2 (CanLII)	AT		"where there was a finding of professional misconduct and professional incompetence, the Panel imposed a 30 day suspension, requirement for ethics education and $40,000 plus HST contribution to costs."	{{{5}}}
LSA v McConnell, 2014 ABLS 4 (CanLII)	AB	AT	"Fine of $5,000; Costs of $13,000"	"Enabling others to achieve an improper purpose by disbursing $708,000 in trust funds for two real estate projects.... No explicit finding of knowing participation in mortgage fraud; Findings made that lawyer let down his guard; “intentional ignorance” and failure to inquire: Delay in proceeding reduced what would otherwise have been a suspension penalty to a fine."
NSBS v MacIsaac, 2014 NSBS 4 (CanLII)	NS	AT	2 months suspension with additional penalties
LSUC v. Carlesso, 2014 ONLSTH 129 (CanLII)	ON			Find summaries of case.
2013
LSBC v Bauder, 2013 LSBC 7 (CanLII)	BC	AT	"Four month suspension; Costs of $10,000"	"Fraudulently attempting to obtain mortgage financing of his own property by altering a purchase application... Deliberate and dishonest act: isolated lapse; general deterrence emphasized; admission by lawyer that he was responsible for the transaction;"
Moores (Re), 2013 CanLII 67543 (NL LS)	NL	AT	"Three month suspension; Costs of $40,000; Audit of real estate transaction files at discretion of Executive Director for two years"	"Acting on fraudulent real estate files; Conflict of Interest; Other related misconduct...No finding of knowing participation in mortgage fraud; This was a case of “unknowing participation only;” Explicit reference to the Fazio factors in assessing penalty for unknowing participation in mortgage fraud."
2012
LSUC v Sinukoff, 2012 ONLSHP 12 (CanLII)	ON	AT		Find summaries of case.
NSBS v. Jacquard, 2012 NSBS 1 (CanLII)	NS	AT	"12-month suspension; One year practice under direct supervision; Costs of $65,000"	"Failed to provide competent service in real estate transactions; Conflict of Interest; Failure to be honest and candid; Failed to be on guard against becoming dupe of an unscrupulous client or persons associated with the client; Other related misconduct... No finding of knowing participation in mortgage fraud; Panel noted the breaches related to the lawyer “allowing himself to be used as a dupe in an apparent scheme to defraud lenders;” Lawyer failed to recognize the red flags of mortgage fraud." Find summaries of case.
2011
NSBS v. Colpitts, 2011 NSBS 2 (CanLII)	NS	AT		"the Panel imposed a reprimand for acting in conflict of interest despite a prior disciplinary record for the same misconduct."
LSBC v. Rai, 2011 LSBC 2 (CanLII)	BC	AT	Three month suspension; costs of $11,500	"Assisting Clients in Fraudulent Scheme; Acting in Conflicts of Interest; Failure to recognize fraudulent nature of the scheme; Other related misconduct ... No finding of knowing participation in mortgage fraud; Lawyer provided services in real estate transactions that he “ought to have known” were fraudulent. The Law Society did not pursue any finding of actual knowledge."
2010
NSBS v. Blaikie, 2010 NSBS 3 (CanLII)	NS	AT		"a senior lawyer claimed to be under significant stress in his personal life. There were failures to conduct his practice in accordance with the trust account regulations, to adequately separate his business and legal practice, to adequately disclose his status when appearing to act on behalf of clients, and to adequately refer those clients for independent legal advice. Mr Blaikie was suspended for two months and received a costs penalty of $29,000 plus HST."
2009
LSBC v. Nielsen, 2009 LSBC 8 (CanLII)	BC	AT	"Six month suspension; Costs of $4,500; Undertaking not to practise real estate law"	"Assisting Clients in Fraudulent Scheme; Acting in Conflicts of Interest; Failure to serve clients; Failure to follow rules... No finding of knowing participation in mortgage fraud; The lawyer was “oblivious” to the formalities of real estate practice; panel noted the penalties for failing to be on guard"
2008
LSUC v Neinstein, 2008 CanLII 48142 (ON SCDC)	ON	AT		Find summaries of case.
NSBS v. Rhyno, 2008 NSBS 5 (CanLII)	NS	AT	"Nine month suspension; Terms for supervision on return to practice; Costs of $28,000; Not eligible to have an articled clerk for five years"	"Failures in relation to multiple real estate transactions amounting to breaches of integrity, candour, impartiality; duties to the profession; administration of justice and avoiding questionable conduct... No finding of knowing participation in mortgage fraud; Joint submission and admissions of conduct unbecoming, incompetence and professional misconduct."
2007
NSBS v. Rhyno, 2007 NSBS 2 (CanLII)	NS	AT		"the Panel imposed a 30 day suspension, requirement for ethics education, and $10,000 contribution to costs. The transgressions by Mr Rhyno involved self-interested conflict of interest in relation to a client’s legal business, the filing of documents with the Registrar of Joint Stocks which he knew to be false, breaches of confidentiality, and failure to be competent in the corporate work that he did undertake."
NSBS v Cragg, 2007 NSBS 7 (CanLII)	NS	AT		reprimand with additional penalties
NSBS v Gilpin, 2007 NSBS 4 (CanLII)	NS	AT	4-month suspension with additional penalties
2006
LSUC v Kiernan, 2006 ONLSHP 98 (CanLII)	ON	AT		Find summaries of case.
2005
NSBS v Savoie, 2005 NSBS 6 (CanLII)	NS		4-month suspension with additional penalties
2004
LSUC v Babij, 2004 ONLSHP 24 (CanLII)	ON	AT	12 months suspension	"a lawyer’s neglect resulted in misappropriations, engineered by his wife, of approximately $1,900,000." Find summaries of case.
NSBS v Cushing, 2004 NSBS 3 (CanLII)	NS	AT	9-month suspension with additional penalties
NSBS v Romney, 2004 NSBS 7 (CanLII)	NS	AT	12-month suspension with additional penalties
NSBS v Rideout, 2004 NSBS 11 (CanLII)	NS	AT	1-month suspension with additional penalties
2003
NSBS v Anderson, 2003 NSBS 4 (CanLII)	NS		24 month suspension	Find summaries of case.
2002
NSBS v Rhindress, 2002 NSBS 9 (CanLII)	NS		12 month suspension	Find summaries of case.

Costs

• Law Society of Ontario v. Vincent, 2024 ONLSTH 13 (CanLII)