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Case Law Digest

Welcome to the Case Law Digest featuring searchable summaries of the LSA’s discipline cases going back to 2014. Simply search the digest for a term, such as ‘misappropriation,’ read the short summary and click the link to read the full report in CanLII. Please note that this is a general reference tool only. During a hearing, adjudicators should not conduct their own research into the case law but should feel free to request Tribunal Counsel’s help to find relevant case law. If there are cases that adjudicators believe are relevant but are not referenced by the parties, for procedural fairness reasons, those cases should be identified to the parties so that they can comment on their relevance and applicability prior to adjudicators relying on those cases in their decisions.

2020 Law Society of Alberta v. Brehm, 2020 ABLS 10 Single Bencher hearing HE20190273 held April 9, 2020

Brehm, a student-at-law, admitted guilt to three citations: that he was dishonest with CPLED staff, communicated with CPLED staff and other parties in a manner that lacked courtesy, and breached CPLED’s Professional Integrity Policy.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Guilt. The Hearing Committee accepted the joint submission on sanction of a reprimand and fine.

Sanction Reprimand and a fine of $1,000.00. Costs of $1,575.00 were also ordered.

Law Society of Alberta v. Thom, 2020 ABLS 9 HE20190057 held January 3, 2020 (sanction phase)

Thom was found guilty of conduct deserving of sanction on two citations relating to breach of a trust condition and retaining his client’s file materials in Law Society of Alberta v. Thom, 2019 ABLS 27.

The Hearing Committee accepted the joint submission on sanction as per Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII) and ordered a reprimand.

Mitigating Circumstances • Thom is retired with no prior disciplinary record over 27 years of practise; • There were no serious consequences to the public and no financial losses relating to the breach

of trust condition.

Sanction

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Reprimand. Costs of $2,388.75 were also ordered.

Law Society of Alberta v. Wells, 2020 ABLS 8 Single Bencher hearing HE20190223 held February 27, 2020

Wells admitted guilt to two citations, that he failed to obtain his client’s instructions on matters not falling within his express or implied authority, and that he withdrew money from a trust account to pay disbursements and another party without the authorization of his client.

The Conduct Committee accepted the Statement of Admitted Facts and Admissions. The Hearing Committee accepted the joint submission on sanction of a reprimand, in accordance with R. v. Anthony-Cook, 2016 SCC 43 and taking into account the mitigating circumstances.

Mitigating Circumstances • Wells has been practising since 1993 with no prior disciplinary history; • There appears to have been no malicious intent.

Sanction Reprimand. Costs of $1,260.00 were also ordered.

Law Society of Alberta v. Adair, 2020 ABLS 7 Single Bencher hearing HE20190077 held February 28, 2020

Adair admitted guilt to two citations, that he failed to provide competent, conscientious and diligent service to his client by failing to complete their divorce in a timely manner, and that he breached Rule 119.21(4) by issuing an account that contained an inaccurate item reference.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Guilt. The Hearing Committee accepted the joint submission on sanction of a reprimand.

Sanction Reprimand. Costs of $1,443.75 were also ordered.

Law Society of Alberta v. Virk, 2020 ABLS 6 Discontinuance and Stay Application HE20170299 held February 20, 2020

Following his disbarment in Law Society of Alberta v. Virk, 2020 ABLS 4, Virk filed applications to have the proceedings against him discontinued (Discontinuance Application), or the order of disbarment stayed pending the resolution of an appeal (Stay Application).

The Committee found that it did not have the jurisdiction to discontinue its proceedings having completed its hearing into Virk’s conduct and issued its decision. The Hearing Committee issued an Order granting the Stay Application for a limited time and on conditions.

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The Committee applied the three-part test for an interim injunction, appropriately modified. It found that there is a serious question to be heard on appeal; the Applicant would suffer irreparable harm if the stay is refused, in particular because he would be prohibited access to the building he owns and from which he operates other business; and the balance of convenience favoured granting a short stay on strict conditions.

Decision The Order of Disbarment was stayed until March 6, 2020, during which time Virk was restricted from undertaking any of the activities set out in Section 106 of the Legal Profession Act, including practicing law or providing legal guidance, among other restrictions.

Law Society of Alberta v. LeDrew, 2020 ABLS 5 Single Bencher hearing HE20190239 held February 6, 2020

LeDrew admitted guilt to one citation, that he failed to satisfy a trust condition.

The Conduct Committee accepted the Agreed Statement of Admitted Facts and Admission of Guilt. The Hearing Committee accepted the joint submission on sanction of a reprimand and fine.

The LSA provided two decisions in support of the joint submission, Law Society of Alberta v. Lacourciere, 2017 ABLS 6 and Law Society of Alberta v. Heming, 2017 ABLS 18. The Committee expressed concern about LeDrew’s past discipline record. The LSA noted the aggravating and mitigating circumstances, that the discipline record is somewhat aged, and that the substantial fine will act as both a specific and general deterrent.

Aggravating Circumstances • Three prior breaches relating to trust conditions and undertakings

Mitigating Circumstances

• LeDrew reported the matter to the Alberta Lawyers Insurance Association; • LeDrew was cooperative and the admission of guilt avoided an unnecessary contested hearing.

Sanction Reprimand and fine of $8,000.00. Costs of $1,548.75 were also ordered.

Law Society of Alberta v. Virk, 2020 ABLS 4 HE20170299 held December 17, 2019 (sanction phase)

Following the decision in the merits phase of this hearing, Law Society of Alberta v. Virk, 2019 ABLS 25, where Virk was found guilty of 15 of the 19 citations, the Hearing Committee ordered that Virk be immediately disbarred.

The LSA submitted that as Virk’s conduct related to seven unrelated complaints and covered matters of integrity, professional obligations and governability, the appropriate sanction was disbarment. Virk’s counsel argued for a lengthy suspension and urged consideration for Virk’s health issues. The LSA

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responded that the evidence, including witness testimony by a medical doctor, did not support Virk having a health issue affecting his ability to make truthful statements or his integrity.

The Hearing Committee iterated that the purposes of disciplinary proceedings are to protect the public, to maintain the reputation of the legal profession as per Bolton v. Law Society, [1994] 2 All ER 486 at 492 (C.A.) and Gavin McKenzie’s Lawyers & Ethics, Professional Responsibility and Discipline, at page 26-1. The Committee considered Virk to be at high risk of relapsing in his treatment protocol, and did not consider Virk’s health disorder as a mitigating factor as it did not have any bearing on his ability to tell the truth or on his understanding of his professional obligations.

Aggravating Circumstances • Virk’s conduct included lacking integrity, failing to serve clients, acting with impropriety

concerning his fellow lawyers and their clients, and failing to cooperate with his governing body; • Virk’s conduct arose from a number of complaints over an extended period of time; • Prior disciplinary record of a short suspension resulting from Virk’s failure to serve his clients

properly.

Sanction Disbarment. Costs of $82,500.00 were also ordered, payable immediately and prior to any application for reinstatement.

Discontinuance and Stay Applications follow in Law Society of Alberta v. Virk, 2020 ABLS 6.

Law Society of Alberta v. Adelowokan, 2020 ABLS 3 Single Bencher hearing HE20190139 held January 29, 2020

Adelowokan admitted guilt to two citations, that she obstructed an examination of a witness, and failed to be candid with the Immigration and Refugee Board.

The Conduct Committee accepted the Statement of Admitted Facts and Admissions of Guilt, as did the LSA. The Hearing Committee accepted the joint submission on sanction of a reprimand.

Sanction Reprimand. Costs of $2,716.88 were also ordered.

Law Society of Alberta v. Haniff-Darwent, 2020 ABLS 2 HE20180169 held November 20, 2019

Haniff-Darwent admitted guilt to five citations arising from two complaints, that she failed to progress her client’s matters in a timely manner; failed to reply to her client’s communications within a reasonable time; failed to provide her client file to her client; failed to provide her client his client files in a timely manner, and; failed to be cooperative and honest with the LSA.

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The Agreed Statement of Facts and Admission of Guilt was accepted by the Hearing Committee. The Committee accepted the joint submission on sanction of a two-week suspension. Costs of $8,163.75 were also ordered.

The Committee considered the sanction reasonable in light of Law Society of Alberta v. McCullough, 2013 ABLS 3 (CanLII). Counsel for Haniff-Darwent noted mitigating circumstances not present in McCullough and the LSA submitted that there is a low risk of recurrence.

Mitigating Circumstances

• No prior disciplinary record • Showed significant remorse • Sought counselling • Worked with Practice Management

Sanction Two-week suspension. Costs of $8,163.75 were also ordered.

Law Society of Alberta v. Sharma, 2020 ABLS 1 HE20190025 held October 16, 2019

Sharma faced two citations that arose when he did not accurately state how many hours he had been working or communicate that his articles were part-time and failed to be candid with the LSA and with his principal.

A Statement of Admitted Facts was entered into evidence, but did not contain any admission of guilt and disputed that Sharma’s conduct was deserving of sanction. Sharma admitted that he misrepresented his hours to the LSA to get more articling credit, that he did not inform his new principal that he had been articling only part-time, and he gave a false reason for leaving his first principal.

The Hearing Committee found both citations to be proven and to be conduct deserving of sanction: the demonstrated lack of integrity goes to the root of lawyer regulation, and a student-at-law must be honest and candid, not omitting facts that may affect the interests of the principal.

The Committee considered the following cases regarding sanction: Law Society of Alberta v. Ihensekhien-Eraga, 2019 ABLS 16 (CanLII), Law Society of Alberta v. Cattermole, [2008] L.S.D.D. No. 168 (Q.L.), Law Society of Alberta v. Zimmerman, [2006] L.S.D.D. No. 6 (Q.L.), and Law Society of Alberta v. Rigler, 2008 LSA 10 (CanLII). While his continued employment with his second principal could have been a mitigating factor, no evidence was provided in support of Sharma’s character or as explanation for his conduct.

Aggravating Circumstances • Sharma did not accept his first principal’s reason for terminating his articles; • Sharma did not appear to appreciate the duty of a member to be forthright and honest in

dealings with the regulator.

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Sanction De-registration. Costs of $14,857.75 were also ordered prior to reinstatement, should he apply.

2019

Law Society of Alberta v. Hudson, 2019 ABLS 31 Single Bencher hearing HE20190297 held December 9, 2019

Hudson admitted guilt to one citation, that she breached CPLED’s Professional Integrity Policy.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Conduct Deserving of Sanction. The Hearing Committee accepted the joint submission on sanction of a reprimand.

Sanction Reprimand. Costs of $630.00 were also ordered.

Law Society of Alberta v. Pashovitz, 2019 ABLS 30 Single Bencher hearing HE20190298 held December 9, 2019

Pashovitz admitted guilt to one citation, that she breached CPLED’s Professional Integrity Policy.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Conduct Deserving of Sanction. The Hearing Committee accepted the joint submission on sanction of a reprimand.

Sanction Reprimand. Costs of $630.00 were also ordered.

Law Society of Alberta v. Tilleman, 2019 ABLS 29 Single Bencher hearing HE20190299 held December 9, 2019

Tilleman admitted guilt to one citation, that she breached CPLED’s Professional Integrity Policy.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Conduct Deserving of Sanction. The Hearing Committee accepted the joint submission on sanction of a reprimand.

Sanction Reprimand. Costs of $630.00 were also ordered.

Law Society of Alberta v. Wood, 2019 ABLS 28 Resignation hearing HE20180162 held October 9, 2019

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Following her first resignation application, which had been denied (Law Society of Alberta v. Wood, 2019 ABLS 12), Wood applied for a section 32 resignation while retired and in the face of 13 outstanding discipline matters. The alleged conduct included failing to comply with LSA trust accounting rules; misappropriation of funds; failing to supervise an individual who provided services to the law firm; allowing surreptitious recordings of telephone calls to and from her office; failing to be candid and cooperative with the LSA; rendering inappropriate billings to the Legal Aid Society of Alberta; failing to be candid with the Privacy Commissioner; failing to be candid with Alberta Employment Standards; submitting requests for restitution that were inaccurate; failing to protect client confidentiality, and; permitting the preparation, execution and filing of affidavits indicating an individual was an employee of Wood Law Office, then later claiming these were inaccurate.

In addition to the materials submitted in the prior resignation application, Wood submitted an amended Agreed Statement of Facts and an extensive psychological report and made further admissions concerning her involvement and role in ongoing investigations. Wood undertook to cooperate with the LSA and ALIA, to not practice law, to not apply for readmission to the LSA without paying costs of $54,784.58, has closed all her files, and has no disciplinary record.

The Resignation Committee considered the nature of Wood’s alleged conduct, whether such conduct would likely result in disbarment, mitigating factors, and the overarching goal of maintaining public confidence in the legal profession. The Committee considered the joint submission on sanction as per R. v. Anthony-Cook, 2016 SCC 43 (CanLII).

Mitigating Circumstances • Medical evidence bridges the gap between Wood’s previously unblemished record of service

and the allegations of misconduct.

Decision Resignation accepted (s. 32) with Notice to the Profession.

Law Society of Alberta v. Thom, 2019 ABLS 27 HE20190057 held August 23, 2019 (merits phase)

Thom faced two citations arising from one complaint, that he breached a trust condition to another lawyer and retained his client’s file materials contrary to the Code of Conduct. Thom provided a Statement of Admitted Facts.

The LSA asserted that breach of a trust condition is a strict liability offence as Thom did not establish that he exercised due diligence to avoid the breach, citing Law Society of Alberta v. Burgener, [2010] LSDD No. 195 (Burgener), which relies on the Saskatchewan Court of Appeal decision in Merchant v. Law Society of Saskatchewan, 2009 SKCA 33.

Thom argued that breach of a trust condition is not a strict liability offence and the LSA must prove moral culpability, intent, or some element of malfeasance. Thom relied on the following cases in support of his argument that the LSA has the burden of proving culpability and that not every breach of the Code amounts to professional misconduct: Law Society of British Columbia v. Martin, [2005] LSBC 16 (Martin); Law Society of Alberta v. Mirasty, 2016 ABLS 21 (Mirasty); Law Society of Alberta v. Llewellyn, 2017 ABLS

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17 (Llewellyn) and Law Society of Alberta v. Vinci, 2014 ABLS 58 (Vinci). None of the decisions consider citations related to breach of trust conditions.

The Hearing Committee found Thom guilty of conduct deserving of sanction on both citations. Thom admitted that he breached a trust condition and failed to discharge the onus on him to show that he exercised due diligence to avoid the breach. The evidence is clear that there were significant, unexplained and inexcusable delays in returning his client’s file.

Sanction hearing to follow in Law Society of Alberta v. Thom, 2020 ABLS 9.

Law Society of Alberta v. Kandola, 2019 ABLS 26 Single Bencher hearing HE20190242 held October 8, 2019

Kandola admitted guilt to two citations, that he failed to reply promptly to communications from the LSA and failed to appropriately handle a loan transaction with a client.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Conduct Deserving of Sanction. The Hearing Committee accepted the joint submission on sanction of a reprimand.

Sanction Reprimand. Costs of $393.75 were also ordered.

Law Society of Alberta v. Virk, 2019 ABLS 25 HE20170299 held June 17-19 and 25-28 (merits phase)

Virk faced 19 citations (after two were consolidated) arising as a result of 7 complaints from clients, other lawyers and the LSA. The citations consist of various allegations against Virk, including that he acted in a conflict of interest; failed to be candid with his client, the Court and the LSA; misled another lawyer; failed to cooperate with the LSA investigation; failed to serve his client; failed to attend to the finalization of a Court Order in a timely manner; failed to properly account to his client; failed to fulfil an undertaking, and; failed to comply with an undertaking or condition imposed on him by the Law Society.

The Committee relied on R v. Gagnon, 2006 SCC 17 and Faryna v. Chorny, 1951 CanLII 252 (BCCA) when considering the credibility of the many witnesses.

Virk admitted guilt to five citations, including that he failed to serve his client and failed to properly account to his client; failed to properly account to his client; failed to cooperate with the LSA investigation when he refused to be interviewed; failed to serve another client; and failed to attend to the finalization of Court Orders in a timely manner.

The Hearing Committee dismissed four citations and found Virk guilty of conduct deserving of sanction on 10 citations. The Committee considered R. v. Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, and MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235 for conflicts of interest. The Committee found that there was no conflict of interest when Virk acted against a woman whom he had a prior sexual relationship with, however the lack of disclosure to his client was a conflict of interest. Virk’s claim that he had no memory of meeting the woman was contradicted by the evidence.

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The Committee found that Virk made statements with the intent to mislead two clients on separate occasions. The Committee reviewed the following cases with regards to misleading a client: Doolan v. Law Society of Manitoba, 2016 MBCA 57 (CanLII); Law Society of Alberta v. Groves, [2005] LSDD No 96; Law Society of Saskatchewan v. Braun, [2009] LSDD No 24; Law Society of Alberta v. Ingimundson, 2014 ABLS 52 (CanLII); Law Society of Alberta v. Llewellyn, 2018 ABLS 11 (CanLII); Law Society of Alberta v. Boulton, 2013 ABLS 6 (CanLII); and Law Society of Alberta v. W. Murray Smith, 2009 LSA 19 (CanLII).

The Committee found that Virk was not candid with the Court, he lied about his involvement with the opposing party and his ownership of a BMO credit card, and he was not candid with LSA investigators.

The Committee found that Virk failed to comply with an undertaking to only have one articling student. Virk did not disclose all the facts surrounding an articling student who worked in his office and received supervision and financial backing from Virk, when Virk already had an approved articling student.

The appropriate sanction will be determined in Law Society of Alberta v. Virk, 2020 ABLS 4.

Law Society of Alberta v. Wilkinson, 2019 ABLS 24 Single Bencher hearing HE20190105 held August 28, 2019

Wilkinson admitted guilt to four citations arising from failure to provide competent, conscientious, and diligent service to his client by failing to make reasonable inquiries and to adequately confirm instructions, by failing to fully review and explain the nature and effect of each paragraph of the Enduring Power of Attorney and Personal Directive, by failing to take reasonable steps to assess his client’s capacity prior to execution of an Enduring Power of Attorney and a Personal Directive, and by failing to take additional steps to confirm his client’s capacity after it was raised as an issue by the Director of Care at his client’s care home.

The Conduct Committee accepted the Statement of Agreed Facts and Admission of Guilt. The Hearing Committee accepted the joint submission on sanction and imposed and fine of $5,000.00. Wilkinson was ordered to pay costs.

Sanction Reprimand and fine of $5,000.00. Costs of $1,312.50 were also ordered.

Law Society of Alberta v. Hansen, 2019 ABLS 23 HE20180285 held July 16, 2019

Hansen faced one citation, that he failed to serve his client in a conscientious and timely manner. The failure arose from an immigration matter where his client was accused of misrepresenting his status to Canada Immigration, resulting in an exclusion order and a refused appeal, after which the client sought assistance from another firm and achieved favourable results.

The client testified that in the initial immigration hearings a postponement was required to enable disclosure of documents presented by Hansen as he did not deliver materials for disclosure within the stated time period, Hansen requested documents and meetings only a few days before they were required, and after the hearing and subsequent appeal there was a lack of communication by Hansen.

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Hansen’s improper representation of his client was a key factor in the successful appeal and included not communicating with his client’s ex-wife or enquiring with his client about the existence of any court orders; by not disclosing relevant documents; and by not disclosing the Country Report on Iran.

Hansen noted he assumed that his client had sole custody of his child, he could not recall being provided with a contact number for his client’s ex-wife, and he had attempted to contact the wife. Hansen admitted his failure to get the Iranian Country Report into evidence. Hansen submitted that the case against him amounted primarily to accusation of negligence, not incompetence, and he had reported the matter to ALIA.

The LSA submitted that Hansen’s failure to present relevant evidence rises to the level of a pattern of neglect. Hansen countered by saying that not all the errors and omissions were made out, he believed the evidence he brought forward was sufficient, and it was the client’s refusal to respond to Hansen’s request for contact and information from his ex-wife as well as his lack of credibility that were responsible for the failed appeal. The LSA responded that the citation is based on a lack of timely and conscientious service in addition to incompetent service.

The Hearing Committee found that the failure to disclose the Country Report was serious, but accepts that Hansen acknowledged the error and believed the presented evidence to be sufficient; found the ‘last minute request’ for documents was not crucial as almost all the documents were provided and his client did not respond consistently; could not substantiate the impact of briefing witnesses inadequately the day before the hearing, and; inadequate attention to the best interests of the child was critical but largely due to the client’s repeated assertions that he had nothing to do with his ex-wife, assertions that she had no claim over the child, stonewalling requests to obtain a letter of support or contact information, and failure to mention that his ex-wife obtained an Interim Consent Parenting Order before the initial hearing took place.

The Committee found that the issues did not amount to a pattern of neglect or negligence, even though Hansen’s conduct of the file was barely adequate, and noted that the client’s actions made it difficult for Hansen to assist him successfully.

Decision The citation has not been proven and Hansen’s conduct is not deserving of sanction.

Law Society of Alberta v. Mawson, 2019 ABLS 22 HE20170109 held June 21, 2019

Mawson admitted guilt to 26 citations arising from four complaints relating to an ongoing pattern of poor client service and related failures of candour and honesty. Mawson’s poor service included failing to: file pleadings by an agreed-upon deadline, contact clients or respond to their inquiries, advise clients, seek instructions, provide documents to clients, follow up, properly address and schedule questioning, consider the need for opposing evidence or cross examination, attend Court, properly address enforcement proceedings impacting a client, respond to opposing counsel, and move litigation forward. Mawson also failed to respond to the LSA, failed to follow accounting rules and repeatedly failed to be candid, including with the LSA. One citation was dismissed.

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The LSA advised that a 20-month suspension would be appropriate because of a medical report detailing Mawson’s struggles, a positive report from Practice Management and Mawson’s cooperation. The LSA cited Bolton v. Law Society, [1994] 2 All ER 486 (C.A.), Law Society of Alberta v. Tahn, 2018 ABLS 10 (CanLII), Law Society of Alberta v. Diana Rutschmann, 2007 LSA 1 (CanLII) and R. v. Anthony-Cook, 2016 SCC 43 (CanLII) in support of the joint submission on sanction.

Mawson supported the LSA’s submissions and suggested that Mawson has demonstrated he is governable, has admitted his mistakes, and has improved his circumstances and practice management.

The Committee accepted the Statement of Admissions and the joint submission on sanction of a 20-month suspension, as well as an order for costs, citing R. v. Tkachuk, 2001 ABCA 243 (CanLII) and Law Society of Alberta v. Pearson, 2011 ABLS 17 (CanLII).

Mitigating Circumstances • Mawson was dealing with grief and addiction issues, for which he has sought treatment; • Mawson has had a positive Practice Assessment Report; • Mawson cooperated with the discipline process; • Mawson has no disciplinary record.

Sanction 20-month suspension starting October 1, 2019. Costs of $45,810.70 were also ordered, to be paid upon re-admission.

Law Society of Alberta v. Schlotter, 2019 ABLS 21 Single Bencher hearing HE20180284 held August 15, 2019

Schlotter admitted guilt to five citations, including failure to comply with undertakings given to the LSA, failure to serve his client in that he did not take any steps in litigation for almost three years, failure to respond to his client’s communications, failure to serve his client in that he did not advance the client’s matter in a timely manner, and failure to respond to his client’s communications. The Conduct Committee accepted the Statement of Facts.

The Hearing Committee accepted the joint submission on sanction and imposed a reprimand and a fine of $1,500.00. Schlotter was also ordered to pay costs.

Sanction Reprimand and fine of $1,500.00. Costs of $3,000.00 were also ordered.

Law Society of Alberta v. Cunningham, 2019 ABLS 20 Single Bencher hearing HE20180281 held August 1, 2019

Cunningham admitted guilt to six citations arising from two complaints, including failure to communicate with her client and provide regular updates, failure to serve her client, failure to provide her client’s file in a timely manner, engaging in conduct that impaired her ability to competently serve

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her clients, failure to self-report criminal charges to the LSA, and failure to be candid. The Conduct Committee accepted the Agreed Statement of Facts and Admission of Guilt.

The Hearing Committee accepted the joint submission on sanction, and imposed a reprimand. It also ordered costs.

Sanction Reprimand. Costs of $11,944.35 were to be paid within 6 months of Cunningham’s return to active practicing status.

Law Society of Alberta v. Kobylnyk, 2019 ABLS 19 HE20170205 held May 6, 2019

Kobylnyk admitted guilt to seven citations arising from a series of failures to take timely action, including failure to meet the needs of three clients, failure to respond to another lawyer, failure to respond to the LSA, failure to comply with trust accounting requirements, and failure to cooperate with the LSA investigation. Kobylnyk was also not candid with a client and signed an order without instructions. The Hearing Committee accepted the Statement of Admitted Facts and Admission of Guilt.

The parties submitted a joint submission on sanction, seeking a two-month suspension, referral to Practice Management, and confirmation of an undertaking provided by Kobylnyk. They also sought an order for costs payable by Kobylnyk. The LSA submitted that Kobylnyk has no prior discipline history, is a sole practitioner with no secretarial support, and cooperated fully. The LSA submitted Law Society of Alberta v. Mirasty, 2016 ABLS 21 (CanLII) and Law Society of Alberta v. Paul LeClair, 2009 LSA 11 (CanLII) in support of the proposed sanction.

The Committee accepted the joint submission as per R. v. Anthony-Cook, 2016 SCC 43 (CanLII), Law Society of Alberta v. Pearson, 2011 ABLS 17 (CanLII) and Law Society of Alberta v. Bontorin, 2015 ABLS 9 (CanLII). Aggravating Circumstances

• Kobylnyk was not candid with his client after he missed deadlines;

Sanction Two-month suspension, referral to Practice Management and confirmation of Kobylnyk’s undertaking to promptly respond to and cooperate with the LSA. Costs of $30,000.00 were also ordered, to be paid within 24 months.

Law Society of Alberta v. Billingsley, 2019 ABLS 17 Single Bencher hearing HE20190079 held June 24, 2019

Billingsley admitted guilt to not being completely forthright with his client; communicating with his client in a manner that lacked courtesy, civility and professionalism; seeking legal fees from his client that were not disclosed in a timely and reasonable manner; failing to be candid during a Fee Review

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Hearing; failing to serve his client’s best interests; and charging his client legal fees that were neither fair nor reasonable.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Conduct Deserving of Sanction. The Hearing Committee accepted the joint submission on sanction of a reprimand and fine of $2,000.00.

Sanction Reprimand and fine of $2,000.00. Costs of $866.25 are payable by June 24, 2020.

Law Society of Alberta v. Ihensekhien-Eraga, 2019 ABLS 16 HE20180134 held May 10, 2019

Ihensekhien-Eraga, a student member of the LSA who came to Canada after practicing law for more than 15 years in Nigeria, admitted guilt to failing to be candid with the LSA when she repeatedly stated that she had prepared a Factum, fabricated evidence in the form of apparent drafts of the Factum, lied in writing, and only told the truth when confronted with evidence that the factum was not authored by her. The Factum was given as evidence of her ability when she applied for an abbreviated term of articles. The Hearing Committee accepted the Agreed Statement of Facts and Admission of Guilt.

The LSA submitted that Ihensekhien-Eraga’s conduct justified deregistration as the citation arose from an egregious breach of integrity, and noted that Ihensekhien-Eraga is a very experienced lawyer who knows the implications of lying to the LSA. The LSA cited Law Society of Alberta v. Hammoud, 2013 ABLS 9 (CanLII), affirmed 2014 ABLS 30 (CanLII), Law Society of Alberta v. Zimmerman, [2006] L.S.D.D. No. 6 (Q.L.), and Law Society of Alberta v. Cattermole, [2008] L.S.D.D. No. 168 (Q.L.) in support of deregistration.

Ihensekhien-Eraga argued that a suspension of six months or less was appropriate, submitting Law Society of Alberta v. Philion, [1998] L.S.D.D. No. 18 (Q.L.), Law Society of Alberta v. Rigler, 2008 LSA 10 (CanLII), Law Society of Alberta v. Terrigno, [2008] L.S.D.D. No. 175 (Q.L.), and Law Society of Alberta v. Nguyen, 2019 ABLS 1 (CanLII).

The Committee referenced Hammoud with respect to the importance of integrity in the context of the articling process, and Law Society of Saskatchewan v. Kumar, 2013 SKLSS 4 (CanLII) at para. 18 with respect to the seriousness of misleading Law Societies. The Committee found that a majority of relevant cases resulted in sanctions short of deregistration.

Mitigating Circumstances • The conduct is a single incident comprising a series of related events and does not demonstrate

long-term, intractable conduct or establish ungovernability; • No prior disciplinary history. • Ihensekhien-Eraga admitted responsibility for her conduct early in the disciplinary proceedings; • Ihensekhien-Eraga’s verbal apology was sincere.

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Aggravating Circumstances • Ihensekhien-Eraga’s failure to be candid comprised of an escalating series of lies over a number

of months; • The conduct cannot be attributed to a youthful mistake given her years of experience.

Sanction 12-month suspension. Costs of $17,000.00 were also ordered, to be paid by an agreed-upon date.

Law Society of Alberta v. dos Santos, 2019 ABLS 15 Single Bencher hearing HE20180229 held May 28, 2019

Dos Santos admitted guilt to failing to follow accounting rule 119.30 when he did not submit three years of his Accountant’s reports on time.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Guilt. The Hearing Committee accepted the joint submission on sanction of a reprimand and fine of $1,000.00.

Sanction Reprimand and fine of $1,000.00. Costs of $1,312.50 are payable by August 28, 2019.

Law Society of Alberta v. Carlson, 2019 ABLS 14 HE20180220 held May 23, 2019

Carlson admitted guilt to five citations arising from his family law practice, that he failed to sign a Court Order and a Consent Judgment granted in the Court of Queen’s Bench, failed to finalize and file an Order on behalf of his client, failed to respond to communications from his client in a timely manner, and failed to respond to requests from the Law Society to provide his client file in a timely manner.

LSA counsel cited R. v. Anthony-Cook, 2016 SCC 43 (CanLII) in relation to the deference owed to joint submissions on sanction, and cited Law Society of Alberta v. Elgert, 2012 ABLS 9 (CanLII), Law Society of Alberta v. Elgert, 2014 ABLS 2 (CanLII), and Law Society of Alberta v. Fair, 2012 ABLS 1 (CanLII) in relation to situations of failure to serve clients combined with a prior disciplinary record.

The Hearing Committee accepted the Statement of Admitted Facts as well as the joint submission on sanction of a one-month suspension, to take place in July to minimize impacts on clients. The proposed sanction fell within the range of sanctions set out by LSA counsel, even in light of Carlson’s prior disciplinary record as it relates to different and more serious conduct.

Mitigating Circumstances • Carlson had a long period of practice prior to the first disciplinary hearing arising • The citations do not involve issues of governability or integrity; • Carlson accepted responsibility and admitted guilt to the citations, which saved time and costs; • Carlson attempted to effect restitution with his clients; • The failures to finalize court orders did not leave the impacted parties without remedy; • There are explanations for some of the instances related to failures to communicate;

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• Carlson acknowledged his responsibility for practice management issues and has taken steps to implement new systems to prevent similar issues from arising in the future.

Aggravating Circumstances • Prior disciplinary record; • Carlson underwent a practice assessment just prior to when these matters arose, and therefore

should have been more aware of potential issues in communication and managing receivables.

Sanction One-month suspension starting July 1, 2019. Costs of $8,800.00 were also ordered, to be paid in installments of $1,000.00 starting in September, 2019.

Law Society of Alberta v. Nguyen, 2019 ABLS 13 Single Bencher hearing HE20180158 held May 24, 2019

Nguyen admitted guilt to three citations, that he failed to honour trust conditions, improperly filed a Notice of Change of Representation, and failed to be candid with the Law Society.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Guilt. The Hearing Committee accepted the joint submission on sanction of a reprimand and fines of $8,000.00 (for failing to honour trust conditions), $2,000.00 (for improper filing), and $8,000.00 (for failing to be candid).

Sanction Reprimand and fines totaling $18,000.00. Costs of $8,130.45 were also ordered, payable by August 24, 2019.

Law Society of Alberta v. Wood, 2019 ABLS 12 Resignation hearing HE20180162 held May 7, 2019

Wood applied for a section 32 resignation while retired and in the face of 11 citations and 3 claims filed against her. The citations include failing to comply with LSA trust accounting rules, misappropriation of funds, failing to supervise an individual who provided services to the law firm, allowing surreptitious recordings of telephone calls to and from her office, failing to be candid and cooperative with the LSA, rendering inappropriate billings to the Legal Aid Society of Alberta, failing to be candid with the Privacy Commission, failing to be candid with Alberta Employment Standards, submitting requests for restitution that were inaccurate, failing to provide client confidentiality, and permitting the preparation, execution and filing of affidavits indicating an individual was an employee, then later claiming these were inaccurate.

Counsel for Wood submitted that she had undertaken to cooperate with the LSA and ALIA, closed all her files, had no disciplinary record, had positive involvement in the discipline process. Counsel urged the Resignation Committee to view her actions in light of the psychological evidence detailing Wood’s mental health. Counsel for the LSA took no position on the application.

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The Committee noted a gap in time between the alleged misconduct and the beginnings of the diagnosis of Wood’s mental difficulties, that the psychological evidence falls short of explaining the misconduct, that the misconduct goes to the very core of the public’s reliance on and confidence in the legal profession, and that Wood appears to be inconsistent in her acknowledgement of responsibility for some of the citations.

The Committee determined that it is not in the best interest of the public to accept the section 32 resignation and invited submissions on whether Wood would like to change the application to a section 61 application. The parties determined that could be left for another time.

Decision Resignation denied, with a second hearing to follow (Law Society of Alberta v. Wood, 2019 ABLS 28).

Law Society of Alberta v. O’Shaughnessy, 2019 ABLS 11 Resignation hearing HE20190081 held May 14, 2019

O’Shaughnessy applied for a section 32 resignation in the face of one complaint, which arose when she introduced a third-party suspect during closed arguments to the jury. A Commissioner determined that O’Shaughnessy did not follow the client’s instructions or exercise reasonable professional judgment in her representation of the client. No citations were brought against O’Shaughnessy.

Counsel for O’Shaughnessy submitted that she is unable to practice law due to her medical condition, has no discipline record, and has been diligent and forthcoming with the LSA. Counsel for the LSA made submissions in support of the application, including that the alleged conduct, if proven, would not be worthy of disbarment.

The Resignation Committee treated the application as a joint submission and determined that it was in the best interest of the public to accept the resignation. The Committee accepted O’Shaughnessy’s undertakings and agreements and directed the issuance of a modified Notice to the Profession with respect to O’Shaughnessy’s request to not issue a Notice in order to protect her mental and emotional health.

Decision Resignation accepted (s. 32) with modified Notice to the Profession.

Law Society of Alberta v. Ragan, 2019 ABLS 10 Resignation hearing HE20170110 held April 15, 2019

Ragan applied for a section 61 resignation while suspended for non-payment of fees and in the face of 16 citations arising from 2 complaints. The first complaint arose from a retainer in which Ragan represented to his client that he had done certain legal work, when he had not. The second complaint arose when Ragan obtained a loan from a former client and represented that the loan would be partially secured by a mortgage over lands he did not own. The citations relate to failure to serve his clients, failure to respond promptly and completely to his clients and the LSA, failure to be candid with his client

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and the LSA, wrongful conversion of trust money, breach of LSA accounting rules, and acting while in a conflict of interest without his client’s consent.

The Resignation Committee determined that it was in the best interests of the public to accept the resignation despite the unresolved conduct matters, given the lengthy Admitted Facts and that the admitted conduct would likely result in disbarment at a hearing. A resignation under section 61 is deemed to be a disbarment. Ragan provided undertakings to the LSA, including to cooperate with the LSA and to not engage in any work in the legal field.

Decision Resignation accepted (s. 61), Notice to the Profession and costs of $28,62330.

Law Society of Alberta v. Braun, 2019 ABLS 9 Single Bencher hearing HE20180090 held March 27, 2019

Braun admitted guilt to two citations, that he failed to comply with the LSA’s accounting rules and failed to respond promptly and completely to the LSA.

The Conduct Committee accepted the Statement of Admitted Facts and Admission of Guilt and the Hearing Committee accepted the joint submission on sanction of a reprimand and fine of $1,000.00.

Sanction Reprimand and fine of $1,000.00. Costs of $1,522.50 were ordered, to be paid by May 2019.

Law Society of Alberta v. Shawar, 2019 ABLS 8 Single Bencher hearing HE20180091 held March 15, 2019

Shawar admitted guilt to one citation, that he failed to be candid with the LSA when he signed a Certificate of Principal indicating he was in Edmonton, when he was not in Alberta.

The Conduct Committee accepted the Agreed Statement of Facts and Admission of Conduct Deserving of Sanction and Hearing Committee accepted the joint submission on sanction of a reprimand.

Sanction Reprimand. Costs of $2500.00 were also ordered, payable by June 30, 2019.

Law Society of Alberta v. Schultz, 2019 ABLS 7 Resignation hearing HE20170298 held April 9, 2019

Schultz applied for a section 32 resignation while suspended for non-payment of his ALIA deductible and in the face of 17 citations. The citations relate to various failures to serve his clients, failure to operate his Trust account correctly, and failure to fulfill an Undertaking.

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The Resignation Committee accepted the Statement of Admitted Facts and Admission of Guilt. Schultz signed Undertakings with the LSA, including agreeing to pay costs prior to any application for reinstatement.

Decision Resignation accepted (s. 32), Notice to the Profession and costs to be paid prior to any application for reinstatement.

Law Society of Alberta v. Pfriem, 2019 ABLS 6 Single Bencher hearing HE20180047 held February 26, 2019

Pfriem faced one citation, that he failed to provide competent, timely, conscientious and diligent service when he failed to advance his client’s legal matter.

The Hearing Committee accepted the Statement of Admitted Facts and Admission of Conduct Deserving of Sanction and the joint submission on sanction of a reprimand.

Sanction Reprimand. Costs of $997.50 were also ordered, payable by December 31, 2019.

Law Society of Alberta v. Moughel, 2019 ABLS 5 Resignation hearing HE20170134 held March 6, 2019

Moughel applied for a section 32 resignation while suspended and facing 82 citations arising from 20 complaints. Moughel admitted guilt on 69 of those citations, namely that he failed to communicate with clients, other lawyers and the LSA; failed to conduct client matters in a timely and reasonable manner; misled clients about the status of their matters, including failing to attend court and consenting to orders with out their knowledge; failed to follow trust accounting rules; failed to respond to the LSA, and; failed to be candid with the LSA.

LSA counsel submitted that Moughel’s conduct amounted to an abdication of his practice and several of the breaches are issues relating to integrity, but chose not to oppose the application based on the medical evidence submitted on behalf of Moughel.

The Resignation Committee considered the nature of the conduct, whether that conduct would result in disbarment if the matter proceeded to a hearing, and factors that would mitigate against disbarment, with a goal of maintaining public confidence in the profession. The Committee accepted the findings in a medical assessment regarding the cause of Moughel’s conduct, which would have likely mitigated against him being disbarred. The Committee considered the application to be tantamount to a joint submission deserving of deference as the LSA did not oppose it.

Decision Resignation accepted (s. 32), Notice to the Profession. Costs to be paid prior to any application for reinstatement.

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Law Society of Alberta v. Hansen, 2019 ABLS 4 HE20180123 held November 5, 2018

Hansen faced three citations in relation to assisting a client in applying for a post-graduation work permit; that is, he failed to provide legal services to the standard of a competent lawyer, keep his client informed, and properly supervise his staff.

The Hearing Committee dismissed all citations after finding that Hansen’s conduct did not amount to conduct deserving of sanction, even though errors were made. Hansen’s oversight of the passport expiry date does not appear to be the result of incompetence, was an isolated instance over a long career, and does not affect the general public or the standing of the legal profession.

The evidence showed that communication between Hansen or his staff and the client had occurred, and a failure to keep the client informed was not proven. Hansen discussed this file with his staff. Staff not knowing the application could be filed online and failing to catch Hansen’s error did not demonstrate a failure to supervise.

Decision Citations dismissed.

Law Society of Alberta v. Kaczkowski, 2019 ABLS 3 Single Bencher hearing HE20180048 held November 1, 2018

Kaczkowski admitted guilt to five citations arising from two complaints, one arising from his representation of a client in a civil claim when he erroneously advised his client that a Consent Order could not be appealed, the other arising from non-compliance with LSA accounting rules.

The Hearing Committee accepted the joint submission on sanction as per R. v. Anthony-Cook, 2016 SCC 43 (CanLII) and R. v. Belakziz, 2018 ABCA 370 (CanLII) at para. 21, but cited Jaswal v. Newfoundland Medical Board (1996), 1996 CanLII 11630 (NL SC), 138 Nfld. & P.E.I.R. 181 (Nfld. S.C.(T.D.)) in not accepting Kaczkowski’s recent disciplinary history as an aggravating circumstance. LSA counsel submitted Law Society of Alberta v Jensen, 2018 ABLS 5 (CanLII) and Law Society of Alberta v. Kraft, 2010 ABLS 26 (CanLII) in support of the proposed sanction.

Mitigating Circumstances • Kaczkowski cooperated with the LSA, opted for a single Bencher hearing and admitted his

wrongdoing; • Kaczkowski closed his trust accounts and agreed not to apply to operate a trust account.

Aggravating Circumstances • Kaczkowski had ample time to become familiar with the rules and become fully competent.

Sanction Reprimand and a fine of $2,500.00. Costs of $4,403.05 were also ordered, payable within 6 months.

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Law Society of Alberta v. Dudelzak, 2019 ABLS 2 Single Bencher hearing HE20180045 held December 14, 2018

Dudelzak admitted guilt to one citation in relation to his carelessness in reviewing a Trust Agreement, resulting in an inadvertent misstatement of its contents to a Judge.

A panel of the Conduct Committee accepted the Agreed Statement and the Bencher accepted the joint submission on sanction of a reprimand and costs. The LSA referenced the sanctions in LSA v. George Roszler, 2017 ABLS 5 (CanLII).

Mitigating Circumstances • Agreed Statement avoided costs and time; • Dudelzak apologized to the Court and opposing counsel, was publicly shamed and had costs

awarded against him; • Dudelzak cooperated in arriving at a negotiated form of the citation; • No disciplinary record in almost 40 years of practice.

Aggravating Circumstances • Dudelzak received a Mandatory Conduct Advisory for other unintentional misrepresentations to

the Court.

Sanction Reprimand. Costs of $3,000.00 were also ordered, payable by January 1, 2019.

Law Society of Alberta v. Nguyen, 2019 ABLS 1 Single Bencher hearing HE20180024 held November 9, 2018

Nguyen faced two citations arising from a complaint following a preliminary meeting regarding legal advice on a marriage contract for a same-sex relationship: that he communicated with his client in an offensive or unprofessional tone, and that he failed to be candid with the LSA when he denied asking offensive questions or making offensive remarks.

The Hearing Committee accepted the Agreed Statement of Facts and admission of guilt and the joint submission on sanction as per The Queen v. Anthony-Cook, 2016 SCC 43 (CanLII) at para 5. The reprimand served to denounce Nguyen’s conduct and deter future misconduct as per Law Society of Alberta v. Pontin, 2014 ABLS 13 (CanLII) at para 16.

Mitigating Circumstances • Nguyen agreed to the Agreed Statement and opted for a Single Bencher hearing, shortening the

proceedings and not requiring witnesses; • Nguyen submitted that he has learned from this experience.

Aggravating Circumstances • Nguyen has a disciplinary history with the LSA.

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Sanction Reprimand, a fine of $1,000.00 for the unprofessional communication (that may be spent on training dealing with professional boundaries), and a fine of $2,000.00 for failing to be candid with the LSA. Costs of $8,000.00 were also ordered. The costs and fines were all to be paid within three months.

2018

Law Society of Alberta v. Kelly, 2018 ABLS 27 (CanLII) HE20170077 held December 3, 2018

Kelly faced 13 citations arising from 2 complaints, including failure to comply with an undertaking to the Court; failure to appear in Court and meet Court deadlines; various failures to respond and be candid with the Court, opposing counsel, the LSA, and the custodian of his practice; failure to comply with the LSA’s trust accounting rules; and failure to comply with a condition imposed by the Benchers. Kelly had been suspended in 2017.

The Hearing Committee granted Kelly’s request for a private hearing to prevent the disclosure of personal medical information, supported by Law Society of Alberta v. McCullough, 2013 ABLS 3 (CanLII) and Law Society of Alberta v. MacGregor, [2016] L.S.D.D. No. 246.

The Committee accepted Kelly’s Statements of Admitted Facts and Admissions of Guilt and considered the parties’ submissions on sanction. Kelly’s counsel argued for a nominal suspension in light of Kelly’s long career, health conditions, and steps taken to address his accounting practices. LSA counsel argued for a 6-month suspension as supported by Law Society of Alberta v. Paul Leclair, 2009 LSA 11 (CanLII) (the most relevant, though the matters were viewed as less egregious), Law Society of Alberta v. Stephen Nelson, 2014 ABLS 27 (CanLII), Law Society of Alberta v. Katherine Koska, 2014 ABLS 39 (CanLII), Law Society of Alberta v. Darren Matwe, 2006 LSA 20 (CanLII), and Law Society of Alberta v. David Torske, 2015 ABLS 13 (CanLII).

Mitigating Circumstances • No prior discipline record over 23 years; • Kelly was likely impaired during the relevant periods of time due to his health conditions; • Kelly took steps to remedy his health conditions; • Kelly is remorseful and acknowledged his misconduct.

Aggravating Circumstances • Significant number of citations; • Misconduct occurred over an extended period of time; • Misconduct involved numerous periods of non-responsiveness and a lack of candour; • Breach of accounting rules.

Sanction Four-month suspension subject to the following conditions: Kelly must report to Practice Management and abide by the Manager’s directions within one month following the term of suspension, and any

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dispute regarding the directions may be resolved by the Practice Review Committee. Kelly must pay costs of $18,000.00 within one year of reinstatement.

Law Society of Alberta v. Vinni, 2018 ABLS 26 (CanLII) Single Bencher hearing HE20180159 held December 14, 2018

Vinni faced two citations, that he provided a personal promissory note in favour of a client and entered into a business transaction with a client without advising the client to seek independent legal advice.

The Hearing Committee accepted the Statement of Admitted Facts and Admission of Guilt and the joint submission on sanction seeking a reprimand, fine, and costs.

Sanction Reprimand, fine of $2,000.00, and costs of $6,785.00 to be paid by December 15, 2019.

Law Society of Alberta v. Shim, 2018 ABLS 25 (CanLII) Single Bencher hearing HE20180025 held December 6, 2018

Shim faced four citations arising from two complaints, that he failed to serve his clients, failed to treat his clients with courtesy, attempted to influence a complainant to prevent her from reporting his conduct to the LSA, and swore an inaccurate affidavit due to carelessness.

The Hearing Committee accepted the Agreed Statement of Facts and Admissions of Conduct Deserving of Sanction and the joint submission on sanction.

Sanction Reprimand and costs of $2073.75, to be paid by the end of 2019.

Law Society of Alberta v. Rauf, 2018 ABLS 24 (CanLII) Sanction hearing HE20170076 held November 19, 2018

Rauf’s conduct, criticizing an appointment to the Court of Queen’s Bench by way of a letter written and disseminated publicly by him, was found to be deserving of sanction in Law Society of Alberta v. Rauf, 2018 ABLS 13 (CanLII).

The Hearing Committee accepted the joint submission on sanction that Rauf be suspended for seven days, pay costs, and that the LSA consent to Rauf’s application for a stay of the Committee’s order pending appeal. No conditions on reinstatement were imposed.

Rauf sought to enter additional letters, which were not admitted (with one exception) as the letters constituted improper opinion evidence speaking to his character, which had been considered at the merits hearing.

Appeal to the Benchers of the Decision on Guilt to follow.

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Aggravating Circumstances • Rauf expressed disdain for the Code of Conduct and the LSA, and contempt for the Committee

members and LSA counsel.

Sanction Suspension of seven days and costs of $15,000.00 stayed pending appeal of the Decision on Guilt.

Law Society of Alberta v. Morales, 2018 ABLS 23 (CanLII) HE20170311 held October 15, 2018

Morales, who was administratively suspended for non-payment of fees, faced eight citations arising from failures in his professional obligations due to addiction to alcohol. He failed to notify the LSA of being charged with driving under the influence, engaged in conduct that brought dishonor and discredit to the profession, failed to competently perform all legal services on behalf of his client, failed to provide his client final documents in a real estate matter, failed to properly account to his client, misappropriated the trust funds of his client, practiced law while not an active member, and represented himself as a Barrister and Solicitor while not an active member.

The Hearing Committee accepted Morales’ Statement of Facts, which admitted guilt to each of the citations, as well as the joint submission on sanction as per R. v. Anthony-Cook, 2016 SCC 43 (CanLII), Law Society of Alberta v. Pearson, 2011 ABLS 17 (CanLII), and Law Society of Alberta v. Bontorin, 2015 ABLS 9 (CanLII). The Committee suspended Morales for 18 months and ordered costs. Together with his previous administrative suspension, Morales will effectively be suspended for at least three years. The sanction is steep as the Committee had concerns that he would continue to have setbacks in his recovery and his lapses in professional conduct were serious. The appropriateness of the sanction is supported by Law Society of Alberta v. Torske, 2016 ABLS 27 (CanLII) and Law Society of Alberta v. Dear, 2014 ABLS 54 (CanLII).

Mitigating Circumstances • No disciplinary record until the past year, which occurred after these matters; • Morales has worked to address his addiction, acknowledged setbacks and took responsibility for

his conduct.

Sanction 18-month suspension and costs of $8,000.00, to be paid within one year of reinstatement.

Law Society of Alberta v. Willier, 2018 ABLS 22 (CanLII) HE20170020 held September 5, 2018

After three citations were withdrawn by the Pre-Hearing Conference Chair and the Hearing Committee dismissed three other citations as LSA counsel did not call evidence on them, Willier faced one citation, that he improperly billed his client.

The Committee accepted Willier’s Statement of Admitted Facts and Admission of Conduct Deserving of Sanction in support of the remaining citation, and referred to Rault v. The Law Society of Saskatchewan

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2009 SKCA 81 (CanLII) and R. v. Anthony-Cook, 2016 SCC 43 (CanLII) in accepting the joint submission on sanction.

Parties were not in agreement on the issue of costs. Willier’s counsel argued that costs had been waived in correspondence with the LSA, or alternatively, that costs should be reduced as most of the citations were withdrawn. Counsel also raised R. v. Gladue, 1999 CanLII 679 (SCC) in his submissions. LSA counsel provided Zuk v. Alberta Dental Assoc. and College, 2018 ABCA 270 (CanLII) and Law Society of Alberta v. Torske, 2016 ABLS 27 (CanLII) in support of ordering one-third of actual costs.

The Committee found no agreement on waiving costs within the submissions. Further, the Hearing Committee noted that it had not been provided with any evidence respecting Mr. Willier’s personal or family circumstances that would explain, mitigate, or otherwise affect Mr. Willier’s responsibility for the costs of these proceedings. The Committee referred to Torske, which doesn’t presume that the member should be responsible for costs of withdrawn citations, and Carteledge v. Alberta Veterinary Medical Association, [1999] A.J. No. 458 (C.A.), where costs were reduced. The Committee ordered reduced costs as there was no sound basis for holding Willier responsible for the unproven citations.

Mitigating Circumstances • No disciplinary record over a long practice history; • Willier serves an underserviced population and provides access to justice for Indigenous clients.

Sanction Reprimand and costs of $1,500.00, to be paid within six months.

Law Society of Alberta v. Mishna, 2018 ABLS 21 (CanLII) Single Bencher hearing HE20180230 held November 1, 2018

Mishna admitted guilt to one citation, that he failed to serve his client in a family law matter.

The Hearing Committee accepted the Agreed Statement of Facts and Admission of Guilt and found the joint submission on sanction of a reprimand and costs to be appropriate.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • No prior disciplinary record; • Mishna was cooperative and admitted his wrongdoing.

Sanction Reprimand and costs of $446.25.

Law Society of Alberta v. Harder, 2018 ABLS 20 (CanLII) Single Bencher hearing HE20180029 held September 26, 2018

Harder admitted guilt to one citation, that he applied trust monies intended for his client’s mortgage payment towards his fees instead.

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The Hearing Committee accepted the joint submission on sanction of a reprimand, a fine of $1,000.00 and costs. LSA counsel referenced Law Society of Alberta v. Welz, 2016 ABLS 47 (CanLII) and Law Society of Alberta v. A. Stephen W. Stiles, [2006] L.S.D.D. No. 18 in support of the sanction. Harder’s counsel submitted Law Society of Alberta v. Jensen, 2018 ABLS 5 (CanLII) in support of the same.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • No prior disciplinary record over 24 years; • Harder cooperated, was candid, and use of the funds was inadvertent.

Aggravating Circumstances • Conduct involved trust funds.

Sanction Reprimand, fine of $1,000.00 and costs of $1,552.50.

Law Society of Alberta v. Morales, 2018 ABLS 19 (CanLII) HE20180161 held October 12, 2018

Morales faced two citations, that he recorded conversations with another lawyer without informing them, and failed to advise another lawyer that a third party would be present during their telephone conversations. The conduct occurred while Morales was suspended and was a party to the disciplinary proceeding, not while acting in his capacity as a lawyer, though he continued to be bound by the Code of Conduct. LSA counsel called no evidence with respect to the first citation and it was dismissed.

Morales submitted a Statement of Admitted Facts and Admission of Guilt with respect to failing to advise the other lawyer, which was accepted by the Hearing Committee. The Committee accepted a joint submission on sanction of a reprimand and costs. The LSA referred to R. v. Anthony-Cook, 2016 SCC 43 (CanLII) in support of deference to the joint submission and to Bayly (Re), 2002 CanLII 53208 (NWT LS) in support of the appropriateness of the proposed sanction.

Mitigating Circumstances • No prior disciplinary record; • Agreed Statement of Facts and Admission of Guilt; • Morales acknowledged his error and took responsibility for his actions.

Sanction Reprimand, which quoted from Law Society of Alberta v. King, 2010 ABLS 9 (CanLII), and costs of $2,000.00 to be paid within three months of being reinstated as an active member of the LSA.

Law Society of Alberta v. Yarshenko, 2018 ABLS 18 (CanLII) Single Bencher hearing HE20180127 held August 10, 2018

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Yarshenko admitted guilt to three citations arising from his representation of a criminal client, that he failed to represent his client in a competent manner, failed to obtain instructions from his client, and failed to respond to other lawyers during his client’s appeal.

Yarshenko submitted an Agreed Statement of Facts and Admission of Guilt and a joint submission on sanction, which were both accepted by the Hearing Committee. LSA counsel referred to Law Society of Alberta v. Walia, 2016 ABLS 54 (CanLII) in support of the joint submission. The Committee determined that the sanction of a reprimand, a $7,000.00 fine, costs, and referral to Practice Review was appropriate.

Mitigating Circumstances • No disciplinary record with the LSA; • Yarshenko attended the 2018 National Criminal Law Program; • Agreed Statement of Facts and Admission of Guilt allowed for a single Bencher hearing.

Aggravating Circumstances • The client was incarcerated as a result of the conviction and had to hire a new lawyer and

participate in multiple legal proceedings; • The justice system was impacted as additional legal proceedings and a Special Commission

Hearing were required.

Sanction Reprimand, fine of $7,000.00, referral to Practice Review, and costs of $3,000.00 to be paid within six months.

Law Society of Alberta v. Prithipaul, 2018 ABLS 17 (CanLII) Section 83 (disbarment or suspension) Application HE20180186 held August 23, 2018

Prithipaul was statutorily suspended following a criminal sentence for assaulting his wife and children over a long period of time. LSA counsel sought disbarment or further suspension of at least two years and interpreted s.83(4) of the Act as requiring the Hearing Committee to either suspend or disbar. The Committee disagreed, interpreting the word ‘may’ as permissive and discretionary as per Achtem v. Law Society of Alberta, 1981 ABCA 145 (CanLII), Rule 103(7), the draft Section 83 and Section 84 Suspensions and Disbarments Guideline, and s. 28(2) of the Interpretation Act, RSA 2000, c I-8.

The Committee dismissed the application to disbar and directed a one-year suspension as Prithipaul had already been suspended for one year. A dissenting minority of the Committee argued that a six-month suspension would be in the public interest.

Mitigating Circumstances • Letters of support by members of the profession; • Prithipaul took responsibility for his actions and took steps towards rehabilitation.

Aggravating Circumstances • The nature of Prithipaul’s conduct, number of incidents, length of time and breach of trust.

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Decision Suspension of one year.

Law Society of Alberta v. Stark, 2018 ABLS 16 (CanLII) HE20160201 held August 2, 2018 (sanction phase)

Stark was found guilty of 18 citations arising from three complaints in Law Society of Alberta v. Stark, 2018 ABLS 12 (CanLII).

The Committee considered the negative impact of Stark’s conduct on several members of the public and lawyers, in particular significant loss of monies; her conduct was unacceptable, incompetent and disrespectful; she abdicated her responsibilities to supervise staff; she made misrepresentations to other lawyers and breached undertakings; she was not forthright and honest in her dealings with other lawyers and LSA investigators; she acted in a potential conflict of interest, and she circumvented accounting and trust rules.

LSA counsel provided the Committee with Law Society of Alberta v. Ouellette, 2016 ABLS 53 (CanLII), in which similar conduct resulted in disbarment. As Stark’s conduct arose from incompetence that is incompatible with the best interests of the public or members, has harmed the standing of the legal profession, and showed her to be ungovernable, she was disbarred.

Aggravating Circumstances • Stark was not cooperative with the investigation and did not attend the hearings.

Sanction Disbarment, costs of $67,351.59 and Notice to the Profession.

Law Society of Alberta v. Strang, 2018 ABLS 15 (CanLII) HE20170247 held July 30, 2018

Strang faced one citation, that he failed to document his disclosure and his client’s consent regarding his firm’s representation of his client’s tenant and company.

The Committee accepted Strang’s admission of guilt for failing to comply with the conflict of interest provisions of the Code of Conduct. The Committee accepted the joint submission on sanction of a reprimand, fine and costs as per R v. Anthony-Cook, 2016 SCC 43 (CanLII).

Mitigating Circumstances • No disciplinary record with the LSA; • Agreed Statement of Facts and Admission of Guilt; • Substantial steps have been taken by Strang’s firm to ensure conflict searches are performed

and disclosure of potential conflicts and client consent are properly documented.

Aggravating Circumstances • Strang is an experienced solicitor and should have known his obligations.

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Sanction Reprimand, fine of $1,000.00 and costs of $2,500.00 to be paid within 7 days.

Law Society of Alberta v. Forbes, 2018 ABLS 14 (CanLII) HE20170248 held July 30, 2018

Forbes faced two citations, that he failed to disclose a conflict of interest as his firm represented his client’s tenant and that he acted in a conflict of interest when he advised the tenant as to his rights under the Lease and Right of First Refusal between the tenant and landlord clients.

In accordance with a settlement arrangement arising from a mediation with the PHC Chair, the LSA did not call any evidence and the citations were dismissed.

Law Society of Alberta v. Rauf, 2018 ABLS 13 (CanLII) HE20170076 heard November 3, 2017 and January 29, 30 and 31, 2018 (merits phase)

The Committee found that Rauf breached the Code of Conduct, in particular Rules 4.06(1), 6.02(1), 6.02(6), and 6.05(1), and was guilty of conduct deserving of sanction after he criticized an appointment to the Court of Queen’s Bench in a letter he publicly distributed.

The Committee denied an application to have portions of the hearing held in private and dismissed an application to have parts of the letter removed from the public record.

The Committee noted that criticism of judges by lawyers is permitted. The issue is the manner, language, content and tone in which Rauf wrote the critique. A lawyer’s free speech is limited by the requirements of legal ethics, professionalism and the Code of Conduct and a Judge’s inability to respond creates a responsibility for lawyers to ensure that any critique they write is fair and courteous.

The language in the letter crossed the line into conduct deserving of sanction by name-calling, denigrating characterization and with personal opinion designed to express a lack of respect. The Committee referenced Doré v. Barreau du Québec, 2012 SCC 12 (CanLII), R. v. Kopyto (1987), 1987 CanLII 176 (ON CA), Attorney-General v. Times Newspapers Ltd., [1974] A.C. 273 (H.L.) and Histed v. Law Society of Manitoba, 2007 MBCA 150 (CanLII).

Mitigating Circumstances • Agreed Exhibits and Agreed Statement of Facts.

Sanction Sanctioning phase to follow in Law Society of Alberta v. Rauf, 2018 ABLS 24 (CanLII).

Law Society of Alberta v. Stark, 2018 ABLS 12 (CanLII) HE20160201 heard April 9, 2018 (merits phase)

Stark was found guilty of 18 citations arising from three complaints.

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The first complaint arose when Stark falsely stated to her borrower client that she had $1,000,000.00 in her trust account and that $400,000.00, which was considered security for a mortgage, was held without any conditions. The trust ledger shows that these sums were not in the trust account at any time. Stark made false representations to lawyers, in an Acknowledgement of Assignment, to a Complaints Resolution Officer and LSA investigators, breached undertakings to a lawyer when she released funds to her client and not his company, and deposited funds to her trust account for no legal purpose.

The second complaint arose when Stark acted for two companies on two loan transactions and this was a conflict or potential conflict of interest. Stark failed to serve her clients when none of the loan documents were ever executed or the caveats registered and breached LSA accounting rules when funds were paid out without consent.

The third complaint arose when Stark acted for borrower clients while in a conflict or potential conflict of interest. A letter signed by her assistant incorrectly indicated that she was acting on behalf of the lender, Stark did not witness the signing of a Personal Guarantee she notarized, loan monies were advanced before mortgages were registered and her delay in registering a mortgage caused her client to lose priority position.

Stark then failed to respond promptly or completely to the LSA and did not attend the hearing.

Sanction Sanctioning phase to follow in Law Society of Alberta v. Stark, 2018 ABLS 16 (CanLII).

Law Society of Alberta v. Llewellyn, 2018 ABLS 11 (CanLII) HE20160012 heard June 14, 2018 (sanction phase)

Llewellyn was found guilty of failing to serve his client, acting while in a conflict of interest and misleading counsel to a mortgage lender in Law Society of Alberta v. Llewellyn, 2017 ABLS 31 (CanLII).

The Committee accepted the joint submission (as per R v. Anthony-Cook, 2016 SCC 43 (CanLII)) of a reprimand, a 30-day suspension for misleading counsel, and further directed that Llewellyn pay costs. Misleading a lawyer requires a strong denunciation as it is an issue of integrity and of protecting the functioning of the legal system.

The following cases demonstrate that the sanction is reasonable: Law Society of Alberta v. Fong, 2010 ABLS 29 (CanLII), upheld on appeal 2011 ABLS 24 (CanLII); Law Society of Alberta v. Peterson, 2011 ABLS 10 (CanLII); Law Society of Alberta v. Bright, 2015 ABLS 5 (CanLII); Law Society of Alberta v. Hallet, 2017 ABLS 14 (CanLII); Law Society of Alberta v. Condin, 2010 ABLS 18 (CanLII); and Law Society of Alberta v. Ming, 2008 LSA 12 (CanLII).

Mitigating Circumstances • Lack of disciplinary record; • Agreed Statement of Facts; • Llewellyn’s motivation for his conduct was to better his client.

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Aggravating Circumstances • Llewellyn’s seniority at the Bar; • Llewellyn deliberately disregarded his professional obligations.

Sanction Reprimand, 30-day suspension, costs of $30,000.00 to be paid in monthly installments and Notice to the Profession with respect to the suspension.

Law Society of Alberta v. Tahn, 2018 ABLS 10 (CanLII) HE201660331 heard May 15, 2018

The 25 citations arose from nine complaints filed between 2014 and 2016 and included: failure to respond to his clients, failure to follow his clients’ instructions, issues with trust funds and compliance with undertakings, practice management issues and failure to respond and be candid with the LSA. Tahn admitted guilt to most of the citations and guilt of the final citation was not proven.

The Hearing Committee accepted the joint submission on sanction as per R. v. Anthony-Cook, 2016 SCC 43 (CanLII). The sanction is in line with other cases, such as Law Society of Alberta v. Dear, 2014 ABLS 54 (CanLII) and time was granted to allow Tahn to deal with his remaining files. LSA argued it was appropriate for Tahn to pay the costs and referenced Law Society of Alberta v. Torske, 2016 ABLS 27 (CanLII). The Committee granted time for Tahn to pay the costs over a period of time after reinstatement, and provided that a failure to pay would result in automatic suspension.

Mitigating Circumstances • Statement of Admitted Facts and Admissions of Guilt.

Sanction 15-month suspension effective July 1, 2018 and costs of $55,000.00 partly payable upon application for reinstatement and partly payable over the next three years.

Law Society of Alberta v. Field, 2018 ABLS 9 (CanLII) Single Bencher hearing HE20180046 heard March 26, 2018

Field admitted that he failed to file an order concerning child support and parenting time and misled his client when he advised that the order had been submitted for filing. The Bencher accepted the joint submission on sanction of a reprimand and half of the hearing costs.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • No prior disciplinary record.

Sanction Reprimand and costs of $446.25 to be paid within 1 year.

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Law Society of Alberta v. Sinn, 2018 ABLS 8 (CanLII) Resignation hearing HE20170323 heard March 27, 2018

Sinn applied to resign pursuant to either section 32 or section 61 while inactive and in the face of nine citations arising from three matters. Sinn admitted to a number of citations, which included failure to serve his client, failure to respond to his client and failure to respond promptly and completely to the LSA. The conduct in question arose in relation to an ongoing medical condition after he practiced for only a short time.

The Resignation Committee accepted the resignation application under section 32 as it was in the best interest of the public and, according the LSA submissions, the citations would not have resulted in disbarment.

Mitigating Circumstances • No prior disciplinary record; • Sinn engaged with Practice Review; • Sinn suffered from an ongoing medical condition and took immediate steps to change his status

to inactive/non-practicing; • There was no financial loss to the public.

Decision Resignation accepted (s. 32), Notice to the Profession and costs to be paid prior to any application for reinstatement.

Law Society of Alberta v. Shipanoff, 2018 ABLS 7 (CanLII) Single Bencher hearing HE20170203 heard March 15, 2018

Shipanoff admitted he failed to properly deposit and record funds in the Firm trust account and failed to properly supervise his staff. The conduct in question arose from Shipanoff’s representation of two clients and upon discovery of the second error, he paid to fix the unreported deposit.

The Bencher accepted the joint submission on sanction as per Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII) and R. v. Anthony-Cook, 2016 SCC 43 (CanLII).

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt allowed for a single Bencher hearing; • Shipanoff freely admitted his error.

Sanction Reprimand and costs of $7,500.00.

Law Society of Alberta v. Garber, 2018 ABLS 6 (CanLII) Single Bencher hearing HE20170138 heard March 1, 2018

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Garber’s conduct in question arose when he transitioned to a sole practice and engaged in business with a colleague at the same time as providing legal services to their venture. Garber admitted that he acted in a potential conflict of interest without his clients’ consent, engaged in a business transaction with his client and did not recommend independent legal advice, failed to comply with trust conditions, breached the accounting rules and failed to discharge his duties as the responsible lawyer of his trust account.

The Bencher noted that ordinarily these citations would be quite serious, but in the circumstances a reprimand was appropriate. Garber did not benefit from his conduct and no party suffered any financial loss.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt allowed for a single Bencher hearing; • No prior disciplinary record over 30 years; • Garber engaged with Practice Management; • Garber was remorseful.

Sanction Reprimand and actual costs of $5,000.00 payable within 18 months.

Law Society of Alberta v. Jensen, 2018 ABLS 5 (CanLII) Single Bencher hearing HE20170201 heard March 13, 2018

Jensen admitted he failed to file required trust reports and failed to respond promptly and completely to the LSA in regard to those reports. LSA referenced Law Society of Alberta v. Worobec, 2017 ABLS 25 (CanLII), and Law Society of Alberta v. Welz, 2016 ABLS 47 (CanLII) in support of the jointly submitted sanction.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt allowed for a single Bencher hearing; • No prior disciplinary record; • Jensen was cooperating with Practice Management to wind up his practice.

Sanction Reprimand, fine of $500.00 and costs of $2,089.84, both to be paid by June 30, 2018.

Law Society of Alberta v. Aujla, 2018 ABLS 4 (CanLII) HE20150266 heard March 19, 20 and 21, 2018

Aujla faced five citations which arose from several real estate transactions that involved fraud. Law Society of Alberta v. Chhoker, 2017 ABLS 4 (CanLII), 2017 ABLS 16 (CanLII) and Law Society of Alberta v. Singh, 2017 ABLS 7 (CanLII) relate to the same lapping scheme.

Aujla admitted that he failed to properly supervise staff, signed cheques to disburse trust funds that were received for no legal purpose, failed to conscientiously serve his clients and assisted in an improper

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purpose. A final citation was dismissed, that he assisted a realtor in an improper purpose. The Hearing Committee accepted the joint submission on sanction as per R. v. Anthony-Cook, 2016 SCC 43 (CanLII).

Mitigating Circumstances • Joint submission on sanction; • Aujla has been participating in Practice Review and changed his practices; • Aujla was cooperative and did not have integrity issues or misappropriate funds.

Aggravating Circumstances • Disciplinary record.

Sanction 12-month suspension, Notice to the Profession, restriction on practice to immigration work until June 30, 2018, permanent restriction from practicing real estate and costs of $50,000.00 to be paid within one year of reinstatement or by July 1, 2021.

Law Society of Alberta v. Lloyd, 2018 ABLS 3 (CanLII) Single Bencher hearing HE20170204 heard February 27, 2018

While administratively suspended for non-payment of fees, Lloyd admitted that his conduct was deserving of sanction when he did not file his trust accounting reports from 2014-2016 and failed to respond promptly or completely to communications from LSA about these outstanding reports.

The Bencher accepted the joint submission on sanction. LSA referenced Law Society of Alberta v. Thomas C. Lloyd, 2013 ABLS 26 (CanLII) and Law Society of Alberta v. Allan Fay, 2014 ABLS 40 (CanLII) in support of the fine. The fine is higher than in Fay because Lloyd was previously found guilty of filing an inaccurate form and the principle of deterrence did not support reduction of a fine as the conduct was similar to the conduct from which the 2013 disciplinary matter arose.

Mitigating Circumstances • Statement of Facts and Admission of Guilt; • Lloyd cooperated with LSA.

Aggravating Circumstances • Prior discipline for the same conduct.

Sanction Reprimand, a fine of $10,000.00 and costs of $2,467.50, both to be paid prior to an application for reinstatement.

Law Society of Alberta v. Schuster, 2018 ABLS 2 (CanLII) HE2015005 heard March 15 and 20, 2018 (costs decision)

A Hearing Committee had dismissed five of six citations against Schuster, finding him guilty on once citation, and issued a reprimand. The Appeal Panel dismissed his appeal, Law Society of Alberta v.

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Schuster, 2017 ABLS 24 (CanLII), and directed him to pay the costs of the appeal. The Appeal Panel did not specify the timing of payment.

Schuster sought deferral of costs until his appeal to the Court of Appeal was determined or until after one year. LSA sought costs payable forthwith.

Decision The Appeal Panel determined that Schuster must pay the costs of the appeal, $12,528.61, no later than two weeks after the date of the Alberta Court of Appeal’s determination of his appeal.

Law Society of Alberta v. Mulder, 2018 ABLS 1 (CanLII) Resignation hearing HE20170170 heard January 25, 2018

Mulder applied for resignation (s. 61) while suspended in the face of nine citations arising from five complaints. It was alleged that Mulder failed to report an accident to the RCMP and failed to provide evidence of insurance, failed to respond to the LSA, accepted trust funds without having a trust account, misappropriated trust funds, failed to provide legal services to the standard of a competent lawyer, used an illegal substance, engaged in unbecoming conduct before the Court, failed to be candid with LSA Investigators and failed to respond to the Custodian. Mulder’s conduct had been the subject of 12 completed Assurance Fund investigations, half of which involved misappropriation.

The Resignation Committee allowed the resignation as it was in the best interest of the public and in order to avoid a lengthy and costly hearing.

Mitigating Circumstances • Agreed Statement of Facts and Admissions.

Decision Resignation accepted (s. 61), Notice to the Profession and costs to be paid prior to any application for reinstatement. Mulder undertook to cooperate with the LSA and ALIA with respect to any claim made against him, pay any deductible with respect to any such claim, pay the LSA the amount of any claim paid the Assurance Fund or by any indemnity program fund and to surrender his Certificate of Enrolment to the LSA if he is able to locate it.

2017

Law Society of Alberta v. Warne, 2017 ABLS 32 (CanLII) Single Bencher hearing HE20170249 heard November 1, 2017

Warne admitted that she failed to serve her client and failed to fulfill her commitment to ensure personal service on her client while she represented that client in a divorce matter. The Bencher accepted the joint submission on sanction.

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Mitigating Circumstances • Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • No disciplinary record; • Warned admitted guilt early, was cooperative, and candid; • Warne is participating with Practice Management.

Sanction Reprimand and costs of $6,536.00 (half the actual costs) to be paid within four months.

Law Society of Alberta v. Llewellyn, 2017 ABLS 31 (CanLII) HE20160202 heard October 24 – 26, 2017 (merits phase)

Llewellyn faced three citations which included failure to serve his client, acting while in a conflict of interest, and misleading counsel to a mortgage lender. Llewellyn took on a client of limited financial means and comprehension and involved the client in a complicated business deal that Llewellyn originated and orchestrated.

The Hearing Committee noted that Llewellyn was well-experienced in foreclosure matters and had a duty to be competent, to render competent services and to fully inform the client of any risks of any proposed action. Llewellyn had not adequately advised his client of the risks and obligations, acted without informed instructions and knew the cheques were not certified and would not clear.

The Committee noted that a lawyer must not act for more than one party in a potential conflict situation unless all such parties consent and it is in the best interest of the parties; full disclosure must be given, and the best interest of the parties must be continually assessed. Llewellyn admitted he did not advise his client of any conflict of interest as he did not perceive there to be any conflict. The Committee found there to be insufficient disclosure of the conflict, informed consent was not given and a lawyer must not engage in a business transaction with a client who does not have independent legal representation, unless the client consents and the transaction is fair and reasonable to the client.

The Committee noted that a lawyer's duty to act with integrity is the cornerstone of the profession and a lawyer must not lie or mislead another lawyer. Llewellyn's communications with counsel for the lender to the numbered company were incomplete and he shrugged off compliance with lending conditions. It was not Llewellyn's place to substitute his judgment for that of others when he decided his client had adequate protection, he did not advise the lender that there was no borrower's equity in the property at the time of close and he knew that neither his clients nor his numbered company had the funds to contribute to the purchase of the property and he admitted that he borrowed the money from a third-party lender for his client.

Decision The Committee found that Llewellyn is guilty of conduct deserving of sanction on three citations and the matter proceeded to a sanction hearing - See Law Society of Alberta v. Llewellyn, 2018 ABLS 11 (CanLII).

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Law Society of Alberta v. Wilson, 2017 ABLS 30 (CanLII) HE20140046 held December 5, 2017 (sanction phase)

After guilt was found on the merits, Law Society of Alberta v. Wilson, 2016 ABLS 51 (CanLII), the sanction phase of the hearing was held. Except for the amount of the fine, the parties had already agreed on all issues including that the conduct was deserving of a reprimand and a fine. The Hearing Committee agreed that a reprimand and fine were adequate and imposed the smaller fine of $5,000.00 sought by Wilson's counsel, rather than the $10,000.00 sought by LSA. Parties agreed that full costs would be paid and Wilson was granted 12 months to pay the fine and costs.

Mitigating Circumstances • Agreed Exhibit Book.

Sanction Reprimand, a fine of $5,000.00 and costs of $11,488.98, both to be paid within 12 months.

Law Society of Alberta v. Zilinski, 2017 ABLS 29 (CanLII) HE20150267 heard September 20, 2017 (costs decision)

Following a conduct hearing Law Society of Alberta v. Zilinski, 2017 ABLS 13 (CanLII) where Zilinski was found guilty of 41 of the 48 citations levied against him and was ordered to be disbarred, a hearing was held to determine costs. Zilinski again did not attend and did not make any submission on costs.

LSA counsel sought costs of $52,000.00, which it argued was on the low side for a hearing of this complexity and involvement as there were three days used for the hearing, there were 48 citations from 13 complaint files and there were over a dozen witnesses. LSA referenced C. (K) v. College of Physical Therapists (Alberta), 1999 ABCA 253 (CanLII) in support of its submission on costs. The Hearing Committee found the costs to be reasonable as they were actual expenses incurred by the LSA. These costs would not have been incurred if not for Zilinski's conduct, which included his failure to accept service, appear at the hearing and communicate with LSA.

Sanction Disbarment, Notice to the Profession and costs of $51,131.25 to be paid prior to reinstatement.

Law Society of Alberta v. Ayers, 2017 ABLS 28 (CanLII) Single Bencher hearing HE20170202 heard October 20, 2017

Ayers admitted he failed to serve his client, failed to respond promptly and completely to his client and failed to respond to the LSA. The Bencher accepted the joint submission on sanction.

Mitigating Circumstances • Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • Ayers was cooperative with Practice Management.

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Sanction Reprimand, fine of $7,500.00 and actual costs to be paid within 2 months.

Law Society of Alberta v. Smith, 2017 ABLS 27 (CanLII) Single Bencher hearing HE20170111 heard December 12, 2017

Smith admitted that he failed to follow his client’s instructions when he failed to bring a matter back before the court. LSA referenced Law Society of Alberta v. Warnock, 2010 ABLS 2 (CanLII), Law Society of Alberta v. Botan, 2016 ABLS 8 (CanLII), Law Society of Alberta v. Maurice, 2016 ABLS 22 (CanLII) and Law Society of Alberta v. Bright, 2015 ABLS 5 (CanLII) in support of the joint submission on sanction, which the Bencher accepted.

Mitigating Circumstances • Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • No prior disciplinary record; • Smith cooperated.

Sanction Reprimand and costs of $1,260.00 to be paid by January 1, 2018.

Law Society of Alberta v. Burkinshaw, 2017 ABLS 26 (CanLII) Resignation hearing HE20170130 heard October 11, 2017

Burkinshaw applied to resign (s. 61) while inactive and in the face of several serious citations which included failure to act with integrity in improperly applying trust funds to pay his own legal fees, failure to follow his client’s instructions, a breach of trust conditions and issuing an NSF cheque. There were also a number of outstanding complaints under investigation. Burkinshaw verified he has not practiced law since the date of his Custodianship Order. He agreed to cooperate with LSA and ALIA with regard to any claims, to pay any deductible in respect of any claim paid by ALIA and to pay the amount of any assurance fund claims arising from his conduct.

Burkinshaw admitted that if he were found guilty of the conduct described in the Statement of Admitted Facts it would likely result in disbarment. The Resignation Committee permitted Burkinshaw to resign as it served the public interest and avoided the cost, inconvenience and delay of a hearing. As the complaints against Burkinshaw suggest he is ungovernable, his behaviour requires that he lose his status as a member to protect the public.

Mitigating Circumstances • Agreed Statement of Facts and Admissions.

Decision Resignation accepted (s. 61), costs to be paid forthwith and prior to any application for reinstatement, Notice to the Profession and referral to the Attorney General.

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Law Society of Alberta v. Worobec, 2017 ABLS 25 (CanLII) Single Bencher hearing HE20150242 heard September 18, 2017

Worobec admitted guilt to two citations arising from Trust Safety audits of his practice. Worobec failed to comply with the Rules of the Law Society when he failed to provide Accountant’s Reports in a timely manner, he failed to respond to Trust Safety in a timely manner, was discourteous in a voice message and failed to report Writs of Enforcement against him. Worobec then successfully participated in Practice Review.

Parties referenced the sanction assessed in Law Society of Alberta v. Kraft, 2010 ABLS 26 (CanLII) and Law Society of Alberta v. Welz, 2016 ABLS 47 (CanLII). The Bencher accepted the joint submission on sanction.

Mitigating Circumstances • Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • No disciplinary history with the LSA.

Sanction Reprimand, fine of $500.00 and costs of $1,000.00.

Law Society of Alberta v. Schuster, 2017 ABLS 24 (CanLII) Appeal hearing HE20150005 heard May 10 and September 6, 2017

Schuster had been issued a reprimand following his failure to advise his client of a material error or omission. His counsel challenged both the Merits Decision (2015 ABLS 15 (CanLII)) and the Sanction Decision (2016 ABLS 32 (CanLII)), seeking an appeal on the grounds that a breach of natural justice and procedural unfairness in relation to steps taken during the investigation stage rendered the entire proceeding against him void and secondly, that the determination of guilt was not acceptable as Schuster's acts were argued to be reasonable in the circumstances.

The Appeal Panel found the appropriate standard of review on issues of procedural fairness is correctness. For the Merits Decision and the Sanction Decision, the standard of review is reasonableness, as per Moll v. College of Alberta Psychologists, 2011 ABCA 110 (CanLII), at para. 20 and Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), at para. 47.

The Appeal Panel found no lack of procedural fairness or breach of natural justice at any stage. The investigation report was not submitted as evidence at the hearing, nor was its author called to give evidence. Schuster received a copy and had opportunities to respond. The Appeal Panel gave the report no weight and found that the process and policies of LSA regarding investigations was fair and the principles of fairness were complied with in this case. The allegation of a breach of natural justice should have been raised as a question of jurisdiction at the outset of the proceeding before the Hearing Committee.

Schuster did not appear to allege that the Hearing Committee came to erroneous factual conclusions based on the evidence that it heard, so these facts can be accepted.

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The sanction imposed was not based on application of the wrong principles or demonstrably unfit, as it was an uncontroverted fact that Schuster made an error that he did not disclose to his client. As he did not appear to appreciate the significance of his actions, the Panel found all decisions to be reasonable.

Decision The appeal was dismissed. A subsequent decision regarding the deadline for paying costs was issued in 2018 at Law Society of Alberta v. Schuster, 2018 ABLS 2 (CanLII).

Law Society of Alberta v. Schwartzberg, 2017 ABLS 23 (CanLII) Single Bencher hearing HE20170250 heard November 10, 2017

Schwartzberg admitted he failed to serve his purchaser and lender clients, acted in a conflict or potential conflict of interest and failed to properly supervise his staff. Schwartzberg had not ensured that property taxes were paid on multiple real estate transactions, failed to provide the purchaser with final documents, failed to register a mortgage until two weeks after funds were disbursed, failed to disclose a potential conflict and allowed his assistant to handle the files without his supervision. Schwartzberg has since changed his procedures. The Bencher accepted the jointly proposed sanction.

Mitigating Circumstances • Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • Schwartzberg freely admitted his guilt.

Sanction Reprimand and costs of $13,910.71, to be paid within one year.

Law Society of Alberta v. Kaczkowski, 2017 ABLS 22 (CanLII) HE20170021 heard July 18, 2017

Kaczkowski admitted guilt to six citations that arose from three complaints after he failed his clients in various ways and failed to respond to another lawyer. Three citations were withdrawn and one was amended at a pre-hearing conference. The Hearing Committee accepted the joint submission on sanction as per R. v. Anthony-Cook, 2016 SCC 43 (CanLII).

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt.

Sanction Reprimand, fine of $1,500.00 and costs, both to be paid within 6 months.

Law Society of Alberta v. Thomas, 2017 ABLS 21 (CanLII) HE20110013 heard October 23, 2017 (sanction phase)

Thomas faced 13 citations and either admitted guilt or was found guilty of conduct deserving of sanction on 10 citations in Law Society of Alberta v. Thomas, 2016 ABLS 55 (CanLII).

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Thomas ran into trust accounting problems after he started a solo practice, was administratively suspended for not paying his practice fees, had family stress and experienced ongoing health issues. Thomas said he addressed his health issues and assured the Committee that he understands the gravity of his past actions. Thomas acknowledged that he didn’t take any steps to repay money paid out to his former clients by the Assurance Fund on his behalf. He also acknowledged that he did not make any apologies to the custodian, he did not respond in a timely matter to the custodian or to his clients that he knew were negatively impacted. Thomas did not respond to the inquiries by the Chair of this Committee by the deadline requested and did not provide complete information.

LSA sought disbarment while Thomas argued that a lengthy suspension, payment of costs, conditions imposed on his practice and involvement of practice review would be appropriate.

LSA argued that any one of the three main categories of citations against Thomas may result in disbarment (failure to uphold the law and bringing the profession into disrepute, misappropriation of funds and ungovernability), citing Doolan v. Law Society of Manitoba, 2016 MBCA 57 (CanLII), Law Society of Alberta v. Beaver, 2017 ABLS 3 (CanLII), Law Society of Upper Canada v. Carter, 2005 ONLSHP 24 (CanLII) at paras. 69-70, Law Society of Upper Canada v. Thomas Michel Hicks, 2005 ONLSHP 2 (CanLII) at paras. 44-45, Law Society of Alberta v. Riccioni, 2012 ABLS 15 (CanLII) at pp. 14-15, Law Society of Alberta v. Dewett, 2016 ABLS 13 (CanLII) and Law Society of Alberta v. Broda, 2016 ABLS 23 (CanLII).

The Committee found that there was no medical evidence to substantiate the argument that health issues caused or contributed to Thomas’s conduct. Nor was any medical or expert evidence presented regarding successful treatment of these issues or fitness for practice.

Thomas misappropriated a substantial amount of funds over an extended amount of time, did not cooperate with LSA investigators or the custodian of his practice, and his continued lack of responsiveness, his combativeness and conduct made it clear he was ungovernable.

Aggravating Circumstances • Thomas’ conduct was serious and involved attempts to mislead law enforcement officials; • Thomas was uncooperative.

Sanction Disbarment effective immediately and costs of $150,000.00 were assessed.

Law Society of Alberta v. Dupres, 2017 ABLS 20 (CanLII) Single Bencher hearing HE20160307 heard October 3, 2017

Dupres admitted he briefly failed to maintain a professional relationship with his client and such conduct was deserving of sanction. The Bencher accepted the joint submission on sanction.

Mitigating Circumstances • Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • No disciplinary history; • Dupres was cooperative and admitted his wrongdoing immediately;

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• Dupres sought assistance with underlying issues and was remorseful.

Sanction Reprimand and costs of $6,500.00 to be paid over seven months.

Law Society of Alberta v. Dawe, 2017 ABLS 19 (CanLII) HE20160203 heard July 24, 2017

Dawe faced four citations arising from his representation of the vendor, the purchaser and the lender on a real estate transaction. Dawe admitted that he failed to properly supervise staff and failed to conduct himself as a reasonable and prudent solicitor, which enabled his client and others to achieve an improper purpose. The remaining citations, that he failed to conscientiously serve his clients and failed to protect the interests of his client, were deemed to be lesser than those Dawe admitted to and were dismissed.

Dawe overlooked red flags associated with mortgage fraud and though the property went into foreclosure, the lender made full recovery of funds. Dawe’s abdication of responsibility for oversight allowed mortgage fraud that may well have been discovered had he properly discharged all his obligations as lawyer. The Hearing Committee accepted the joint submission on sanction.

Mitigating Circumstances • Agreed Statement of Facts and Admissions of Guilt; • Successful participation in Practice Review; • Dawe was cooperative and took responsibility for an isolated incident; • No recent or related disciplinary record; • Joint submission on sanction.

Sanction Suspension of 14 days, Notice to the Profession and costs of $3,360.00.

Law Society of Alberta v. Heming, 2017 ABLS 18 (CanLII) Single Bencher hearing HE20160308 heard September 11, 2017

Heming admitted that she registered a Transfer of Land in breach of an undertaking given to another lawyer and that was conduct deserving of sanction. Heming had prior disciplinary history and was participating with Practice Review.

The Bencher found Heming guilty and granted her one year to pay the costs.

Mitigating Circumstances • Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • Heming freely admitted her error.

Sanction Reprimand, fine of $6,000.00 and costs of $1,500.00, both to be paid within one year.

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Law Society of Alberta v. Llewellyn, 2017 ABLS 17 (CanLII) HE20160012 heard August 9 – 10, 2017

LSA sought to prove that Llewellyn was guilty of conduct deserving of sanction on four citations, primarily on the basis of an Agreed Statement of Facts and believed his admissions proved his guilt, but Llewellyn did not admit guilt.

The citations related an undertaking Llewellyn gave to another lawyer that he knew or should have known it could not be fulfilled, failing to act to the standard of a careful and prudent lawyer, failing to properly supervise his paralegal and support staff and a junior lawyer, and misuse of a trust fund contrary to the Rules.

The Committee dismissed all citations.

Llewellyn was able to fulfil his undertaking to the lawyer, so that citation was dismissed. In relation to the citation regarding the failure to act to the standard of a careful and prudent lawyer, Llewellyn's testimony was not contradicted and went to disprove the citations. The Committee noted that the LSA does not have a definition of legal advice and it was not obvious that the paralegal ever gave any. It also noted that the junior lawyer was a fully trained, active member and Llewellyn does not bear responsibility for her actions. LSA argued that having admitted to the transaction record regarding the use of the trust fund, Llewellyn is automatically guilty of conduct deserving of sanction. The Committee disagreed. There is no definition of "legal services" in the LPA or the Rules and there is no penalty section of the Rule stating that any breach of this Rule, however understood, results in an automatic finding of guilt. Llewellyn’s conduct does not amount to harmful conduct and the citation was dismissed.

Decision Citations dismissed

Law Society of Alberta v. Chhoker, 2017 ABLS 16 (CanLII) HE20150263 heard August 17, 2017 (sanction phase)

Chhoker was found guilty of all six citations he faced at Law Society of Alberta v. Chhoker, 2017 ABLS 4 (CanLII). The citations arose from Chhoker’s facilitation of a lapping scheme using his trust account. It was alleged that Chhoker: failed to report unethical conduct, gave misleading answers under oath, failed to be candid with the LSA, disbursed trust funds in contravention of the Rules and signed a second cheque on the strength of a Direction to Pay without making other enquiries to confirm the recipient.

Chhoker's failure to report unethical conduct was a significant infraction, his reliance on altered documents at questioning made his answers false and misleading and his adherence to his position, which he knew to be wrong, led to a much longer investigative process. The substance of Chhoker’s conduct most influenced the Hearing Committee and had he not told the truth to the investigator he may well have faced disbarment.

The Committee recommended leniency with respect to time allowed for payment and agreed that up to $5,000.00 of the costs might be used to pay for continuing legal education, subject to negotiation.

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Mitigating Circumstances • Chhoker cooperated with Practice Management; • Statement of Admitted Facts (admitted to half the citations).

Sanction Suspension of six months, costs of $75,000.00, Notice to the Profession and referral to the Attorney General.

Law Society of Alberta v. Randhawa, 2017 ABLS 15 (CanLII) Single Bencher hearing HE20160013 heard June 27, 2017

Randhawa admitted that he failed to adequately supervise his staff on a matrimonial file when his secretary filed a Notice of Adjournment in respect to a Notice to Disclose Application, but failed to notify the opposing party.

LSA sought a reprimand and fixed hearing costs while counsel for Randhawa submitted that he had been under a longer de facto suspension than would appear from the record. Randhawa agreed with the joint submission and requested time to pay the costs.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt allowed for a single Bencher hearing; • Randhawa freely admitted his error.

Sanction Reprimand and costs in the amount of $1,500.00 to be paid by July 27, 2018.

Law Society of Alberta v. Hallett, 2017 ABLS 14 (CanLII) Single Bencher hearing HE20150002 heard June 27, 2017

Hallett admitted that she failed to serve her client, failed to respond to another lawyer on a timely basis, failed to respond promptly or completely to the LSA and failed to be candid with the LSA. LSA sought a sanction of a reprimand and Hallett requested one month to pay the costs, which the Hearing Committee granted.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt allowed for a single Bencher hearing; • Hallett freely admitted her error.

Sanction Reprimand and costs in the amount of $1,500.00 to be paid by July 27, 2017.

Law Society of Alberta v. Zilinski, 2017 ABLS 13 (CanLII) HE20150267 heard January 4 – 6, 2017

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Zilinski failed to appear, there had been no communication from him or an agent and an earlier hearing had been cancelled due to concerns that he had not been properly served with notice. Zilinski had been served in person and provided with a telephone number, but he did not contact the LSA as he said he would and could not be found despite efforts to locate. Late in the evening prior to the hearing, a faxed medical note arrived requesting indefinite postponement of the proceedings. Zilinski had left a telephone message but Zilinski did not follow up as promised. The medical note was faxed from a law office, lacked detail, failed to provide a medical plan to explain the nature and duration of recovery and provided no understanding as to the specific reason for postponement. The doctor did not provide clarification throughout the three days of hearings and the adjournment was denied.

Zilinski, who was suspended since July 2013, faced 48 citations which arose from 13 complaints. The burden of proof rested with the LSA as per FH v. McDougal, 2008 SCC 53 (CanLII). The Hearing Committee found that most of the citations were proven and that Zilinski was guilty of conduct deserving of sanction. Zilinski's misconduct included misappropriation of funds and demonstrated a lack of governability, honesty and integrity. The Committee referenced Adams v. The Law Society of Alberta, 2000 ABCA 240 (CanLII) as per the importance of protecting the public interest and governing the profession and ordered that Zilinski be disbarred.

Sanction Disbarment and Notice to the Profession. Costs were assessed in a separate hearing: Law Society of Alberta v. Zilinski, 2017 ABLS 29 (CanLII).

Law Society of Alberta v. Fletcher, 2017 ABLS 12 (CanLII) HE20160148 heard April 12, 2017

Fletcher admitted guilt to four citations and a fifth citation was dismissed. The citations arose from a criminal investigation into a mortgage fraud scheme and Fletcher's counsel characterized him as a ‘dupe’ who pushed documents through without exercising the diligence expected of a reasonable and prudent lawyer. Fletcher acted on 24 transactions where lenders advanced mortgage funds based on inflated purchase prices and tens of thousands of dollars per transaction were paid to individuals who had no right to receive those funds. In doing so, Fletcher unknowingly engaged in conduct that enabled a client or party to achieve an improper purpose, failed to act to the standard of a careful and prudent lawyer and failed to conscientiously serve his purchaser and lender clients.

The Hearing Committee accepted the joint submission on sanction as per R v. Anthony-Cook, 2016 SCC 43 (CanLII).

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt; • Joint submission on sanction; • Involvement in the scheme was not intentional; • No disciplinary history; • Engaged with Practice Review and was cooperative; • Very low risk of similar behaviour in the future.

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Sanction Suspension of 30 days, Notice to the Profession and costs of $12,083.17 to be paid within 6 months of reinstatement.

Law Society of Alberta v. Hodgson, 2017 ABLS 11 (CanLII) HE20160061 heard February 8, 2017

Hodgson faced 24 citations arising from 9 real estate transactions. He admitted to 16 of the 24 citations. Hodgson facilitated his client achieve an improper purpose when he failed to see red flags, he failed to serve clients competently, failed to properly document or follow his clients’ instructions, failed to supervise employees and failed to respond to another lawyer. There was no intentional wrongdoing on Hodgson’s part. The Hearing Committee accepted the joint submission on sanction as per R v. Anthony-Cook, 2016 SCC 43 (CanLII).

Mitigating Circumstances • No disciplinary record and low risk of recurrence; • Statement of Admitted Facts and Admission of Guilt; • Hodgson voluntarily participated with Practice Management and was cooperative.

Sanction Suspension of 30 days to be served no later than August 2017, continued involvement with Practice Management for at least 12 months and reduced costs to be paid within one year of re-instatement. Hodgson may allocate up to $5,000.00 of the costs to his continuing legal education.

Law Society of Alberta v. Watzke, 2017 ABLS 10 (CanLII) Resignation hearing HE20150164 heard April 25, 2017

Watzke applied to resign (s. 32) while inactive and in the face of citations. Watzke admitted he acted in breach of an undertaking to the LSA to adhere to practice restrictions when he did not inform everyone at his employment of his practice restrictions, failed to be candid with the LSA during its investigation of the breach when he failed to submit complete documentation and made a false declaration before a Notary Public that he did not have a disciplinary history. It was alleged that Watzke failed to comply with Rules 107.1 and 119.34 of the LSA, which he disputed.

Watzke swore that he had no client files, had not had a trust account since 1994 and further provided an undertaking to never apply for reinstatement with the LSA.

The Resignation Committee was satisfied that the public interest was served and protected, and accepted the resignation with Watzke’s undertaking to not seek readmission. Watzke provided medical evidence that assisted the Committee in understanding his history of medical impairment, the details of which were held in private and redacted.

Mitigating Circumstances • History of medical impairment; • Agreed Statement of Facts and Admissions.

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Decision Resignation accepted (s. 32), Notice to the Profession and costs of $15,000.00 to be paid if Watzke sought to be relieved of his undertaking to never seek re-admission to the LSA.

Law Society of Alberta v. Lennie, 2017 ABLS 9 (CanLII) Resignation hearing HE20160054 heard April 10, 2017

Lennie applied for resignation (s. 32) in the face of ten citations arising from two separate real estate matters. Lennie admitted he acted while in a conflict of interest, benefitted from preferring the interests of one client over another, failed to conscientiously serve his client and wrongfully released trust funds. It was alleged that he breached a trust condition and accounting rules, failed to comply with several directions of the Court, failed to respond to LSA investigators and failed to keep his client informed about the progress of her matter. Lennie had received many complaints and had been suspended from 1999-2002.

The Resignation Committee accepted the jointly proposed section 32 resignation, as it is in the best interest of the public and would avoid a hearing that would involve at least 11 witnesses to events that occurred some 10 years ago. Lennie undertook not to act as an agent for others and was permitted time to wind up his practice.

Mitigating Circumstances • Agreed Statement of Fact and Admission of Guilt on a number of citations; • Joint submission on sanction; • The events giving rise to the citations had occurred approximately 10 years ago; • The undertaking not to act as an agent was considered when assessing s. 32 vs s. 61.

Decision Resignation accepted (s. 32), Notice to the Profession and payment of actual costs if re-admission is sought.

Lennie undertook to have trust account records complete and up to date as of the effective date of resignation, to have all trust funds accounted for and paid over or properly transferred, to have trust accounts closed, to submit a final Law Firm Self-Report and Trust Safety Accounting Upload, and to deliver a detailed list of all files being transferred to other lawyers to the LSA.

Law Society of Alberta v. Klassen, 2017 ABLS 8 (CanLII) Single Bencher hearing HE20160014 heard March 30, 2017

Klassen admitted he failed to advance two civil litigation matters for his client from approximately 2007 to 2013. The Hearing Committee accepted the joint submission on sanction.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt for a single Bencher hearing; • Klassen freely admitted his error and cooperated; • Klassen benefitted from Practice Review;

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• Joint submission on sanction.

Sanction Reprimand and estimated costs of $1,918.88, which may be reduced, to be paid within 3 months.

Law Society of Alberta v. Singh, 2017 ABLS 7 (CanLII) Resignation hearing HE20150265 heard February 21, 2017

Singh applied for resignation (s. 32) in the face of four citations. Singh admitted guilt to three of the four citations. Singh failed to conscientiously serve his clients and breached trust rules when he signed trust cheques without a Direction to Pay, which assisted a realtor to engage in fraudulent acts relating to a lapping scheme, and he acted while in a conflict of interest when he registered a caveat against his firm’s client without conducting a conflict search. Singh did not admit to assisting the realtor in an improper purpose as he was unaware of the scheme.

The Resignation Committee determined it was in the best interest of the public to accept the resignation with Singh's undertakings and he is to pay the actual costs of the hearing and partial investigation costs (reduced to 1/5 from 1/3).

Mitigating Circumstances • Agreed Statement of facts and Admissions of Guilt; • Statement of Undertakings and Agreements.

Decision Resignation accepted (s. 32) and costs of $34,856.74 to be paid by February 21, 2019.

Law Society of Alberta v. Lacourciere, 2017 ABLS 6 (CanLII) Single Bencher hearing HE20160263 heard January 10, 2017

Lacourciere admitted he failed to honour trust conditions and failed to respond on a timely basis to communications from another lawyer. He failed to discharge a certificate of Lis Pendens, failed to get a Certified Copy of Title to confirm that a mortgage had been postponed and failed to respond to multiple requests from another lawyer.

The Hearing Committee accepted the jointly proposed sanction. As Lacourciere was guilty of conduct deserving of sanction on multiple previous occasions, it was noted that a more severe sanction may be required if he should come before the LSA again.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt allowed for a single Bencher hearing; • Joint submission on sanction; • Lacourciere admitted his error.

Aggravating Factors • Long disciplinary record.

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Sanction Reprimand, referral to Practice Review, costs and a fine of $7,000.00, both to be paid by September 30, 2017.

Law Society of Alberta v. Roszler, 2017 ABLS 5 (CanLII) Single Bencher hearing HE20160147 heard January 9, 2017

Roszler admitted he failed to treat another lawyer with courtesy and failed to be accurate, candid and comprehensive in his submissions to the Court. Roszler did not give the Complainant notice of his application to seek personal costs and then failed to advise the court of the address and contact information for service of documents, among other things.

The Committee accepted the jointly proposed sanction of a reprimand and payment of costs. There were no material investigation costs associated with this complaint and, though he was somewhat resistant in coming to his admission, he did make the agreement and avoided the need for a contested hearing.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt; • Joint submission on sanction; • No disciplinary record.

Sanction Reprimand and costs of $1,734.00 to be paid within 60 days of the written decision.

Law Society of Alberta v. Chhoker, 2017 ABLS 4 (CanLII) HE20150263 heard December 15 and 16, 2016 and February 6, 2017 (merits phase)

Chhoker admitted guilt to three of six citations relating to a lapping scheme using a trust account. The three citations alleged that Chhoker failed to report unethical conduct, gave misleading answers under oath and failed to be candid with the LSA.

On the basis that he did not have the required intent and knowledge, Chhoker contested guilt regarding disbursement of trust funds in contravention of the Rules and signing a second cheque on the strength of a Direction to Pay without making other enquiries to confirm the recipient. These transactions funded part of the lapping scheme.

LSA relied on the reverse onus in s. 67 of the Act, Rules 122.1 and 124 prohibit the payment of trust funds where no legal services are required, several key factors must be satisfied prior to disbursing trust funds and the Rules acknowledge the possibility of inadvertence or error. The Hearing Committee found that Chhoker was required to take further steps than to look at the Direction to Pay, which he acknowledged looked irregular and for the second cheque, directed that he pay an apparent stranger. The Committee found Chhoker guilty of conduct deserving of sanction.

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Chhoker claimed the clients B and T were properly served. The Committee found Chhoker to be the responsible lawyer for T despite other lawyers in the firm being involved on the file, and found that he failed to serve both clients in various ways.

Chhoker assisted a realtor in an improper purpose when he relied on falsified documents, gave false and misleading evidence in response to questioning and signed cheques that furthered the lapping scheme. It was established that Chhoker committed these acts. His defence that his relationship with the realtor was too remote and that he lacked the requisite intent to breach this rule was unsuccessful. It is not necessary for the realtor to be a client, there does not need to be a finding of fraud - recklessness or willful blindness may be found when a lawyer simply fails to make reasonable enquiries, as per the Fraud by Client (3.2-13) and Commentary sections of the Code. To determine guilt for assisting in an improper purpose, the Committee referenced Law Society of Alberta v. MacKinnon, 2016 ABLS 42 (CanLII), at para. 53, Law Society of Alberta v. Riccioni, 2014 ABLS 3 (CanLII), at paras. 50-52, and Riccioni v. Law Society of Alberta, 2015 ABCA 62 (CanLII) at paras 2-3. Chhoker was aware of the creation of the falsified documents, relied on these documents in giving false evidence under oath and this admitted conduct knowingly assisted the realtor in covering up the lapping scheme.

Sanction See sanction hearing Law Society of Alberta v. Chhoker, 2017 ABLS 16 (CanLII).

Law Society of Alberta v. Beaver, 2017 ABLS 3 (CanLII) HE20160048 heard February 15, 2017 (sanction phase)

Beaver was found guilty of conduct deserving of sanction on 7 of 12 citations relating to misappropriation of trust funds and failure to act with integrity at Law Society of Alberta v. Beaver, 2017 ABLS 2 (CanLII).

Submissions at the sanction hearing centered on whether the appropriate sanction was disbarment or a further suspension with supervised return to practice. The Hearing Committee did not accept that misappropriations of this magnitude are mitigated by an otherwise unblemished 20-year career as he should have known how far he strayed. The fact that the misconduct was confined to one year was not a mitigating circumstance as his associates forced Beaver to self-report and he would have otherwise continued his behaviour. Beaver's year of high stress, economical admissions of fact and responsibility and his offer for future restitution upon successful treatment (as per Law Society of Alberta v. Torske, 2015 ABLS 13 (CanLII)) were found to be neutral factors.

Medical reports did not account for the severity of the misappropriations and did not indicate: if Beaver was fully rehabilitated, if there was potential to rehabilitate his integrity, how to protect the public from a repeat of his behaviour, or how to uphold the reputation of the profession. Adams v. The Law Society of Alberta, 2000 ABCA 240 (CanLII) and Merchant v. Law Society of Saskatchewan, 2009 SKCA 33 (CanLII) establish the critical significance of the public dimension and the reputation of the profession. LSA submitted that Beaver's occupational risk appeared to be disproportionately elevated and maximum medical improvement had not been achieved.

The Committee found disbarment to be the appropriate sanction as the misappropriations were substantial, continued over an extended period of time and included especially vulnerable persons, as

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per Bolton v. Law Society [1994] 2 All ER 486 (C.A.). Active steps were taken to cover up the behaviour, Beaver suffered stressors to which any senior practitioner may be subject, and the medical report suggests that danger to the public or to the reputation of the profession still exists. The conduct must be denounced to protect the interests of the public and the standing of the legal profession and Beaver's potential return to practice should be through the process mandated by the statute for the most serious of cases.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Conduct Deserving of Sanction; • Self-reported (although his associates forced the issue).

Aggravating Circumstances • Misappropriations were severe and targeted vulnerable people; • Beaver gained personally from his conduct.

Sanction Disbarment, adjusted costs of $120,000.00, referral to the Attorney General and Notice to the Profession.

Law Society of Alberta v. Beaver, 2017 ABLS 2 (CanLII) HE20160048 heard November 14, 15, 17, 18 and 25, 2016 and January 23 – 26, 2017 (merits phase)

Beaver faced 12 citations relating to the misappropriation of client's trust and other funds, and contravention of LSA trust fund and reporting rules. The Hearing Committee found conduct deserving of sanction in relation to 7 of 12 citations, that Beaver had misappropriated client's funds and had failed to act with integrity. The Committee heard eight days of evidence and there was very little disagreement as to the facts as the PC Law software and bank records clearly showed the flow and use of trust funds.

Beaver was the sole proprietor of a law firm where associates had no signing authority and had only the most general knowledge of the firm's financial affairs. Beaver's client trust funds and associate's salaries were used to sustain his lifestyle spending and deficiencies were explained as fictional 'outstanding cheques' or 'bank errors'. Trust account deficiencies reached a high of $229,000.00 in May 2015, which the Committee accepted was close to the $180,000.00 that Beaver initially self-reported to the LSA. This did not include $115,000.00 taken from the trust funds of another client.

When funds ran out, 2014 trust account data was uploaded in January 2015 and the LSA requested clarification for the various adjustments. Beaver advised his staff of the circumstances, his associates reported to the LSA and Beaver advised the LSA of a deficiency and proposed that he surrender control of the trust accounts and practice to members of his firm. The LSA appointed a custodian and suspended Beaver shortly after. While suspended, Beaver practiced as an agent in Provincial Court, which the Court of Appeal found was not permitted in Law Society of Alberta v. Beaver, 2016 ABCA 290 (CanLII).

A key task of the Committee was a review of the evidence and law related to misappropriation and conversion as there is no definition for misappropriation in the Legal Profession Act. Doolan v. Law Society of Manitoba 2016 MBCA 57 (CanLII) considers that there are two different approaches: misappropriation must involve dishonest intention or any unauthorized use of client trust funds by a

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lawyer amounts to misappropriation, regardless of intentions. Cases indicating a requirement of dishonest intention include: Law Society of British Columbia v. Burton, [2001] LSBC 1 (QL) and Law Society of Alberta v. Lutz, 2015 ABLS 12 (CanLII. Cases which involved disregarding intentions include Andres-Auger v. Law Society of British Columbia, 1994 CanLii 2807 (BC SC), Law Society of Upper Canada v. Mikitchook, [1998] LSDD No 29 (QL); Law Society of Upper Canada v. Kamin, [1998] LSDD No 166 (QL), Law Society of Upper Canada v. Simon Van Duffelen, 2005 ONLSHP 34 (CanLII), Harder (Re), 2005 LSBC 48 (CanLII), Ali (Re), 2007 LSBC 18 (CanLII), Law Society of Alberta v. Dennis McGechie, 2007 LSA 21 (CanLII) and Gellert (Re), 2013 LSBC 22 (CanLII).

The Committee found that Beaver misappropriated $115,000.00 of DI's trust funds without consent and for his personal benefit, took advantage of a vulnerable person and failed to report to the LSA that he held these funds as a trustee. Trust deficiencies were also found to be a misappropriation, which included a fund for the children of a law student's deceased brother. Most of the deficit was covered up with deliberate and improper reporting of falsified client trust fund receipts which indicated dishonest intention over time.

Beaver admitted to breaching accounting rules, which was found to have gone well beyond the admissions. Beaver failed to be candid with the LSA when he failed to appropriately fill out the 2014 Annual Self Report, failed to report the money held for DI and the children, which enhanced the overall scheme to access client funds for personal use. Beaver also admitted that he failed to meet financial obligations.

Other citations related to Beaver's handling of the sale of his matrimonial home when he could not pay out a bank to discharge the caveat or provide the purchaser with clear title, in breach of his obligations. A senior associate allowed the property to be transferred to the purchaser and was forced to pay the loans secured by the caveat. The Committee found misappropriation when Beaver gave instructions to make funds payable to him, not to his former spouse with whom he was in arrears. A finding of conduct deserving of sanction was not established in relation to breach of the accounting rules. Beaver admitted he failed to attend to the sale of real property in a prudent manner and was found to be guilty of failure to act with integrity in the sale of the house as he preferred his own interest over the rights of clients, associates, colleagues and creditors. Four citations of issuing a fee account prior to completion of work and of advance billing were not proven.

Sanction The matter was adjourned for a further hearing on sanction, Law Society of Alberta v. Beaver, 2017 ABLS 3 (CanLII).

Law Society of Alberta v. Fish, 2017 ABLS 1 (CanLII) Single Bencher hearing HE20160204 heard January 18, 2017

Fish admitted that he was not sufficiently diligent when he provided legal services to his client as he failed to obtain his client's instructions before he released data to the CBC. The Hearing Committee rejected the jointly proposed sanction of a reprimand, a fine and payment of the actual costs of the hearing as the conduct was unusual and unlikely to be repeated, instead imposing a reprimand and half of the costs. The Committee referenced Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII), R.

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v. Anthony-Cook, 2016 SCC 43 (CanLII) and R. v. Magas, 2012 ABCA 61 (CanLII) and Denovan Hill (Re), 2011 LSBC 16 (CanLII).

Fish had been a member since 1980 with no disciplinary record, the conduct in question had not resulted in personal gain and Fish cooperated fully and provided an admission of his conduct.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt; • Joint submission on sanction; • Admitted responsibility immediately upon being contacted by LSA; • Long, unblemished record; • No personal gain from the conduct.

Sanction Reprimand and half of the Final Statement of Costs to be paid within 60 days of confirmation of the final amount.

2016

Law Society of Alberta v. McKay, 2016 ABLS 60 (CanLII) HE20160228 heard November 24, 2016

McKay, who was previously suspended in Law Society of Alberta v. McKay, 2016 ABLS 34 (CanLII), faced 24 citations and admitted guilt to all but one citation, which was dismissed. McKay’s conduct involved a number of failures to serve clients and a number of clients experienced prejudice as a result. The Hearing Committee accepted the jointly submitted sanction of a further two-month suspension immediately following the prior suspension.

Mitigating Circumstances • Admitted Statement of Facts and Admission of Guilt; • Joint submission on sanction; • McKay did not attempt to reinstate when his previous suspension was over.

Sanction Suspension of two months, Notice to the Profession, costs of $11,662.56 to be paid by December 31, 2017 and referral to Practice Review upon reinstatement.

Law Society of Alberta v. Koska, 2016 ABLS 59 (CanLII) Resignation hearing HE20150240 heard December 6, 2016

Koska applied for resignation (s. 32), while suspended, in the face of two citations for failure to pay costs associated with a prior hearing, Law Society of Alberta v. Koska, 2014 ABLS 39 (CanLII). Koska did not provide the materials required by the LSA to determine the status of her practice. Koska stated she

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retired in 2014, but made no attempt to communicate this previously or apply for resignation. Parties did not agree on an Agreed Statement of Facts and worked during the hearing to prepare an Admitted Statement of Facts, however, it was very sparse and brief and was viewed with caution.

Koska disputed allegations and rather than deal with the citations, she engaged in a pattern of neglect and absenteeism in her dealings with the LSA. On the failure to respond citation, Koska refused to agree to allegations which were clearly evident, did not make arrangements to turn her files over to the LSA, made weak excuses when she did not receive mail or receive phone calls or show up for a hearing, demonstrated a fundamental misunderstanding of the Act when she stated that 'she was retired in 2014', and had received extensive email communications yet said she did not receive any further correspondence or contact from the LSA.

It is not necessary to accept Koska's proposed facts as true and the question was whether it was in the public interest for Koska to resign. The Resignation Committee found that her resignation was in the public interest and then had to determine whether to permit Koska to resign prior to the resolution of the conduct matters. The original complaint was unlikely to result in disbarment, but given the aftermath, the other suspension, Koska's intent to retire and her multiple failures to communicate, it was in the public interest that she resign.

Koska confirmed that her trust accounts were closed, she closed her files and was not engaged in the practice of law. Although the Committee accepted Koska's resignation under section 32, it issued a Notice to the Profession to address the consequences of Koska's behaviour, it ordered costs against Koska and she entered into a Consent Order that could be relied upon in the event that she fails to deliver files.

Mitigating Circumstances • Citations were unlikely to give rise to disbarment.

Aggravating Circumstances • Prior disciplinary record; • Costs from a previous hearing were still outstanding; • Koska had not made arrangements to turn over her files to the LSA.

Decision Resignation accepted (s. 32), Notice to the Profession and costs of $21,116.83. Koska signed an Undertaking and entered into a Consent Order in the event that she fails to deliver files.

Law Society of Alberta v. Mirasty, 2016 ABLS 58 (CanLII) Appeal hearing HE20140024 heard December 16, 2016

Mirasty appealed a Hearing Committee decision dated April 14, 2016 after a stay was granted (see Law Society of Alberta v. Mirasty, 2016 ABLS 35 (CanLII) and Law Society of Alberta v. Mirasty, 2016 ABLS 21 (CanLII)). The Hearing Committee had determined an appropriate sanction to be a suspension of 45 days, 75% of hearing costs (reduced to reflect the dismissal of a citation) and referral to Practice Review upon application for reinstatement following the suspension.

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Mirasty's counsel submitted that the sanction of suspension was not reasonable as the conduct in question was not the 'most serious', that sanctions other than a suspension would be reasonable and highlighted mitigating factors that he argued the Hearing Committee failed to give sufficient weight to. Parties agreed the standard of review is one of reasonableness, as per Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 (CanLII).

LSA argued that the sanction was reasonable as the conduct in question was serious and pointed to Mirasty's integrity and governability. The Hearing Committee was not required to explicitly weigh competing public interests before issuing a sanction and the Hearing Committee had weighed the public interest. A sanction of a reprimand would be possible, but not usual, and it was not appropriate for the Appeal Committee to replace the Hearing Committee's sanction with its own, as per Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), R. v. Shropshire, 1995 CanLII 47 (SCC) and R. v. M. (C.A.), [1996] 1 SCR 500, 1996 CanLII 230 (SCC).

The Appeal Committee was unable to conclude that any error in principle was made. The Appeal Committee found that the Hearing Committee had carefully considered both the relevant aggravating and mitigating factors and it owed significant deference to the Hearing Committee, which had the benefit of hearing the evidence of the parties and the opportunity to assess credibility of the witnesses. The Appeal Committee did not find the sanction to be unfit and the Appeal was dismissed.

Decision Appeal dismissed. Suspension of 45 days to commence on July 1, 2017.

Law Society of Alberta v. Skrypichayko, 2016 ABLS 57 (CanLII) HE20150007 heard January 11 and March 15 – 18, 2016

Skrypichayko faced 19 citations arising from 3 complaints alleging various failures to serve his clients, improperly commissioning an affidavit, failure to conduct himself with civility and courtesy, failure to respond to and cooperate with the LSA, failure to be candid with the LSA, issues with accounting records and he practiced law, held himself out to be an active member, or failed to advise of his status when suspended. Skrypichayko was suspended in June 2013 for his lack of responsiveness to the LSA and for a failure to comply with conditions imposed at a previous hearing.

Skrypichayko applied for a stay of proceedings for abuse of process on the basis that the LSA’s delay in investigating the complaints and processing the citations had prejudiced his case. Since the events, witnesses had become unavailable or memories faded, two hard drives failed and the custodian ignored his requests for bank and phone records. Skrypichayko wished to withdraw his Statement of Admitted Facts if his application was denied.

The Hearing Committee considered the issue of the inordinate delay and referenced Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), Stinchcombe v. Law Society of Alberta, 2002 ABCA 106 (CanLII), Law Society of Alberta v. Odishaw, 2011 ABLS 28 (CanLII) and Nisbett v. Manitoba (Human Rights Commission), 1993 CanLII 3366 (MB CA). When it considered if a stay would be appropriate, the Hearing Committee referenced R. v. O'Connor, 1995 CanLII 51 (SCC) at para. 68, Wachtler v. College of Physicians and Surgeons of Alberta, 2009 ABCA 130 (CanLII). The Committee decided to proceed with the hearing as evidence about merits had not yet been heard in order to

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determine the impact of any prejudice, as per R. v. La 1997 CanLII 309 (SCC), British Columbia (Securities Commission) v. Cicci, 1993 CanLII 902 (BC CA) and Tran v. Saskatchewan (Human Rights Commission) (1997), 1997 CanLII 11454 (SK QB). After considering all the evidence, the stay was denied as there was no evidence of inordinate delay.

Skrypichayko asked that part of the hearing be held in private and was denied as per Law Society of Alberta v. McCullough, 2013 ABLS 3 (CanLII), which indicated that potential risk of harm can be addressed through the redaction of third party names.

The Committee found Skrypichayko guilty of conduct deserving of sanction in respect of all the citations brought against him and LSA submitted that would collectively warrant disbarment. Adams v. The Law Society of Alberta 2000 ABCA 240 (CanLII) was referenced as to the question of what effect a lawyer’s misconduct will have on the reputation of the legal profession. The Committee found Skrypichayko lacking in integrity and ungovernable.

Mitigating Circumstances • Admission of guilt (to most citations) and Statement of Admitted Facts (on the last day of

hearing); • No disciplinary record prior to these proceedings; • Delay in prosecution.

Aggravating Circumstances • Statement of Admitted Facts did not save time and the revised Statement was tendered when

the hearing was almost over; • Delay in prosecution was caused in part by Skrypichayko’s refusal to cooperate; • Skrypichayko’s conduct significantly impacted his client; • Skrypichayko transferred retainer monies for his personal benefit and grossly overcharged

clients; • Skrypichayko was uncooperative, non-responsive, evasive and directed groundless accusations

against the LSA.

Sanction Disbarment, Notice to the Profession and costs of $63,067.93.

Law Society of Alberta v. Shanks, 2016 ABLS 56 (CanLII) Resignation hearing HE20150011 heard May 19, 2016

Shanks applied to resign (s. 61) in the face of 24 citations arising from 3 complaints. The citations alleged various failures to communicate with the Law Society and with clients and several failures to serve clients in a competent and conscientious manner, including failing to adequately preserve a cash retainer.

The Resignation Committee recognized the difficult personal circumstances underlying many of the citations, noted that Shanks served a marginalized population, which caused financial risk to his practice, and that he cooperated with the outstanding investigation. The Committee found a section 61

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resignation to be appropriate as Shanks' conduct is incompatible with the public interest and ordered that reduced costs be paid within two years of a successful reinstatement application.

Mitigating Circumstances • Agreed Statement of Facts; • Admission of guilt.

Decision Resignation accepted (s. 61), Notice to the Profession and costs of $27,106.98 to be paid within 2 years of any successful reinstatement application.

Law Society of Alberta v. Thomas, 2016 ABLS 55 (CanLII) HE20110013 heard June 22 – 24, July 27 – 29, November 9, 10, 12, 13, 2015 and February 22 – 23, May 2, September 12, 13, 14 and 16, 2016 (merits phase)

Thomas had been administratively suspended since 2009 and faced 13 citations. It was alleged that Thomas failed to uphold the law, brought the profession into disrepute, misappropriated trust funds, failed to follow trust accounting rules, failed to be candid with LSA, failed to cooperate with the LSA, exchanged legal services for services of clients without providing statements of account and without recommending independent legal advice, failed to properly serve the Complainant, failed to follow the client's instructions and was ungovernable. Thomas either admitted guilt or was found guilty on 10 citations of conduct deserving of sanction.

The hearing proceeded with a Committee of two Benchers after the Chair was not able to continue due to a judicial appointment. Thomas was denied a stay of proceedings on the grounds of an inordinate disclosure from the LSA, prejudice as a result of inappropriate payments made from his trust account by the custodian and that his Charter rights were violated. In consideration of a stay, Law Society of Alberta v. Odishaw, 2011 ABLS 28 (CanLII) at para. 9, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII) and Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 (ON CA) at paras. 41-43 were referenced.

Guilt was found for three citations relating to trust funds as there was a deficiency in the trust account and it was found that the LSA custodian did not lose these files, as was claimed. The Hearing Committee referenced the following with respect to misappropriation: The Law Society of British Columbia v. Sabrina Ali, 2007 LSBC 18 (CanLII) at paras. 79-80, Law Society of BC v. Andres-Auger, Nebraska State Bar Association v. Veith, 470 NW (2d) 549 (Neb 1991) at para. 6, Law Society of Upper Canada v. Richard Kazimierz Chojnacki, 2010 ONLSHP 74 (CanLII) and Doolan v. Law Society of Manitoba, 2016 MBCA 57 (CanLII) at para. 54.

Thomas did not take opportunities to review his files that were in custodianship or be involved in the reconciliation of his trust accounts and his witnesses were of limited value as none of them had files that were the subject of the citations. A pattern of delay and obfuscation was pervasive since 2009 in his dealings with LSA.

Guilt was found for two citations for reasons relating to criminal charges. Four citations related to a client Dr. J, who disputed legal fees that were found to be her responsibility and as such, a citation was

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dismissed. Thomas did not provide proper advice about criminal interest rates, did not conduct a review of security on a loan and repeatedly failed to attend meetings. This raised concerns of his credibility and he also failed to respond to LSA's concerns in writing. Thomas sent loan funds outside of Canada against express instructions. It could not be determined if the lack of a draft Statement of Claim was the result of it never being prepared, or it if was lost by the custodian.

Thomas was found to exemplify the definition of ungovernable as he failed to follow the rules, lacked responsiveness and cooperation (a long chronology is detailed) and does not take responsibility for his actions. The standard of proof is a balance of probabilities, as per F.H. v. McDougall, 2008 SCC 53 (CanLII) at para. 40.

Sanction Sanction was determined in a separate phase of the hearing - Law Society of Alberta v Thomas, 2017 ABLS 21 (CanLII).

Law Society of Alberta v. Walia, 2016 ABLS 54 (CanLII) Single Bencher hearing HE20160229 heard November 7, 2016

Walia admitted guilt to one citation for a failure to provide competent service to his client. Walia advised his client, who was charged with a serious sexual offence, that as he was uncomfortable proceeding, the client should retain other counsel and the client refused. Walia took inadequate steps to familiarize himself with the substantive and procedural law involved and concealed his ignorance during the trial. His client was convicted. The client retained new counsel on appeal and Walia cooperated by filing an affidavit in support of new counsel’s application to have the conviction set aside based on ineffective or incompetent assistance of trial counsel.

Walia’s client requested a private hearing in light of ongoing criminal prosecution and it was determined that his interests could be protected in a public hearing through careful editing of reasons.

Competence of counsel is assessed on a functional basis and the court must be satisfied that both the acts or omissions of counsel were incompetent. The conduct of counsel is examined with a “strong presumption of competence” and not through the lens of hindsight, as per R. v. G.D.B. 2000 SCC 22 (CanLII) at para. 26 and R. v. W.E.B. 2014 SCC 2 (CanLII).

Parties jointly submitted a sanction of a reprimand, a restriction on Walia's practice to prohibit practicing criminal law and payment of actual costs. The Bencher accepted the joint submission of a reprimand as per Law Society of Alberta v. King, 2010 ABLS 9 (CanLII), at para. 79, but rejected Walia’s submission that the restriction should be narrower to enable him to practice some areas of criminal law with supervision, as per R. v. Anthony-Cook, 2016 SCC 43 (CanLII).

Mitigating Circumstances • Statement of Facts and Admission of Guilt; • Joint submission on sanction (disagreement on scope of restriction).

Sanction Reprimand, payment of actual costs within six months and a complete restriction on criminal practice until Practice Review was satisfied with Walia’s knowledge and ability.

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Law Society of Alberta v. Ouellette, 2016 ABLS 53 (CanLII) HE20130044 heard January 25 – 27, February 8, 12, April 4, 5, 6, 14, 20, May 2, 3, 4, 5, 19 and July 25, 2016

Ouellette requested an adjournment on the basis that he did not have counsel and was not prepared, and also requested a Committee member recuse himself due to bias. Both requests were denied as he had previously been given five adjournments and there was no reasonable apprehension of bias.

After Ouellette checked himself into hospital on the second day, adjournment was granted on the understanding that Ouellette’s counsel would continue to represent him. The LSA was granted an interim suspension based on evidence that Ouellette was unable to manage his practice due to significant stress issues. There was a reasonable basis to believe the issues created a risk to the public. Ouellette's application for reinstatement was denied as there was insufficient evidence to displace the earlier finding.

Ouellette faced 8 citations arising from three complaints: that he failed to cooperate with Practice Review, failed to respond to the LSA, failed to comply with the accounting rules, threatened the opposing party with child welfare proceedings in order to gain a benefit for his client, failed to be courteous to the opposing counsel; failed to serve his client, and failed to respond to another lawyer on a timely basis. Ouellette was found guilty of conduct deserving of sanction on all citations but one, which was dismissed.

The LSA sought disbarment or a lengthy suspension as Ouellette had shown a continuous disregard for his obligations to the LSA, he had shown no meaningful element of contrition, it was not the first time he failed to serve his client, he had previously been sanctioned for similar conduct, he had shown callous disregard for the interests of an opposing party as a member of the public and he had shown no real interest in the advice given by Practice Review. Ouellette's counsel asserted that he had a minimal disciplinary record, that accounting rule delinquencies did not result in any defalcations or loss of client funds, that his failure to serve his client was really a technical aberration and that the threats were not a serious matter.

Ouellette's own submissions substantiated the Committee's concerns that he did not understand the nature of his responsibilities, the risk to which he put his clients and the chaos he created for an opposing party. As Ouellette had breached every type of duty he could breach, had been warned previously, had been given opportunities to demonstrate a willingness to change and was not willing, he was disbarred and costs were directed.

Aggravating Circumstances • Disciplinary history; • Failed Practice Review referrals and practice assessments; • Unsatisfactory audits and examinations.

Sanction Disbarment, Notice to the Profession and costs of $100,818.97.

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Law Society of Alberta v. Forsyth-Nicholson, 2016 ABLS 52 (CanLII) HE20140020 heard December 7, 2015 and March 14 – 15, May 30 – 31 and October 18, 2016

It was alleged that Forsyth-Nicholson failed to treat her client’s former spouse with courtesy, failed to maintain objectivity in her representation of her client and made inappropriate comments about another party. Forsyth-Nicholson represented her client in an acrimonious child custody dispute. Her client's ex-husband emailed her requesting that the children attend the baptism of his new step-child. Forsyth-Nicholson inadvertently replied to the ex-husband rudely and unprofessionally, thinking she was replying to her client. She arranged for the children to be present at the baptism with supervision of their grandfather, but emailed the grandfather suggesting that he might be sick and not attend the baptism. As a result, the grandfather did not attend and neither did the children.

The hearing was privately held, and the merits were determined in a separate private hearing report (not published). The LSA did not meet its burden of proof on any of the three citations and all were dismissed. The public hearing report provides details of the private hearing applications and the LSA’s application to have an Education Consultant attend.

Decision Citations dismissed.

Law Society of Alberta v. Wilson, 2016 ABLS 51 (CanLII) HE20140046 heard April 11 – 13, 2016 (merits phase)

Wilson acted in a conflict of interest and acted in a manner that brought discredit to the profession. In dealing with a murder-suicide, two victims’ families apparently sought to retain Wilson, as they believed there was a single estate.

The Hearing Committee believes Wilson was mistaken in her belief that she was free to act for LW and though it was found that she was not retained by OW, both families had the impression that Wilson acted for them. Wilson did not inform LW that she could not act for them, nor did she seek consent from OW to act against them even though she had a confidential two-hour meeting with OW. The Committee found that Wilson was could not act for LW as a result of her relationship with DW and when she failed to recognize that she was not free to act and when she failed to cease to act in the face of a Justice’s reasonable request that she recuse herself, she was guilty of conduct deserving of sanction.

Rules 2.04(1) and 20.04(2) detail that, when in doubt of whether a dispute or conflict exists to preclude multiple representation, a lawyer should cease to act for the party or parties. The Committee found that the initial advice in the context of the murder-suicide was confidential and was sufficient to trigger Wilson's obligation to clarify her relationship with OW's family. Wilson misunderstood and breached her obligations to both parties, did not realize she was acting inappropriately and her obduracy negatively affects the public interest and reputation of the legal profession.

Sanction Sanction was determined in Law Society of Alberta v Wilson, 2017 ABLS 30 (CanLII).

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Law Society of Alberta v. Villebrun, 2016 ABLS 50 (CanLII) Resignation hearing HE20150088 heard December 5, 2016

Villebrun applied for resignation (s. 32) in the face of 46 complaints that LSA counsel indicated were not of such a nature as to attract disbarment. Villebrun failed to properly communicate with a number of family and criminal clients, delayed matters, repeatedly missed or cancelled meetings, failed to respond to the LSA, failed to respond to opposing counsel, missed court appearances and failed to meet financial obligations.

Villebrun provided a candid, thorough and heartfelt summary of the difficult circumstances which led to many of the complaints, a motor vehicle accident. The Resignation Committee accepted the s. 32 resignation application and directed that Villebrun be required to pay approximately half of the costs prior to making an application for reinstatement as a member.

Mitigating Circumstances • Agreed Statement of Facts; • Statement of Undertakings.

Decision Resignation accepted (s. 32), Notice to the Profession and costs of $10,000.00 to be paid prior to making an application for reinstatement.

Villebrun undertook to cooperate with the LSA with respect to any future claims made against her, not appear on behalf of any person before any court, tribunal, or administrative body performing any judicial or quasi-judicial function, not perform any service or activity of a paralegal nature, endeavour to pay any deductible with respect to any claim paid by the LSA Insurer and to pay the LSA any claim paid from the indemnity program fund, endeavour to locate and surrender her Certificate of Enrolment if found, not be retained or employed in any capacity having to do with the practice of law or the provision of legal services and not re-apply for admission to the LSA.

Law Society of Alberta v. Peddie, 2016 ABLS 49 (CanLII) Single Bencher hearing HE20160062 heard December 15, 2016

Peddie admitted he failed to fully inform his clients of the progress of their matter and failed to promptly inform his clients that he had not obtained a discharge, which remained on title. Peddie failed to further attend to the matter. A third citation was withdrawn at a pre-hearing conference.

The Bencher determined that the determination of guilt would be sufficient deterrence and accepted the joint submission on sanction as per Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII) and R. v. Anthony-Cook, 2016 SCC 43 (CanLII). Denovan Hill (Re), 2011 LSBC 16 (CanLII) was referenced as to the function of disciplinary proceedings.

Mitigating Circumstances • Admission of Facts and Admission of Guilt; • Joint submission regarding sanctions; • Peddie freely admitted his error in his response to the complaint;

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• No disciplinary record over 30 years; • Sincerely apologized to his former clients.

Sanction Reprimand, fine of $3,000.00 and actual costs of the hearing to be paid within 30 days of receiving notice of those costs.

Law Society of Alberta v. Ewing, 2016 ABLS 48 (CanLII) Single Bencher hearing HE20160011 heard October 13, 2016

Ewing admitted guilt to failure to respond promptly and completely to communications from the LSA on two occasions and failure to act with courtesy and in good faith with another lawyer. A third citation was mutually withdrawn.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt allowed for a single Bencher hearing; • Ewing was cooperative; • No disciplinary record.

Sanction Reprimand, actual costs to be paid within six months and mandatory referral to Practice Review for a period of two years upon Ewing's return to practice.

Law Society of Alberta v. Welz, 2016 ABLS 47 (CanLII) Single Bencher hearing HE20160063 heard September 21, 2016

Welz admitted guilt to failure to comply with Rule 119.30 in a timely manner and failure to respond to or fulfil commitments of the Trust Safety Department in a timely manner.

LSA considered the jointly submitted sanction appropriate as in 2009 there was a Mandatory Conduct Advisory for similar conduct. Welz's counsel made several submissions on sanction including his record of two instances of conduct matters over 37 years, he is highly involved in the community and he very much regrets his failures that occurred at a time when he had a great deal of stress and when his senior legal assistant left. There was no shortfall in trust, rather there was a failure to properly report.

The Bencher noted that Welz's past record is relatively remote, there is no suggestion of ongoing issues, no client was harmed and Welz's remorse and dedication to the community and to his profession demonstrate that the public interest is served by the proposed sanction. The Bencher referenced Adams v. The Law Society of Alberta 2000 ABCA 240 (CanLII) in considering that a sanction should protect the public interest and R. v. Anthony-Cook, 2016 SCC 43 (CanLII) in accepting the joint submission.

Mitigating Circumstances • Joint submission on sanction; • Admission of Guilt allowed for a single Bencher hearing; • Welz was cooperative, admitted his error.

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Sanction Reprimand, a fine of $2,000.00 and costs of $1,754.82.

Law Society of Alberta v. McElhaney, 2016 ABLS 46 (CanLII) Resignation hearing HE20150171 heard June 27, 2016

McElhaney applied for resignation (s. 32) in the face of 8 outstanding complaints, one of which was the subject of an LSA investigation and two of which were the subject of Assurance Fund claims. The complaints included allegations that McElhaney engaged in a scheme to shield assets from CRA, misappropriated trust monies, failed to report trust shortages, failed to report writs that had been filed against him, failed to respond to LSA when required and failed to serve clients.

Part of the Agreed Statement of Facts dealing with mental health issues was considered in private. McElhaney’s application was rejected because of his egregious conduct and considerable impact, and the hearing proceeded with a section 61 resignation. The Committee accepted the s. 61 resignation and McElhaney’s undertaking, although he admitted that he may not be able to fulfil the undertaking. The Resignation Committee directed that costs be paid prior to an application for reinstatement.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt.

Decision Resignation acceted (s. 61), Notice to the Profession and costs of $156,496.99 to be paid prior to making an application for reinstatement.

McElhaney undertook to cooperate with the LSA with respect to any future claims made against him, not appear on behalf of any person before any court, tribunal, or administrative body performing any judicial or quasi-judicial function, and not perform any service or activity of a paralegal nature.

Law Society of Alberta v. Koul, 2016 ABLS 45 (CanLII) Single Bencher hearing HE20160230 heard October 12, 2016

Koul admitted that she failed to determine whether there were any conditions, terms, or instructions in relation to trust money received from a client and failed to respond to that client in a prompt and complete manner. The client provided funds to assist his son with the purchase of a house in the context of a matrimonial dispute. The client provided Koul with a cheque that was deposited into his trust account. Koul incorrectly assumed the funds could be used at the son’s discretion and distributed a portion of the funds to the son on a by-request basis instead of making sure they were used to purchase the house.

The LSA referenced Law Society of Alberta v. Mark Hoffinger, 2009 LSA 28 (CanLII) in support of the joint submission on sanction.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt;

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• No prior disciplinary record; • Admitted guilt and was cooperative; • Did not benefit personally from her conduct.

Sanction Reprimand and 75% of the hearing costs.

Law Society of Alberta v. Leebody, 2016 ABLS 44 (CanLII) Single Bencher hearing HE20160111 heard August 5, 2016

Leebody admitted that he failed to honour an undertaking given to another solicitor when he failed to discharge a mortgage and caveat, and instead relied on SB to ensure the caveat was discharged. Leebody notionally represented SB in the sale of their home and signed an undertaking to purchaser's counsel to pay out the mortgage and caveat. Leebody was unaware of the amounts owing and SB was to pay the amounts from the trust account, but this was not done.

The Bencher noted that Leebody failed to oversee the file to the standard of a competent lawyer and accepted that he was an unknowing participant in any fraudulent activity. The Bencher accepted the joint submission on sanction as per Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII) and R. v. Magas, 2012 ABCA 61 (CanLII) at para.16. Denovan Hill (Re), 2011 LSBC 16 (CanLII) was referenced as to the purpose of disciplinary proceedings.

Mitigating Circumstances • Admitted Statement of Facts and Admission of guilt allowed for a single Bencher hearing; • Joint submission on sanction; • Leebody admitted responsibility immediately, and cooperated; • No disciplinary record; • Leebody did not gain personally.

Sanction Reprimand and actual costs of $2,186.00 to be paid within 60 days of service of the Statement of Costs.

Law Society of Alberta v. Andresen, 2016 ABLS 43 (CanLII) Single Bencher hearing HE20160059 heard October 4, 2016

Andresen admitted guilt to 12 citations arising from three complaints about separate real estate transactions: failure to fulfil undertakings within a reasonable time, failure to respond to the other side of a transaction within a reasonable time, failure to fulfil a trust condition within a reasonable time and failure to respond promptly to the LSA.

The problems arose from circumstances around the High River flood of 2013 that caused Andresen to move offices twice within a year and his failures were not intentional. The Bencher noted the seriousness of the complaints and the mitigating circumstances.

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Mitigating Circumstances • Joint submission on sanction; • Statement of Admitted Facts and Admission of Guilt; • Andresen’s office was destroyed in the Alberta food of 2013 and it was not until February 2014

before he could move back into his office; • No disciplinary history over 39 years, with 12 as a Q.C.; • Andresen cooperated with Practice Review.

Sanction Reprimand and actual costs of $2,304.23 to be paid by November 30, 2016.

Law Society of Alberta v. MacKinnon, 2016 ABLS 42 (CanLII) HE20150006 heard May 25, 26 and 30, 2016

Mackinnon faced three citations: that he failed to provide conscientious service to his clients, assisted his client with an improper purpose and breached trust conditions. Mackinnon admitted guilt to citations other than assisting with an improper purpose, which arose from two series of real estate transactions.

In determining whether Mackinnon assisted his client with an improper purpose, the Hearing Committee considered evidence to decide whether the client was a victim and that Mackinnon failed to protect his interest or if Mackinnon was the victim of a scheme. The Committee found that the client, a sophisticated businessman, did not have a credible explanation as he knew something about the first set of transactions, yet he was not aware of all the relevant details of the second transaction and was a victim.

The Committee found that Mackinnon failed to communicate the details of the transaction adequately and there is no evidence to suggest that he brought facts about the Vendor Take Back Mortgage or provided advice or caution to EL. In determining whether counsel for EL amended the Vendor Take Back Mortgage or consented to that amendment, the Committee found the testimony of counsel for EL believable, noted that there was no documentation on Mackinnon's files to suggest consent or agreement, and noted that Mackinnon refused to provide copies despite trust conditions, undertakings and persistent demands.

The Committee found that Mackinnon was guilty of assisting his client with an improper purpose as he did not have the necessary authorization to alter the Vendor Take Back Mortgage, that he knew this and that he concealed his wrong doing for over a year. This finding does not require Mackinnon to have been aware that his clients were engaged in a wrongful purpose.

LSA sought a 4-6 month suspension while counsel for Mackinnon sought a monetary sanction only. The Committee expressed concern that Mackinnon concealed his wrongdoing for almost a year, as integrity is the single most important personal quality of a lawyer, as per Bolton v. Law Society [1994] 2 All ER 486 (C.A.)

Mitigating Circumstances • Statement of Admitted Facts and Admission of guilt (partial);

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• Agreed Exhibit Book; • No disciplinary record; • Mackinnon did not benefit over and above his accounts rendered; • Mackinnon admitted facts and some guilt in advance of the hearing; • Significant delay in the proceedings.

Sanction Suspension of four months, Notice to the Profession and half the costs to be paid within one year of being readmitted to active practice.

Law Society of Alberta v. Ayers, 2016 ABLS 41 (CanLII) Single Bencher hearing HE20150001 heard May 17, 2016

Ayers admitted guilt to conduct deserving of sanction arising from two complaints. He failed to provide legal services to the standard of a competent lawyer when he failed to file a Judicial Dispute Resolution brief, allowed the matter to lag and then allowed a different matter to lag. He also failed to respond to his clients and keep his clients informed as to the status of the matter.

The Bencher accepted the joint submission on sanction as per R. v. Patrick, 2001 ABCA 243 (CanLII) and Law Society of Alberta v. Pearson, 2011 ABLS 17 (CanLII).

Mitigating Circumstances • Statement of Admitted Facts and Admission of guilt; • Agreed Exhibit Book; • Joint submission on sanction; • No disciplinary history over 35 years; • Ayers was cooperative and was prepared to consolidate two different complaint matters; • Ayers received positive feedback from Practice Review.

Sanction Reprimand, a fine of $2,000.00 and costs of $3,000.00, both to be paid within 2 weeks.

Law Society of Alberta v. Piragoff, 2016 ABLS 40 (CanLII) Single Bencher hearing HE20160208 heard October 25, 2016

Piragoff admitted guilt to two citations, that he operated a law firm without a Responsible Lawyer approval and that he practiced law while subject to an administrative suspension for non-payment of fees.

Piragoff served and advanced the public interest while employed on contract by the Government of Alberta for many years and then for Legal Aid. He could not afford to pay his LSA fees, which resulted in an automatic suspension. While suspended, Piragoff made two court appearances on behalf of legal aid clients before advising the court that he was suspended. During his suspension, Piragoff "operated" a trust account and did not make provisions for a Responsible Person to take care of the account.

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The Bencher accepted the jointly proposed sanction of a reprimand, without costs as Piragoff is impecunious.

Mitigating Circumstances • Long-standing member of the bar with an illustrious career; • Actions were without malicious, if any, intent; • Piragoff is impecunious.

Sanction Reprimand.

Law Society of Alberta v. MacGregor, 2016 ABLS 39 (CanLII) Resignation hearing HE20140051 heard May 13, 2016

MacGregor applied to resign (s. 32) in the face of serious citations arising from a relapse of illness including addiction and mental health issues. He failed to serve his clients, failed to refrain from conduct that impaired his capacity and was incompatible with the best interests of the public, brought the profession into disrepute or harmed its standing, breached conditions imposed by the LSA, failed to give written notice of a charge against him and is ungovernable.

Part of the hearing was conducted in private to respect highly sensitive personal information about medical issues. MacGregor admitted to conduct deserving of sanction if the complaints were to proceed to a full hearing and swore that all trust funds that he was responsible for were accounted for and his client matters would all be transferred back to Legal Aid Alberta. The Resignation Committee found that the public interest is served by accepting the resignation under s. 32 and considered several mitigating factors.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • MacGregor was voluntarily an inactive member of LSA; • No disciplinary record with the LSA; • Citations arise from a serious and debilitating illness.

Sanction Resignation accepted (s. 32), Notice to the Profession and costs of $17,704.59 to be paid prior to filing an application for relief from his undertaking to never to seek readmission to the LSA.

Law Society of Alberta v. Moughel, 2016 ABLS 38 (CanLII) Single Bencher hearing HE20150046 heard July 28, 2016

Moughel admitted guilt to a number of citations arising from four complaints. Moughel acted without instructions from his client, failed to meet a deadline for filing an Affidavit of Records, failed to advise of the resulting costs award against his clients and Writ filed on their property, failed to file a civil claim within the limitation period, failed to provide competent legal services and failed to respond to his client and the LSA.

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Parties jointly submitted sanction of a fine of $1,000.00 per complaint rather than an amount for each citation, referring to Law Society of Alberta v. Ouellette, [2004] L.S.D.D. No. 67, Law Society v. Malcolm, 2016 ABLS 19 (CanLII) and Law Society of Alberta v. Virk, 2014 ABLS 51 (CanLII). The LSA sought a 30-day suspension while Moughel asserted that a reprimand was appropriate. The Committee referenced Law Society of Alberta v. Crisfield, 2012 ABLS 17 (CanLII) and Law Society of Alberta v. MacKenzie, 2016 ABLS 5 (CanLII) in support of a reprimand.

The joint submission was given deference as per Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII), R. v. L.R.T., 2010 ABCA 224 (CanLII) and Law Society of Upper Canada v. Orzeck.

Mitigating Circumstances • Admitted Statement of Facts and Admission of guilt; • Joint submission on sanction (partial); • No disciplinary record; • Moughel was cooperative and met with Practice Review; • Moughel took had significant health issues, sought alternative treatment and took steps to

mitigate problems resulting from his health issues; • No indication of dishonesty or personal gain for Moughel.

Sanction Reprimand, fine of $4,000.00, referral to Practice Review and costs of the hearing, both to be paid by January 28, 2017.

Law Society of Alberta v. Carr, 2016 ABLS 37 (CanLII) HE20150093 heard September 20 – 23, 2016

Carr failed to uphold the standards and reputation of the profession with respect to dealings with former students and associates when he failed to adequately supervise articling students, prematurely communicated information, and failed to be candid with the LSA. The LSA did not call evidence on remaining citations and they were dismissed.

Proceedings were adjourned when Carr fell ill and the Hearing Committee directed there be an order to redact any medical information which had been entered as an exhibit. The matter was resolved with a guilty plea and a joint submission on sanction.

Mitigating Circumstances • Statement of Admitted Facts and admitted guilt; • Joint submission on sanction.

Sanction Reprimand, costs of $10,000.00 to be paid within one year and the condition that the Carr may not take on and be principal to an articling student without permission of the LSA.

Law Society of Alberta v. Kaczkowski, 2016 ABLS 36 (CanLII) HE20150165 heard April 25, 2016

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Kaczkowski admitted guilt to several citations from four complaints. Kaczkowski failed to supervise staff, failed to diligently provide efficient service, failed to respond to his client, failed to respond to the LSA and made an offer to withdraw charges for valuable consideration. Some overlapping citations were withdrawn. Kaczkowski noted the unfortunate circumstances arising around the time of the events relating to the citations.

Parties jointly sought a one-day suspension, a $3,000.00 fine and payment of hearing costs. The Hearing Committee raised a concern that the precedents submitted by LSA counsel did not support a one-day suspension and rejected the joint submission. Based on the view that Kaczkowski had rehabilitated, LSA counsel submitted that a reprimand would be satisfactory. Kaczkowski agreed and expressed that the fine was too high. The Committee reduced the hearing costs to half to reflect the shortened hearing length.

Mitigating Circumstances • Agreed Statement of Facts; • Agreed Exhibit Book; • Admission of guilt; • Joint submission on sanction; • Kaczkowski was remorseful and cooperative; • No disciplinary history.

Sanction Reprimand, fine of $3,000.00 and costs of $2,139.38.

Law Society of Alberta v. Mirasty, 2016 ABLS 35 (CanLII) Application for a stay of proceedings pending appeal of HE20140024 heard June 22, 2016

Mirasty appealed a sanction of a 45-day suspension of, costs, and a referral to Practice Review (see Law Society of Alberta v. Mirasty, 2016 ABLS 21 (CanLII). The Hearing Committee accepted the joint submission for a stay as per Law Society of Alberta v. Pearson, (2011) ABLS 17. The denial of a stay would effectively deny Mirasty the benefit of an appeal and his conduct did not involve the conversion or misappropriation of property.

Decision A stay was granted subject to conditions that LSA immediately direct the preparation of an appeal record, Mirasty is to undertake to diligently proceed with the appeal and undertake to pay costs of $5,645.57 before September 30, 2016. See Law Society of Alberta v Mirasty, 2016 ABLS 58 (CanLII) for the Appeal Hearing.

Law Society of Alberta v. McKay, 2016 ABLS 34 (CanLII) HE20130064 heard April 15, 2016

McKay faced 15 citations which arose from 5 complaints from over 3 years involving family law matters and a series of real estate transactions. McKay failed to provide conscientious, diligent and efficient

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service to his clients, misled clients about the progress of their matters, failed to respond in a timely manner to clients and to lawyers, breached trust conditions imposed by another lawyer, and failed to respond to numerous inquiries from the LSA. McKay did not engage in any financial impropriety.

The Hearing Committee referenced Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII), R. v. Tkachuk, 2001 ABCA 243 (CanLII), and Law Society of Alberta v. Pearson, 2011 ABLS 17 (CanLII) to accept the joint submissions. The Committee opted for a harsh sanction of suspension, referencing Bolton v. Law Society, [1994] 2 All ER 486 (C.A.).

Mitigating Circumstances • Agreed Statement of Facts and admissions of guilt; • No disciplinary record; • McKay was cooperative with LSA counsel.

Aggravating Circumstances • McKay failed to cooperate with the LSA’s investigations.

Sanction Suspension of four months and costs of $24,293.49, half payable by December 31, 2016 and half by May 1, 2017. Practice Review will oversee the closure or transfer of McKay’s files and McKay will comply with Practice Review and Trust Safety.

Law Society of Alberta v. MacKay, 2016 ABLS 33 (CanLII) Single Bencher hearing HE20160112 heard June 16, 2016

MacKay failed to comply with undertakings when he released a holdback to his client in the face of assertions that landscaping had not been completed. MacKay recognizes his error and emphasized that he thought he was doing the right thing at the time.

In considering the purpose of sanction, the Bencher referenced Law Society of Alberta v Mackie, 2010 ABLS 10 (CanLII), at para. 41

Mitigating Circumstances • Admitted Statement of Facts and Admission of guilt allowed for single Bencher hearing; • Joint submission on sanction; • No disciplinary record; • MacKay was cooperative.

Sanction Reprimand and costs of $1,300.00, half the costs of the proceedings.

Law Society of Alberta v. Schuster, 2016 ABLS 32 (CanLII) HE20150005 heard June 21, 2016 (sanction phase)

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In the earlier merits phase of the hearing, Law Society of Alberta v. Schuster, 2015 ABLS 15 (CanLII), Schuster was found to have engaged in conduct worthy of sanction on a single citation, a failure to inform a client of a material error or omission. The five remaining citations were dismissed.

LSA urged a sanction of a reprimand, a moderate $3,000.00 fine, given that trust funds were involved, and payment of 1/3 of the Estimated Statement of Costs. LSA argued that there were only 3 types of citations even though 5 of 6 citations were dismissed. Schuster urged the Committee to impose no sanction and argued he should pay no more than 1/12 the costs because if LSA had proceeded with the single citation on which he was found guilty the matter could have been heard in one half day.

Schuster submitted a number of significant mitigating factors including that the whole complaint process was an attempt by an opposing party to gain some advantage over him through the conduct process. The Hearing Committee rejected LSA’s argument that there were only three types of citations.

Mitigating Factors • No prior disciplinary record over 40 years; • Schuster was candid; • Conduct did not result in personal gain or loss to the client.

Sanction Reprimand and costs of $5,000.00 (approximately 1/6 of Estimated Statement of Costs) to be paid within one month.

Law Society of Alberta v. Burkinshaw, 2016 ABLS 31 (CanLII) HE20150241 heard July 20, 2016

Burkinshaw admitted that failed to follow his client’s instructions when he failed to appeal a court order, which impacted his client's confidence in him and in the profession. The LSA did not pursue two remaining citations for failing to follow client instructions.

Parties disagreed as to whether Burkinshaw should pay the full costs as he was sanctioned on only one of three allegations. The Hearing Committee decided that no reduction in costs was warranted and accepted the joint submission on sanction of a reprimand as per Law Society of Alberta v. Pearson, 2011 ABLS17 (CanLII).

The Committee referenced Law Society of Alberta v. Elgert, 2012 ABLS 9 (CanLII) at para. 37, McKee v. College of Psychologists (British Columbia), 1994 CanLII 1404 and Law Society of Alberta v. King, (2010 ABLS 9 (CanLII) in consideration of the sanction and the significance of a reprimand.

Mitigating Circumstances • Admitted Statement of Facts and Admission of guilt; • Burkinshaw will continue to work with Practice Review.

Sanction Reprimand and costs to be paid within three months of service of the Statement of Costs.

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Law Society of Alberta v. Engelking, 2016 ABLS 30 (CanLII) Single Bencher hearing HE20160002 heard April 25, 2016

Engelking admitted that he made a settlement offer on his clients' behalf without their specific instructions and in doing so foreclosed his clients' right to litigate the issue for which he was retained. Engelking did not report himself to LSA or his insurer during this time, which likely compounded the unfortunate outcome for his client. Engleking's actions were intended to protect his clients from costs and were entirely without malice, but his actions demonstrated a serious failure in client service and failure to follow clear written instructions.

The LSA sought a reprimand and a $7,500.00 fine as this fine should be higher than Engelking's previous sanction. Engelking submitted that the circumstances here were less severe and he had compensated the clients, so the sanction should be less or none.

Mitigating Circumstances • Statement of Admitted Facts and Admission of guilt allowed for single Bencher hearing; • Agreed Exhibit Book; • Engelking was cooperative.

Aggravating Circumstances • Prior disciplinary record.

Sanction Reprimand, fine of $5,000.00 and costs of $1,644.85.

Law Society of Alberta v. Burgener, 2016 ABLS 29 (CanLII) HE20100016 heard October 5 – 7, November 16 – 20, 2015 and January 7, 8, 14, 15, and March 21 – 22, 2016

Burgener was found guilty of 14 out of 16 citations arising from one complaint and from the investigation of numerous “flip deals”. Burgener was disbarred, had costs directed against him and was referred to the Attorney General for consideration of possible criminal proceedings.

Burgener had established a shared office with the complainant, JM, and had a barter-based solicitor-client and advisor relationship with him. The nature of the business relationship was never clarified or set in writing. Burgener created a mortgage investment corporation at JM's behest, in which Burgener was a director and shareholder, but there was no retainer agreement or contract. In support of JM's wife's application for financing for an agreement to purchase condominium units, Burgener provided a letter to TD bank that she was employed by him, which was not true. Later, Burgener created a corporation with JM and RC, who he represented, in order to gain ownership of a commercial real estate property. Burgener did not take steps to clarify his relationship with the other business associates, there was no retainer agreement and he gave no recommendation for the parties to obtain independent legal advice. Burgener alleged that he acted both as legal counsel and as a participant in the business venture, but he did not advise his clients of his conflict of interest.

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Burgener, JM and RP then entered into a partnership agreement, Burgener acted both as lawyer and business partner, made no effort to formalize the relationship, did not advise of the conflict of interest or advise to obtain independent legal advice, did not assert RP's rights and even sought payment for one half of the profit without regard to RP's claim. There was yet another series of transactions involving Burgener as a "straw buyer" in which he suggested his name was used without his knowledge. However, he acknowledges closing that transaction and becoming the legal owner. The relationship deteriorated from there.

The burden of proof rests with the LSA on a balance of probabilities as per Moll v. College of Alberta Psychologists, 2011 ABCA 110 (CanLII). The Hearing Committee referred to Smith v. Jones, 1999 CanLII 674 (SCC) to affirm the importance of solicitor-client privilege, to Adeshina v. Litwiniuk & Co, 2010 ABQB 80 (CanLII) at para. 114 to affirm that a lawyer has a duty to exercise reasonable care to assure that he or she discloses to the client all facts that might be material to the interests of the client regarding the scope of the representation. Burgener showed no remorse or responsibility for his conduct.

In considering what is conduct deserving of sanction, the Committee referred to Law Society of Alberta v. Wald, 2011 ABLS 21 (CanLII) at para. 30, Brendzan v. Law Society of Alberta, 1997 CanLII 14825, Law Society of Alberta v. Aaron Oshry, 2009 LSA 12 (CanLII), Law Society of Alberta v. Ter Hart, [2004] L.S.D.D. No. 25 and Law Society of Alberta v. Smeltz, [1997] L.S.D.D. No. 144.

Aggravating Circumstances • Prior disciplinary record.

Sanction Disbarment, Notice to the Profession, Attorney General referral and actual costs of $170,932.30.

Law Society of Alberta v. Torske, 2016 ABLS 27 (CanLII) HE20130073 heard March 3, 2016 (costs phase)

After parties could not agree on costs after the previous hearing, Law Society of Alberta v. Torske, 2015 ABLS 13 (CanLII), the Hearing Committee was presented a draft Statement of Costs and considered submissions by the parties.

Torske asked for a reduction in costs. He submitted that he had cooperated throughout the investigation and hearing, he had been found not guilty of a citation, the issues were novel and important, and he was impecunious. The LSA sought full costs.

The Committee decided, based primarily on the impecuniosity of Torske, to order payment of full actual costs within two years of reinstatement rather than as a condition of reinstatement. The Hearing Committee referenced Cartledge v. Alberta Veterinary Medical Association, 1999 ABCA 131 (CanLII) in deciding that it was permitted to assess costs against a guilty member.

Mitigating Circumstances • Torske is impecunious.

Sanction (Costs) Actual costs of $67,351.59 to be paid within two years of reinstatement.

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Law Society of Alberta v. Lee, 2016 ABLS 25 (CanLII) HE20150091 heard February 18 – 19, 2016

Lee was referred to Practice Review as a result of previous citations, which were eventually dismissed. The current citation is that Lee failed to comply with directions from his regulator when he declined to give the requested undertakings to Practice Review. Although Lee was properly referred to Practice Review, he was not required to comply with the requirements of Practice Review and the request for undertakings was not a direction from the regulator.

Decision Citation dismissed

Law Society of Alberta v. Nguyen, 2016 ABLS 24 (CanLII) Single Bencher hearing HE20150047 heard March 23, 2016

Nguyen admitted that he sent correspondence that was abusive, offensive or otherwise inconsistent with the proper tone of a professional communication with a lawyer. Five related citations were withdrawn at a pre-hearing conference. The Bencher accepted the joint submission on sanction of a reprimand and payment of costs.

Nguyen had received a draft order from opposing counsel and suggested changes that were not accepted. After the opposing counsel submitted the letter to the judge in the matter, Nguyen wrote a letter to the judge with a copy of his draft order and referred to the opposing counsel’s order as a "no-brainer" and “unstructured”.

Mitigating Circumstances • Statement of Admitted Facts; • Agreed Exhibit Book; • Admission of guilt; • Joint submission on sanction.

Aggravating Factors • Disciplinary history.

Sanction Reprimand and costs of $3,000.00 to be paid within 6 months.

Law Society of Alberta v. Broda, 2016 ABLS 23 (CanLII) Appeal hearing HE20070043AP heard February 11, 2016

Broda was disbarred in the face of 56 citations in Law Society of Alberta v Broda, 2010 ABLS 36 (CanLII). He appealed with respect to all findings of guilt. His appeal included those citations for which he had admitted guilt and he also appealed the decision to disbar him.

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In a pre-hearing conference, Broda was granted an extension to provide his appeal materials on the basis that the LSA would have leave to apply to strike the appeal if that deadline was missed. Broda missed the initial deadline to file his written submission and then provided LSA counsel a signed Notice of Abandonment of Appeal on the understanding that it would be effective if he did not meet the new deadline.

Broda did not provide his written submission by the deadline or even by the date of the hearing and sent a “Notice of Revocation” in which he purported to revoke the Notice of Abandonment. The Appeal Committee adjourned the hearing under strict conditions as there were extenuating circumstances relating to medical issues and Broda wished to bring new medical evidence, along with the appeal materials. Broda again failed to comply with the directions and did not provide his written submission by the deadline. Following an email exchange, the Committee decided that Broda’s request for a further extension of time and adjournment should be denied, and the appeal should be dismissed as he acted in contravention of express directions and had repeatedly shown himself to be ungovernable.

Decision Appeal dismissed.

Law Society of Alberta v. Maurice, 2016 ABLS 22 (CanLII) Single Bencher hearing HE20150101 heard April 18, 2016

The citation arose when Maurice advanced a claim on behalf of 14 Treaty No. 6 First Nations. Maurice received a notice from another law firm that one of these 14 groups had transferred legal services to their firm in respect of this claim, which impacted the remaining groups, but Maurice did not respond to the law firm for approximately one year.

Maurice admitted guilt to failure to respond to communications from a law firm with reasonable promptness. The Bencher accepted the jointly proposed sanction of a reprimand and actual costs.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt allowed for a single Bencher hearing; • Joint submission on sanction; • Maurice admitted responsibility and cooperated; • No disciplinary record.

Sanction Reprimands and actual costs of $1,709.92.

Law Society of Alberta v. Mirasty, 2016 ABLS 21 (CanLII) HE20140024 heard July 7 – 8, 2015 and March 4, 2016

A panel member disclosed a potential conflict of interest which prevented her from sitting on the matter. The hearing continued as a panel of two.

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The citations arose from a complaint brought by the Public Guardian and Trustee of Saskatchewan. Mirasty failed to comply with a Court Order when he failed to submit a complete accounting within 30 days and pay costs, failed to respond to the LSA and failed to be candid with the LSA. The Hearing Committee dismissed the citation that Mirasty failed to respond to communications from the Trustee because the LSA was required to establish that he not only did not reply promptly, but did not reply at all.

After being found guilty of three of the four citations, Mirasty sought and was granted an adjournment to allow evidence to be called on his behalf regarding sanction.

LSA suggested that the citations were strict liability offences, such that the LSA was not required to establish any intent on the part of Mirasty, as per Riccioni v. Law Society of Alberta, 2015 ABCA 62 (CanLII). The Committee disagreed and accepted Mirasty’s counsel’s argument that the degree of intent depends upon the nature of the citation and, even in the case of strict liability offences, a lawyer can still establish on a balance of probabilities that he or she took all reasonable steps to avoid committing the offence, as per Merchant v. Law Society of Saskatchewan, 2014 SKCA 56 (CanLII) at para 27.

Mitigating Circumstances • Statement of Admitted Facts; • No disciplinary record.

Sanction Suspension of 45 days, referral to Practice Review upon reinstatement, Notice to the Profession and 75% of hearing costs to be paid by March 4, 2017.

Law Society of Alberta v. Geisterfer, 2016 ABLS 20 (CanLII) HE20150108 heard March 7, 2016

Two citations arose after Geisterfer purchased a Second Cup franchise and incorporated a business with his client. The client then ceased to act as manager of the Second Cup and Geisterfer removed his client’s shares from the business without giving proper notice to the client.

Geisterfer admitted that he engaged in a business transaction with a client with respect to a numbered company of which they were both shareholders, the client did not have independent legal representation, Geisterfer did not document his advice to the client that he should obtain independent legal advice, and he engaged in actions that were oppressive or which violated reasonable expectations of integrity.

The Hearing Committee accepted the joint submission on sanction as per Law Society of Alberta v. Pearson, 2011 ABLS 17 (CanLII) at para. 21, Law Society of Alberta v. Bontorin, 2015 ABLS 9 (CanLII), at paras. 16 to 19 and Law Society of Alberta v. Byron, 2013 ABLS 31 (CanLII), at para. 120.

Mitigating Circumstances • Admitted Statement of Facts and Admission of guilt; • Joint submission on sanction.

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Aggravating Circumstances • Disciplinary history in relation to issues of integrity.

Sanction Suspension of 60 days, full actual costs to be paid by 60 days of being served with the Statement of Costs, Notice to the Profession and an undertaking that, between March 7 and March 23, 2016, Geisterfer must not enter into any business transaction without advising the other party or parties to that transaction that they should obtain independent legal advice.

Law Society of Alberta v. Malcolm, 2016 ABLS 19 (CanLII) Single Bencher hearing HE20150066 heard January 12, 2016

Four citations arose from Malcolm’s representation of his client in a separation and custody matter. Malcolm failed to serve his client when he failed to include a required provision on a Maintenance Order that would allow it to be enforced, failed to amend the Order, did not pursue his client's property claim before it became statute barred and consented to an Access Order and did not advise his client of the terms or instructions. Malcolm also failed to respond to his client's voicemails and withdrew from representing his client at a time when there was an outstanding serious application against her, for which she was not given notice.

The Bencher was not given reasons for these mistakes or any evidence upon which to decide an appropriate sanction and upon inviting parties to testify, Malcolm said he failed to get a proper level of clarity from his client. The Bencher accepted the joint submission on sanction.

Mitigating Circumstances • Statement of Facts and Admission of guilt; • Joint submission on sanction; • Malcolm voluntarily involved himself with Practice Review; • Malcolm voluntarily took on educational obligations.

Sanction Reprimand, fine of $5,000.00 to be paid within 6 months or investment of $5,000.00 in a course of education or continuing professional development as approved by Practice Review, continued involvement with Practice Review and costs of $1,713.00 to be paid within 6 months.

Law Society of Alberta v. Mahmudi-Azer, 2015 CanLII 98649 [2016 ABLS 18] HE20150009 heard December 14, 2015

Mahmudi-Azer left the country to begin a new position with the UN before he transferred his client’s file and then failed to submit invoices or accounting to his client upon request. Mahmudi-Azer also failed to comply with the accounting rules of the LSA and failed to cooperate and respond to communications from the LSA.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt;

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• Joint submission on sanction; • No disciplinary history.

Sanction Suspension of 4 months to commence December 14, 2015, referral to Practice Review and costs of $3,000.00 to be paid within 1 year of reinstatement. Mahmudi-Azer undertook to pay the complainant $3,000.00 on or before June 14, 2016.

Conditions were also imposed, that Mahmudi-Azer shall:

i. Provide outstanding reports in relation to the Azer Law Firm to the Trust Safety Department of the Law Society on or before June 14, 2016;

ii. Cooperate with the Practice Review Committee, and follow and recommendations of, and give any undertakings requested by, the Practice Review Committee;

iii. Be restricted to working in an employed capacity; iv. Not operate a trust account or be responsible for trust accounting; and v. Conditions (c) and (d) shall apply until such time as the Practice Review Committee directs

otherwise.

Law Society of Alberta v. Lee, 2016 ABLS 16 (CanLII) HE20140027 heard January 21, 2016

There was a single citation, that Lee failed to treat the Court with fairness, courtesy and respect. The opposing lawyer in litigation alleged that Lee’s affidavit and oral submissions made to the case management Justice were offensive.

The LSA submitted that Lee was discourteous, abused the process and his client suffered as costs were awarded against the client. Lee testified that perhaps the affidavit could have been more eloquently drafted, but the arguments were necessary, and he meant no personal offence to any party.

The Hearing Committee found that the affidavit or oral submissions were not enough to be considered as treating the Court with unfairness, discourtesy or disrespect and any issues were addressed by both the case management Justice and another Justice in a subsequent proceeding. The costs awarded against the client were awarded on a solicitor/client basis, not on a solicitor/solicitor basis.

The Committee referenced in consideration of what is required to sanction a lawyer for professional misconduct in the context of acting within the Court system Groia v. Law Society of Upper Canada, 2015 ONSC 686 (CanLII).

Mitigating Circumstances • Lee’s intent was at all times a sincere desire to advocate on behalf of his client even if his

argument was not effective; • Lee’s conduct did not attack any party’s personal integrity; • This was a single instance; • Lee’s arguments were dealt with by the Court and Lee apologized and made efforts to answer

any questions.

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Decision Citation dismissed.

Law Society of Alberta v. Glenn, 2016 ABLS 15 (CanLII) Single Bencher hearing HE20150246 heard December 21, 2016

Glenn admitted guilt to two citations, that he failed to provide timely, courteous, thorough and prompt service to a client and he failed to provide honest and candid information to a client. Glenn had drafted a Statement of Claim, billed client for the work, but failed to file it and did not notify his client that the Statement of Claim was not filed.

The Bencher accepted the joint proposal of sanction by way of a reprimand.

Aggravating Circumstances • Disciplinary history.

Sanction Reprimand, costs to be paid within 30 days of delivery of the Statement of Costs and cooperation with Practice Review to ensure practice is wound up and he is retired no later than June 30, 2016.

Law Society of Alberta v. McNeilly, 2016 ABLS 14 (CanLII) Single Bencher hearing HE20160001 heard February 17, 2016

McNeilly’s client paid her a $10,000.00 retainer, then McNeilly repeatedly delayed correspondence to her client and did not take steps to move the matter forward. In doing so, McNeilly failed to serve her client and failed to respond to her client’s communication.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction; • No disciplinary history; • McNeilly’s husband died during her representation of the client; • McNeilly promptly withdrew upon request and returned the $10,000.00 retainer to her client.

Sanction Reprimand and costs of $2,000.00.

Law Society of Alberta v. Dewett, 2016 ABLS 13 (CanLII) HE20120017 heard October 19 – 22, 2015

In November 2013, Dewett was suspended pending this hearing in the face of 13 citations arising from complaints related to transactions around his residential property, whether or not he failed to recognize a conflict in a commercial real estate deal, a delay in handling the details of a divorce and compliance with undertakings given to the LSA to restrict his practice while under investigation.

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The Hearing Committee dismissed the citation related to the residential property and the citations involving procedural errors in the divorce matter. Dewett was found to have failed his lender client for the residential property, failed to recognize and deal with a conflict and he failed to comply with undertakings.

The Hearing Committee found that Dewett was not credible as a witness. At the hearing, he resiled from certain aspects of his Agreed Statement of Facts and was generally evasive and not responsive to simple questions. Therefore, the Committee chose to believe other witnesses and documents in the case of a conflict and generally did not accept his explanations. Dewett was found to be ungovernable

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt to some citations.

Sanction Disbarment, Notice to the Profession and 2/3 of the hearing costs, $31,733.14.

Law Society of Alberta v. Shustov, 2016 ABLS 12 (CanLII) Single Bencher hearing HE20150003 heard October 30, 2015

Shustov failed to communicate with his client and did not notify his client when he left his Edmonton law firm to join CLG in Calgary and the file was still active. Shustov failed to serve his client when he did not take any steps on the file for over 18 months. He informed his client of the next step did not act on it.

The Bencher referenced Law Society of Alberta v Mackie, 2010 ABLS 10 (CanLII) in consideration of the purpose of the sanction. Shustov was a young lawyer who was overwhelmed by the demands of practice and posed no risk to the public at the time of the hearing as he was suspended. The Bencher accepted the joint submission of a reprimand as per Law Society of Alberta v. Westra, 2010 CanLII 90715.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt; • Joint submission on sanction; • Shustov cooperated with the LSA and is genuinely apologetic.

Aggravating Circumstances • Shustov had an 8-month suspension for unrelated conduct imposed on him in 2014.

Sanction Reprimand and actual costs to be paid within one year of reinstatement to the LSA.

Law Society of Alberta v. Pearson, 2016 ABLS 11 (CanLII) Resignation hearing HE20140044 heard December 15, 2015

Pearson applied to resign (s. 61) in the face of 8 complaints giving rise to 37 citations related to poor law firm records, accounting issues, trust fund issues, fund allocation issues, accepting payment for legal services without the approval of Legal Aid and failing to respond to the LSA. Pearson’s conduct had been

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the subject of 8 Assurance Fund investigations, all showing evidence of misappropriation of trust funds, and an investigation by the Edmonton Police Service was ongoing.

The Resignation Committee found resignation to be in the best interests of the public and the LSA. The Committee accepts that Pearson has been shown to be ungovernable and her conduct is incompatible with the best interests of the public.

Mitigating Circumstances • Agreed Statement of Facts.

Decision Resignation accepted (s. 61), costs of $55,473.60 to be paid by December 15, 2018 and prior to making an application for reinstatement. Pearson was required to surrender her certificate of enrolment to the LSA and undertook to cooperate with the LSA with respect to claims made against her or the Assurance Fund.

Law Society of Alberta v. Heming, 2016 ABLS 10 (CanLII) Single Bencher hearing HE20150172 heard October 27, 2015

Heming accused a solicitor of misdirecting the Court as to the applicable law in a proceeding and impropriety in front of the public. In an email, Heming stated that the solicitor's conduct could attract a personal cost award and LSA sanction and then requested that the solicitor contact her with a comprehensive settlement offer in relation to the proceeding.

Heming failed to treat the fellow solicitor with courtesy and respect and used the threat of a complaint to the LSA in an attempt to gain an advantage.

The Bencher accepted the joint submission on sanction as per R v. Tkachuk, 2001 ABCA 243 (CanLII) and Law Society of Alberta v. Pearson, 2011 ABLS 17 (CanLII).

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt; • Joint submission on sanction; • No disciplinary record.

Sanction Reprimand and costs to be paid by January 25, 2016.

Law Society of Alberta v. Lacourciere, 2016 ABLS 9 (CanLII) HE20130056 heard April 21 and July 7, 2015

Parties raised an issue of apprehension of bias and asked a panel member to recuse herself, which she did. Reasonable apprehension of bias is a legal standard for disqualification for bias, as per Yukon Francophone School Board Education Area No 23 v. Yukon Territory, 2015 SCC 25 (CanLII), para. 20. The Committee also referred to Brouillard v. The Queen, 1985 CanLII 56 (SCC) and Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.). The hearing proceeded with a Committee of two panel members.

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Lacourciere failed to keep his clients informed as to the progress of their matters and misled or failed to be candid with his clients when he attempted to lead them to believe that he was trying for a trial date, when in fact he had no intention before being paid further. The clients thought they had paid for a trial when they had actually paid for work done to date and Lacourciere accepted the money without informing his clients of their misunderstanding.

The Hearing Committee found that Lacourciere misled his clients by not telling them he wasn’t going to move the matter without further payment, by not providing them with a reasonable amount of information regarding fees and disbursements and by meeting with them twice simply to give an appearance of moving the matter along. Three related citations were dismissed.

In considering sanction, the Committee referenced Law Society of Alberta v. Crisfield, 2010 ABLS 14 (CanLII), Law Society of Alberta v. Hope [1995] LSDD No 297, Law Society v. Michaels, [1996] LSDD No 284 and Law Society of Alberta v. Makuch, 2013 ABLS 10 (CanLII). LSA sought a three-month suspension and costs. While the Committee thought a sanction at the upper end of the spectrum would be appropriate, no cases were cited to it where a suspension was found to be appropriate, and therefore a 3-month suspension was found to be outside the range of appropriate sanctions.

Mitigating Circumstances • No conviction record for the past 20 years.

Aggravating Circumstances • Previous disciplinary history; • Intentionally misled clients.

Sanction Reprimand, fine of $10,000.00 to be paid by November 7, 2015 and actual costs to be paid by July 7, 2016.

Law Society of Alberta v. Botan, 2016 ABLS 8 (CanLII) HE20150100 heard October 15, 2015

Botan appeared on an ex parte basis seeking an order for the payment of funds to himself that had been paid into Court after Botan obtained an order against his unrepresented former client requiring the client to pay a disputed fee into Court on a without prejudice basis. The order was granted and Botan received payment of the funds.

Botan denied being aware of Rule 10.22 of the Alberta Rules of Court but acknowledged that he failed to say anything about the without prejudice nature of the order and failed to disclose that the order was subject to a further hearing.

Botan’s conduct was dishonourable and lacked integrity, he failed to represent himself within the limits of the law and misstated facts or law or suppressed what ought to have been disclosed.

The Hearing Committee considered whether damages awarded against Botan in the subsequent civil action and other repercussions should be considered in relation to sanction and determined that those damages were intended to compensate the client.

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Mitigating Circumstances • Statement of Facts and Admission of guilt; • Botan cooperated with the LSA.

Sanction Suspension of one day, Notice to the Profession and actual costs to be paid within six months of delivery of the Statement of Costs.

Law Society of Alberta v. Llewellyn, 2016 ABLS 7 (CanLII) Single Bencher hearing HE20150117 heard August 10, 2015

Llewellyn let his Restricted Appearance Certificate (RAC) from the Law Society of NWT expire before he represented his client in a divorce action out of NWT. Llewellyn did not respond to communications from the opposing lawyer that contemplated a reply.

The Bencher rejected LSA’s request for a referral to Practice Review as Llewellyn had only one prior conduct sanction from 1996 on his record. In considering the sanction, the Bencher referenced Law Society of Alberta v. Mackie, 2010 ABLS 10 (CanLII) and Law Society of Alberta v. King, 2010 ABLS 9 (CanLII), para. 79. The Bencher referenced King at para. 72 and Law Society of Alberta v. Elgert, 2012 ABLS 9 (CanLII) at para. 41 in considering mitigating circumstances and R. v. Tkachuk, 2001 ABCA 243 (CanLII) and Law Society of Alberta v. Pearson, 2011 ABLS 17 (CanLII) in accepting the joint submission on sanction.

Mitigating Circumstances • Statement of Admitted Facts and Admission of guilt; • Llewellyn cooperated with the LSA, took responsibility for his conduct and demonstrated

willingness to avoid re-occurrence.

Sanction Reprimand, fine of $2,000.00 and costs of $1,000.00, both to be paid by February 18, 2016.

Law Society of Alberta v. Steed, 2016 ABLS 6 (CanLII) Resignation hearing HE20120029 heard May 28, 2015

Steed applied to resign in the face of 51 citations, the majority of which arose from real estate transactions for which he acted as solicitor. Many of these transactions were later identified as part of mortgage fraud schemes. Other citations involved various failures to serve his clients, assisting his clients in improper purposes, breach of trust conditions and undertakings, failure to be candid, failure to respond to another lawyer, breaches of trust accounting rules, commissioning an untrue oath, and failure to satisfy financial commitments.

Steed admitted guilt to 23 of the citations, admitted guilt to the facts underlying 13 citations and admitted that the evidence available to the LSA would establish 7 additional citations. The admitted conduct was sufficient as to warrant disbarment as the only outcome of a Hearing.

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Decision Resignation accepted (s. 61), Notice to the Profession, and costs of $342,967.17 to be paid prior to any application for readmission to the LSA. Steed undertook to make his best efforts to locate his certificate of enrolment and surrender it to LSA.

Law Society of Alberta v. MacKenzie, 2016 ABLS 5 (CanLII) HE20150090 heard November 5, 2015

MacKenzie failed to serve his client when he failed to respond to his client's communications and did not prepare his client's draft pleadings. MacKenzie did not provide his client with an explanation for not completing the tasks his client had instructed him to complete.

Mitigating Circumstances • Statement of Admitted Facts and Admission of Guilt; • No disciplinary record.

Sanction Reprimand, fine of $3,000.00 and costs of $2,000.00, both to be paid within 1 year.

Law Society of Alberta v. Cohen, 2016 ABLS 4 (CanLII) HE20140052 heard April 27, 2015

Cohen failed to fulfil his undertaking after he should have released funds that were held in trust to his client's ex-wife, the complainant. Those funds were taken by the client and converted into a retainer rather than given with trust conditions to client’s the new lawyer. Cohen then failed to be candid with the complainant.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction; • No disciplinary record over 22 years; • Cohen cooperated with the LSA.

Sanction Reprimand and actual costs to be paid within two years of delivery of the Statement of Costs.

Law Society of Alberta v. Leonard, 2016 ABLS 3 (CanLII) HE20140037 heard June 18, 2015

Leonard failed serve his client when he failed to discharge the previous mortgage on his client’s property and failed to register the mortgage until 14 months after the receipt of the advance from the bank. The bank incurred a loss of $28,744.67 as a result of his conduct. Leonard then failed to respond to communications from counsel when a copy of his file was requested.

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LSA counsel submitted that a reprimand would protect the public interest as Leonard had been suspended following the previous case, Law Society of Alberta v Leonard, 2014 ABLS 31 (CanLII). Had they been discovered then, the citations at issue would have been subsumed in that previous case as the similar conduct occurred concurrently. The Hearing Committee found that it was not appropriate to use the “step up principle” to now impose a greater sentence.

Mitigating Circumstances • Admission of guilt; • Joint submission on sanction; • Leonard responded positively to Practice Review and is rehabilitating his practice; • Leonard cooperated with the LSA.

Sanction Reprimand and costs of $1,000.00 to be paid by October 1, 2015.

Law Society of Alberta v. Damen, 2016 ABLS 2 (CanLII) Appeal hearing HE20130053 heard November 3, 2015

Damen appealed the Hearing Committee’s decision in Law Society of Alberta v. Damen, 2014 ABLS 36 (CanLII) on the grounds that the finding that he failed to fulfill his duty to his client, the profession and the public, was flawed.

The Committee determined that the question before the Appeal Committee was whether the decision of the Hearing Committee was justifiable, intelligible and transparent and whether it fell within a range of acceptable outcomes, defensible on both the facts and the law. The Committee referenced Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), and Moll v. College of Alberta Psychologists, 2011 ABCA 110 (CanLII).

The sanction arose from the deliberate concealment of Damen’s participation in a transaction from the opposing party and the Committee found it clear that Damen’s duty is not to be interpreted in the rigid manner suggested by his counsel. The former and current Code of Professional Conduct requires lawyers to be candid.

Decision Appeal dismissed. Costs of $2,172.98 to be paid by October 31, 2016.

Law Society of Alberta v. Souster, 2016 ABLS 1 (CanLII) HE20140014 heard March 11, 2015

Souster faced 21 citations. It was alleged that Souster unknowingly assisted in mortgage fraud and failed to serve his clients, failed to supervise his practice, acted while in a conflict of interest and falsely swore that he witnessed a signature. There was no indication of direct involvement in the fraud schemes.

The Hearing Committee referenced three cases in support of the joint submission: Law Society of Alberta v. Venkatraman, 2013 ABLS 29 (CanLII); Law Society of Alberta v. Laurich, 2014 ABLS 45 (CanLII);

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and Law Society of Alberta v. Carlson, 2012 ABLS 3 (CanLII). In accepting the joint submission, the Committee referenced Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII) and R. v. L.R.T., 2010 ABCA 224 (CanLII).)

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction; • There was evidence that Souster’s assistant was concealing the fraud from him.

Sanction Suspension of 4 months, Notice to the Profession and actual costs to be paid, half prior to reinstatement and half within 6 months of reinstatement.

2015

Law Society of Alberta v. Bourdon, 2015 ABLS 18 (CanLII) HE20140008 heard August 27, 2015

Bourdon failed to comply with trust conditions and respond to communications from another lawyer when, despite repeated requests, he failed to remove a caveat on a property. He also failed to report the matter to ALIA in a timely manner.

The Hearing Committee found that Bourdon willfully allowed the breach in trust condition and failed to act to rectify the breach, allowing the responsibility for compliance to fall into the hands of parties other than himself.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction.

Aggravating Circumstances • Previous disciplinary record for similar matters.

Sanction Reprimand, fine of $2,000.00 and actual costs, both to be paid within 90 days of August 27, 2015.

Law Society of Alberta v. Magnan, 2015 ABLS 17 (CanLII) HE20140036 heard September 9, 10, 11 and 14, 2015

The hearing proceeded in absence of the Magnan or counsel on proof of service of the Notice to Attend pursuant to s. 70(2) of the LPA. Magnan faced 13 citations relating to failing to serve her clients, failing to serve her client candidly, failing maintain client files and business records, failing to respond to the LSA, misleading the Court and Legal Aid Alberta, failing to cooperate with the Custodian, failing to comply with the Custodianship Order and bringing disrepute to the profession.

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Magnan’s conduct caused a large number of clients to have terrible experiences with the legal system when she suddenly stopped representing them and caused the local bar considerable stress when she forced Legal Aid to find new counsel for a number of clients on a very short notice. She conducted herself in an entirely unprofessional way in meetings with a client at the Medicine Hat Remand Centre, participated in the breach of court-ordered conditions of the client’s release and attempted to have him assaulted. Magnan made it very difficult for the LSA and Custodian to carry out their work.

Aggravating Circumstances • Magnan did not attend hearing.

Sanction Disbarment, Notice to the Profession, Attorney General referral and costs to be paid within 60 days of September 14, 2015.

Law Society of Alberta v. Schuster, 2015 ABLS 15 (CanLII) HE20150005 heard November 30 and December 1-4, 2015 (merits phase)

The citations arose from Schuster’s joint representation of a land development company and a church. The Hearing Committee found that Schuster failed to inform his client of a material error or omission relating to a trust accounting error. Five citations were dismissed as he did not generally fail to serve his client or keep his client informed.

As the church expressly did not want to be involved in the operational aspects of the project and was aware at all times that its interest was subordinated to the banks’ interests, Schuster served the interests of the church as he had been instructed to do. Schuster advised both parties that they ought to obtain independent legal advice when he entered into a joint retainer with the church and the development company. The interests of the parties remained aligned and Schuster was not aware of any conflict that required him to withdraw.

Schuster made an error when he paid funds that were due to the bank lender out of his trust account to the company. Though he was successful in taking steps to rectify the error, he failed to discharge his ethical obligation to report a trust accounting error to his client.

Mitigating Circumstances • Agreed exhibit book.

Aggravating Circumstances • Schuster did not understand the gravity of his ethical obligation to report an error to his client.

He remained adamant that because he eventually fixed the error, he was under no obligation to report it.

Sanction Sanction was dealt with in a separate phase of the hearing, at Law Society of Alberta v. Schuster, 2016 ABLS 32 (CanLII).

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Law Society of Alberta v. Ledrew, 2015 ABLS 14 (CanLII) Single Bencher hearing HE20140026 heard June 9 and 22, 2015

The citations arose when Ledrew’s client complained about an issue about freezing the estate in an estate litigation matter. Ledrew admitted that he did not respond to the LSA in a timely fashion.

Ledrew was experiencing significant health issues at the time of the incidents. At the time of the hearing, Ledrew had taken steps to narrow his practice, to decrease his workload and understood the necessity of responding fully and promptly to all LSA inquiries. The Hearing Committee granted Ledrew six months to pay the fine and costs.

Subsequent to the first day of the hearing, it was determined that the jurisdiction of a single Bencher does not extend to the withdrawal of citations. Citation 1, that Ledrew failed to fulfill his undertaking, was referred back to the original Conduct Committee panel and was dismissed.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt allowed for a single Bencher hearing; • Joint Submission on Sanction; • Ledrew fully cooperated with the LSA as soon as counsel became involved, so no investigative

costs were incurred.

Aggravating Circumstances • Prior disciplinary record for similar incidents of failing to respond to the LSA.

Sanction Reprimand, fine of $2,500.00 and actual costs of $2,245.90, both to be paid by December 31, 2015.

Law Society of Alberta v. Torske, 2015 ABLS 13 (CanLII) HE20130073 heard February 23-27 and July 8, 2015

Three citations arose from a complaint that Torske had been forging prescriptions after becoming addicted to pain killers. He was charged under s. 368(1)(a) of the Criminal Code and on appeal was given a 9-month conditional sentence. Contrary to Rule 105, Torske did not inform the LSA forthwith of the lost appeal (the lost appeal resulted in a sentence of imprisonment and should have resulted in automatic suspension). Torske admitted guilt on two if the citations.

On the third, the LSA argued that Torske should be found guilty of failing to be candid as that would have reduced the time during which the public was not protected while Torske was not suspended. Torske submitted that he thought his counsel or the Court itself would have reported on his behalf to the LSA, which the Committee found to be credible.

The burden of proof was on the LSA to demonstrate that Torske intended not to report, was reckless with regard to his non-reporting and was willfully blind or negligent with regard to his obligation.

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The Hearing Committee could not find that Torske failed to be candid or had any intent to deceive, and dismissed this citation.

LSA asserted that Torske lacks integrity and sought disbarment, which may have been appropriate while Torske was addicted but was not now. Torske sought a staged reintegration into legal practice, as he was now in remission, suspended and having been sentenced by the Court of Appeal. The Hearing Committee noted that it did not have the power to reinstate or place limitations as would be required for a staged reintegration.

Mitigating Circumstances • Agreed Statement of Facts; • Admission of guilt to engaging in conduct that brought discredit to the profession and impaired

his ability or motivation to provide competent legal services; • Torske was controlling his addictions, had obtained and maintained regular employment as a

paralegal with positive evaluation by his employers, stabilized his family situation, and had persuaded his counsel, doctors and employers that he is ready to return to the practice of law;

• Torske was receiving treatment for Bipolar disorder; • Previous suspension started on June 5, 2013.

Sanction Suspension of 18 months to commence July 8, 2015 with actual costs to be paid prior to reinstatement, in amounts to be agreed by counsel. See entry for Law Society of Alberta v. Torske, 2016 ABLS 27 for further discussion on costs.

Law Society of Alberta v. Lutz, 2015 ABLS 12 (CanLII) HE20130010 heard January 12-14, 2015

The citations arose from a field audit of the accounting records of Lutz’s law firm in 2011. There were no complaints by the client or opposing counsel in this matter.

Lutz was given $19,935.00 seized from his clients (assumed to be proceeds of crime) and the funds were disbursed between the partners of the Lutz's firm rather than used to pay his client's legal fees, as the Crown prosecutor had assumed would happen. There was no specific discussion of fees with the prosecutor or mention of any terms and conditions other than the funds would not go to the client. Lutz asked on a whim if the funds could go to him and the Sergeant affirmed that the funds could not go to the client, which Lutz promised. The funds were returned in trust for the client, who could not be given the funds and Lutz sought advice from the firm’s accountant before the funds were disbursed and shared as partners. The client retained Lutz on further matters and there was no mention or claim on the funds.

The Hearing Committee dismissed the citations as imperfect communications are not tantamount to misappropriation of funds, referencing Monroe (Re), 2014 ABQB 636 (CanLII), paras. 269-270.

Mitigating Circumstances • No conditions were expressed by the Crown when it turned the money over to Lutz, other than

the stipulation that it could not be returned to the client.

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Decision Citations dismissed.

Law Society of Alberta v. Luthra, 2015 ABLS 11 (CanLII) HE20130023 heard April 15, 2015

Luthra failed to protect the interests of his clients when he acted for parties with conflicted interests in a real estate deal. He did not have written consent of his clients to act in these circumstances and did not ensure that his clients were aware of all the material facts of the transactions before he obtained consent to act for the parties.

The Hearing Committee accepted the joint submission on sanction and agreed to allow that the payments be made by installments.

Mitigating Circumstances • Admission of guilt, which saved four days of hearing; • Luthra did not prefer the relationship of one client over another, did not obtain any personal

gain and did not engage in any improper purpose; • No disciplinary history prior to or in the eight years subsequent to the offence; • Luthra’s practice has changed and he is now careful to recognize potential conflicts and utilize

conflict letters.

Sanction Fine of $7,500.00 and costs of $10,000.00, to be paid in monthly installments of $1,000.00.

Law Society of Alberta v. Herring, 2015 ABLS 10 (CanLII) HE20140040 heard February 19, 2015

Herring lost her house to foreclosure and five boxes of law office records and files were found at her former residence, including one client file and trust accounting records. Herring was executor of her client's will and upon the client's passing, Herring stored the deceased client's coin collection in her house. While in her possession, several of the coins went missing before the assets were distributed to the beneficiaries.

The Hearing Committee dismissed one citation, relating to failing to follow accounting rules, and found guilt on the other, relating to preserving client property. The Committee noted that from a general deterrence perspective, it was important to send a message about the seriousness of the role that Members play as custodians of client property.

Mitigating Circumstances • No disciplinary record; • Herring had been retired for 4 years, so there was no risk of reoffending, no risk to the public

and no need for specific deterrence; • Herring cooperated with the LSA; • No costs as she was not in a position to pay ("special and unique circumstances at present").

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Sanction Reprimand.

Law Society of Alberta v. Bontorin, 2015 ABLS 9 (CanLII) Appeal hearing HE20130072AP heard April 24, 2015

Bontorin had admitted to conduct deserving of sanction in relation to two citations relating to real estate but appealed the Hearing Committee’s decision in Law Society of Alberta v. Bontorin, 2014 ABLS 43 (CanLII) on the following grounds:

1) The Hearing Committee erred in departing from the Joint Submission on Sanction without advising counsel of its intention to do so and without giving counsel an opportunity to make further submissions;

2) The sanction of a two-month suspension and a fine of $10,000.00 was excessive and should be replaced by the jointly proposed sanction.

The Appeal Committee found that the Hearing Committee breached the rules of natural justice in not affording the parties the opportunity to speak to the possibility of a harsher sentence than proposed in the Joint Submission, citing R v. Beal, 2011 ABCA 35, and Law Society of Upper Canada v. Stephen Alexander Cooper, 2009 ONLSAP 7 and Cardinal v Kent Institution, 1982 CanLII 434 (BC CA). However, the Hearing Committee has no obligation to accept a Joint Submission - it has an obligation to consider whether a Joint Submission is reasonable in the circumstances and is in the public interest, referring to Law Society of Alberta v. Pearson, 2011 ABLS 17.

The Appeal Committee did not see any good or cogent reason for rejecting the Joint Submission and agreed with the original fine and suspension. The Hearing Committee’s sanction was not proportionate with her conduct or aligned with the degree of wrongdoing.

Mitigating Circumstances • Joint submission on sanction; • No disciplinary record over 20 years; • No evidence of intent or fraud and no evidence of personal financial gain; • No subsequent complaints or issues with Bontorin’s conduct in the 8 years following this

conduct.

Decision Reprimand, fine of $5,000.00 and costs to be paid within 60 days.

Law Society of Alberta v. Adler, 2015 ABLS 8 (CanLII) Resignation Hearing HE20150004 heard June 19, 2015

Adler applied for resignation (s. 32) while facing complaints arising from an LSA investigation that followed the trail of a mortgage fraudster. Adler assisted his client in an improper purpose when he participated as conveyancing solicitor in house transfers and mortgage transactions alleged to be supportive of mortgage frauds orchestrated by his client. He also acted while in a conflict of interest,

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failed to protect the interests or follow the instructions of his lender clients and failed to serve his purchaser clients.

Adler agreed to the material particulars of the transaction but stated that he was duped by the fraud perpetrators. As Adler was over 60 years old, he pursued resignation rather than face a hearing and possible sanction.

The Resignation Committee allowed the s. 32 resignation as it found that if this was a Hearing Committee, a disbarment would probably not be an appropriate remedy to these citations.

Mitigating Circumstances • Agreed Statement of Facts; • No disciplinary record over 30 years; • Citations regarding events that occurred 6-8 years ago did not arise from complaints against

Adler; • Adler cooperated with the LSA and sought to resolve the matter efficiently.

Decision Resignation accepted (s. 32), and Adler undertook never to seek re-admission to LSA and to pay costs of $79,808.89 before any application to be relieved of the undertaking to not return to active practice.

Law Society of Alberta v. Campbell, 2015 ABLS 7 (CanLII) Resignation hearing HE20150041 heard April 13, 2015

Parties were advised that one of the Hearing Committee members was a partner with one of the law firms involved in this matter, but he had no personal knowledge in relation to it. Campbell advised that he took no issue and had no objection.

Campbell applied for a resignation (s. 61) while he was suspended as he was the subject of 2 completed LSA investigations, numerous complaints and 20 Assurance Fund investigations. The Assurance Fund investigations disclosed evidence of misappropriation and possible misappropriation.

Parties applied to have the application, or parts of it, and the privacy application held in private. The Resignation Committee determined that the privacy application would be heard in private (as it would be discussing health issues, and all references to Campbell’s health issues would be redacted in the decision, but the balance of the application was denied.

The Committee accepted Campbell’s resignation (s. 61) as a hearing would have had the same result and the resignation served the best interests of the public and the LSA.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt; • No disciplinary record with the LSA.

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Sanction Resignation accepted (s. 61), Attorney General referral and actual costs of over $82,256.00 to be paid prior to being relieved of his undertaking. Campbell signed an undertaking never to seek re-admission to the LSA and to surrender his certificate of admission to the LSA.

Law Society of Alberta v. Kristensen, 2015 ABLS 6 (CanLII) HE20140038 heard June 29, 2015

Kristensen failed to serve her client when she did not conscientiously and diligently review claimants’ applications before certifying the accuracy of the applications in claims for compensation in the Independent Assessment Process (claim process for Residential School survivors).

The Hearing Committee noted that, had the case been fully presented and understood by the Conduct Panel, they may have opted for a Mandatory Conduct Advisory rather than a full hearing. The Committee accepted the joint submission on sanction.

The investigation costs were reduced as the matter concerned a Residential Schools file and the firm Kristensen worked at was also subject to an extensive LSA investigation.

Mitigating Circumstances • Agreed Statement of Facts and Agreed Exhibits and Admission of Conduct Deserving of Sanction

(Citation 1); • Joint submission on sanction; • Kristensen cooperated fully in the investigation.

Sanction Reprimand, investigation costs of $500.00 and actual costs to be paid within 6 months of receiving the Statement of Costs.

Law Society of Alberta v. Bright, 2015 ABLS 5 (CanLII) HE20130076 heard January 15, 2015

Bright failed to provide competent, conscientious and diligent service to his client by failing to follow his client’s instructions. Bright made an application for the partition and sale of properties in direct contradiction of his client's instructions and failed to discontinue the application on the client's instructions. Bright also pursued a cost award against the client's husband in contradiction of the client's instructions.

The Hearing Committee noted that clients are entitled to make decisions and provided they are lawful, the lawyer must heed those instructions irrespective of whether the lawyer is of the view that it is the best strategy. The lawyer may be entitled to withdraw and have the client seek alternate representation but may not simply substitute his judgment for that of his client.

Mitigating Circumstances • No disciplinary record;

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• Agreed Statement of Facts and Admission of guilt; • Bright was cooperative in agreeing to certain Facts.

Aggravating Circumstances • Bright did not seem to understand the requirement to obtain instructions and to follow them in

all lawful circumstances; • Bright failed to admit his errors and provided an explanation for his actions that was not

substantiated by evidence; • Bright reflected an arrogant and dismissive attitude.

Sanction Reprimand and estimated costs of $7,159.74 to be paid within 60 days of issuance of the decision.

Law Society of Alberta v. Schwartz, 2015 ABLS 4 (CanLII) HE20140033 heard March 31, 2015

Schwartz was introduced to his client's business associate, R, who retained Schwartz to prepare a shareholder agreement for his company. Schwartz also attended to the incorporation of another of R's companies. A dispute occurred between the original client and R, but Schwartz continued to act for the original client against R's corporation, which was a conflict of interest.

The Hearing Committee referenced Bolton v. Law Society, [1994] 2 All ER 486 at para. 492 with respect to the purpose of disciplinary hearings and Adams v. The Law Society of Alberta, 2000 ABCA 240 (CanLII), [2000] A.J. No.1031 with respect to taking into account the impact of any misconduct on the individual and the profession.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt; • Joint submission on facts and sanction; • Very junior member with no prior disciplinary record; • Has ceased to act for the client in the action that led to the conflict.

Aggravating Circumstances • Schwartz insisted there was no conflict several years after the citation was directed and had the

duty to assess whether he was in a conflict. This caused his former client R to have to bring a motion to have Schwartz removed from the action.

Sanction Reprimand and costs of $1,875.00 to be paid within 10 days.

Law Society of Alberta v. Zadworny, 2015 ABLS 3 (CanLII) HE20130004 heard January 19, 2015

Zadworny faced four citations, three of which were dismissed due to conflicting evidence.

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The T family advanced $560,000.00 to Zadworny or his companies for a condo project. Construction was completed but the project ran out of funds and the mortgagees foreclosed, resulting in the loss of all funds advanced by either the T family or Zadworny and his companies. Zadworny assigned himself into bankruptcy and made a settlement agreement to repay some of the money to the T family.

Zadworny admitted guilt to entering into a business arrangement with a client that was unfair and unreasonable. The Hearing Committee accepted the joint submission on sanction.

Mitigating Circumstances • No disciplinary record; • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction.

Sanction Reprimand, fine of $3,000.00 and actual costs of (est.) $2,000.00 to be paid within 90 days of receipt of the Statement of Costs.

Law Society of Alberta v. Salmon, 2015 ABLS 2 (CanLII) HE20140050 heard March 3, 2015

Salmon performed legal services in relation to a builder's lien for a period of 3 years. During the course of that litigation, issues arose with respect to the production of answers to certain undertakings. Salmon consented to an order that required answers be provided by his client but failed to advise the client of the deadline for the answers. Salmon received no payment for services provided between February 2009 and March 2012.

The client terminated his relationship with Salmon and filed a complaint with the LSA. The LSA requested a response to the complaint and Salmon repeatedly failed to provide a response, even though he received an extension on the LSA deadline.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Salmon was cooperative during the investigation.

Sanction Reprimand and partial costs of $2,551.25 to be paid by September 3, 2015. If Salmon defaulted on payment, he would be suspended.

Law Society of Alberta v. Bondar, 2015 ABLS 1 (CanLII) Resignation hearing HE20110040 heard January 23, 2015

Bondar applied to resign (s. 61) while facing 32 citations, most of which arose in respect of mortgage fraud transactions and included being in a conflict of interest, breaching instructions, failing to serve, assisting in an improper purpose, being deceitful and false, failing to respond and breaching accounting

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rules. Bondar had engaged in practice in violation of the interim suspension placed upon him on November 4, 2010 and this resignation prevented a further interim suspension from being ordered.

The Resignation Committee accepted the joint submission of resignation (s. 61) to avoid a lengthy hearing, to avoid issuing new citations in relation to Bondar’s breach of restrictions imposed by the interim suspension panel, to avoid witness inconvenience and to bring the proceedings to a prompt conclusion.

The Committee was concerned that the Admitted Statement of Facts contained inaccuracies, but recognized that it was not an agreed statement of facts, only an admission of facts and the admitted facts were sufficient to support resignation. The Committee was also concerned about delaying the resignation as Bondar demonstrated he was capable of ignoring restrictions, but accepted as he had no other active files at present.

The Committee allowed the resignation to be effective at a future date because Bondar’s client indicated a strong preference for being represented by him despite knowledge of citations and Bondar had no other active files so was not at risk of interfering with the public interest.

Aggravating Circumstances • Bondar knowingly took on real estate clients after the interim suspension, however this was not

in the Agreed Statement of Facts.

Decision Resignation accepted (s. 61) effective February 28, 2015 and Bondar undertook to never apply for readmission to the LSA, to surrender his certificate of enrolment to the LSA and to pay costs of $194,921.41 prior to any application to relieve him of his undertaking.

2014

Law Society of Alberta v. Glenn, 2014 ABLS 63 (CanLII) HE20120064 heard October 15 and 16, 2014

Citations arose from Glenn’s representation of his client on a medical malpractice lawsuit. Glenn admitted to multiple failings at keeping his client informed, including that he did not provide requested copies of questions and answers from the examinations, failed to respond to emails, did not respond to telephone calls that contemplated a reply, was unable to confirm that his client was served with two Notices of Ceasing to Act, and did not advise his client that he intended or had withdrawn.

Mitigating Circumstances • Agreed Statement of Facts; • No disciplinary record over nearly 30 years; • Successful implementation of recommendations from Practice Review between 2009 and 2012; • Expressed remorse and committed to not repeat his mistakes.

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Sanction Reprimand, fine of $1,000.00, costs of $7,000.00 to be paid within 60 days.

Law Society of Alberta v. Mullen, 2014 ABLS 62 (CanLII) HE20130067 heard October 9, 2014

Mullen faced three citations arising from his provision of legal services in relation to a loan. Mullen’s initial position was that he acted only for the owing party L Ltd. and as such had no responsibility to the lender or the owners of a property that he placed a caveat on and who attended his office to sign a promissory note indicating their agreement to repay the loan amount. L Ltd. never advanced the full funds to the property owners and ultimately the lender received full payment of the principal amount that he advanced.

Both the debtor and property owners were reasonable in their belief that Mullen was representing their interests as he did not advise them that he did not act for them and failed to obtain a signed conflict letter.

Mitigating Factors • Statement of Facts and Admission of guilt; • Joint submission on sanction.

Sanction Reprimand, fine of $5,000.00 and costs of $3,056.86, both to be paid by December 9, 2014.

Law Society of Alberta v. Cohen, 2014 ABLS 61 (CanLII) HE20140013 heard September 11, 2014

Cohen was less than candid when he failed to disclose the release of the deposit to the Complainant’s counsel when he should have made that disclosure and was less than candid when he explained why he relied on the authorization to release the deposit.

The Hearing Committee reduced the costs to reflect the actual hearing time of two hours, which was $500.00 less than the estimate found in the joint submission on sanction.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction (costs reduced).

Sanction Reprimand and costs of $2,000.00 to be paid by March 2, 2015.

Law Society of Alberta v. McCall, 2014 ABLS 60 (CanLII) HE20120036 heard September 5, 2014

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McCall acted on behalf of a client against another lawyer who had missed a limitation date. McCall did not take steps to pursue his client’s claim after their meeting. He advised the client that he had prepared a Statement of Claim and would serve it, but this was untrue as he had not prepared a Statement of Claim.

The Committee found that McCall’s conduct negatively impacted his personal reputation and the reputation of the legal profession. McCall’s obligations extended beyond his excuse of a heavy workload.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt; • Practice Review identified that McCall had taken steps to improve his practice.

Sanction Reprimand and costs of $4,432.03 to be paid by March 5, 2015.

Law Society of Alberta v. Terrigno, 2014 ABLS 59 (CanLII) HE20120059 heard March 11, 2014

Terrigno, a student-at-law, gave evidence at a civil trial about a loan agreement that was backdated to give his brother an advantage while he separated from his spouse. Terrigno was allowed to adduce fresh evidence after submissions from both counsel.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt.

Sanction Reprimand, fine of $10,000.00 and costs of $8,562.09 (75% of full costs) to be paid within 9 months.

Law Society of Alberta v. Vinci, 2014 ABLS 58 (CanLII) HE20130059 heard September 9, 2014

Vinci acted for a client based in Ontario and received multiple communications (letters and two voice messages) to which she did not reply.

The LSA submitted that Vinci’s conduct was deserving of sanction as there is a duty to be punctual in fulfilling all commitments. The Hearing Committee found that letters before the June 12 letter did not contemplate a reply as information was merely being exchanged between the parties, and that Vinci responded to the June 12 letter promptly.

The LSA submitted that providing a certified copy of the title to the Complainant only after LSA intervention was not a reasonable time, and that there were no response letters sent after closing should be held to be conduct deserving of sanction. Vinci responded that she fulfilled her undertaking to pay tax arrears promptly, had diarized a date to check the title for the tax clearance and then forward the title to the Complainant. Vinci directed SG to send a copy of the title, but SG failed to do so and the diary date was removed.

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Vinci testified as to changes made in her office procedures after this event.

Decision Citations dismissed.

Law Society of Alberta v. Sheplawy, 2014 ABLS 57 (CanLII) Resignation hearing HE20120028 heard October 2, 2014

Sheplawy applied to resign (s. 32) while suspended and facing 23 citations, all of which related to poor practice management during a time of personal difficulty that affected his ability to represent his clients.

Mitigating Circumstances • Agreed Statement of Facts; • Admitted conduct sufficient to make out the allegations in the citations; • Statutory Declaration outlining the history of his practice, that all trust funds had been

accounted for, paid or delivered; • Joint submission on sanction.

Decision Resignation accepted (s. 32), costs of $3,500.00 to be paid by December 31, 2014. Sheplawy undertook to:

i. Cooperate with the LSA and ALIA with respect to any claims made against him and to pay any deductibles arising from any such claims; and

ii. Ensure that his trust accounts are closed, his trust accounting records complete and all matters completed or disposed of on or before December 31, 2014.

Law Society of Alberta v. Bondar, 2014 ABLS 56 (CanLII) Resignation hearing HE20110040 heard September 3, 2014

Bondar’s application to resign under s. 32 while facing 32 citations, mostly arising from his involvement in mortgage fraud transactions, was found to be not to be in the public interest. Bondar admitted to some citations and disputed both his conduct and that his conduct was deserving of sanction.

Bondar stated that at no time did he knowingly act improperly, while the LSA cited his misconduct as that of someone who knowingly acted improperly. The Resignation Committee found that Bondar admitted to serious misconduct, that he knew or ought to have known that he participated in mortgage fraud and the disputed citations are of sufficient seriousness to require further enquiry in the public interest.

Mitigating Circumstances • Statement of Facts; • Bondar undertook to cooperate in respect of any claim against him or the Assurance Fund.

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Aggravating Circumstances • Disciplinary record.

Decision Application to resign under s. 32 dismissed.

Law Society of Alberta v. Agbarakwe, 2014 ABLS 55 (CanLII) Resignation hearing HE20120009 heard December 16 and 17, 2014

This matter commenced as a discipline hearing but during the proceedings, Agbarakwe tendered his application for resignation (s. 61). The application was jointly tendered and was accepted by the Committee.

Agbarakwe was facing 23 citations, the most significant of which related to the misappropriation and wrongful conversion of funds held in trust, breach of a trust condition imposed by another member, and the failure to respond, cooperate and/or to be candid with the LSA.

Mitigating Circumstances • Agbarakwe undertook not to reapply to the Law Society for reinstatement in the future; • Agreed Statement of Facts and Admission of guilt.

Decision Resignation accepted (s. 61), referral to Attorney General, actual costs to be paid prior to any application for reinstatement and Agbarakwe undertook to never seek re-admission to the LSA and to make his best efforts to locate his certificate of admission for surrender to the LSA.

Law Society of Alberta v. Dear, 2014 ABLS 54 (CanLII) HE20120006 heard October 16, 2014.

Dear used money for personal expenses, took funds before he had earned any fees and did not deposit into a client’s trust account, failed to take steps to have a default judgment set aside, failed to provide proper accounting to his client, failed to return a client’s paperwork to him. He admitted he was not honest in his initial response to the LSA pertaining to the above. He was untruthful in denying to another lawyer that he received an initial $500.00 retainer.

When it considered sanction, the Hearing Committee referenced Bolton v. Law Society, [1994] 2 All ER 486 at para. 492 as to how to maintain the reputation of the legal profession and Adams v. The Law Society of Alberta, 2000 ABCA 240 (CanLII), as to the impact of misconduct on the individual and the profession. Law Society of Alberta v. Nickless [2010] L.S.D.D. no. 203, Law Society of Alberta v. Anderson [1996] L.S.D.D. No. 302 and Law Society of Alberta v. McGechie, 2007 LSA 21 were referenced in relation to sanction. The Committee allowed a period of transition for Dear’s employer to transfer his files to new counsel before his suspension commenced.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt;

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• Joint submission on sanction; • No disciplinary record; • Self-reported; • Dear took steps to his address addiction issues; • Dear cooperated fully with the LSA.

Aggravating Circumstances • Failed to compensate his employers for theft; • Motivations for his actions were purely self-interested.

Sanction Suspension of 18 months to commence November 14, 2014, Practice Review, Attorney General referral, Notice to the Profession and costs of $11,000.00 to be paid within 2 years.

Law Society of Alberta v. Schneider, 2014 ABLS 53

Resignation hearing HE20110036 heard June 24 and July 7, 2014

Schneider and the LSA agreed to a s. 32 resignation due to the cost and length of time it would take to conduct a hearing. He had been suspended under s. 63 in the face of 46 citations.

In the Statement of Facts, he admitted a lack of diligence and a multitude of errors in communications with clients and with the LSA, and in the handling of trust funds and in keeping his accounting records in order as contrary to the Rules and the Code of Professional Conduct. He admitted to a failure to remit GST and payroll source deductions, and to a failure to recognize potential conflicts of interests when acting for multiple clients in one matter. While he did not admit facts supporting all the outstanding citations, he acknowledged that if found guilty on some or all of them, he would face sanction for his conduct.

Aggravating Circumstances • Disciplinary record.

Decision Resignation accepted (s. 32), costs and Schneider undertook to keep the LSA informed as to his current email and mailing address (for any ALIA claims), and to advise any court, tribunal or similar body in front of which he appears that he is a non-lawyer agent.

Law Society of Alberta v. Ingimundson, 2014 ABLS 52 (CanLII) HE20110050 heard September 17, 2013 and December 1 – 2, 2014

Ingimundson misled the Complainant that the purchase price of a real estate transaction was $160,000.00 when in fact it was $195,000.00 with $25,000.00 kicked back to the purchaser under a Finders’ Fee Agreement and Letter of Direction.

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Concerns of mortgage fraud that arose from the real estate transaction were dismissed because Indimundson provided the Complainant with a copy of his trust ledger showing clearly how monies were distributed. Neither Ingimundson nor his office prepared the undated Finders’ Fee Agreement, he had ceased to act for his client on all files in his office and gained nothing personally as a result of misleading the complainant.

The Hearing Committee accepted LSA counsel’s submission of a fine, rejected Ingimundson’s request for a lower sanction and rejected LSA counsel’s submission on costs of $10,467.64 as the hearing had been adjourned through no fault of Ingimundson.

When it considered mitigating circumstances and how to protect the public interest , the Committee referenced Law Society of Alberta v. Elgert, 2012 ABLS 9 (CanLII) and referenced Law Society of Alberta v. Magnan, 2014 ABLS 24, Law Society of Alberta v. Maxwell, 2014 ABLS 15, Law Society of Alberta v. Boulton, 2013 ABLS 6 and Law Society of Alberta v. Geisterfer, 2009 LSA 15 in support of the fine amount.

Mitigating Circumstances • No disciplinary history; • Ingimundson expressed regret for how the transaction was handled.

Sanction Reprimand, fine of $2,500.00 and fixed costs of $5,000.00, both to be paid within 6 months.

Law Society of Alberta v. Virk, 2014 ABLS 51 (CanLII) Appeal hearing HE20120033AP heard November 18, 2014

Virk appealed the ten-day suspension originally handed down by the Hearing Committee in Law Society of Alberta v. Virk, 2013 ABLS 20 (CanLII). A stay was granted on the condition that Virk cooperate with Practice Review, which he had. Virk sought an appeal on the grounds that the Hearing Committee’s decision on sanctions was not supported by the evidence or based on relevant factors and was unduly harsh.

The Appeal was dismissed. The Appeal Panel determined that an appeal panel should not interfere unless the sanction is demonstrably unfit or based on an error in principle, as per R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, R. v. M. (C.A.), [1996] 1 SCR 500, 1996 CanLII 230 (SCC), at paras 91 and 92 and Law Society of Alberta v. Fong, 2011 ABLS 24 (CanLII) at para 62.

The Panel was unable to conclude any error in principle was made and referred to R. v. Sheppard, 2002 SCC 26 (CanLII),[2002] 1 S.C.R. 869 at para 23 and R. v. Walker, 2008 SCC 34 (CanLII), [2008] 2 S.C.R. 245 at para 20 . The Panel could not conclude that the sanction was demonstrably unfit as per Shropshire and Law Society of Alberta v. Hermo Pagtakhan, 2007 LSA 14 (CanLII) at page 17.

There was a sufficient basis in the Hearing Committee report to discern the basis for the suspension and was supported by Law Society of Alberta v. McCullough, 2013 ABLS 3 (CanLII).

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Decision Appeal dismissed, Hearing Committee decision of Notice to the Profession upheld, suspension of 10 days to commence January 15, 2015 and costs of $5,750.00 to be paid by January 30, 2015.

Law Society of Alberta v. Cormie, 2014 ABLS 50 (CanLII) Appeal hearing HE20120055AP heard November 28, 2014

Cormie appealed on the grounds that the Hearing Committee in Law Society of Alberta v. Cormie, 2014 ABLS 16 (CanLII) erred in law when it concluded that his conduct amounted to conduct deserving of sanction. He argued that the Committee failed to give due consideration to evidence that the client consented to the actions undertaken. He also appealed the length of suspension and argued that an appropriate sanction would be less than one year.

The Appeal Panel found the appropriate standard of review on issues of facts is one of reasonableness as per Law Society of Alberta v. Pagtakhan, 2013 ABLS 4 (CanLII), Moll v. College of Alberta Psychologists, 2011 ABCA 110 (CanLII) and Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII). Deference is owed to the disciplinary body on the fitness of sanction and the underlying fact findings as per Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] 1 S.C.R. 247 at paras 41-42.

The Appeal Panel referred to Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII) and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), [2011] 3 SCR 708 when it considered the purpose of reasons.

The Appeal Panel gave deference to the Hearing Committee as per R. v. M. (C.A.), [1996] 1 SCR 500, 1996 CanLII 230 (SCC) when it considered the standard of review on appeal of sanction. Boulton v. Law Society, [1994] 1 W.L.R. 512 (C.A.) was cited to confirm the purpose of sanction.

The Appeal Panel determined that no evidence supported the conclusion that unique circumstances, as argued by Cormie, alleviated the appellant's responsibility of receiving informed, unequivocal and clear consent. The Appeal Panel concluded that the Hearing Committee's finding of conduct deserving of sanction fell well within the range of possible outcomes and should not be interfered with.

Mitigating Circumstances • Argued by Counsel that the actions undertaken did not personally benefit Cormie.

Aggravating Circumstances • High risk of recurrence; • Refusal to acknowledge wrongdoing, lack of credibility and lack of remorse; • Prior disciplinary record.

Decision Appeal dismissed, Notice to the Profession and suspension of one year effective upon notice of reasons.

Law Society of Alberta v. Murtaza, 2014 ABLS 49 (CanLII) Single Bencher hearing HE20130057 heard November 3, 2014

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Murtaza failed to register the mortgage before he advanced mortgage funds and failed to supervise a paralegal in the registration of a mortgage on title. He responded to the complainant's inquiries untruthfully and deliberately left the impression the mortgage had been rejected for administrative reasons and the errors were being fixed. Murtaza lied and misled the client by suggesting the mortgage had been resubmitted through mail rather than courier. Murtaza lied to his client for a third time, and admitted only partial truths.

In consideration of sanction, the Bencher referenced Law Society of Alberta v. Mackie, 2010 ABLS 10 (CanLII), Lawyers & Ethics: Professional Responsibility and Discipline, by Gavin McKenzie (at page 26-1) and Law Society of Alberta v. Westra, 2011 CanLii 90716 (ABLS).

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt allowed for a single Bencher hearing; • No prior disciplinary record; • Showed remorse, recognized his responsibilities; • Murtaza did not gain anything by his conduct.

Aggravating Circumstances • Intentional conduct reflected a disregard of his responsibilities as a member of the profession

overseeing the work of those in his office.

Sanction Reprimand, fine of $3,000.00 and costs of $3,000.00, both to be paid within 6 months.

Law Society of Alberta v. Frohlich, 2014 ABLS 48 (CanLII) Resignation hearing HE20140047 heard November 26, 2014

Frohlich applied to resign (s. 61) while suspended for non-payment of fees and by virtue of conviction of an indictable offence. Frohlich engaged in an estate fraud scheme that involved an estate he administered as Trust Officer. He pleaded guilty to sections 334(a) and 3801 of the Criminal Code (indictable offences) and was sentenced to 16 months in prison.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Maintained a non-practising status with the LSA since date of call; • Criminal activities resulted from depression, addiction to gambling, rocky marriage and

disgruntlement with work; • Agreed not to return to the practice of law; • No citations issued in relation to the conviction; • Frohlich agreed to cooperate with the LSA and ALIA in respect to any claim made against him.

Aggravating Circumstances • Did not self-report charges or the conviction to LSA; • Had been suspended for non-payment of fees; • Was further suspended due to being convicted of indictable offences, pursuant to s. 83(7) of the

LPA.

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Decision Resignation accepted (s. 61), Notice to the Profession and costs should be paid within six months of the date the Statement of Costs was signed. Frohlich undertook to:

i. Cooperate with the LSA and ALIA in respect of any claim against him or the Assurance Fund regarding himself now or in the future;

ii. Agree to pay any deductible with respect to any claim paid by ALIA and to pay the LSA any amount of any claim paid by the Law Society's Assurance Fund;

iii. Locate and surrender to the LSA the Certificate of Enrolment issued by the LSA pertaining to admission to the bar;

iv. Never to reapply for admission to the LSA; and v. Not seek employment with nor be employed by an active member of the LSA or professional

corporation of such member as would offend s. 106(3) or s. 108 of the LPA.

Law Society of Alberta v. Wozniak, 2014 ABLS 47 (CanLII) Resignation hearing HE20120021 heard May 7, 2014

Wozniak assisted in the improper purpose of mortgage fraud with straw buyers. No actual down payment was made but money was taken out of mortgage proceeds to allow the use of an individual's identity.

The Resignation Committee accepted the s. 32 application because there was a 15-year delay between the transactions and the hearing that resulted in prejudice to Wozniak and problems locating witnesses and records. The Committee accepted the joint submission to accept Wozniak’s resignation as the LSA could not be certain it would be able to prove the citations if it went to a hearing, the resignation prevented any additional delay in closing the case, the delay could cause a reduced sanction, a resignation spares 9-10 witnesses the inconvenience of testifying, and it was in the public interest to avoid a two-week hearing.

Mitigating Circumstances • No disciplinary history over 27 years; • Wozniak believed he was acting prudently; • Wozniak cooperated with the LSA; • Agreed Statement of Facts.

Decision Resignation accepted (s. 32), Notice to the Profession, and costs of $43,362.50 to be paid prior to any application for reinstatement. Wozniak undertook to:

i. Cooperate with the LSA in the future in respect of any claim made against him or the Assurance Fund;

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ii. Subject to proper and available defences to such claims made against him, pay to the LSA, on its demand, any amount of any claim paid on his behalf by the LSA Assurance Fund, or any deductible with respect to any claim paid on his behalf by the LSA's insurer;

iii. Attempt to locate and if available surrender to the LSA the Certificate of Enrolment, or will provide a Statutory Declaration that it cannot be located;

iv. Not act as an agent as contemplated by s. 106(2) of the LPA; and v. Not reapply to become a member of the LSA.

Law Society of Alberta v. Fairclough, 2014 ABLS 46 (CanLII) Resignation hearing HE20130058 heard November 24, 2014

Fairclough, a student-at-law of the LSA, applied to resign (s. 61) while facing citations.

While intoxicated at a firm event, Fairclough took an inappropriate and unauthorized photograph of a female co-worker without her consent, circulated the photograph to two male co-workers and claimed falsely to be having sexual relations with his female co-worker.

The matter had been referred to the Attorney General. The Notice to the Profession was revised. It was decided that a portion of the costs, which were disputed, must be paid as a condition in order to grant the application.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Fairclough tendered the requisite Statutory Declaration and Undertakings; • Fairclough stated he is deeply apologetic though he had not apologized to his former co-worker.

Aggravating Circumstances • At each stage of the various investigations, Fairclough did not tell the truth to his firm, to the

independent investigators, or to the LSA; • The truth eventually came out as the result of a thorough investigation and, faced with the

truth, Fairclough admitted his misconduct.

Decision Resignation accepted (s. 61, Notice to the Profession and costs, approximately $12,787.87 to be paid within 12 months as a condition of granting the resignation application and $23,643.09 to be paid before any application for reinstatement.

Law Society of Alberta v. Laurich, 2014 ABLS 45 (CanLII) HE20120022 heard June 16, 2014

The citations arose from a complaint by a bank about skip transfer mortgage fraud schemes. The Hearing Committee agreed that Laurich’s conduct was unwitting. Laurich’s conduct (i.e. not asking questions, transferring funds) facilitated the mortgage fraud schemes advanced by his clients, put third party lender funds at risk and harmed individual investors. A lawyer’s unwitting participation, or being a dupe, can be characterized as professional misconduct, referring to Re Peddle, 2001 CanLII 21502 (ON

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LST) at para. 1. It is not acceptable for a lawyer to do legal work on transactions that he does not understand, while failing to ask questions and/or abdicating responsibility to others, and that is particularly so where there are large dollar amounts at risk.

In considering sanction, the Committee referred to Bolton v. Law Society, [1994] 2 All ER 486 at para. 492 (C.A.). While significant personal prejudice to a member associated with a long delay can be a factor as per Wachtler v. College of Physicians and Surgeons, 2009 ABCA 130 (CanLII), in this case, the Hearing Committee did not adjust the sanction the delay was explained, the evidence of personal prejudice was slight, the matter came before the Committee on the basis of an Agreed Statement of Facts and Admission of Conduct Deserving of Sanction and the admitted conduct is serious. The Committee considered the potential impact of a suspension as per Law Society of Upper Canada v. Senjule, 2008 ONLSHP 22 (CanLII), para. 29.

The reduction in costs reflects that two citations were withdrawn and the citations that had raised integrity issues were not pursued by the LSA.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Conduct Deserving of Sanction; • Laurich fully cooperated with the LSA; • Laurich acknowledged a number of failures on his part.

Sanction Suspension of 5 months commencing August 1, 2014 and reduced costs of $46,851.00 to be paid within 6 months of reinstatement.

Law Society of Alberta v. McLaughlin, 2014 ABLS 44 (CanLII) HE20130038 heard June 9 – 10, 2014

McLaughlin entered into a consent Order, which her client said prejudiced her interests and was entered into without her instructions or approval. McLaughlin’s evidence was that she required approval to either agree to the proposed Consent Order or to go to Court and she understood that she had instruction to consent. Her evidence was to some degree corroborated by her husband and her legal assistant, who were present at the time of the exchange and saw that she followed the client into the lobby, which was in direct conflict with the evidence of the complainant.

Credibility was the central issue in this case. The Committee decided that McLaughlin’s evidence resonated with greater weight because the collateral witnesses directly refuted the testimony of the complainant and referred to Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1951] BCJ No 152 at para 11. The Committee was concerned that the complainant did not raise her concerns directly to McLaughlin before bringing them to a third party. The Committee found that the burden of proof was not met in order to establish guilt on the citation.

Decision The citation was dismissed.

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Law Society of Alberta v. Bontorin, 2014 ABLS 43 (CanLII) HE20130072 heard June 10, 2014

The citations arose after Bontorin failed to recognize several indicia of mortgage fraud. The Hearing Committee did not believe that Bontorin would not recognize the indicia of mortgage fraud as her evidence was impractical, i.e. she did not notice that her deposit money did not clear her personal bank account and did not think anything was strange when she had put no money into the purchase of property even though she had owned a home previously and had never observed a similar situation in her practice. The Hearing Committee saw evidence that Bontorin knowingly entered into an arrangement where she received a condo at no cost other than ongoing mortgage payments and there was an extraordinary degree of carelessness, inattentiveness, willful blindness and recklessness on her part.

The joint submission on sanction of a $5,000.00 fine and payment of estimated costs was rejected as being inconsistent with the seriousness of the conduct and not in the public interest. The fine, in the amount of the unpaid deposit, was an inconsequential sum; a reprimand was inappropriate as the evidence of Bontorin as a witness was not credible, so a reprimand would be a hollow exercise; payment of actual costs is a standard direction.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt; • No disciplinary record; • Events occurred during a short period of time seven years ago; • Bontorin acknowledged she was negligent; • Bontorin was remorseful.

Aggravating Circumstances • Bank A overpaid in mortgage loans approx. $523,500.00 as a result of these transactions; • Bontorin personally gained from her conduct; • Bontorin did not appreciate the potential impact on the straw buyers.

Sanction Suspension of 2 months to commence June 13, 2014, fine of $10,000.00 and actual costs to be paid within 4 months of June 10, 2014.

Law Society of Alberta v. Randhawa, 2014 ABLS 42 (CanLII) HE20130031 heard April 30 – May 2, May 5 – 8, May 22 – 23 and September 29, 2014

The citations arose from Randhawa’s conduct in real estate transactions.

At the end of the evidence on May 8, 2014, LSA counsel brought an application for interim suspension under s. 63, which the Hearing Committee accepted. The Committee referenced Gould v. The Law Society of Alberta, 1990 ABCA 191 and Lawyers and Ethics: Professional Responsibility and Discipline, by Gavin MacKenzie, Carswell, 1993 at p. 26-36.1 and concluded that the standard of proof in the decision

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whether to suspend is whether there are reasonable grounds to believe that Randhawa was wrongfully doing or failed to do something that might cause harm to a client or the public. The Committee had enough evidence to be concerned with the protection of the public and had no way of knowing how much longer the hearing would last, the date for the continuation and how many witnesses remain to be called. Additionally, Randhawa had been criminally charged with fraud. The client’s personal information was used in support of a mortgage application that the client denies any knowledge of and this evidence left the majority of the Committee with no option but to order a suspension to protect the public interest.

One Committee member dissented as the issue of fairness troubled him and an interim suspension is draconian. He said Randhawa was at a disadvantage as the application for interim suspension was brought with no notice, inadequate time for Randhawa to prepare and he did not have a chance to present his side of the story prior to the suspension.

An application for a stay of the Interim Suspension Order or the publication of the Notice of Suspension was denied. Counsel argued there would not be irreparable harm if a Stay were granted and Randhawa and his daughter have not been allowed into their practice, which costed them clients, however, these submissions were not before the Committee in an Affidavit or through viva voce evidence.

Randhawa ultimately admitted guilt to failing to properly supervise support staff, failing to serve client mortgage lenders, and failing to follow the accounting rules of the LSA. A joint submission on sanction was provided. The Hearing Committee did not consider that the suspension should be retroactive – that is, the Committee did not consider that the duration of the interim suspension should be considered as satisfying part of the 14-month suspension ordered. No referral to the Attorney General was required as the authorities were already aware of the matter and had attended the hearing.

Mitigating Circumstances • Statement of Facts and Admission of guilt; • Joint submission on sanction.

Sanction Reprimand, suspension of 14 months commencing September 29, 2014 and costs to be paid within one year of reinstatement.

Law Society of Alberta v. Randhawa, 2014 ABLS 41 (CanLII) HE20110075 heard November 5, 2013 and September 24, 2014

Citations arose from Randhawa’s interactions with another lawyer because of personal animosity between the two individuals and misleading the LSA. The Hearing Committee declined to accept Randhawa’s admission of guilt on one of the 5 citations (that he misled the LSA). The surveillance video contains only a portion of the entire incident and a witness provided a version of events that corroborated with Randhawa’s account, so it cannot be said that the LSA was misled. It also dismissed one of the other citations for which the LSA called no evidence.

Randhawa admitted that he directed abusive language at the complainant within the hearing distance of others which left them with a negative impression of Alberta lawyers.

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Mitigating Circumstances • Statement of Facts and Admission of guilt; • Joint submission on sanction; • No lasting harm or impact upon clients and no issue of integrity in these matters.

Aggravating Circumstances • Disciplinary record for conduct that was different than that which was subject to these

proceedings.

Sanction Reprimand and actual costs to be paid within three months of being served with the Statement of Costs.

Law Society of Alberta v. Fay, 2014 ABLS 40 (CanLII) HE20120050 heard January 30, 2014

In 2010, it was discovered that Fay did not submit Forms T (audit forms) for 2006, 2007, 2008 and 2009 and then on multiple occasions failed to respond to the LSA on a timely basis and in a complete and appropriate manner.

Fay suggested a fine of $1,000.00 while counsel for LSA suggested a fine of $5,000.00 to $6,000.00. The Hearing Committee opted for a higher fine of $4,000.00 for each count, for a total of $8,000.00 in light of the Fay’s disciplinary history and referenced McKee v. College of Psychologists of British Columbia, 1994 CanLII 1404 (BC CA), [1994] 9 W.W.R. 374 (B.C. C.A.) at page 376.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Cooperation in bringing the matter to a conclusion; • Practiced for 28 years with only one formal complaint.

Aggravating Circumstances • Disciplinary history – failure to submit to the governance of the LSA and failure to comply with

undertakings.

Sanction Reprimand, referral to Practice Review, a fine of $8,000.00 and costs of $2,632.88, both to be paid by May 30, 2014.

Law Society of Alberta v. Koska, 2014 ABLS 39 (CanLII) HE20120013 heard April 3, 2014

Citations arose from Koska’s conduct while she acted as the lawyer for the Estate of MM, a dependent adult. These citations included a failure as trustee, taking monies from the trust account, breach of a Court Order and failure to respond to the LSA.

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Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction; • Koska cooperated with the LSA; • Koska demonstrated accountability by dealing with all her files prior to suspension so there was

no need for a custodian.

Sanction Suspension of 6 months, Notice to the Profession and costs of $30,000.00, $1,000.00 of which was to be paid by April 3, 2014. The balance would be paid upon reinstatement or payments could start upon reinstatement.

Law Society of Alberta v. Gariepy, 2014 ABLS 38 (CanLII) Resignation hearing HE2010011 heard September 26, 2014

Gariepy applied for resignation (s. 32) while suspended and in the face of outstanding citations. All breaches pertain to the sale of land. Gariepy utilized funds in an inappropriate manner, as funds were used in connection to projects, some of which Gariepy had a personal interest in.

The Resignation Committee found that resignation (s. 32) was in the best interests of the public and the LSA as Gariepy agreed to never apply for reinstatement, which made the resignation more serious than disbarment.

Mitigating Circumstances • Agreed Statement of Facts.

Decision Resignation accepted (s. 32), Notice to the Profession and costs of $169,244.59 to be paid with interest applied from October 10, 2014 until full payment is made. Gariepy undertook to never to apply for reinstatement or to apply to any law society in Canada and to cooperate with the LSA in dealing with the claims against him.

Law Society of Alberta v. Homersham, 2014 ABLS 37 (CanLII) HE20130024 heard September 9, 2014

The citations arose when Homersham failed to obtain his client and associate's consent to proceed without independent legal representation. The Hearing Committee accepted Homersham’s admission of guilt and accepted the joint submission on sanction. There was no joint submission made on costs payable.

When it considered what would be an appropriate sanction, the Committee referenced Bolton v. Law Society, [1994] 2 All ER 486 at para. 492 (C.A.) as to the purpose of maintaining the reputation of the profession and Adams v. The Law Society of Alberta, 2000 ABCA 240 (CanLII), [2000] A.J. No.1031 (Alta. C.A.) when it considered the impact of any misconduct from the individual and generally on the profession.

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In making its decision as to sanction, the Committee considered general factors and specific factors including that there was no intent on Homersham’s part to act as he did, his actions were motivated by various and at times contradictory factors such as a desire to help out, a desire to make some money, frustration at the behavior of his clients, a feeling that he had been given the “short end of the stick” and a desire to get the money back. Some motivations were positive, some negative, but they were not intentionally self-serving and/or malevolent and as to impact or injury, potential or actual, this was one incident, even though it spanned a number of years due to litigation.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt; • No disciplinary record; • Self-reported; • Ensured that the initial (and significantly larger) payout from the sale was provided to a client

for debt reduction; • conceded that his other partners were entitled to a share of the sale over and above that

needed to cover debts; • Litigated against the certain partners, thus collecting the balance of funds from them for

distribution to Homersham’s partners; • Homersham was remorseful; • Homersham volunteers in the legal and Calgary community.

Aggravating Circumstances • Possibility that Homersham self-reported knowing that a complaint was coming; • His decision to appoint himself as sole director and shareholder of the numbered company (on

the basis of an oral agreement not reduced to writing nor with independent legal advice to the other partners) such that the other partners were not in a position to sue as shareholders;

• Unilateral decision to sue the certain Partners; • Homersham’s self-serving, unmerited decision at the outset (from which he soon resiled) that

he was entitled to all the balance of the funds to the exclusion of his partners.

Sanction Reprimand, fine of $4,000.00 and actual costs estimated as $10,569.74, both to be paid within 30 days of service of the Statement of Costs.

Law Society of Alberta v. Damen, 2014 ABLS 36 (CanLII) HE20130053 heard October 7, 2014

The citations arose from Damen’s representation of a client in a divorce action when the client and ex-spouse agreed to sell their trailer. The trailer did not sell, so Damen agreed to purchase the trailer from the client and structured the transaction to keep the ex-spouse unaware that he was the ultimate purchaser. Damen had requested that his stepdaughter's father to be the apparent purchaser and then paid to him the value.

Parties agreed that the purchase price was fair, so no issue arises as to undue influence or unfair advantage and the transaction was not conduct deserving of sanction under Chapter 6, Rule 9 of the

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Code of Conduct. The Code is not a blanket prohibition but rather includes various cautions. Damen did not violate the Code due to the fairness of the transaction.

Damen had an obligation to enter into the transaction in his own name and to disclose that he was a party to the transaction. When he involved his client in a transaction that was not true, he did not fulfill his duty and obligation to the truth to his client, society or the profession.

Mitigating Circumstances • Agreed Statement of Facts; • Transaction was for a fair and reasonable price.

Sanction Reprimand and costs of $6,335.23 to be paid within 6 months.

Law Society of Alberta v. Meiklejohn, 2014 ABLS 35 (CanLII) Resignation hearing HE20140035 heard September 15, 2014

Meiklejohn applied to resign (s. 32) in the face of citations that, if directed and he was found guilty, the possible sanction would be disbarment. The complaints were in connection to several condominium conversion projects in Alberta and Meiklejohn breached numerous trust conditions and undertakings given by other members of the LSA.

The Committee considered that the matter had been investigated but no citations had yet been issued and the LSA supports the application. Meiklejohn cooperated fully and has admitted the misconduct.

Mitigating Circumstances • Agreed Statement of Facts with admissions; • No disciplinary record; • Cooperated fully with the LSA.

Decision Resignation accepted (s. 32), costs of $2,445.63 to be paid within 30 days, Meiklejohn shall surrender his Certificate of Enrolment to the LSA and undertook to cooperate with the LSA in respect to any claim made against him or the Assurance Fund, to pay the amount of claims paid on his behalf and never to seek re-admission to the LSA with the full investigative costs to be payable on any application to relieve him of his undertaking.

Law Society of Alberta v. Juneja, 2014 ABLS 34 (CanLII) HE20130052 dated August 11, 2014 (costs phase via written submissions)

Parties jointly submitted that Juneja’s interim suspension under s. 63 be terminated, costs of $35,000.00 be ordered and Juneja be granted 12 months from reinstatement to pay. The Hearing Committee expressed concern that the request for time to pay could result in non-payment if Juneja did not reinstate, but accepted the joint proposal.

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Decision Suspension terminated and costs of $35,000.00 to be paid within 12 months of reinstatement.

Law Society of Alberta v. Juneja, 2014 ABLS 33 (CanLII) HE20130052 heard February 11 – 14, 2014 (merits phase)

Six citations arose from Juneja’s representation of three different clients (ES, CB and DC) on criminal matters. One citation relating to misappropriation of CB’s money was discontinued prior to this hearing. No evidence was provided with respect to ES’s complaint and the related two citations were dismissed.

When it considered whether Juneja was previously tried for the same conduct alleged in the citations, the Committee noted the Keinapple principle, which precludes multiple convictions where there is sufficient proximity between the facts and legal elements underlying the offences. The principle applies in disciplinary proceedings in professional tribunals, as noted in Danyluik v. Alberta (Institute of Chartered Accountants, Complaints Inquiry Committee), 2014 ABCA 78 (CanLII). In this case, there was no factual nexus between the prior citations and the present case.

The Committee considered that an alleged accounting deficiency could fall with one of the “failing to serve” citations referred to the Committee for CB complaint. Further, Juneja was not prejudiced by the timing or manner of notice. The Committee ultimately found that Juneja was guilty of failing to serve CB when he was not as diligent as he should have been in seeking instructions, but not with respect to failing to provide a receipt, as the LSA did not prove that money had been paid for which a receipt would have been required.

With respect to DC’s complaint and the two resulting citations, the Committee found that some aspects of the alleged misconduct did not form part of the particulars, were not alleged by LSA counsel and Juneja was not cross-examined on them. It cited the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), which requires that matters of significance to the facts in issue must be put to a witness if they are later sought to be contradicted by other evidence or argument. It considered whether the additional particulars may be delivered or the notice of hearing amended under s. 65 of the LPA, but determined it would not be fair to do so in this case. Therefore, the Committee refused to consider these aspects. It ultimately found that there was a failure to serve DC, including by failing to hire an expert, failing to inform DC of relevant events, missing deadlines, failing to advise the court of certain matters and not responding to DC’s inquiries. However, it dismissed the citation relating to failing to be candid with the Court, as that requires proof of intentional act or omission (which can include willful blindness), citing Law Society of Alberta v. Watt, [2000] LSDD No. 68, para 62. In this case, Juneja’s conduct was careless but not willfully blind or intentionally misleading.

Credibility may be assessed circumstantially and can consider any evidence, including Juneja’s previous 2011 LSA conviction as per R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293.

Sanction Sanction was determined in Law Society of Alberta v. Juneja, 2014 ABLS 32 (CanLII).

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Law Society of Alberta v. Juneja, 2014 ABLS 32 (CanLII) HE20130052 heard July 14, 2014 (sanction phase)

Juneja was found guilty of two citations, as noted in Law Society of Alberta v. Juneja, 2014 ABLS 33 (CanLII). A sanction should protect the public interest and the standing of the legal profession, maintain high professional standings and preserve the public confidence in the profession: Law Society of Alberta v. Elgert, 2012 ABLS 9 (CanLII) and McKee v. College of Psychologists (British Columbia), 1994 CanLII 1404 (BC CA). The seriousness of sanction and human and personal interests are at least as important as material interests: Adams v. Law Society of Alberta, 2000 ABCA 240 (CanLII) and Law Society of Alberta v. Estrin (1992), 1992 ABCA 265 (CanLII).

Contrary to the LSA’s submissions, sanction should not be increased merely because the lawyer was previously sanctioned for overlapping conduct (in this case, Juneja had been sanctioned twice previously), although the Committee did not say that this is never relevant. The Committee found that Elgert was authority that the tribunal should be mindful that some considerations might already have been taken into account and Juneja was correct in that stepping-up the sanction to provide additional deterrence was not required here as all sanctionable conduct took place in the same time frame and he has already been sanctioned on the other matters. The Committee found Juneja to be a good candidate for rehabilitation.

The Committee referenced Bolton v. Law Society, [1994] 2 All ER 486, para 15 when it stated that the profession’s most valuable asset is its collective reputation and the confidence it inspires. The Committee disagreed with Juneja’s reliance on Law Society of Alberta v. McConnell, 2014 LSDD No. 116 at para 40 that general deterrence is not a factor in the assessment whether a suspension is required and referenced Law Society of Alberta v. Peterson, 2011 ABLS 10 (CanLII), at para 43(e) as an example.

When the Committee considered whether credit should be given for involuntary suspension (eg, the Committee should consider this as “time served”), it considered Elgert and Law Society of Alberta v. Rasmusen, 2011 ABLS 4 (CanLII). It was skeptical that a credit for time served should normally be allowed, as criminal sentencing concepts should not be adopted without considering whether they are appropriate in the regulatory context, where the standing and reputation of the legal profession is a paramount consideration. While the 2011 and 2013 Committees allowed credit, this Committee did not, as it did not have the information on applicable principles or facts to make a principled decision and was not prepared to compound the double counting of the 2013 Committee.

Sanction Practice Review conditions, Notice to the Profession, suspension of two months, any application for reinstatement should be referred to the Credentials and Education Committee, and the Merit Report and Sanction Report may be published publicly. The Committee made an order with respect to the costs of the proceedings in Law Society of Alberta v. Juneja, 2014 ABLS 34 (CanLII).

Law Society of Alberta v. Leonard, 2014 ABLS 31 (CanLII) HE20110049 heard June 9, 2014

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The citations arose from a complaint by the purchaser in a real estate transaction where there was a delay as Leonard did not provide the real property report and from a separate complaint by a Bank following a Rule 130 audit of Leonard’s practice.

Leonard failed to provide a Real Property Report upon multiple requests pursuant to the undertaking, failed to advise lender clients of the indicia of mortgage fraud and allowed staff to meet with client alone on rare occasions.

Although there was insufficient evidence that Leonard was aware of any fraudulent activities, he acknowledged that his files related to the Investigated Flip Transactions contained some of the common indicators of mortgage fraud and that he failed to follow the Lender Instructions to alert them to indicators of mortgage fraud or otherwise did not advise the Lenders that the flip transactions may have been indicative of mortgage fraud. Most of the flipped properties were ultimately foreclosed upon causing the Lenders to suffer significant loss.

The Committee referenced McKee v. College of Psychologists (British Columbia), 1994 CanLII 1404 (BC CA) when it considered a sanction that would protect the public interest and Nguyen v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16488 (FC) when it considered the joint submission on sanction.

The Committee found that Leonard demonstrated a lack of integrity when he placed his self-interest before the needs of the complainant and his lawyer and further compounded his misconduct through his failure to serve his Lender clients in his failure to inform of all material facts about the transactions. Leonard also failed to comply with accounting rules involving numerous trust shortages, which were all repaid.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission; • Acknowledged his shortcomings and accepted responsibility for his misconduct; • Supervisory system for the preparation of trust reconciliations put in place and took other steps

to prevent future accounting problems.

Aggravating Circumstances • Disciplinary history.

Sanction Reprimand, suspension of 3 months commencing June 16, 2014 and costs of $6,000.00 to be paid ($1,000.00 to be paid on the date of the hearing and the balance to be paid in monthly installments of $1,000.00 starting after reinstatement). Leonard will be automatically suspended for non-payment or any delay beyond one week.

Law Society of Alberta v. Hammoud, 2014 ABLS 30 (CanLII) Appeal hearing APHE20110022 heard June 30, 2014

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The citations arose from incidents during Hammoud’s education and protracted period of Articling including failure to be candid with the LSA regarding an assault on a professor; unbecoming conduct towards CPLED staff, a Calgary Police officer and one of his principals; and misleading a potential principal as to his suspended status as a result of verbal altercations with CPLED staff. The Hearing Committee in Law Society of Alberta v. Hammoud, 2012 ABLS 19 (CanLII) found Hammoud guilty of four citations and imposed a sanction of ‘deregistration’ as a student, which was argued to be an effective disbarment for an articling student.

Hammoud appealed both the findings of guilt and the sanction on the grounds that the Hearing Committee erred when it:

1) Concluded that the standard of proof was the civil standard of a balance of probabilities; 2) Concluded that there was not a reasonable apprehension of bias when it was discovered

that one of the Committee Members knew a witness; 3) Found as a fact that the Appellant misled the LSA by not disclosing the assault on the

professor; 4) Imposed the sanction of deregistration; 5) Failed to sever the first four citations; 6) Allowed the presence of Calgary Police officers at the hearing, which tainted the Committee

and gave rise to a reasonable apprehension of bias.

The Appeal Committee found:

1) The standard of proof was correctly assessed to be the civil standard of a balance of probabilities: F.H. v. McDougall, 2008 SCC 53 (CanLII), Moll v. College of Alberta Psychologists, 2011 ABCA 110 (CanLII) and Fitzpatrick v. Alberta College of Physical Therapists, 2012 ABCA 207;

a. The Hearing Committee correctly identified the standard of proof in F.H. v. McDougall and Moll v. College of Alberta Psychologists;

2) There was no reasonable apprehension of bias in a committee member knowing the accuser;

a. The Hearing Committee correctly identified the test as set out in Boardwalk Reit LLP v. Edmonton (City), 2008 ABCA 176 (CanLII) and Wewaykim Indian Band v. Canada, 2003 SCC 45 (CanLII);

3) The Hearing Committee was entitled to find as a fact, based on hearing the evidence, that Hammoud misrepresented his involvement in his assault;

4) The sanction of deregistration was not clearly the equivalent of a disbarment and even if it was, the imposed sanction was found to be within the bounds of reasonable choices;

5) The argument with regard to a failure to sever was raised first at this Appeal, which made it procedurally difficult for the Appeal Panel and it was not apparent that an order for severance ought to have been given;

6) There was no issue with the police being present as they were present at the request of the LSA as an administrative matter as opposed to at the request of the Committee or an evidentiary matter.

Decision Appeal dismissed and registration with the LSA terminated.

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Law Society of Alberta v. Berman, 2014 ABLS 29 (CanLII) Resignation hearing HE20090059 heard May 20, 2014

Berman applied to resign (s. 32) in the face of extant citations. The citations arose from three complaints regarding deals between the complainants and a company and included misappropriation, conflict of interest, lied to or misled client and failure to respond. Parties submitted an Agreed Exhibit Binder and Statement of Facts containing certain admissions. The Resignation Committee found that a resignation would be in the best interest of the public and the profession.

Mitigating Circumstances • Agreed Statement of Facts.

Decision Resignation accepted (s. 32), Attorney General referral, Notice to the Profession, and costs of $30,754.31 to be paid prior to any application for reinstatement. Berman undertook to:

i. Not at any time in the future apply for reinstatement; ii. Cooperate with any claims as may be brought against him under the assurance fund;

iii. Pay to the LSA, upon demand, any claims made by the assurance fund; iv. Not act as an agent before a tribunal court or similar body in Alberta or elsewhere in Canada;

and v. Submit his Certificate of Enrolment to the LSA, should he find it and make his best efforts to find

it.

Law Society of Alberta v. Condin, 2014 ABLS 28 (CanLII) Resignation hearing HE20120069 heard June 23, 2014

At the time of the hearing, Condin was 69 years old and a retired, non-practicing member of the LSA. Condin applied for a s. 32 resignation while facing 10 citations arising from 3 complaints, a possibility of citations from a fourth complaint and he had a prior disciplinary record. These complaints relate to Condin’s handling of real estate transactions where he failed to recognize signs of mortgage fraud, unintentionally assisted a client in fraud and the ultimate loss to the various lenders was in excess of $1.85 million.

Condin’s s. 32 application was accepted as parties jointly recommended it. Condin did not intend to defraud money lenders and did not benefit. If this matter went further, the LSA would incur significant costs and the outcome would not be inevitable as the events occurred many years ago and the witnesses are not good and may not be available. As it was clear Condin should not practice law, a s. 32 resignation would protect the public.

Mitigating Circumstances • Condin did not benefit personally beyond legal fees;

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• Condin was candid and cooperative; • Condin undertook to not reapply for membership again.

Aggravating Circumstances • The losses as a result of Condin’s actions are staggering; • Condin had been before the LSA at the times these transactions were taking place.

Decision Resignation accepted (s. 32), Condin undertook to not reapply for membership again and was directed to pay the first three estimated costs upon receipt of the costs order and to pay the other costs prior to any application to be relieved of his undertaking.

Law Society of Alberta v. Nelson, 2014 ABLS 27 (CanLII) HE20120001 heard March 24, 2014

The citations related to Nelson’s conduct on real estate matters. It was alleged that Nelson assisted a client in an improper purpose, failed to serve clients, breached trust conditions, failed to supervise staff and acted while in a conflict of interest.

The Hearing Committee agreed with a joint submission on sanction and referenced three cases to establish a range of sanction: The Law Society of Alberta v. Stephen G. Heinz, 2012 ABLS 11 (CanLii) (CanLII) (“Too Cold”); The Law Society of Upper Canada v. Winston Gauntlett Mattis, 2009 ONLSHP 5 (CanLii) (CanLII)(“Too Hot”); The Law Society of Upper Canada v. Donna Gayle Mason, 2012 ONLSHP 92 (CanLii) (CanLII) (“Just Right”).

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Nelson was fully cooperative with the Law Society throughout the time he received the s. 53

letter; • The matters complained of occurred over a brief period of time (3 months); • Nelson agreed to provide an undertaking not to practice real estate law; • There was evidence that Nelson has attention deficit disorder.

Aggravating Circumstances • Had been suspended for a period of 12 months after being found guilty of six counts deserving

of sanction 14 years previous; • Nelson did not supervise his paralegal, who was in charge of his practice; • Never reviewed any of the physical files; • Was not aware of the solicitor instructions provided by lenders; • Paid no attention to the practice at all; • Completely abdicated his responsibilities in respect of his real estate practice; • Never met with any of the purchasers, instead relying upon a paralegal to do the work for him in

circumstances where he probably ought not to have trusted the paralegal to know or understand the full extent of the nature of the transaction;

• Ignored a trust condition that was imposed;

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• Had been in practice for 20 years and ought to have known better.

Sanction Suspension of 6 months, Notice to the Profession, actual costs to be paid upon reinstatement and undertook not to practice real estate law.

Law Society of Alberta v. Keohane, 2014 ABLS 26 (CanLII) HE20130014 heard November 28, 2013 and January 24, 2014

The citations relate to actions on real estate matters included a failure to act in good faith and a failure to respond in a timely manner. The Hearing Committee found that two of three citations were not proven.

There was no evidence to support that Keohane failed to act in good faith. The Hearing Committee accepts that it is the usual practice for a solicitor to make changes to the document and whether consent was implied or not, the other lawyer had been informed of the possibility for the title to be placed in the name of a designate of the Purchaser. The Committee agreed that Keohane was under no obligation to provide drafts of security documents even though he did so.

The Committee stated that Keohane owed the other lawyer the courtesy of advising him of his instructions, which included that he not negotiate with the other lawyer or reply to him on the issue of the guarantee and promissory note.

Sanction Reprimand and costs of $5,000.00 within 30 days of receipt of the final Statement of Costs.

Law Society of Alberta v. Wald, 2014 ABLS 25 (CanLII) Resignation hearing HE20120056 heard March 5, 2014

Wald applied for resignation (s. 32) while suspended and subject to outstanding citations arising from complaints about her representation of two clients. Wald was not candid when questioned by the LSA after the complaint had been submitted.

The conduct matters appeared to arise from Wald’s difficulty managing a very busy practice prior to her decision to become inactive in 2010. The breach of trust had been repaired so no losses were suffered.

Mitigating Circumstances • Wald acknowledged her conduct; • Wald cooperated with the LSA.

Decision Resignation accepted (s. 32), costs of $6,000.00 to be paid upon any application for reinstatement and Wald was to make her best efforts to locate her certificate of enrolment and surrender it to the LSA.

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Law Society of Alberta v. Magnan, 2014 ABLS 24 (CanLII) HE20130041 heard June 19, 2014

The Hearing Committee noted that neither Magnan nor counsel appeared at the proceedings, she did not appear to place importance on the proceedings, failed to demonstrate any responsibility or remorse for her conduct and instead attempted to impugn the actions of others. Magnan’s underlying conduct raised concerns about her integrity and brings into question the reputation of the profession.

Magnan failed in her positive obligation to inform both counsel and the court that documents had been removed from her expert's file and failed to state the basis upon which the documents were removed. She permitted both counsel and the court to believe that the entire file had been provided when it clearly had not and approximately 50 pages were missing. When confronted, her responses were inconsistent. The evidence presented to the Committee was sufficient and consistent so as to conclude that Magnan had attempted to mislead counsel and the court.

LSA sought suspension but the Committee concluded there was insufficient basis to warrant suspension. In considering an appropriate sanction, the Committee referenced Law Society of Alberta v. Mackie, 2010 ABLS 10 (CanLII), Law Society of Alberta v. Elgert, 2012 ABLS 9 (CanLII) and Law Society of Alberta v. Westra, 2011 CanLii 90716.

Mitigating Circumstances • No disciplinary history.

Sanction Reprimand, fine of $2,000.00 and costs of $6,019.12, both to be paid within 90 days of service of the Costs Order.

Law Society of Alberta v. Shustov, 2014 ABLS 23 (CanLII) HE20130048 heard May 12, 2014

The citations arose as a result of complaints by Shustov’s client regarding his handling of a divorce matter and by the lawyer who took on the file afterwards.

In his response to the LSA, Shustov admitted that he did not seek assistance on a matter beyond his competence level, lied to his client, was not able to repair the situation and expressed remorse that he harmed his client’s interests.

While LSA sought disbarment, Shustov’s counsel sought a suspension of three to six months. Shustov worked hard, produced consistent work, kept his manager informed on the progress of files, was involved in the community and was a volunteer. Shustov’s employers were aware of the circumstances, supported him and had a plan in place for his suspension.

Mitigating Circumstances • Agreed Statement of Facts and admission of guilt; • Shustov’s age, inexperience, cooperation, remorse, support of his manager and truthfulness in

immediately reporting his misdeeds to his supervisor.

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Sanction Suspension of eight months to commence 30 days from the date of the Hearing, referral to Practice Review upon reinstatement and the condition that Shustov will only practice in an employed capacity under direct supervision of a member of the LSA approved by Practice Review. Prior to his reinstatement, Shustov must receive education on legal ethics.

Law Society of Alberta v. Zinner, 2014 ABLS 22 (CanLII) HE20130037 heard March 26, 2014

The citations arose when Zinner acted against the Direction of the Court. Zinner stated that he did not hear the Direction and was never contacted by counsel for the Plaintiff to determine if he had heard the Justice’s Direction or if the Plaintiff was of the view that Zinner was in breach of the Direction. Upon becoming aware of the Direction, Zinner immediately assisted in rectifying matters.

The Committee refused to take an admission of guilt from Zinner because they believed he had not heard the direction of the court. Zinner’s reaction when he found out about the Direction only make sense in that context. The Committee did not accept the admission of guilt and referenced Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII), R. v. Tkachuk, 2001 ABCA 243 (CanLII), and Law Society of Alberta v. Pearson, 2011 ABLS 27 (CanLII).

Decision Citations dismissed.

Law Society of Alberta v. Herman, 2014 ABLS 21 (CanLII) HE20130006 heard March 10, 2014.

The Hearing Committee found that Herman’s actions when he followed his client’s instructions was not conduct deserving of sanction and Herman did not need to further advise the complainant.

Comments made were not demeaning, profane or insulting and were largely factual statements that were true under the specific circumstances. If Herman disregarded requests of the opposing self-represented party to their detriment that may have been sanctionable. However, this was not the case and he was following the sensible instructions of his client.

The failure to respond in writing to repeated requests for further negotiation was not a best practice and Herman probably should have sent a letter outlining that it was his client’s instructions not to respond to negotiations in the absence of execution of the binding JDR agreement. However, all the facts do appear to be well known to all parties and the opposing party acknowledged such during cross-examination.

Decision Citations dismissed.

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Law Society of Alberta v. Prystai, 2014 ABLS 20 (CanLII) Resignation hearing HE20120058 heard June 16, 2014

Prystai applied to resign under s. 32 of the LPA. He faced 18 citations arising from two complaints. It was alleged that Prystai misled a client, failed to respond, failed to serve her clients and failed to obtain instructions. The Committee accepted that resignation would be in the best interests of the public and would avoid a hearing. Prystai was granted two weeks to complete the transition of her two remaining client matters.

Mitigating Circumstances • Agreed Statement of Facts.

Decision Resignation accepted (s. 32) effective June 30, 2014, Notice to the Profession, costs of $53,093.73 to be paid prior to an application to be relieved of the undertaking. Prystai undertook to:

i. Not to apply to be re-instated to active membership in the LSA or any other law society; ii. To cooperate with the LSA in respect of any future claim made against her or the Assurance

Fund; iii. To pay to the LSA, upon its demand, any amount paid on her behalf out of the Assurance Fund

or any deductible with respect to any claim paid by her insurer; iv. Not to act as an agent before any tribunal, court, or other similar body; v. To undertake best efforts to locate her certificate of enrolment, and if located, to return it to the

LSA; and vi. To advise the LSA in the event she seeks to be relieved of her undertaking and acknowledged

that she would in that event, be required to pay costs to the LSA.

Law Society of Alberta v. Vanderleek, 2014 ABLS 19 (CanLII) HE20120054 heard February 4, 2014

Vanderleek began practicing in Alberta but did not take steps to acquaint himself with the accounting rules of the LSA over a period of six years. The Hearing Committee referenced Law Society of Alberta v. Fixler, 2010 ABLS 35 (CanLII) and Law Society of Alberta vs. Michael Grosh, 2009 LSA 21 (CanLII) in light of the importance of compliance with the Rules. He also failed to be candid and to respond to the LSA.

The Committee referenced Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) in consideration of the importance of lawyer integrity. The Committee referenced Rault v. Law Society of Saskatchewan, 2009 SKCA 81 (CanLII) ; R. v. L.R.T., 2010 ABCA 224 (CanLII); and Law Society of Upper Canada v. Orzech, 1996 CanLII 4743 in its acceptance of the joint submission on sanction.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction.

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Sanction Suspension of 1 month to commence on March 1, 2014, Notice to the Profession and actual costs to be paid upon reinstatement.

Law Society of Alberta v. Scott, 2014 ABLS 18 (CanLII) Resignation hearing HE20120051 heard January 28, 2014

The Agreed Statement of Facts and admissions constituted a Joint Submission as to the appropriateness of a s. 32 resignation in the face of extant citations, including failure to respond in a timely manner, a failure to serve a client and a failure to honour undertakings.

Mitigating Circumstances • Agreed Statement of Facts.

Decision Resignation accepted (s. 32), costs of $3,664.50 to be paid within four months of February 28, 2014 and Scott undertook to:

i. Cooperate with the LSA in the future in respect of any claim made against him or the Assurance Fund;

ii. Pay the LSA, on its demand, any amount or any claim paid on his behalf by the LSA's Assurance Fund, or any deductible with respect to any claim paid on his behalf by the LSA's insurer; and

iii. Return his Certificate of Enrollment, if and when he found it.

Law Society of Alberta v. Charnock, 2014 ABLS 17 (CanLII) HE20130007 heard February 13, 2014

Charnock was an untreated alcoholic at the time he was alleged to have engaged in conduct that impaired his capacity or motivation to provide competent services. The joint submission on sanction was prepared in conjunction with Practice Review. The Committee was provided with extensive evidence of Charnock’s treatment.

Mitigating Circumstances • Admission of guilt; • Joint submission on sanction; • Extensive evidence of rehabilitation, diligence, good faith, expense, and sacrifice in support of

treatment for the last almost three years.

Sanction Reprimand, conditions related to Practice Review and Practice Management and actual costs to be paid over 36 months.

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Law Society of Alberta v. Cormie, 2014 ABLS 16 (CanLII) HE20120055 heard September 9 – 10, 2013, January 13 – 14, 2014 and April 8, 2014

Cormie was counsel for E Corp. and acted on behalf of one of the directors, GS in sending a demand letter to E Corp. Cormie represented GS as an individual in an issue versus the company that he also represented. He continued to act following concerns raised by the other shareholders that GS had put Cormie in a clear conflict of interest and that GS was suspected of misappropriation of company funds. He did not act in the best interests of his client.

Cormie was evasive and his recollections were contrary to the evidence. The evidence made it clear that he was directly involved in the M Corp. lawsuit against E Corp and had been in a conflict of interest since instructing the associate lawyer to draft the Statement of Claim against E Corp.

Faryna v Chorny, 1951 CanLII 252 (BC CA), at para 11, was referenced in consideration of witness credibility.

The Hearing Committee seriously considered disbarment, but as Counsel didn't give notice to Cormie that disbarment was a possibility, they felt it was not an available sanction.

Aggravating Circumstances • Disciplinary history; • High risk of recurrence; • Cormie was less than forthcoming with the LSA and in his evidence before the Committee; • Lack of acknowledgement of wrongdoing, refusal to acknowledge wrongdoing, lack of credibility

and lack of remorse.

Sanction Suspension of 1 year, Notice to the Profession, costs to be paid prior to any application for reinstatement and referral to Practice Review to satisfy the condition of successful completion of an ethics course prior to any application for reinstatement.

Prior to issuance of the reasons, Cormie gave notice of his intention to appeal the decision and applied for a stay of the order of suspension. On April 16, 2014, a stay was granted pending conclusion of the appeal, Law Society of Alberta v. Cormie, 2014 ABLS 50 (CanLII).

Law Society of Alberta v. Maxwell, 2014 ABLS 15 (CanLII) HE20120062 heard December 9 – 10, 2013 (sanction phase)

See Law Society of Alberta v. Maxwell, 2014 ABLS 14 (CanLII) for summary of the facts and the merits decision.

Mitigating Circumstances • Agreed Statement of Facts; • No indication that Maxwell was incorrigible, ungovernable or at risk of recurrence; • No disciplinary history over entire 13 years of practice.

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Sanction Reprimand and full costs of $5,166.00.

Law Society of Alberta v. Maxwell, 2014 ABLS 14 (CanLII) HE20120062 heard December 9 – 10, 2013 (merits phase)

Maxwell failed to dispel the opposing lawyer's misunderstanding regarding the possibility of further negotiations on the manner of payment as his client had no intention of allowing the funds to be paid without being paid into Court pursuant to a Garnishee Summons. The belief that parties had come to an agreement caused an interview to be cancelled and the settlement agreement was never completed.

Maxwell kept the opposing lawyer ignorant of the Garnishee Summons until quite late and had an obligation to dispel the opposing lawyer’s misunderstandings, which had been caused by Maxwell’s statements. Maxwell considered his obligation to advise the opposing lawyer to be overridden by his obligation to protect his client’s interest but he did have an obligation to inform that there was no further hope for negotiation of the payment funds and that the funds were required to be paid into Court.

Maxwell cannot be faulted for his refusal of the opposing lawyer’s request as he was obliged to accept his client’s instructions.

Sanction See sanction hearing Law Society of Alberta v. Maxwell, 2014 ABLS 15 (CanLII).

Law Society of Alberta v. Pontin, 2014 ABLS 13 (CanLII) HE20130003 heard March 11, 2014

Pontin denied (to the LSA) representing the Rs on any matter, although he assisted the Rs on several matters, referred to the Rs as his clients, told others he represented them and did not charge a fee. This misled the LSA as to the true state of affairs. Pontin later explained that he did not try to deliberately mislead the LSA and apologized for any misunderstandings.

The Committee referred to Law Society of Alberta v. Mackie, 2010 ABLS 10 with respect to the objective to protect the public and preserve high professional standards and public confidence in the profession. R. v. Tkachuk, 2001 ABCA 243 and Law Society of Alberta v. Pearson, 2011 ABLS 17 were referred to in considering the joint submission on sanction.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction; • No prior disciplinary record over decades of practice; • Expressed remorse and acknowledged responsibility.

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Sanction Reprimand, a fine of $2,000.00 and actual costs to be paid within 30 days of being served with a statement of costs.

Law Society of Alberta v. Sparling, 2014 ABLS 12 (CanLII) Resignation hearing HE20130002 heard February 4, 2014

Partly as a consequence of the disciplinary hearing heard on the same day, Sparling applied to resign (s. 32). See Law Society of Alberta v. Sparling, 2014 ABLS 11 (CanLII) for the disciplinary hearing.

Mitigating Circumstances Agreed Statement of Facts.

Decision Resignation accepted (s. 32) effective July 31, 2014. Sparling shall not accept any new clients effective February 21, 2014, will facilitate transfer of client files to a new lawyer, will take steps to manage all files and will be responsible for any custodial costs. Sparling undertook to not reapply for membership, will submit his certificate of enrollment to the LSA and will pay costs of $15,000.00 prior to any application for readmission.

Law Society of Alberta v. Sparling, 2014 ABLS 11 (CanLII) HE20130002 heard February 4, 2014

Sparling hugged his client twice, which was unwanted physical contact and constituted sexual harassment. The Hearing Committee did not accept the parts of the joint submission on sanction that Sparling should take no new clients and have conditions imposed that he should tender a resignation application (s. 32), facilitate transfer of client files to a new lawyer and manage all other files or be responsible for custodian fees.

The joint submissions on sanction were intended to segue into an intended resignation application but were not aligned with the expected sanction for this type of behaviour.

Mitigating Factors • Agreed Statement of Facts and Admission of guilt; • No disciplinary history over 37 years.

Sanction Reprimand and costs of $1,000.00 to be paid by the end of the day of the hearing.

Law Society of Alberta v. Pozniak, 2014 ABLS 10 (CanLII) Resignation hearing HE20120038 heard January 31, 2014

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The Agreed Statement of Facts was effectively a joint submission as to the appropriateness of the s. 32 resignation in the face of the extant citations, which included failure to accept reasonable trust conditions, failure to serve a client and failure to respond to Practice Review.

The Resignation Committee declined to order custodianship costs as that was not the practice or policy. Pozniak was not asked to undertake that he never reapply for readmission to the LSA.

Mitigating Circumstances • Agreed Statement of Facts.

Decision Resignation accepted (s. 32), Notice to the Profession and actual costs to be paid prior to any application for readmission.

Law Society of Alberta v. Abdi, 2014 ABLS 9 (CanLII) HE20120027 heard February 25, 2014

The citations arose from Abdi’s approach to law as a very junior lawyer, which had manifested as a lack of understanding and appreciation of his obligation to selflessly serve his client’s interests. The Hearing Committee accepted the joint submission on sanction. It noted that Abdi was a very junior lawyer responsible for a significant real estate practice without effective supervision or mentoring, he voluntarily ceased practising in response to the difficulties he found himself in and was at the time earning a minimal income.

Law Society of Alberta v. Mackie, 2010 ABLS 10, Law Society of Alberta v. Westra, 2011 CanLII 90716, Law Society of Alberta v King, 2010 ABLS 9, R. v. Tkachuk, 2001 ABCA 243 and Law Society of Alberta v. Pearson, 2011 ABLS 17, were referenced in considering the sanction.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Joint submission on sanction; • Abdi expressed remorse; • Abdi cooperated with the LSA, took responsibility for conduct, demonstrated willingness to take

steps to avoid re-occurrence and had no issues with his honesty or integrity.

Aggravating Circumstances • Disciplinary record.

Sanction Reprimand, continued engagement with Practice Review, a fine of $2,000.00 and actual costs of $1,963.50, both to be paid by February 24, 2015.

Law Society of Alberta v. Waite, 2014 ABLS 8 (CanLII) Single Bencher hearing HE20130055 heard April 25, 2014

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Waite took eleven months from the time of retainer to file a statement of claim, allowed almost a year to pass before he obtained a filed statement of defense, failed to take any formal steps in the litigation after filing and serving the affidavit of records, did not request dates for questioning, and did not request an unredacted employment file until four years after conduct of the file was assumed. Waite did not take any steps to question the defendant's representative, failed to report to the client about the progress of the claim, failed to keep the client advised of the obstacles perceived in advancing the action, failed to advise of likelihood of success and failed to advise about likely value of the claim. Waite failed to respond after November 2010 and failed to be proactive and to advance the matter or arrange for alternate counsel until December 19, 2013.

In a January 19, 2011 complaint from the same client, the LSA attempted early resolution of the complaint was unsuccessful. Waite did not contact or respond to the client, who was difficult to reach, and he accepted that it was his conduct that resulted in the complaint.

Law Society of Alberta v. Westra, 2011 CanLII 90716 was referenced in consideration of a reprimand. McKee v. College of Psychologists of British Columbia, 1994 CanLII 1404 was referenced in consideration of protection of the public interest.

Mitigating Circumstances • Agreed Statement of Facts and Admission of Guilt allowed for a single Bencher hearing; • No disciplinary history in nearly 18 years; • Waite expressed remorse, accepted responsibility for his conduct and will make efforts to

ensure this does not happen again; • Joint submission on sanction; • Waite cooperated fully with the LSA.

Sanction Reprimand and actual costs to be paid within 60 days of receipt of the Bill of Costs.

Law Society of Alberta v. Blott, 2014 ABLS 7 (CanLII) Resignation hearing 2014 763-50-LS0759 heard June 13, 2014

The citations arose from gross self-interest causing victims of the residential school system to be re-victimized under Blott’s direction. Issues of ungovernability were also raised.

Blott facilitated and encouraged the issuance of loans to clients who were claimants in the IRS Process and caused members of the public and claimants to believe that H and B were the same entity. Blott counseled and encouraged the actions and conduct of H Ltd., but the conduct and actions of H Ltd. were not in the best interests of the claimants.

Blott admitted that certain findings, if proven, might have resulted in disbarment and the Statement of Facts was essentially a joint submission as to the appropriateness of the s. 61 resignation. The Hearing Committee affirmed that disbarment is the most serious consequence they have the authority to impose and other courses of retribution for those hurt by Blott are outside the purview of the LSA.

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Decision Resignation accepted (s. 61), Notice to the Profession, Attorney General referral and costs of $215,000.00 to be paid prior to any application for reinstatement and conditions.

Blott will pay costs in the amount of $60,000.00 ($30,000.00 to be paid by the end of 2014, $15,000.00 paid by the end of 2015, and $15,000.00 paid by the end of 2016) and was directed to make his best efforts to locate his certificate of admission and should it be found, to surrender the same to the LSA.

In addition to accepting the resignation application, the Committee ordered that Blott will not practice law again in Alberta or any other jurisdiction in Canada.

Law Society of Alberta v. Warrington, 2014 ABLS 6 (CanLII) HE20100029 heard February 11, 2014

The citations arose from three complaints relating to family law and included a failure to respond in a timely manner, a failure to provide competent service, withdrawal without reasonable notice and consent to an order without instructions.

The evidence demonstrated that Warrington failed to diligently serve his clients and the Committee expressed concern that there was a pattern of conduct where Warrington placed his own interests before those of his clients and failed to demonstrate accountability for his actions.

The following cases were referenced: Law Society of Alberta v. Jan Ter Hart, June 21, 2004 in consideration of whether this conduct was deserving of sanction, Law Society of Alberta v. Mackie, 2010 ABLS 10 in consideration of the sanction, Law Society of Alberta v. Westra, 2011 CanLII 90716 in consideration of a reprimand and Law Society of Alberta v. Elgert, 2012 ABLS 9 in consideration of mitigating circumstances.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Practice Review noted that Warrington made significant changes and had fulfilled and complied

with all the conditions imposed by the previous Hearing Committee.

Aggravating Circumstances • Warrington’s disciplinary record, which predates his involvement with Practice Review, consists

mostly of a lack of candour, courtesy and professionalism; • Failure to take accountability for his errors and absence of remorse; • Each of Warrington’s clients were in vulnerable circumstances when they turned to him for

counsel.

Sanction Reprimand, a fine of $4,000.00 ($1,000.00 per citation) and actual costs, both to be half paid by February 12, 2015 and half by February 12, 2016.

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Law Society of Alberta v. Robidoux, 2014 ABLS 5 (CanLII) HE20130012 heard May 26, 2014

Robidoux improperly disclosed confidential information to a reporter about the Candidate's campaign while acting as legal counsel for the campaign team.

Once the article was published, Robidoux failed to tell anyone on the campaign team that she was the anonymous source of information. She had an obligation as a professional to admit her transgression.

There was an element of cover up present and she attempted to rely on journalist-source privilege, or at least a promise not to reveal her identity, as a shield.

The Committee considered the jointly proposed sanction of a four-month suspension to be harsh but found it to be appropriate as per Law Society of Alberta v. Paidra, 2013 ABLS 18. A harsh penalty is appropriate as Robidoux, a Queen’s Counsel, disgraced herself and the profession and because confidentiality is fundamental to the lawyer-client relationship.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Robidoux apologized to the Candidate; • No disciplinary record.

Sanction Suspension of four months, Notice to the Profession and full costs to be paid prior to an application for reinstatement.

Law Society of Alberta v. McConnell, 2014 ABLS 4 (CanLII) HE20120020 heard March 17 – 18, 2014

The citations arose from an investigation into two other lawyers following a complaint from a bank when it was discovered that McConnell was involved in disbursing $708,000.00 in trust funds for the two projects subject to the bank complaint. McConnell did not believe he had been involved in any fraudulent activity and cooperated with the LSA investigation.

McConnell did not make inquiries to understand the instructions or the true nature of the transactions, although he knew it was his duty as a lawyer to understand why he was receiving and disbursing large amounts of money to other parties. He enabled others to engage in mortgage fraud. The Committee highlighted the positive obligation of inquiry and the need for lawyers to make necessary inquiries and know that everything is above board.

The Hearing Committee disagreed with the three-month suspension proposed by the LSA under the banner of general deterrence, believed it stepped into the realm of specific deterrence in an unjustified way. That the apparently unprovable, public allegations hung over McConnell’s head for many months constitutes an important part of the reasoning for the imposition of a fine rather than a suspension.

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Mitigating Circumstances • The lengthy period of time between the investigation and the hearing (close to seven years),

attributable to the LSA was a circumstance in issuing a fine rather than a suspension; • Agreed Statement of Facts containing an admission of guilt to citation 1; • No disciplinary history over 39 years; • Cooperation with the LSA; • Financial gain was marginal; • No evidence of negative impact on McConnell's clients or others; • Conduct appears to be out of character for him or isolated; • No evidence of simultaneous ethical or other breaches.

Sanction Fine of $5,000.00 and costs of $13,000.00.

Law Society of Alberta v. Riccioni, 2014 ABLS 3 (CanLII) Appeal hearing HE20070059AP heard December 16, 2013

The Appeal was heard on the grounds that the Hearing Committee’s finding in Law Society of Alberta v. Riccioni, 2012 ABLS 15 (CanLII) that Riccioni was reckless and “willfully blind” to the mortgage fraud scheme, that breaches of procedural fairness occurred when the Committee failed to provide reasons and called Riccioni as a witness and that the sanction was unduly harsh in light of the mitigating circumstances.

The transactions all occurred and Riccioni played a pivotal role in the completion of the transactions. The finding of being willfully blind or reckless to the mortgage fraud was not necessary to support the citations alleging he was involved in certain actions and that such conduct was worthy of sanction.

Reasons were sufficient as per Moll v. College of Alberta Psychologists, 2011 ABCA 110 (CanLII), Walsh v. Counsel for Licensed Practical Nurses, 2010 NLCA 11 (CanLII), Johnston v. Alberta (Energy & Utilities Board), (1997), 1997 ABCA 265 (CanLII) and Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII).

Riccioni was a compellable witness under s. 69(1) of the LPA and the Hearing Guide and the sanction of disbarment was found to be within the reasonable range, supported by the analysis of the Hearing Committee and therefore interference was not necessary.

Decision Appeal dismissed. The Hearing Committee’s decision to disbar was reasonable.

Law Society of Alberta v. Elgert, 2014 ABLS 2 (CanLII) HE20130032 heard February 18, 2014

In relation to a real estate matter, Elgert did not advise clients and other parties to seek independent legal advice; did not disclose the inherent conflict of interest between himself as counsel and as a business partner and there was no signed conflict letter; failed to advise his client when Examination for Discovery was scheduled or assure that client received proper representation; misrepresented that

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financing had been obtained, but it had not and the transaction was set to close shortly. The transaction failed to close because financing could not be obtained and Elgert sought to mislead the LSA. He minimized his own conduct and placed responsibility on his client for the failed transaction, denied any involvement in the transaction prior to the contract being entered into, and denied any involvement or discussion that gave rise rise to the conditions of the purchase being removed. Elgert only later admitted that his responses were inaccurate and incomplete.

The Hearing Committee referenced Bolton v. Law Society, [1994] 2 All ER 486 in consideration of whether to order a suspension. The Committee noted that the previous suspension did not appear to have the expected result, Elgert’s conduct put the public at risk and diminishes the respect for the profession, his refusal to take guidance from his regulator and efforts to seek to mislead the regulator suggests that he may not be amenable to regulation by the LSA and his misuse of trust funds was amongst the most serious of offences.

Mitigating Circumstances • Agreed Statement of Facts and Admission of guilt; • Elgert practiced for 24 years without any disciplinary history; • Elgert has remained in voluntary absence from practice since the expiration of his suspension in

May 2012.

Aggravating Circumstances • Recent disciplinary history where Elgert admitted guilt to 18 citations, many of which are similar

in nature to the citations in this matter; • Elgert induced two clients to engage in a transaction to his potential benefit, gambled with

clients' trust funds, to his potential benefit, without fully advising them as to their risks and actively misled them in many respects to their ultimate great loss of funds. This carried great significance and concern;

• Elgert sought to avoid responsibility and to mislead the LSA as to the true circumstances of this matter. As a result of the timeline, it appears that Elgert ignored the guidance and opportunities to correct his behaviour from an earlier hearing.

Sanction Suspension of 18 months, subject to Practice Review for not less than 12 months and costs of $14,534.62 to be paid within 12 months of reinstatement.

Law Society of Alberta v. Gillis, 2014 ABLS 1 (CanLII) HE20120002 heard February 18, 2014

Gillis failed to conscientiously serve his client and failed to respond to the LSA.

When it determined an appropriate sanction that would protect the public and preserve public confidence in the profession, the Hearing Committee referenced Law Society of Alberta v. Mackie, 2010 ABLS 10 (CanLII). When it considered a reprimand, the Committee referenced Law Society of Alberta v. King, 2010 ABLS 9 (CanLII) and when it considered mitigating circumstances, it referenced Law Society of Alberta v. Elgert, 2012 ABLS 9 (CanLII). R. v. Tkachuk, 2001 ABCA 243 (CanLII) and Law Society

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of Alberta v. Pearson, 2011 ABLS 17 (CanLII) were referenced in consideration of the joint submission on sanction.

The Committee found that Gillis demonstrated a lack of diligence and responsiveness.

Mitigating Circumstances • No disciplinary record; • Agreed Statement of Facts and Admission of Guilt; • Cooperation with the LSA, took responsibility for his conduct, willing to take steps to avoid re-

occurrence and was engaged with Practice Review; • Citations arose when Gillis was experiencing serious health issues and there was no prejudice

caused to the client; • Joint submission on sanction.

Sanction Reprimand, fine of $1,500.00 and costs of $1,000.00, both to be paid by February 18. Gillis undertook to have no more than 75 active files, excluding wills files, and to provide an active file list to Practice Review on a quarterly basis commencing March 31, 2014 until relieved of such by the Practice Review Committee.