The Two-Lawyer Subrule

A panel of the Law Society  of Upper Canada has reprimanded an attorney

After a contested hearing, this panel found that the Respondent, Philip Charles Tinianov (“the Lawyer”), engaged in professional misconduct in contravention of s. 33 of the Law Society Act: see 2016 ONLSTH 3 (CanLII). He assisted another lawyer Golnaz Vakili (whose licence has since been revoked), to breach the two-lawyer subrules relating to real estate transactions under the former Rules of Professional Conduct (“the Rules”).

We found that the Lawyer acted in circumstances where he ought to have known that he was assisting Golnaz Vakili to breach Subrule 2.04(11) of the former Rules by acting for both the lenders and the borrower in connection with two charges in September 2012. He also ought to have known that he assisted her to breach former Subrule 2.04.1(1) in connection with two transfers, registered in September and October of 2012.

Ms. Vakili acted for both the Chargor and the Chargee on each charge, and for both Transferor and Transferee on each transfer.  The Lawyer provided independent legal advice (“ILA”) to the Chargors and the Transferees, in circumstances where the former Rules required each party to a mortgage or transfer transaction to have independent legal representation (“ILR”).

These reasons address the appropriate penalty. The Law Society submitted that the appropriate penalty was a one-month suspension and substantial fine. The Lawyer requested a reprimand.

Ms, Vakili was an attorney who shared office space with Lawyer.

The Lawyer testified candidly that the distinction between ILA and ILR was not clear to him at the time of the transactions. In his evidence concerning the transactions, the Lawyer explicitly confirmed that he was providing ILA and not ILR to Ms. Vakili’s clients. He knew that the parties he was purportedly advising were not his clients but Ms. Vakili’s clients. Therefore, he did not provide the same legal services which he would normally provide to a paying client whom he independently represented, such as performing corporate searches, requesting further information on shareholders, and the like. He said he believed that by providing ILA he was assisting Ms. Vakili to comply with the Law Society’s two-lawyer subrules. 

We found that the Lawyer did not knowingly assist Ms. Vakili to violate the two-lawyer subrules. He failed to appreciate the import and significance of the subrules, and he failed to appreciate the difference, and the importance of the difference, between ILA and ILR.  We found that the Lawyer had engaged in professional misconduct in this regard, as he had acted in circumstances where he ought to have known that he was assisting Ms. Vakili to contravene the former subrules.

The Star.com reported that Ms. Vakili went into hiding after fraud charges were brought against her in 2014.

Here, the panel concluded that Lawyer was Vakili’s unwitting dupe

The Lawyer submitted that his conduct had been neither dishonest nor fraudulent. He felt embarrassed about having been manipulated by Ms. Vakili. He considers himself her victim, but acknowledges that he ought to have been more familiar with the two-lawyer subrules. He acknowledges that he misunderstood and misinterpreted those subrules, and by so doing, assisted in Ms. Vakili’s violation of them. He now understands and is fully aware of the import of the subrules.

 The Lawyer stressed that he was extremely sorry for the misconduct. He re-iterated that he thought he was helping a colleague by providing ILA to her clients without charging for his services. He thought he was acting honourably and benevolently. He also pointed out that in that specific situation, even ILR might not have prevented Ms. Vakili’s clients from signing the transfer documents, and that the fraud and damage resulted from her actions – not his own.

The Lawyer testified that he was called to the Bar in 1978, had no discipline history and a very good reputation in the legal community. As a sole practitioner he would be greatly affected by a suspension. He has four children, two of whom are still dependent on him for support.

 The Lawyer testified that he is very involved in synagogue and community activities. He sings in the synagogue choir and participates in performances in community venues such as retirement homes. He is a Big Brother. He taught law clerks at Seneca College, did tutoring for the Bar Admission Course, and has also mentored younger lawyers.

 He spoke to the physical, psychological and emotional toll which this proceeding has taken on him. He suffered from depression and anxiety on account of the proceedings. He stressed that he now understands the difference between ILA and ILR, and that his continuing to practise law would not pose a danger to anyone. He submitted that an appropriate penalty would be a reprimand accompanied by an order to take continuing professional education courses.

 Thus

We consider that in the present case a further penalty, in the form of a fine, is not necessary for the purposes of either specific or general deterrence. We find that the Lawyer’s misconduct is on the very minor end of the spectrum of fault, and less serious than the misconduct in Zandi. We are satisfied that the reprimand which has been administered constitutes sufficient deterrence. In these circumstances, we find that a further punitive measure, in the form of a fine, is not necessary.

(Mike Frisch)