License surrender was allowed by the Law Society of Upper Canada Tribunal
The Licensee’s misconduct would ordinarily attract a significant suspension. However, the Licensee has been a lawyer for over 30 years and is ready to wind down his busy practice. Given this, and other considerations brought to our attention, we concluded that the joint submission was reasonable and permission to surrender was granted. Costs in payments of $8,000 and $3,200 were ordered.
The misconduct involved a divorcing couple. The attorney became friends with the husband through masonic lodge activities.
The Law Society, in an Amended Notice of Application, made three allegations of professional misconduct against the Licensee. The particulars were that he:
(1) … failed to conduct himself in such a way as to maintain the integrity of the profession when he purported to witness the signature of his client MK when he did not and knew or ought to have known she had not signed:
(a) an amendment to a separation agreement dated December 2, 1997; and
(b) a consent (to act re: conflict) dated December 3, 1997
contrary to Rule 6.01(1) of the Rules of Professional Conduct (the “Rules”).
(2) In and around December, 1997 … failed to be honest and candid when advising his client MK by failing to ensure she understood that her estranged husband believed he was entitled to dispose of his interest in the matrimonial home after five years, contrary to Rule 2.02(1) of the Rules.
(3) Between May 2006 and February 2007 … acted in a conflict of interest when he acted on a transfer severing the joint tenancy of the matrimonial home and subsequently the transfer of a one-half interest in the matrimonial home, to the detriment of his former family law client MK, contrary to Rule 2.04(4) of the Rules.
At the hearing on May 9, 2016, the parties filed an Agreed Statement of Facts. In it the Licensee acknowledged all of the above particulars and that his failure with respect to each constituted professional misconduct. His counsel, Ms. Lawrence, confirmed this.
There is no doubt that the Licensee’s:
- purported witnessing of signatures that were not made;
- failure to advise MK concerning what he knew about HK’s beliefs or intentions with respect to the sale of the matrimonial home; and
- acting for MV in the sale of a half interest of the matrimonial home contrary to his former client’s interest
was professional misconduct.
Given the above, we made three findings of professional misconduct as alleged
We were provided with a joint submission with respect to penalty. At the heart of it, was a proposal that the Licensee be granted permission to surrender his licence.
The role of any panel considering a joint submission is to assess whether it is within the range of reasonableness, in the sense that it is not contrary to the public interest: Law Society of Upper Canada v. Cooper, 2009 ONLSAP 7 (CanLII).
Where parties have agreed on the penalty of permission to surrender, this penalty should be accepted as reasonable unless revocation is required:Law Society of Upper Canada v. Fitz Gibbon, 2015 ONLSTH 167 (CanLII).
There is no doubt that the misconduct before us was serious, and taking into account the relevant factors identified in Law Society of Upper Canada v. Aguirre, 2007 ONLSHP 46 (CanLII), would call for a significant suspension.
However, as there was no allegation of fraud and there were a number of mitigating considerations, we were satisfied that this was not a case where revocation was required. In particular:
- The events giving rise to this proceeding occurred in 1997 and 2007, some time in the past.
- The Licensee has had a lengthy career with no recent disciplinary history that would call for progressive discipline.
- He had accepted responsibility for his conduct, thus avoiding a lengthy hearing.
- The Licensee had settled the civil suit against him. By return of the half interest in the matrimonial home to MK and the payment of costs, he had made his victims whole.
- He wishes to leave the profession and wind down his practice.
Wish granted. (Mike Frisch)