Change Of Heart Is A Material Change In Circumstance
The Law Society of Upper Canada Appeal Tribunal has ordered an interlocutory suspension of an attorney who had avoided an earlier proposed suspension by claiming she had been duped by the fraud of her former romantic and law partner.
The Law Society first brought a motion for an interlocutory suspension of the respondent’s licence in March 2015. The first motion was brought relatively early in the Law Society’s investigation into alleged misappropriation of trust funds held by the now defunct Windsor, Ontario law firm of Shulgan Martini Marusic LLP (SMM). One of the three partners, Claudio Martini (Mr. Martini), admitted he had misused trust funds held for one of his corporate clients. The Law Society relied on undisputed evidence that the respondent, a partner at SMM, co-signed with Mr. Martini three cheques, totaling $1,264,108.87, by which trust funds held for the company were transferred to the firm’s general account on account of fees, at a time when the conditions for the release of fees had not been met.
As to that first motion
The Respondent says that she, like many others, was a victim of Mr. Martini’s deceitful ways. She described him as being able to win and maintain the trust of many intelligent and otherwise highly careful and perceptive people. She makes the point that the misconduct established in Mr. Martini’s previous discipline proceeding did not include any suggestion that he had misused trust funds. She deposed that she is “shocked and appalled” that she may have been asked to sign cheques transferring amounts from trust when there remained unfulfilled trust conditions, and that her personal relationship with Mr. Martini has ended.
The basis is for the renewed motion to suspend
The respondent and Mr. Martini were two of the three partners at SMM. The partnership dissolved in early January 2015. The respondent and Mr. Martini began an intimate relationship in 2001. At the first hearing, the evidence before the panel was that the relationship ended in March 2015. As is described in more detail below, on the motion to vary the June 1, 2015 order, the respondent acknowledged that their intimate relationship resumed in August 2015…
The majority decision accepts that the resumption of an intimate relationship between the respondent and Mr. Martini is a “material change in circumstances.” As the majority noted, this is so because the First Hearing Panel placed importance on the evidence of the respondent that she and Mr. Martini had parted. However, the majority significantly understates this point. Reading the First Hearing Panel’s decision as a whole, it is apparent that the respondent’s testimony that she had ended her relationship with Mr. Martini and viewed herself as another victim of his deceit was a significant factor for that panel in addressing the issue of risk to members of the public and restoring public confidence.
The changed circumstances merited the interlocutory suspension but
Given that the Law Society’s investigation is still at such an early stage we are persuaded that this is a case where our order must take into account the possibility that the hearing on the merits may not proceed with dispatch. Accordingly, the respondent should be entitled, by motion, to require the Law Society to show that the interlocutory suspension should continue, after it has been in place for five months. Without fettering the authority of a subsequent panel, in our view, a period of five months would likely constitute a “material change in circumstances” within the meaning of Rule 27.07(1) 3 of the Rules of Practice and Procedure.
Our earlier coverage of the Hearing Tribunal Division denial of the motion is linked here. (Mike Frisch)