Ontario Accords Preclusive Effect To U.S. Disbarments

April 13, 2019

The Law Society of Ontario Tribunal Appeal Division rejected the appeal of an attorney disbarred in Illinois, permanently disbarred in Florida (where the original proceeding occurred) and the subject of serious criminal charges

The Lawyer practised law in Florida and was also a member of the bars of Illinois and Ontario. He was disbarred by the Florida Supreme Court in September 2010, and was later reciprocally disbarred by the Illinois Supreme Court in January 2011. In Florida, a disbarred lawyer may apply to be reinstated as a member of the bar. However, while disbarred in Florida, the Lawyer’s conduct resulted in a further contempt application being brought before the Florida Supreme Court. This application resulted in the Lawyer being permanently disbarred by the Florida Supreme Court in 2014. Some of the conduct that resulted in the permanent disbarment also resulted in the Lawyer being criminally charged with having engaged in an organized scheme to defraud contrary to Florida law. The criminal charge related to the Lawyer’s activities in connection with an estate, which occurred after his initial disbarment by the Florida Supreme Court. That charge was ultimately resolved by a diversion program that saw the Lawyer enter into a deferred prosecution agreement, pursuant to which he paid $45,000 to a charity in lieu of restitution and admitted that he was guilty of the allegations giving raise to the offence.

Below the border

His concerns

The Lawyer has raised a number of issues with respect to the process before the Florida Supreme Court. The Florida Bar was represented in the proceedings brought against the Lawyer by Michael Soifer, who filed the complaint commencing a disciplinary proceeding with the Florida Supreme Court against the Lawyer. Mr. Soifer brought a motion for sanctions against the Lawyer as a result of his failure to appear at his deposition. This resulted in a flurry of motions brought by the Lawyer, including a motion to disqualify Mr. Soifer from the disciplinary proceedings based on a civil claim that the Lawyer had commenced against Mr. Soifer and Ms. Robbins. This motion was denied by the referee, and in turn the Lawyer brought a motion to disqualify the referee, asserting that his handling of the motion to disqualify Mr. Soifer was tainted by bias. This motion was also dismissed by the referee. Mr. Soifer brought a second emergency motion for sanctions against the Lawyer as a result of his repeated failure to appear for the deposition. The Lawyer did not participate in the motion, and Judge Moe made an order striking the Lawyer’s pleadings and entering a default judgment. As default judgment was entered, all allegations in the complaint were deemed admitted.

Disbarment was imposed after he failed to participate in the appeal.

Nevertheless he persisted

In April 2012, the Florida Bar filed a contempt proceeding against Mr. Kivisto. The contempt proceeding was heard by Judge Usan who acted as a Referee for the Florida Supreme Court. There were four counts. The first three counts involved allegations that Mr. Kivisto engaged in the practice of law or held himself out as a lawyer while disbarred. The fourth count involved his creating and using false court documents relating to the estate of Leo Jaakkola for his own benefit.

And led to permanent disbarment.

The division here describes the lengthy history of the prior and present proceedings and finds no substance to his attack on the Florida process

The Lawyer argues that recognition of the referee’s reports in the Florida discipline decisions should be refused because the manner in which they were prepared was a breach of natural justice. In particular, the Lawyer submits that the first draft of both referees’ reports were prepared by counsel for the Florida Bar, who was also the prosecutor. In Beals, the Supreme Court considered the defence of natural justice, and held that the domestic court must be satisfied that minimum standards of fairness have been applied to the Ontario defendants by the foreign court. The defence of natural justice is restricted to the form of the foreign procedure, and does not relate to the merits of the case. A condition precedent to the defence is that the party seeking to impugn the judgment must prove that the foreign proceedings were contrary to Canadian notions of fundamental justice. The basic requirements of natural justice are a right to notice, a right to be heard, and a right to an independent and impartial decision‑maker.

… In its reasons, the hearing panel found that in Ontario there is a prohibition against a party to a proceeding preparing a judgment in that proceeding because it creates “an appearance of bias.” However, the panel went on to note that in the context of the recognition of foreign judgments, a party seeking to avoid recognition of a foreign judgment on the basis of bias must go beyond showing a reasonable apprehension of bias and prove actual bias.

Preclusion

the hearing panel correctly stated the law and its decision to give preclusive effect to the Florida and Illinois discipline decision was reasonable.

Thus

These proceedings have been long and protracted, both before the hearing panel and this appeal panel. The hearing panel delivered comprehensive reasons on the various motions and on the application itself, which carefully addressed all of the Lawyer’s arguments. In our view, the hearing panel made no reversible error, and accordingly, this appeal is dismissed.

(Mike Frisch)

Posted in:

Bar Discipline & Process