Resignation Of Criminal Defense Attorney Allowed

The Law Society of Alberta accepted an attorney’s resignation while facing a complaint alleging misconduct in defending a murder case.

The complaint involved an allegation by a former client that Ms. O’Shaughnessy failed to provide competent and effective legal service at the second-degree murder trial of the client. The Alberta Court of Appeal appointed a Commissioner to inquire into the conduct of the trial and, in February 2017, that Commissioner determined that Ms. O’Shaughnessy did not follow the client’s instructions and that Ms. O’Shaughnessy did not exercise reasonable professional judgment in her representation of the client.

 The main issue at trial involved Ms. O’Shaughnessy’s introduction of a third-party suspect during closing arguments to the jury.  O’Shaughnessy recognizes that she should have obtained clearer instructions from her client before pursuing this defence.

O’Shaughnessy does not agree with a number of factual findings by the Commissioner and she feels she was unfairly treated as a witness.

O’Shaughnessy also points out that she suffered multiple soft tissue injuries and a concussion arising from a motor vehicle accident in January of 2016. After suffering constant headaches, nausea, difficulty in concentrating and memory issues, Ms. O’Shaughnessy sought medical treatment. In August 2017, she received a diagnosis of neurocognitive impairment. Ms. O’Shaughnessy believes that her medical condition impacted her ability to testify as a witness at the Commission hearing and resulted in adverse findings.

The Calgary Herald reported

In a unanimous decision, a three-member Alberta Court of Appeal panel said [defendant] Risling is entitled to a new trial on a charge of second-degree murder.

The appeal court decision was based on a commission report by retired Court of Queen’s Bench Justice Peter McIntyre.

In his report — based on the evidence before him by Risling and his former lawyer, Maggie O’Shaughnessy — McIntyre was highly critical of the trial counsel.

O’Shaughnessy said Risling denied stabbing victim Matthew Brown on Jan. 5, 2013, and it was likely his then-girlfriend, Aleesha Maquire committed the crime.

But Risling testified he never instructed O’Shaughnessy to try to pin the blame on Maquire. He said he admitted all along he was the killer, including in a confession to police played for jurors, and the only issue for them to decide was whether he had the necessary intent to commit murder.

“He thought that he had no chance of being convicted of the lesser charge of manslaughter when trial counsel told the jury that (Maquire) killed (Brown),” McIntyre noted in his commission report.

“He hoped the jury might give him some sympathy for confessing; such sympathy was lost with trial counsel’s argument.”

McIntyre questioned the evidence of O’Shaughnessy — who suffered a concussion post trial which impacted her memory — preferring the testimony of her former client.

“I have serious concerns about trial counsel’s reliability,” he wrote.

“I do not accept trial counsel’s testimony that (the) appellant denied to her that he had killed (Brown),” he said.

“Trial counsel was unconvincing in her affidavit and more importantly in her evidence before me,” he continued. “She was unresponsive, defensive, contradictory, confused and confusing throughout her testimony.

“She did not accurately record, remember or report facts. Her testimony was unreliable,” McIntyre said.

“Trial counsel maintained that appellant blamed (Maguire) . . . I do not accept any of this,” he said. “Where the testimony of the appellant and trial counsel conflict, I accept appellant’s version.”

O’Shaughnessy recently wound up her legal practice telling judges she can no longer perform her duties as a result of a medical diagnosis.

Because of McIntyre’s findings, the Court of Appeal agreed with new lawyer Andrea Serink’s submission that Risling was a victim of a miscarriage of justice and a second trial is necessary.

Risling’s case is back in court Friday.

A 2017 story from the Calgary Sun

One of four suspects charged with stealing luxury vehicles during test drives was told by his lawyer not to show up for his trial so he could get a new judge, court was told Thursday.

Defence lawyer Adriano Iovinelli said Kirk Leslie Naziel is prepared to swear an affidavit outlining the conversation he had in July with former counsel Maggie O’Shaughnessy.

Naziel told provincial court Judge Josh Hawkes he was willing to waive his solicitor/client privilege to divulge the exchange he had with O’Shaughnessy.

“My client is prepared to testify that previous counsel, Ms. O’Shaughnessy, advised my client not to attend his trial,” Iovinelli said.

The lawyer said the accused informed him O’Shaughnessy told him to pursue a one-year work contract up north.

“Ms. O’Shaughnessy advised him to take that job and get his life in order … eventually, when he was arrested, most likely there would be a different Crown, a different judge on the file,” Iovinelli said.

He said he would normally have difficulty believing a lawyer would tell a client not to show up for trial, but it was the comment about a different Crown and judge that raised his concerns.

Iovinelli gave his client more credence when he learned O’Shaughnessy had applied to the assigned trial judge to remove himself from the file due to an apprehension of bias.

Judge Terry Semenuk denied O’Shaughnessy’s application a week before Naziel’s trial was to begin July 10, and also denied a bid by the lawyer to have the charges stayed because of unreasonable delay.

Iovinelli raised the issue at a bail hearing for Naziel, who has been charged with failing to appear in court for not showing up at his trial.

Crown prosecutor Ryan Jenkins is seeking Naziel’s detention on the new charge and is asking that his previous bail also be revoked for breaching a condition of his release to appear when required.

Hawkes adjourned the bail application so Jenkins can have the detective on the case contact O’Shaughnessy about Naziel’s allegations.

“I think it is proper that former counsel be given an opportunity to respond. These are grave allegations,” Hawkes said.

O’Shaughnessy closed her legal practice earlier this year, citing a health issue.

She remains a member of the Law Society of Alberta, but her status has been changed to non-practising.

The case is back in court Dec. 11 to set a date for the bail hearing to continue.

The Alberta Globe and Mail reported on issues raised in another representation of a defendant in October 2015

Alberta Legal Aid has refused to pay for the appeal of a murder conviction of a woman with an IQ of 50 – even after the Crown conceded it was a wrongful conviction…

Alberta Legal Aid based its opinion that Ms. Scott’s appeal had no merit on the viewpoint of her trial lawyer, Maggie O’Shaughnessy of Calgary, said Suzanne Polkosnik, the president and chief executive officer.

“We turn to the individual who is the most familiar with the case and the client, and that is the individual who defended them at trial,” Ms. Polkosnik said. “That opinion came back that there was no merit.” A lawyer at Legal Aid Alberta agreed with Ms. O’Shaughnessy. She added that [appeal attorney] Ms. Hatch had filed incomplete information, and not added to it, or appealed the rejection. Ms. Hatch replied that she used every procedure, sending letters and filling out forms even when told no review was available.

Ms. O’Shaughnessy did not reply to messages requesting comment.

(Mike Frisch)