Return To Practice A “Win/Win/Win”
The Law Society of Ontario Tribunal Hearing Division has ordered an attorney’s return to practice under conditions
In the summer of 2016, Mr. Lever entered a manic phase. He was sleeping less and had higher self-esteem. He began taking on various unwise projects and began to view himself as a major public figure in Timmins. Some examples of the Lawyer’s manic conduct include the following:
• In November 2016, he hired an associate lawyer even though his firm did not have enough work to justify hiring an associate.
• In late November 2016, he attended a televised junior hockey game at the Timmins arena. He had bought 200 tickets to this game and gave them away for free. At the game, he climbed up the glass behind the penalty box and started shouting. This caused the referee to stop play. The referee and then building security told him to leave, but he refused. The Lawyer had to be forcibly removed by police officers. He was criminally charged with causing a disturbance and resisting arrest.
• On January 10, 2017, he attended court to set a date for his criminal charges. The Lawyer indicated that he would call 1,800 witnesses (everyone who had attended the game, including the players on both hockey teams). He said in court that it would be the “the trial of the century in Timmins.”
• At various points in this time frame, the Lawyer had verbally aggressive confrontations with opposing counsel in civil files.
As the direct result of bipolar I disorder, the Lawyer improperly spent $30,379.19 from his mixed trust account. Of this amount, $19,782.42 was attributed to the ledger of one particular client (Client A) and a withdrawal of $990 was attributed to the ledger of another client (Client B). The remaining withdrawals, totalling $9,606.77, were not attributed to any particular client ledger, creating a divergence between the total of his client ledgers and the amount actually held in his mixed trust account.
There is little doubt that if not for his disability, the Lawyer’s actions in 2016 and early 2017 would have constituted professional misconduct and conduct unbecoming.
The Lawyer’s manic phase began to remit naturally in March 2017. He was hospitalized from April to June 2017 and filed an assignment in bankruptcy on August 9, 2017. He received mental health diversion, and the criminal charges were withdrawn in September 2017.
Disposition after an interim suspension
In our view, the diversion of the misconduct allegations to a capacity proceeding, and the agreement on strict terms for Mr. Lever’s resumption of practice, was a logical and welcome outcome in many ways. We echo the panel’s conclusion in Stewart that if negotiated and carried out in good faith, resolutions of this kind have the potential to afford a “win/win/win” outcome for the licensee, the regulator and the public interest.
(Mike Frisch)