A Winter Vacation?
A Hearing Committee of the Law Society of Saskatchewan has imposed a sanction based on an agreed statement of facts.
The Hearing was convened to consider a Formal Complaint set out by the Conduct Investigation Committee of the L.S.S. against the Member, which, by the time of the Hearing, comprised two counts – after being amended by the L.S.S. and reduced from eleven counts. The L.S.S. complaint alleged that Mr. Scharfstein, Q.C., is guilty of conduct unbecoming a lawyer in that he:
- did, through recklessness, assist in the commission of a fraud, or frauds, by his client, R.S.; and
- did act or continue to act in a matter when there was, or was likely to be, a conflicting interest between his client, R.S., and his client or former client, A.S. who he had represented on related matters.
The investigation came after findings in civil litigation were affirmed
the Court of Appeal upheld the findings of fact made by the trial judge particularly as they related to the fraudulent transactions.
The attorney pled guilty
With respect to the joint submission recommendation on penalty, the Hearing Committee considered the nature of the Member’s offending activities and the motivations underpinning them. In this regard, the Hearing Committee recognizes it is confined to sentencing the Member on two counts, but it must have regard for the serious breach of ethical conduct that contributed to many years of unresolved, complicated relations between his former clients and, in some measure, exacerbated unnecessarily protracted and expensive litigation. He enabled and participated in a scheme of wrongly transferring assets and undermining a former client’s ability to achieve an appropriate division of property after a failed business venture. Recklessness aside, in the Hearing Committee’s view, the Member’s actions revealed, at best, a flagrant disregard for what appears to have been an obvious conflict of interest or, at worst, something akin to retribution against a former client.
The sanction is resignation with this proviso
The Member shall not be eligible to apply for reinstatement as a member of the Law Society of Saskatchewan for a period three months immediately following the effective date of his resignation.
A dissent on the penalty
The Member’s actions assisted R.S. in committing a fraud or frauds against A.S. As a result of the fraud and subsequent litigation to resolve the issues, A.S, R.S. and the family of R.S. collectively claim to have incurred hundreds of thousands of dollars of losses and suffered stress and emotional turmoil resulting in fractured personal relationships. Five impact statements were delivered to the hearing committee. Each of the people filing the statements claimed the Member was completely or partially responsible for their financial and emotional losses.
Questions from the dissent
- What does a resignation for 3 months mean in the circumstances? Is it anything more than a sabbatical, a winter vacation?
- How does the proposed sentence protect the public by insuring integrity or competence of the Member?
- How does the proposed sentence give priority to ethical and competent practice over the interests of the Member?
(Mike Frisch)