Progressive Discipline And Disbarment

The Manitoba Law Society Discipline Hearing Panel considered the principles of progressive discipline in imposing disbarment of an attorney with a record of prior discipline

The Member has a significant prior discipline record with the Society; it includes instances of attempting to mislead the Society, failure to act with integrity, failure to act with courtesy and fairness, failure to honour trust conditions in a timely fashion, and failure to comply with trust accounting rules.

In 1999, he accepted a formal caution for breach of a trust condition.

In 2000, he pied guilty to nine counts of professional misconduct, including “misappropriation (x3)”, “attempt to mislead the Law Society”, “failure to serve client in a conscientious, diligent and efficient manner”, and “failure to show courtesy and fairness to a fellow lawyer”. Pursuant to a joint recommendation, the disposition included a one-year suspension, followed by a two-year period of supervision, and costs of $10,000.

In 2008, the Member pied guilty to four counts of professional misconduct, including “failing to act with integrity by taking steps that could be construed as an attempt to defraud [a provincial government social service agency]” and “failing to act with integrity and failing to be honest and candid when advising clients”. Pursuant to a joint recommendation, the disposition included a six-month suspension, a fine of $5,000, and costs of $5,000.

In both of these cases, the Panels demonstrated empathy for the situations in which the Member found himself; they were satisfied that he acted without malice, was motivated by a sincere desire to assist others less fortunate, acknowledged his wrongdoing, and took positive steps to ameliorate the harms caused by his misconduct.

Also in 2008, while the above suspension was still in effect, the Member was investigated for other alleged misconduct related to alleged assistance to a client involved in a fraudulent conveyance, and a separate incident of using his trust account to hide client funds. The Member provided an Undertaking to the Society to not practise for at least five years following the expiry of the then extant suspension.

In 2019, four years after his 2015 return to active practice, the Member pied guilty to three counts of professional misconduct, all involving failures to honour trust conditions. Pursuant to a joint recommendation, reluctantly accepted by the Panel, the disposition included a further six-month suspension and costs of $10,000.

Progressive discipline

 Progressive discipline is an appropriate consideration, even where the infractions of the member are not of the most serious nature. Progressive discipline reflects the necessity for the member to learn and improve on past behaviour. It reflects the role of the Law Society in upholding [professional] standards and it supports the Law Society’s duty to govern its members in the public interest. It represents and supports the necessary balance of consequences providing both specific and general deterrence to the member and the profession as repeated offences, regardless of the nature of them, may be subject to increasingly severe consequences.

Here

Mr. Vyamucharo-Shawa must be removed from the practice of law. The protection of the public, and the critical need to preserve public confidence in the integrity of the profession, demands his removal. There are two ways to achieve this result – disbarment under Section 72(1)(a) of The Legal Profession Act, or permission to resign under Section 72(1)(g).

The Member is a recidivist. He continues to exhibit the same conduct and continues to make the same types of errors in judgment for which he has been sanctioned in the past. He has not learned from his past mistakes nor from his past sanctions, several of which have been significant, and to that extent may well be perceived as ungovernable. If he is permitted to continue, or resume, practice, there is a strong likelihood he will re-offend.

 Where, as here, disbarment is an appropriate sanction, it is incumbent on the sanctioning panel to also consider permission to resign. The Society asserts that the latter requires a reason to extend this measure of leniency, and this assertion is not wrong. The panel agrees with the submission of the Society there are none of the usual “mitigating circumstances” in this case to justify permission to resign.

(Mike Frisch)