Saturday, October 29, 2016

The Dinosaur In The Dark

An attorney's inability to adjust to the technology of modern law practice led to big trouble when he delegated law office operations to his spouse.

He was allowed to surrender his license in a proceeding before the Law Society of Upper Canada.

...because of his habits and lack of training, the Lawyer was a “dinosaur.” He was unable to review and respond to electronic communications. As his office was at home [his spouse] RD could intercept and deal with any communications on his behalf, in person or by regular or registered mail.

The Lawyer is not dishonest. He was shocked and dismayed by what RD had done. He attempted to make restitution to the extent possible. The matrimonial home was sold and the Lawyer has been left virtually destitute.

Lastly, although the Lawyer presented no direct evidence, the doctor’s letter introduced as an exhibit indicates clearly that the Lawyer is an ill man. He cannot practise law again. His life situation and health have been sadly reduced.

We conclude that given the particular circumstances of this case, and in light of the mitigating factors referred to above, allowing the Lawyer to surrender his licence to practise law is the most appropriate penalty, will protect the public and will act as a sufficient deterrent to the profession.

The details

...the Lawyer is now 68 years old.  He articled with Day, Wilson, Campbell starting in 1974 and remained with that firm after he was called to the Bar in 1976. He was a corporate/commercial litigator and became a partner, but was not a “rainmaker”. The firm merged with Holden, Murdock and Finlay in 1990 and was known as Holden, Day, Wilson. The firm folded in or about January 1996. 

The Lawyer was “computer-illiterate”. While with the law firm, he had always worked with clerical and administrative assistants who supported his practice. He dictated his correspondence and other documents, which were then transcribed. Most reporting forms to the Law Society were filled out on his behalf, and he merely had to review and sign the forms and other paperwork. He was insulated by the firm from all accounting responsibilities.

He used a telephone but not a cell phone or “smart phone”. He did not access his own email account, but relied on assistants. RD, his spouse, commented that he did not even know how to turn a computer on. He said he was being trained to use computers at Holden, Day just before the firm closed down.

The Lawyer was unemployed when the firm disbanded. Shortly afterwards, according to the interview with RD, he experienced serious medical issues and twice collapsed with a heart problem.

The spouse

RD admitted she used trust funds from clients’ accounts to pay off moneys owing to other clients’ trust accounts. She said she gradually started taking funds from clients’ trust accounts:

It started out little, and then I had to try and make up.  And then we’re short again …

… and it just – I wasn’t able to stop. I just kept doing it.

Even though, I knew it was wrong – because I know, [the Lawyer] had said many times … he says you never do that. … he would never do that.

.. I always thought it would be a temporary thing. I always thought things would get better and we’d – you know - have more work, or come into money, or something, and I’d pay it all back.

 RD stated that she never let her husband know that she was misusing trust funds. If the Lawyer happened to pick up the phone and received a complaint about an outstanding bill he would “hit the roof” and ask why the bill had not been paid. She would usually explain that she had forgotten to pay, and would promise to do it “next week”.  RD stated that she kept all the money problems to herself, and up to the time of her interview on the morning of June 5, 2013, the Lawyer had no knowledge of any shortages in the trust accounts. He was aware only that the books and records were not up to date. She said “[h]e knows nothing… Absolutely nothing. He hasn’t a clue.”

RD admitted that she had kept and then shredded all the communications from the Law Society respecting the various investigations, and that she did not tell the Lawyer about any of those communications. She hid the later investigations from him for as long as possible. She had deleted voicemail messages from the Society.

The amount misappropriated was significant

The Lawyer said he was “blown away” when he learned, on June 5, 2013, of the approximately $390,000 shortage in the trust account. He was also shocked to learn that RD had been intercepting and destroying Law Society correspondence and evading service of Law Society documents such as the Notice of Application. The Lawyer stated that although his relationship with RD had been “not great”, nothing would have led him to suspect what was going on. He had been kept “in the dark.” RD had been in complete control of all the personal and business finances.

(Mike Frisch)

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