Tuesday, December 5, 2023

Signs

The Alberta Law Society Hearing Committee  Signs found misconduct on two of three charges in a dispute between landlords and his daughter and her common law partner

Allegations in citation 1

The following is a summary of the particulars alleged in support of citation 1:

a) Smith removed a realtor’s sign from the front lawn of the property and tossed it on the boulevard between the sidewalk and the street;

b) Smith damaged the realtor’s sign while removing it by breaking the bottom of the sign’s post and losing the sign peg; and

c) Smith’s actions in removing and damaging the realtor’s law sign brought the legal profession into disrepute, contrary to section 2.1-1 of the LSA Code of Conduct (Code).

Findings

The Committee rejects Mr. Smith’s assertion that his conduct in removing the sign was in his private life and outside of his professional practice. From the moment Mr. Smith first confronted WS on the property lawn on October 7, 2020, the Committee finds that Mr. Smith was acting as the tenants’ lawyer, and he continued to act as the tenants’ lawyer when he removed the sign on October 9, 2020.

The Committee accepts Mr. Smith’s evidence and submission that, he believed he had a legal right to remove the sign, that he used reasonable efforts to minimize damage and that he did not intend to damage the sign. 

The Committee finds that Mr. Smith’s conduct in removing and damaging the sign, while somewhat questionable, was not found to be dishonourable and does not rise to the level of being of conduct deserving of sanction or conduct that would bring into question Mr. Smith’s professional integrity. 

The Committee therefore finds Mr. Smith not guilty of conduct deserving of sanction on citation 1

Allegations in citation 2

The following is a summary of the particulars alleged by the LSA in support of citation 2:

a) Smith’s communications with WS, the Complainant on October 7, 2020 were uncivil and discourteous;

b)After the landlords’ counsel, CS, was retained to represent the landlords on the property dispute, Mr. Smith’s communications with CS were uncivil and discourteous.

Evidence at the landlord's property inspection

Mr. Smith told them “Don’t preach to me sir. I’ve been practicing 40 years at the and I know the law, and you guys are out of luck, so get lost.” [Exhibit 6]; and

When WS and the realtor were leaving the property, Mr. Smith said words to the effect “I hope you have deep pockets”

Citation 3 involved his conduct during the investigation

 LSA counsel noted that the LSA Conduct counsel had to ask and remind Mr. Smith at least four times of his obligations under the Code and the Act to provide information and that his actions, even if they purported to be as a private citizen, were subject to review. 

Further, he was not cooperative and candid in the correspondence with LSA Conduct counsel. The back-and forth correspondence exchanged between LSA counsel demonstrates that Mr. Smith never did acknowledge that he removed the sign. It was only in his last correspondence to LSA conduct counsel when he finally replied to the allegation that he damaged the sign when he wrote “I did not damage any realtor’s sign.”.

LSA counsel submits that Mr. Smith was evasive with the LSA investigator as he refused to acknowledge that it was him on the videos. LSA counsel said Mr. Smith was playing “cat and mouse.” Counsel cited the case of Law Society of Ontario v. Diamond, 2021 ONCA 255 which was a case where the member was required to provide information pursuant to Rule 7.1.1 of the Rules of Professional Conduct (Ontario Rules), effectively the same rule as Rule 85 in Alberta, which requires a member to reply promptly and completely to any communication from the Law Society.

Findings and next step

guilt on citations 2 and 3 are proven on a balance of probabilities and as such, the conduct is deserving of sanction.

 Accordingly, a sanction hearing will be set to deal with remaining matters, including sanction, costs, notices, and any other outstanding issues.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2023/12/the-alberta-law-society-found-in-a-dispute-between-landlords-and-his-daughter-and-her-common-law-companion-allegations-in-ci.html

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