COMPLAINTS INVESTIGATION COMMITTEE DISPOSITIONS – DISMISSAL
April 23, 2010
This complaint was dismissed by the Executive Director. The complainant requested a review of that decision and the Review Subcommittee determined that an investigation of the complaint should be completed. The results of that investigation were presented to the Complaints Investigation Committee (CIC). This complaint involved two main issues: (1) whether the lawyer’s withdrawal from the file was consistent with the direction of the court and (2) the level of professional courtesy by the lawyer displayed to the complainant throughout the proceedings.
With respect to the allegation that the lawyer’s withdrawal from the file breached an undertaking to the court to remain on the file until its completion, the CIC found that the lawyer’s conduct was consistent with the direction of the court. The court’s jurisdiction ended with the issuance of the Corollary Relief Judgment and the lawyer remained on the file for a number of months after that in an effort to resolve outstanding issues and persuade his client to sign documents.
Allegations that the lawyer failed to file and serve the complainant with a proper answer, failed to provide her with requested disclosure and filed an answer on his client’s behalf after withdrawing as solicitor of record were legal in nature and inappropriate for the Society’s consideration. There was no evidence to support the allegation that the lawyer blackmailed the complainant when she requested a copy of the Petition for Divorce served on the lawyer’s client. The CIC also determined that the lawyer made reasonable efforts to obtain directions from his client and the client’s lack of cooperation did not demonstrate any lack of cooperation on his part. Therefore, the complaint was dismissed by the CIC.
This complaint was dismissed by the Executive Director. The complainant requested a review of that decision and the Review Subcommittee determined that an investigation of the complaint should be completed. The results of that investigation were presented to the Complaints Investigation Committee (CIC). This complaint involved two main issues: (1) whether the lawyer’s withdrawal from the file was consistent with the direction of the court and (2) the level of professional courtesy by the lawyer displayed to the complainant throughout the proceedings.
With respect to the allegation that the lawyer’s withdrawal from the file breached an undertaking to the court to remain on the file until its completion, the CIC found that the lawyer’s conduct was consistent with the direction of the court. The court’s jurisdiction ended with the issuance of the Corollary Relief Judgment and the lawyer remained on the file for a number of months after that in an effort to resolve outstanding issues and persuade his client to sign documents.
Allegations that the lawyer failed to file and serve the complainant with a proper answer, failed to provide her with requested disclosure and filed an answer on his client’s behalf after withdrawing as solicitor of record were legal in nature and inappropriate for the Society’s consideration. There was no evidence to support the allegation that the lawyer blackmailed the complainant when she requested a copy of the Petition for Divorce served on the lawyer’s client. The CIC also determined that the lawyer made reasonable efforts to obtain directions from his client and the client’s lack of cooperation did not demonstrate any lack of cooperation on his part. Therefore, the complaint was dismissed by the CIC.
COMPLAINTS INVESTIGATION COMMITTEE DECISION – COUNSEL
July 27, 2011
A law firm filed a complaint against an associate lawyer, alleging that he conducted legal work outside the parameters of his employment contract with the firm. They claimed he misappropriated funds and owed money to the firm since he used firm resources to conduct legal work in his personal capacity.
The lawyer accepted responsibility for breaching his employment contract, but claimed that he did not use firm resources to do so and further that the firm actually owed him money. He attributed his lapse in judgment to the deterioration of the employment relationship over time.
The Complaints Investigation Committee (CIC) did not investigate the remuneration dispute, noting that employer-employee disputes are beyond the parameters of the complaint resolution process and there are other civil remedies available to the parties on that issue. The focus for the CIC was the lawyer’s decision to undertake legal services in his personal capacity, while still a member of the firm, in violation of his employment contract.
The CIC considered whether, by knowingly violating the employment contract, the lawyer breached his duty of integrity, under Chapter 1 of the Legal Ethics Handbook, both in relation to other lawyers (the other members of the firm) and the profession as whole. It found that, while the lawyer’s conduct, including his professional demeanour during the investigation and forthright response to the complaint, did not amount to a breach of Chapter 1, it did merit a counsel.
A law firm filed a complaint against an associate lawyer, alleging that he conducted legal work outside the parameters of his employment contract with the firm. They claimed he misappropriated funds and owed money to the firm since he used firm resources to conduct legal work in his personal capacity.
The lawyer accepted responsibility for breaching his employment contract, but claimed that he did not use firm resources to do so and further that the firm actually owed him money. He attributed his lapse in judgment to the deterioration of the employment relationship over time.
The Complaints Investigation Committee (CIC) did not investigate the remuneration dispute, noting that employer-employee disputes are beyond the parameters of the complaint resolution process and there are other civil remedies available to the parties on that issue. The focus for the CIC was the lawyer’s decision to undertake legal services in his personal capacity, while still a member of the firm, in violation of his employment contract.
The CIC considered whether, by knowingly violating the employment contract, the lawyer breached his duty of integrity, under Chapter 1 of the Legal Ethics Handbook, both in relation to other lawyers (the other members of the firm) and the profession as whole. It found that, while the lawyer’s conduct, including his professional demeanour during the investigation and forthright response to the complaint, did not amount to a breach of Chapter 1, it did merit a counsel.
COMPLAINTS INVESTIGATION COMMITTEE DECISION – CAUTION
February 23, 2017
The complaint was that the lawyer: i. contrary to instructions, signed a notice discontinuing a legal proceeding and ii. took fees pursuant to a contingency agreement that did not comply with the Civil Procedure Rules. The Complaints Investigation Committee (CIC) dismissed the second issue but concluded that despite instructions to the contrary, the lawyer had signed a settlement document binding the client in an effort to avoid prejudice to other clients. The CIC determined that in so doing, the lawyer had breached the standards of legal ethics or professional conduct expected of a member but in circumstances where such a breach does not constitute professional misconduct, conduct unbecoming, professional incompetence or incapacity and issued a Caution.
The CIC identified concerns with the lawyer’s representation of the client including failing to avoid conflicts of interest and withdraw when in conflict or when discharged, and concluding a settlement contrary to the client’s instructions.
The CIC concluded that the lawyer’s duties were breached when the lawyer:
1. failed to take reasonable steps to ensure clear instructions were received prior to agreeing to discontinue the client’s matter;
2. failed to appropriately address the conflict when it arose between the client’s interests and the interests of other clients involved in the matter;
3. acted for clients in circumstances which constituted a conflict of interest and where there was a risk that the lawyer’s duty of loyalty would be adversely affected by the interests of other clients; and
4. signed a discontinuance contrary to the client’s instructions and thereby engaged in conduct that did not reflect favourably on the legal profession.
In terms of determining what the appropriate outcome should be as a result of this finding, the CIC considered that the lawyer accepted responsibility for these ethical violations, has no prior discipline history, and did achieve significant success for the client overall. It also considered the nature of the harm to the client, the potential harm to other clients had the settlement not concluded, and the unique circumstances that gave rise to what was an isolated incident.
The CIC was comfortable resolving the matter on the basis of a Caution, which recognizes the misconduct but provides a principled and proportionate disciplinary response.
The complaint was that the lawyer: i. contrary to instructions, signed a notice discontinuing a legal proceeding and ii. took fees pursuant to a contingency agreement that did not comply with the Civil Procedure Rules. The Complaints Investigation Committee (CIC) dismissed the second issue but concluded that despite instructions to the contrary, the lawyer had signed a settlement document binding the client in an effort to avoid prejudice to other clients. The CIC determined that in so doing, the lawyer had breached the standards of legal ethics or professional conduct expected of a member but in circumstances where such a breach does not constitute professional misconduct, conduct unbecoming, professional incompetence or incapacity and issued a Caution.
The CIC identified concerns with the lawyer’s representation of the client including failing to avoid conflicts of interest and withdraw when in conflict or when discharged, and concluding a settlement contrary to the client’s instructions.
The CIC concluded that the lawyer’s duties were breached when the lawyer:
1. failed to take reasonable steps to ensure clear instructions were received prior to agreeing to discontinue the client’s matter;
2. failed to appropriately address the conflict when it arose between the client’s interests and the interests of other clients involved in the matter;
3. acted for clients in circumstances which constituted a conflict of interest and where there was a risk that the lawyer’s duty of loyalty would be adversely affected by the interests of other clients; and
4. signed a discontinuance contrary to the client’s instructions and thereby engaged in conduct that did not reflect favourably on the legal profession.
In terms of determining what the appropriate outcome should be as a result of this finding, the CIC considered that the lawyer accepted responsibility for these ethical violations, has no prior discipline history, and did achieve significant success for the client overall. It also considered the nature of the harm to the client, the potential harm to other clients had the settlement not concluded, and the unique circumstances that gave rise to what was an isolated incident.
The CIC was comfortable resolving the matter on the basis of a Caution, which recognizes the misconduct but provides a principled and proportionate disciplinary response.
COMPLAINTS INVESTIGATION COMMITTEE DISPOSITIONS – CAUTION
May 27, 2010
Following an audit of the Province's nominee program, the Auditor General concluded that a number of payments made to agents were inappropriate, with some nominees not knowing the agent on record was their paid representative, some applicants being required to sign blank agent forms, some agents being paid for work they did not do and some payments being made to individuals not listed as the agent of record.
The lawyer, who was the paid representative of several nominees, maintained that, at all relevant times, he was acting on behalf of a financial corporation and all work and completion of applications was performed for a representative of that corporation. Although there was an agreement for a flat fee for each nominee, nothing was set out in writing, with the exception of an indemnity agreement that stipulated the lawyer was not verifying the information on the applications as he was not involved in their preparation. The lawyer's law firm later entered into sub agency agreements with the first and a related corporation, under which it agreed to act as an agent for the recruitment and sponsorship of potential nominees.
Both the lawyer and the firm advised that there was no intention of having the firm market the nominee program but they could not explain why the corporation wanted the firm to enter into the agreements. Although some sections of the corporation's standard agency agreement had been changed, references to marketing and recruiting, which the firm did not do, were left in the agreements. The lawyer advised that the contract was merely a matter of form; he just continued to act as a representative on behalf of the corporation. He confirmed that he did no substantive work on behalf of the nominees, believing this work was carried out by the corporation or other agents. He signed the authorized representative forms and acted as a conduit through which any messages from the federal government were relayed to the corporation but took no action to ensure that his fees were disclosed to the nominees and assumed that the corporation explained the various relationships involved. The money paid out by the corporation was placed in the firm trust account and the bill for the firm's fees was remitted to the nominees at the corporation's address. As the lawyer understood it, the agreement between the corporation and the government provided the corporation with the entitlement to the full fee and neither the Province nor the nominees had any claim on the money.
The Complaints Investigation Committee issued a caution on the basis that the lawyer breached Chapters 1 and 4 of the Handbook when he represented that he was acting as legal counsel for the nominees, knowing that all work was being carried out by the corporation or other agents who were not legally entitled to carry out the work; entered into business transactions on behalf of the firm regarding marketing and recruitment under the nominee program, knowing the firm had no intention of carrying out such duties; and failed to disclose the agency agreements or his entitlement to fees under those agreements when retained to seek a reimbursement of the commission money paid with respect to two of the nominees.
He breached Chapter 2 of the Handbook by agreeing to be retained regarding immigration matters when he had no experience in that area of law and failed to take any action to obtain the necessary skills to represent clients in that area of law and failed to exercise appropriate professional judgment in response to various enquiries regarding the nominees' applications, instead referring all such questions to the corporation.
He breached Chapter 6 of the Handbook when he agreed to act as an authorized representative for nominees without ensuring that they were given the opportunity to seek independent legal advice and represented both sides of a dispute when acting for two nominees in their attempts to have commissions returned to them, while continuing to act for the corporation, without the informed consent of the nominees.
He also breached Chapter 19 of the Handbook when he participated in the arrangement knowing that the corporation, which was neither authorized as an immigration consultant or a lawyer, would be advising nominees regarding their applications and delegated his obligations as an authorized representative to the corporation without ensuring proper supervision and maintaining a direct relationship with the nominee.
Following an audit of the Province's nominee program, the Auditor General concluded that a number of payments made to agents were inappropriate, with some nominees not knowing the agent on record was their paid representative, some applicants being required to sign blank agent forms, some agents being paid for work they did not do and some payments being made to individuals not listed as the agent of record.
The lawyer, who was the paid representative of several nominees, maintained that, at all relevant times, he was acting on behalf of a financial corporation and all work and completion of applications was performed for a representative of that corporation. Although there was an agreement for a flat fee for each nominee, nothing was set out in writing, with the exception of an indemnity agreement that stipulated the lawyer was not verifying the information on the applications as he was not involved in their preparation. The lawyer's law firm later entered into sub agency agreements with the first and a related corporation, under which it agreed to act as an agent for the recruitment and sponsorship of potential nominees.
Both the lawyer and the firm advised that there was no intention of having the firm market the nominee program but they could not explain why the corporation wanted the firm to enter into the agreements. Although some sections of the corporation's standard agency agreement had been changed, references to marketing and recruiting, which the firm did not do, were left in the agreements. The lawyer advised that the contract was merely a matter of form; he just continued to act as a representative on behalf of the corporation. He confirmed that he did no substantive work on behalf of the nominees, believing this work was carried out by the corporation or other agents. He signed the authorized representative forms and acted as a conduit through which any messages from the federal government were relayed to the corporation but took no action to ensure that his fees were disclosed to the nominees and assumed that the corporation explained the various relationships involved. The money paid out by the corporation was placed in the firm trust account and the bill for the firm's fees was remitted to the nominees at the corporation's address. As the lawyer understood it, the agreement between the corporation and the government provided the corporation with the entitlement to the full fee and neither the Province nor the nominees had any claim on the money.
The Complaints Investigation Committee issued a caution on the basis that the lawyer breached Chapters 1 and 4 of the Handbook when he represented that he was acting as legal counsel for the nominees, knowing that all work was being carried out by the corporation or other agents who were not legally entitled to carry out the work; entered into business transactions on behalf of the firm regarding marketing and recruitment under the nominee program, knowing the firm had no intention of carrying out such duties; and failed to disclose the agency agreements or his entitlement to fees under those agreements when retained to seek a reimbursement of the commission money paid with respect to two of the nominees.
He breached Chapter 2 of the Handbook by agreeing to be retained regarding immigration matters when he had no experience in that area of law and failed to take any action to obtain the necessary skills to represent clients in that area of law and failed to exercise appropriate professional judgment in response to various enquiries regarding the nominees' applications, instead referring all such questions to the corporation.
He breached Chapter 6 of the Handbook when he agreed to act as an authorized representative for nominees without ensuring that they were given the opportunity to seek independent legal advice and represented both sides of a dispute when acting for two nominees in their attempts to have commissions returned to them, while continuing to act for the corporation, without the informed consent of the nominees.
He also breached Chapter 19 of the Handbook when he participated in the arrangement knowing that the corporation, which was neither authorized as an immigration consultant or a lawyer, would be advising nominees regarding their applications and delegated his obligations as an authorized representative to the corporation without ensuring proper supervision and maintaining a direct relationship with the nominee.
COMPLAINTS INVESTIGATION COMMITTEE DISPOSITION – CONSENT TO REPRIMAND
Ronald A. Meagher – Consent to Reprimand – November 23, 2012
Mr. Meagher and AB became friends in the late 1980's, which friendship occasionally included sexual relations. AB moved out of province from 1992 to 1995, at which time she returned to Halifax.
In June 1998, AB contacted Mr. Meagher after having been criminally charged in a matter, and asked for his assistance. Mr. Meagher contacted the Crown to discuss the case, the possible outcomes and whether AB would qualify for the Adult Diversion Program. Mr. Meagher did not ask the Crown to provide him with disclosure, nor did Mr. Meagher review any of the information or evidence in relation to the charges, prior to contacting the Crown to discuss Adult Diversion. He did not advise AB to retain counsel, and indicated to her that the result of the Adult
Diversion Program meant she would not have a criminal record.
Mr. Meagher submitted that he contacted the Crown for this purpose as a friend of AB. AB submitted that she believed Mr. Meagher to be providing her with legal advice and services in this matter. Mr. Meagher agreed that he did not clarify with AB in what capacity he was acting. Mr. Meagher did not prepare a bill for AB for these services.
Through 1998 and 1999, AB and Mr. Meagher had occasion to see each other. AB submitted that she occasionally asked Mr. Meagher about her outstanding bill for legal services that she wanted to pay. Mr. Meagher denied that he ever discussed any outstanding a count for services and submitted that he never intended to charge her legal fees.
Mr. Meagher and AB engaged in sexual relations. Mr. Meagher submitted that this was consensual. Sometime after the event, AB claimed that she felt pressured into sexual relations because of what she believed was an outstanding account for legal services which she could not afford to pay. Mr. Meagher denied that he had any expectations of this nature because he had no intention of billing AB for legal services. At the time, Mr. Meagher believed he had contacted the Crown as a friend and not as AB's counsel. AB subsequently verbally retracted her claim but then raised it again later.
AB asked to meet with Mr. Meagher to express concern with how Mr. Meagher had conducted himself with her on July 25 and since that time. The meeting took place over two to three hours in Mr. Meagher's law office between AB, Mr. Meagher, and Lawyer C, a sole practitioner who had worked next to Mr. Meagher's office for many years. Mr. Meagher was not present for the entire meeting. It was AB' s hope that this meeting would result in a ' mediation' of concerns she had with Mr. Meagher's conduct towards her.
Mr. Meagher did not suggest that AB retain independent legal advice for this meeting, nor did he take steps to clarify at any point during the meeting that neither he nor Lawyer C were looking out for her best interests.
In order to protect himself from the risk of AB continuing to publicly express her concerns and possibly filing a complaint of conduct unbecoming with the Society, Mr. Meagher prepared a Statutory Declaration. The circumstances leading to the execution of this document were in dispute, but AB signed the Statutory Declaration on January 27, 2000 before Lawyer C as witness.
Neither Mr. Meagher nor Lawyer C advised AB to retain independent legal advice prior to the execution of this Statutory Declaration. AB filed a complaint with the Society on March 9, 2012 with regard to allegations of conduct unbecoming by Mr. Meagher between 1998 and 2000.
Disposition
The Complaints Investigation Committee reviewed this matter on November 23, 2012 and concluded that the evidence on file could support a finding of conduct unbecoming. The Committee agreed that charges against Mr. Meagher could include the following:
1. That Ron Meagher failed to provide a reasonable level of competence and quality of service when he contacted the Crown to discuss disposition of the criminal charges against AB, without first obtaining the disclosure and assessing the evidence against AB, contrary to Chapters 2 and 3 of the Handbook.
2. That Ron Meagher failed to conduct himself with integrity, engaged in questionable conduct, and failed to deal appropriately with an unrepresented person, contrary to Chapters 1, 4 and 23, when he:
(i) Failed to appreciate that at various times he acted in his professional capacity, and then in his personal capacity without making this clear to AB, and failed to appropriately recognize and assess the impact of her financial, emotional and psychological vulnerabilities on their professional and personal relationships;
(ii) Failed to recommend that AB obtain independent legal advice when she was an unrepresented person during the mediation meeting; and
(iii) Created and had executed by AB the Statutory Declaration which was contrary to AB's interests, and had the purpose of protecting Mr. Meagher's self-interest, in circumstances where he did not recommend that she obtain independent legal advice.
The member consented to a reprimand and admitted to breaching Chapters 2, 3, 4 and 23 of the Legal Ethics Handbook.
Mr. Meagher and AB became friends in the late 1980's, which friendship occasionally included sexual relations. AB moved out of province from 1992 to 1995, at which time she returned to Halifax.
In June 1998, AB contacted Mr. Meagher after having been criminally charged in a matter, and asked for his assistance. Mr. Meagher contacted the Crown to discuss the case, the possible outcomes and whether AB would qualify for the Adult Diversion Program. Mr. Meagher did not ask the Crown to provide him with disclosure, nor did Mr. Meagher review any of the information or evidence in relation to the charges, prior to contacting the Crown to discuss Adult Diversion. He did not advise AB to retain counsel, and indicated to her that the result of the Adult
Diversion Program meant she would not have a criminal record.
Mr. Meagher submitted that he contacted the Crown for this purpose as a friend of AB. AB submitted that she believed Mr. Meagher to be providing her with legal advice and services in this matter. Mr. Meagher agreed that he did not clarify with AB in what capacity he was acting. Mr. Meagher did not prepare a bill for AB for these services.
Through 1998 and 1999, AB and Mr. Meagher had occasion to see each other. AB submitted that she occasionally asked Mr. Meagher about her outstanding bill for legal services that she wanted to pay. Mr. Meagher denied that he ever discussed any outstanding a count for services and submitted that he never intended to charge her legal fees.
Mr. Meagher and AB engaged in sexual relations. Mr. Meagher submitted that this was consensual. Sometime after the event, AB claimed that she felt pressured into sexual relations because of what she believed was an outstanding account for legal services which she could not afford to pay. Mr. Meagher denied that he had any expectations of this nature because he had no intention of billing AB for legal services. At the time, Mr. Meagher believed he had contacted the Crown as a friend and not as AB's counsel. AB subsequently verbally retracted her claim but then raised it again later.
AB asked to meet with Mr. Meagher to express concern with how Mr. Meagher had conducted himself with her on July 25 and since that time. The meeting took place over two to three hours in Mr. Meagher's law office between AB, Mr. Meagher, and Lawyer C, a sole practitioner who had worked next to Mr. Meagher's office for many years. Mr. Meagher was not present for the entire meeting. It was AB' s hope that this meeting would result in a ' mediation' of concerns she had with Mr. Meagher's conduct towards her.
Mr. Meagher did not suggest that AB retain independent legal advice for this meeting, nor did he take steps to clarify at any point during the meeting that neither he nor Lawyer C were looking out for her best interests.
In order to protect himself from the risk of AB continuing to publicly express her concerns and possibly filing a complaint of conduct unbecoming with the Society, Mr. Meagher prepared a Statutory Declaration. The circumstances leading to the execution of this document were in dispute, but AB signed the Statutory Declaration on January 27, 2000 before Lawyer C as witness.
Neither Mr. Meagher nor Lawyer C advised AB to retain independent legal advice prior to the execution of this Statutory Declaration. AB filed a complaint with the Society on March 9, 2012 with regard to allegations of conduct unbecoming by Mr. Meagher between 1998 and 2000.
Disposition
The Complaints Investigation Committee reviewed this matter on November 23, 2012 and concluded that the evidence on file could support a finding of conduct unbecoming. The Committee agreed that charges against Mr. Meagher could include the following:
1. That Ron Meagher failed to provide a reasonable level of competence and quality of service when he contacted the Crown to discuss disposition of the criminal charges against AB, without first obtaining the disclosure and assessing the evidence against AB, contrary to Chapters 2 and 3 of the Handbook.
2. That Ron Meagher failed to conduct himself with integrity, engaged in questionable conduct, and failed to deal appropriately with an unrepresented person, contrary to Chapters 1, 4 and 23, when he:
(i) Failed to appreciate that at various times he acted in his professional capacity, and then in his personal capacity without making this clear to AB, and failed to appropriately recognize and assess the impact of her financial, emotional and psychological vulnerabilities on their professional and personal relationships;
(ii) Failed to recommend that AB obtain independent legal advice when she was an unrepresented person during the mediation meeting; and
(iii) Created and had executed by AB the Statutory Declaration which was contrary to AB's interests, and had the purpose of protecting Mr. Meagher's self-interest, in circumstances where he did not recommend that she obtain independent legal advice.
The member consented to a reprimand and admitted to breaching Chapters 2, 3, 4 and 23 of the Legal Ethics Handbook.
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