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 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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