Tuesday, June 30, 2009

The Public Eye strikes again!

Truth To Power

Good Day Readers:

Well, TPE has done it to us once more - we need your help! In their article about suspended Winnipeg lawyer David Davis they've used another one of their photographic metaphors. Who is this Shakespearean actor? Better yet, what was the play? Looks like a face you should recognize.
Sincerely,
Clare L. Pieuk
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29 June 2009
Suspended Manitoba Lawyer David Davis

DISCIPLINE CASE DIGEST

Case 09-03

Member: David Hirsch Davis

Jurisdiction: Winnipeg, Manitoba

Called to the Bar: June 29, 1989

Particulars of Charges: Professional Misconduct (4 counts):

- Breach of c. 1 and 11 of the Code [failure to act with integrity by charging fees that were not fully disclosed, fair and reasonable]

- Breach of c. 11 of the Code [paying a referral fee to a non-lawyer]

- Breach of c. 6, Rule (c), of the Code [conflict of interest] (x2)

Date of Hearing: March 4, 2009

Date of Sentencing Decision: March 13, 2009

Panel:

- James W. Hedley, Chair
- Garth H. Smorang, Q.C.
- Vivian E. Rachlis

Counsel:

- David M. Skwark for The Law Society of Manitoba
- David G. Hill for the Member

Plea: Guilty

Disposition:

- Suspended (6 mos., commencing June 1, 2009)
- Costs of $25,000.00
_______________________________________
Conflict of Interest/Breach of Integrity
_______________________________________

Facts

In December 2003 Mr. Davis was retained by FT and his niece LA with respect to LA’s application to immigrate to Canada under the live-in caregiver program. Mr. Davis provided advice to LA with respect to her application, and concurrently offered her a job as a nanny for his children, which offer LA accepted.

Mr. Davis instructed his legal assistant to place an advertisement for a full-time live-in caregiver for his children in the Winnipeg Free Press. He wrote to FT in January 2004 enclosing a Statement of Account for services rendered concerning LA’s live-in caregiver application, which included a disbursement for the personal advertisements published on Mr. Davis’ behalf. Mr. Davis admitted that he failed in his duty to conduct himself with integrity by charging FT disbursements that were not fully disclosed, fair and reasonable, contrary to Chapters 1 and 11 of the Code of Professional Conduct.

In May 2005 Mr. Davis rendered a Statement of Account to FT for services rendered to LA which included disbursements of $250.00 and $200.00 respectively for translation services. In fact, Mr. Davis had not incurred any disbursements for translation services but had instead paid $450.00 to RV, a non-lawyer, as a referral fee for referring FT or LA or both to him. Mr. Davis admitted that he paid a referral fee to a non-lawyer, contrary to Chapter 11 of the Code of Professional Conduct.

LA’s working visa provided that she was only entitled to work for Mr. Davis and cautioned that other work could result in the work permit being rescinded. Between April 26, 2005 and December 30, 2006, Mr. Davis’ wife made arrangements for LA to work for other individuals for whom she was not authorized to work, all with Mr. Davis’ knowledge and consent. During the term of LA’s employment with Mr. Davis, her monthly wages were reduced at Mr. Davis’ direction, she was not paid for over 200 hours of overtime work and she was charged more for room and board than was permitted by the live-in caregiver program guidelines. At all material times, Mr. Davis was both counsel for, and employer of LA. Mr. Davis admitted that he had acted for LA while his interests and those of an associate, namely his wife, were in conflict with those of LA, contrary to Chapter 6, Rule (c) of the Code of Professional Conduct.

In November 2006 Mr. Davis was retained by AP with respect to her application for a live-in caregiver work permit. AP had entered Canada in February 2006 on a visitor’s visa to care for her ill sister who had subsequently died in September 2006. AP’s visitor’s visa was valid until January 7, 2007, and prohibited her from engaging in any employment while in Canada. In November 2006 Mr. Davis suggested to AP that she contact another client RS, with respect to caring for RS’s elderly mother. On November 29, 2006, AP entered into an employment agreement with RS. To Mr. Davis’ knowledge, she did not have a work permit at that time.

After LA terminated her employment with Mr. Davis in December 2006, Mr. Davis approached AP and offered her employment as a live-in caregiver for his family. AP commenced employment with Mr. Davis on January 7, 2007. Between November 2006 and April 2007 Mr. Davis was both AP’s employer and her lawyer concerning immigration related applications.

During the time that AP worked for Davis, he failed to advise her that she did not have a work permit that entitled her to do so. Mr. Davis admitted that while acting for AP, his interests, or those of an associate, namely his wife, were in conflict with those of AP, contrary to Chapter 6, Rule (c) of the Code of Professional Conduct.PleaMr. Davis pled guilty to the charges of professional misconduct outlined above.

Decision and Comments

The Panel found Mr. Davis guilty of professional misconduct based on his admission to the charges.

Penalty

The panel noted that disbarment was within the range of possible dispositions available given the facts before them, Mr. Davis’ previous disciplinary record and the traditional sentencing principles in a disciplinary matter. The Panel expressed concern about whether Mr. Davis had sufficient insight to ensure that such incidents would not be repeated, however ultimately took into account mitigating circumstances and Mr. Davis’ subsequent conduct. The Panel concluded that in the absence of clear and cogent reasons for departing from the joint recommendation made by counsel for the Law Society and for Mr. Davis, there was no good cause to reject the joint recommendation. The panel therefore ordered that:

(a) Mr. Davis be suspended for a period of 6 months, commencing June 1, 2009; and

(b) Mr. Davis pay $25,000.00 to the Society as a contribution towards the cost of the investigation, prosecution and hearing of the matter.

Posted by The Public Eye at 6/29/2009 1 comments Links to this

1 Comments:

Blogger The Public Eye said...

I am unsure as to whether Rowan Atkinson has ever done Shakespeare (if not, he should: he IS that good an actor), but the photo I've chosen for this post is of him depicting his famous TV persona Blackadder. In equal parts as complex and despicable as a Shakespearean villain, Blackadder is a treat that some of us enjoyed years before anyone ever heard of "Mr. Bean" (his other persona).

Why did I choose a photo of the diabolical "Blackadder" to depict David Davis? All you have to do is read the discipline complaint. I say without reservation that Mr. Davis has stooped mighty low to get his hands on the Almighty Dollar. In my opinion, Davis has more than earned the right to be metaphorically depicted as Blackadder.

FYI, the rumour floating around is that (assuming he hasn't left already) Davis will be leaving Manitoba for the six months of his suspension to practice in the Phillipines.

10:49 AM  

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