Wednesday, September 17, 2014

"Scammed by a lawyer and a law society?"



Good Day Readers:

These are very troubling cases for a few reasons. Because CyberSmokeBlog has had no dealings with the Law Society of Upper Canada it will restrict its comments to the experience of Ms Forsythe other than to say both the LSUC and the Law Society of Manitoba have a commonality - both are working from a seriously flawed business model.

Unfortunately, as frequently happens with laypersons, Carrie Forsythe was not aware of a link on the LSM website which tracks Disciplinary Case Digests going back to 1996 alphabetically arranged. There she would have quickly found that on November 25, 2011 Mr. Gorlick was found guilty on one count of a Breach of Chapter 2 of the Code of Professional Conduct (Quality of Service). He was fined $1,500 plus assessed costs of $3,000. The Disciplinary Panel included Jon van der Krabben (lawyer), Mark Toews (lawyer), Suzanne Hrynyk (public representative).

BTW, according to CyberSmokeBlog's calcalus there have been 124 disciplinary hearings since 1996 covering everything from Conflict of Interest, Incompetence, Breach of Accounting Rules and far, far beyond. Of these 22 are identified only as Members A-F meaning they were acquitted. There are approximate 1,800 lawyers in Manitoba - some would say 1,800 too many.

Secrecy - The Star Chamber

It's instructive to follow the disciplinary process. The following comments are based on CSB's experience with the Law Society of Manitoba. Presumably it much the same for the Law Society of Upper Canada.

A complaint will be reviewed by a disciplinary lawyer(s) and a decision made whether sufficient evidence to proceed exists. If so, a Citation will be issued to the lawyer documenting the count(s). This is not public information although there is nothing preventing the media from publishing it but the lawyer concerned would have to provide the copy and cannot be identified.

Beware Section 79 (1) (2)

The Manitoba Legal Profession Act sets out what the Law Society here can and cannot do. The media must always pay particular attention to 79 (1) (2):

No Publication Before Conviction

79(1) A person who publishes or broadcasts the name of a member in connection with a complaint, investigation or charge before the member is found to be incompetent or guilty of professional misconduct or conduct unbecoming a lawyer or student is guilty of an offence and is liable, on summary conviction,

(a) in the case of an individual, to a fine of not more than $2000. or to imprisonment for not more than six months, or both; and

(b) in the case of a corporation, to a fine of not more than $10,000.

Liability of Directors, Officers and Employees

79(2) If a corporation commits an offence under this section, an officer, director, employee or agent of the corporation who directed, authorized, assented to, participated in or acquiesced in the commission of the offence is also guilty of an offence and is liable on summary conviction to a fine of not more than $2,000. or to imprisonment for not more than six months, or both, whether or not the corporation has been prosecuted or convicted.

Doesn't that have the feel of a 16th century England Star Chamber? And remember law societies have subpoena powers. It's with good cause they're called the world's most powerful trade unions.

The Pending Disciplinary Hearings List

Given the aforementioned, all the public can do is go to the law society's website to keep an eye on the PDHL Currently 7 "all stars" are listed. For reasons unknown, Barry Gorlick (a former Canadian Bar Association President 1998-99) appears twice both recorded as November 5 and 6. The first lists counts of Breach of Integrity, Failure to Serve Client the second Misappropriation..

Originally, he was scheduled to appear earlier this year (March) but was subsequently sine die-ed (indefinitely adjourned).

The Lawyer Lookup

You can also access the Lookup which shows Mr. Gorlick as suspended but no effective date is provided.

The Oath

The final act before a lawyer is licensed to practice is a Call to the Bar ceremony. Here's the rigamarole for the Law Society of Upper Canada. Presumably, Manitoba's is very similar if not identical.

http://www.lsuc.on.ca/CalltoBar/

The link (http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147485805) at page 24 says:

21. (1) The required oath for an applicant for the issuance of a licence to practise law in Ontario as a barrister and solicitor is as follows:

I accept the honour and privilege, duty and responsibility of practising law as a barrister and solicitor in the Province of Ontario. I shall protect and defend the rights and interests of such persons as may employ me. I shall conduct all cases faithfully and to the best of my ability. I shall neglect no one’s interest and shall faithfully serve and diligently represent the best interests of my client. I shall not refuse causes of complaint reasonably founded, nor shall I promote suits upon frivolous pretences. I shall not pervert the law to favour or prejudice any one, but in all things I shall conduct myself honestly and with integrity and civility. I shall seek to ensure access to justice and access to legal services. I shall seek to improve the administration of justice. I shall champion the rule of law and safeguard the rights and freedoms of all persons. I shall strictly observe and uphold the ethical standards that govern my profession. All this I do swear or affirm to observe and perform to the best of my knowledge and ability.

The Verdict
You be the judge and jury readers. Based on the facts presented by Ms Tomilson in her piece, do you think the legal establish has maintained the principles as outlined in the above oath or do newly minted lawyers simply pay lip service to words on a piece of paper to be quickly and conveniently forgotten?

Never forget the golden rule when dealing with politicians and especially lawyers. "Caveat emptor - buyer beware - still rules!

The Only Solution

Canadian law societies need to do what Britain did a few years. It took away the regulatory-disciplinary function of law societies and gave those powers to an independent, third-party government agency. Until or unless that's done you will have ongoing conflicts of interest - judges judging and protecting judges (the Canadian Judicial Council) and lawyers judging and protecting lawyers (the Law Societies of Upper Canada and Manitoba) and injustices such as you read about in the Kathy Tomlinson Go Public article shall continue.

Sincerely,
Clare L. Pieuk
Go Public: Clients feel scammed as alleged lawyer misconduct kept quiet

Tens of thousands of dollars lost by small clients who trusted whom to hire

Kathy Tomlinson
Monday, September 15, 2014

Clients of two lawyers accused of serious misconduct are outraged over being kept in the dark about their lawyers’ records, which they said derailed their cases and cost them thousands.

“I got scammed by a lawyer, and the law society told me he was fine. That’s what really hurts a lot,” said Vancouver resident Angelika Opic. She hired Toronto lawyer Michael Munro after being led to believe he he had a clean record by the regulator

Toronto lawyer Michael Munro faces charges of lying to a client and failing to account for $37,000 of that client's fees, among other allegations. (Toronto Star)

Winnipeg resident Carrie Forsythe hired lawyer Barry Gorlick after he was recommended to her by another lawyer who knew Gorlick’s discipline record but didn’t tell her.

“I was told there was nobody who could look after me better. That’s a quote,” she said.

Both Munro and Gorlick have since been suspended over unrelated cases.

$25,000 gone

“I just thought he was laughing at me. I just thought I’d been made a fool of,” said Opic, who lost $25,000 after hiring Munro in December to contest her mother’s will.

She said she was heartbroken — then shocked — when her mother died and left the family home to her brother in Ontario.

Winnipeg lawyer Barry Gorlick is under suspension, facing serious charges of misconduct. (Canadian Bar Association)

Opic said her mother had dementia, and her signature on her last will and testament is very shaky. The will left Opic $60,000, far less than the value of the home. She is adamant her mother would not have done that if she had been of sound mind.
“She really wasn’t herself the last five years,” said Opic.
Before hiring Munro to contest the will, she contacted the Law Society of Upper Canada, asking about his record. She was told he was in good standing.
“I thought I had done my due diligence,” Opic said.

No warning
She wasn’t told Munro had been under heavy scrutiny since 2012, because of eight serious complaints against him.
When Opic hired him, he had already been warned by the law society he was facing suspension for failing to co-operate with investigators.
Even so, he took almost half the money her mother left her as a retainer. He originally asked for her entire inheritance.
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We tell your stories and hold the powers that be accountable.
We want to hear from people across the country with stories they want to make public.
Submit your story ideas to Kathy Tomlinson at Go Public
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“With respect to financial matters, I will require a retainer in the amount of $60,000. You should deposit the retainer into my trust account,” Munro said in a December 8 email, a month before his suspension.
When Opic told him she couldn’t stomach sending that much, he settled for $25,000.
“That’s more money than I made last year. I think I made $18,000 last year. Because I was still looking for work,” said Opic. “I am a medical secretary. I wish I would have gone into law.”
Munro even pretended he was still working, after being suspended in mid-January.
“I will be in touch in the course of the next two or three weeks,” Munro wrote to Opic on Feb. 11. The email was signed “Michael Munro, Lawyer.”

'Hire another lawyer'
Opic said he did no work on her case. She found out about his suspension in April, when his phone was disconnected. She called the law society next.
“I started crying, and I said what about my money, what about my case?” said Opic. “[She was told] I am sorry, we can’t help you here. You will have to hire another lawyer.”
Regulators don't proactively inform clients directly, even after lawyers are suspended, beyond the original complainants. Instead, that information is posted on law society websites.
The law society makes no apologies for not warning Opic about the imminent suspension when she called in December. It told Go Public its investigations have to reach a “critical point” of evidence-gathering first.
“Until then, public disclosure of the investigation is not in keeping with common law principles that mere allegations are not sufficient to conclude there is guilt,” said a statement from the Law Society of Upper Canada.
Munro stands accused of failing to work on cases, lying to one client and failing to account for $37,000 of that client’s fees. He didn’t show up for recent law society proceedings on his case.

Law society knew plenty
Other former clients told Go Public Munro simply disappeared. Brent Jesperson paid him $60,000 in 2010 to handle a suit against a doctor.
“Michael stopped all communication suddenly [in September 2013]. I called the law society about my concerns,” said Jesperson, who lost touch with Munro for good in December.

Angelika Opic, right seen here with her mother, hired Toronto lawyer Michael Munro to contest her mother's will. (Angelika Opic)

“No mechanism seems to exist to warn prospective clients that complaints or concerns are before the law society. New potential clients could not know their retainers were at risk.”

Gilbert Roy paid Munro $4,000 last year to file a suit against the same doctor.

“I was waiting for him to file the statement of claim. He never did,” said Roy.

“I trusted two people and I got screwed twice. I trusted the doctor and then I trusted him. But it seems like nobody cares.”

Several clients, including Opic, have applied to the law society’s compensation fund. It won’t say how much — if anything — they could get back.

“We cannot speculate on the likelihood or amount of compensation to claimants,” said the law society statement.
Questionable recommendation

Meanwhile, in Winnipeg, Forsythe said she feels as if the legal community conspired against her.

The lawyer Gorlick was recommended to her in 2012 by former law society bencher Jon van der Krabben.

“I thought he had my back. I thought he was protecting me and I asked for his advice,” said Forsythe.

Van der Krabben failed to tell her he chaired a hearing the year before, where Gorlick pleaded guilty to professional misconduct, for failing to work and communicate on a client’s case over several years.

“This really added insult to injury in my situation,” said Forsythe.

She gave Gorlick’s firm, Monk Goodwin, $5,000 to file a lawsuit over a mouse infestation in a house she bought. Gorlick never did file her claim. Emails show he made several excuses.

During that time, he was again under investigation, for failing to communicate with another client, as well as a serious charge of misappropriating a client’s fees.
'He made a mistake'

Van der Krabben told Go Public that when he recommended Gorlick he didn’t think his previous misconduct was of “significant concern.”

Former law society bencher Jon van der Krabben recommended Winnipeg lawyer Barry Gorlick a year after he chaired a hearing where Gorlick pleaded guilty to professional misconduct. (The Canadian Centre for Professional Legal Education)

“He made a mistake and paid for it. To follow your logic, it would be imprudent to enter into a motor vehicle if someone who had previously been convicted of speeding was the driver,” van der Krabben said.

Forsythe said Gorlick’s firm also didn’t tell her anything was amiss, until he was suspended this year.

“Not one of them — not the law firm, not the law partners — ever recommended that I look somewhere else or that this guy may not even be able to finish,” said Forsythe.

She has hired another lawyer to restart her case, which she said was hurt by the delay. She had to push Gorlick’s firm for months to get a $3,000 refund.

Gorlick refused to talk about any of this, citing client confidentiality. He faces a hearing on the charges against him in November. His former firm told Go Public the “matter is closed.”
More transparency promised
The Federation of Law Societies of Canada is promising easier access to lawyer discipline records when reforms are brought in next year.

“We have developed a strong commitment across the country to make our discipline processes much more public, open and clear in terms of what we are doing,” said Darrel Pink, a Nova Scotia lawyer on the national discipline standards committee.

However, serious complaints and investigations will still be kept under wraps until a lawyer is charged or suspended pending charges.

“We will not publish information about complaints that are not prosecuted,” said Pink. “None of us, I don’t think anybody, would want to hold someone accountable for something that was ultimately dismissed.”

Federation statistics show there were more than 10,000 complaints filed against Canadian lawyers in 2012. That same year, 60 were suspended and 42 disbarred.

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