Monday, May 18, 2015

All Canadian law societies are created equal ..... Not!

Good Day Readers:

The article from the Toronto Star (below) was chosen for a reason. CyberSmokeBlog has been carefully following the disciplinary hearing of a well-known, prominent Winnipeg lawyer at the Law Society of Manitoba offices - it's been dragging on now for several months and has yet to be resolved.

The accused was suspended last summer from practicing in what was somewhat unusual - The Society had not yet completed its investigation much less held a disciplinary hearing What jumped out at CSB in the Star article was the Brampton lawyer was also suspended prior to an investigation being completed and a hearing yet his name, as you will read, was mentioned multple times by the Law Society of Upper Canada. Do that here and that could cost the social media a $2,000 fine and/or 6-months in jail. For the mainstream up to $10,000.

Admittedly, Manitoba's Minister of Justice (Gord Mackintosh) issued a press release recently (May 7th) indicating there would be changes to the province's Legal Profession Act governing what the LSM can and cannot do chief among them accused of malfeasance lawyers and law firms will eventually be publicly identifiable prior to conviction. While the LSM-Justice Minister hailed this as a significant development, to CyberSmokeBlog it's like peeing in the ocean in that it does not address a fundamental flaw in the system beset by conflicts of interest, that is to say, the investigator(s), prosecutor(s) and judges and jury all come from the same organization. Where's the horizontal-vertical separation?

You hear the damnest things at disciplinary hearings. For example,the lead lawyer for the accused has asked that his client receive consideration on the costs that will eventually be assessed on the basis the client has not worked since being suspended more than 13-months ago. Suffice it to say when CSB read the individual's 18-page Separation Agreement approved by the courts it can fairly be said they are not a pauper.

Law Society Inconsistencies?

Based on the above example one cannot help but wonder what would happen if you placed the enabling legislation of each Canadian law society back-to-back-to back? Any other glaring inconsistencies?

The Mother of All Lawsuits?

Returning to the Winnipeg case, it raises the question can an argument be made by suspending the accused prior to completion of its investigation and disciplinary hearing, the individual not only has been denied the ability to earn significant income but also has had their constitution-charter rights interferrd with in that full due process of law has been denied. Where's constitutional-charter legal expert Rocco Galati when you need him?

Clare L. Pieuk
Law Society suspension adds to Brampton ex-MPP's troubles

Carman McClelland is facing numerous accusations of misconduct, including allegations of misappropriating client's funds.

By Jacques Gallant/Staff Reporter
Sunday, May 17, 2015

Caman McClelland ran as a Progressive Conservative candidate in the 2007 provincial election, but was a Liberal MPP in Brampton from 1987 to 1995. The local lawyer has been called before the Law Society of Upper Canada to face professional misconduct allegations. (Facebook Photo)

The decision by the Law Society of Upper Canada to suspend lawyer Carman McClelland as it continues its investigation into alleged misconduct is the latest in a series of woes for the former Brampton Liberal MPP.
“There are reasonable grounds to believe that there is a significant risk of harm to members of the public or to the public interest in the administration of justice if an order is not made suspending the licence of the respondent,” reads the Law Society’s April 28 motion to its disciplinary panel.
The panel suspended McClelland, 63, on an interim basis on April 30, and reaffirmed the suspension following a hearing on Friday.
He is alleged to have borrowed more than $100,000 over a number of years from clients, as well as misappropriated thousands more. None of the allegations has been proven before the panel.
McClelland told the Star in a recent interview that his lawyer will address the allegations before the disciplinary panel. As for the recent complaints that led to his suspension and that are still under investigation, McClelland said they were “without foundation.”
Among the most serious new complaints received by the Law Society is an accusation from Bank of Montreal regarding a $437,000 cheque the financial institution suspects was “counterfeit,” counsel for the law society, Deborah McPhadden, told a three-person panel, according to the Brampton Guardian.
She said there have also been accusations from McClelland’s sister, who alleges her brother used his position to take financial advantage of their ailing elderly mother for tens of thousands of dollars before she died last September,the Guardianreported.
“The allegations that were the basis upon which the interlocutory suspension was issued are completely without foundation, and I’m confident that in due course my position will be affirmed,” McClelland told the Star.
“The allegations themselves, in my opinion, are defamatory, and I have made preliminary inquiries to commence an action against some of the complainants, and I’ll be seeking expert opinion within the next few days.”
The allegations that originally led to McClelland’s disciplinary hearing are laid out in a notice of motion from November 2014 and mainly deal with real estate transactions.
McClelland said of those allegations: “I have able and competent counsel, and my lawyer will address those matters before the panel.”
The allegations include:

  • McClelland borrowed $50,000 from a client in 2011;

  • He borrowed $25,000 of mortgage proceeds from another client in 2006, for whom he was acting on a refinancing mortgage transaction.

  • He “failed to be on guard against becoming the tool or dupe of unscrupulous clients and/or third parties while acting for the vendor DG” on a sale transaction in 2011;

  • He “misappropriated and/or mishandled” more than $27,000 that he received in trust for the benefit of a client, “when he transferred the money to his general account and/or used it to pay expenses personal and professional.”

  • He failed to maintain the required books and records of his practice between 2011 and 2012.
  • McClelland said the publication of the latest complaints against him have “effectively nullified any reasonable prospect” he has of remaining employed in law.
    “I understand the need for transparency and the law society’s position … but the fallout I guess from that transparency and a free press is that you can’t unring the bell, once the genie is out of the bottle, it’s out of the bottle,” he said.
    “I’m out of business. I’m done … It’s effectively terminated my career.”
    McClelland once enjoyed a much more privileged lifestyle when he was first elected as a Liberal MPP for Brampton North in 1987. He had a downtown condo, drove a Pontiac Bonneville and a tax-free expense allowance, according to a 1995 Toronto Stararticle published after he lost his seat in the Progressive Conservative sweep of the province under Mike Harris.
    “His entire way of life has taken a nosedive,” wrote the Star’s Lisa Wright. “Today, he has less than $200 in his savings account. He has split up with his wife and 9-year-old son, sold his car and put the beloved condominium he drywalled and wired himself up for sale.”
    As McClelland himself put it at the time: “Nobody’s going to throw a pity party for any former MPP.”
    His old firm told him they couldn’t keep a job open for him any longer, while other firms told him they had no senior positions available, according to the Stararticle. He was working solo when he came under the Law Society’s radar.
    McClelland attempted to make a political comeback in 2007, this time running as a Progressive Conservative, which was then under the leadership of John Tory (open John Tory's policard).
    The lawyer-turned politician told the Brampton Guardian that year that he had always considered himself a Red Tory, and was running because of “poor Liberal leadership and mismanagement costing Brampton.”
    He ended up losing to the Liberals’ Linda Jeffrey, now Brampton’s mayor.
    Trouble continued for McClelland after that. Bankruptcy filings from 2012 indicate he had more than $360,000 in liabilities and only $6,000 in assets.
    The Law Society of Upper Canada sought interlocutory suspensions of 11 lawyers and three paralegals last year, according to spokeswoman Susan Tonkin.

    With files from Lisa Wright and the Brampton Guardian


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