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LAWS 17995 Legal Research And Writing
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LAWS 17995 Legal Research And Writing
1 Download5 Pages / 1,232 Words
Course Code: LAWS 17995
University: Sheridan College
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Country: Canada
Questions:
1. Summarize Mr. Lee’s arguments concerning his obligations as they relate to monies held in trust.2. What was the penalty imposed by the tribunal in this case (do not discuss the costs award)?3. Identify three of the key factors the tribunal considered when making the costs award
Answer:
In regards to the obligations related to monies held in trust, Mr Lee contended that paralegals should not be considered as lawyers in respect on trust account contravention as the trust account obligations are not part of the educations that are imparted to the paralegals. He further contended that the trust account was the account of legal firm and the lawyer should held accountable for any shortcomings associated with its operations. Additionally, he contended that he had no proper knowledge about principles of trust and trust funds.
The penalty imposed by the tribunal in this case is revocation because in the absence of any exceptional circumstances, the penalty for committing misappropriation of the trust funds of the client is revocation. The licence of the paralegal, Mr Lee has been revoked that will take effect immediately.
While making the costs award the three essential factors that the tribunal had taken into consideration are as follows:
The complexity of the matter;
Amount of money at issue that is, the amount misappropriated;
Duration of the hearing;
The amount misappropriated was complicated as it involved allegations regarding several clients. The hearing lasted for ten days which included penalty submissions. The complexity of the matter was enhanced with the need for interpreters instead of witnesses to be involved in proceedings.
Case#2: Law Society of Upper Canada v. Adams, 2018 ONLSTH 20
The Licensee or Ms Adams misappropriated over $300000 in trust funds and mishandled an amount of a $14,000 approximately in trust funds. She failed to maintain her records and books and misled the Law Society in annual reports that had been filed along with the books and records.
The licensee made improper transfers over a two-year period from July 2011 to July 2013 and the transfers were considered misappropriations as such withdrawals were considered as improper from the trust account. The transfers from the trust were apparently ‘borrowed’ in order to keep the practice of the Licensee intact. The Licensee made such misappropriation of funds with an objective of covering the deficits. She misappropriated the funds despite being aware that such transferring of money out of trust was wrong without first rendering the accounts even if it was transferred for earned fees.
In Law Society of Manitoba v Maclver [2003] L.S.D.D. No. 29, it has been held that exceptional circumstances is said to exist if an exception to the presumptive penalty of revocation is established. An exceptional circumstances might justify departure from the ordinary disposition of revocation wherein the licensee has been engaged in mortgage fraud intentionally.
Further, in Bishop v Law Society of Upper Canada [2014] ONSC 5057 at para 31, it was held that financial desperation or situation of duress or medical evidence are certain examples that are used mitigating factors amounting exceptional circumstances. However, such factors must be considered if other members of profession and the public consider that the circumstances under which such individual had misappropriated funds, clearly preclude the need to reassure such individual.
Therefore, in this case exceptional circumstances existed as the licensee made two instalments during the investigation period and co-operated by signing the ASF. She further identified what wrong she had committed and expressed her repentance for committing the misappropriation. The Licensee, in this case, had provided extensive character evidence from the Barrie community and legal community at large. Additionally, the licensee holds a good reputation in the eyes of the authors of the letters and have medical evidence. Thus, it was held that misappropriation gives rise to a presumptive penalty and to enable evidence to mitigate against the penalty, the circumstances may be considered as exceptional.
In Law Society of Upper Canada v Czernik [2010] ONLSHP 122, it was held that the duty to accommodate must apply if any form of disability is established. As per the Ontario Human Rights Code, certain personal circumstances of an individual often lead to hindrances to fulfil professional obligations. In case such hindrances result from disability of an individual, the individual must be accommodated by the Law and Society unless such accommodation shall result in hardship by way causing harm to the public interest.
In regards to this case, the panel, concerning its duty to accommodate Ms Adams, particularly her undue hardship, concluded that even if medical evidence has established exceptional circumstances, it is only to remove the penalty from revocation to permission to surrender. The panel stated that it is essential to maintain the reputation of the profession of solicitor and ensure that well-founded confidence of the members of the public on the solicitors.
Hence, in regards to the circumstances of Ms Adams, public opinion concerning legal profession shall be considerably undermined if Ms Adams is permitted to continue with legal practice. Additionally, confidence of the legal profession in its own collective reputation shall be significantly undermined if Ms Adams were permitted to continue to practice and her license is not revoked, given that she had been misappropriating huge amounts in multiple transactions for a period of two years and misleading about her trust accounts to the regulator for 3 years.
Statute: Law Society Act, R.S.O. 1990, c. L.8
The Law Society Act, R.S.O. 1990 has incorporated provisions that requires establishment of a paralegal committee and includes the composition of the committee under sections [25.1(1)-25.1 (12)] of the Act.
According to section [25.1(1)] of the Act, a standing committee shall be established to be known as the Paralegal Standing Committee. The statute further stipulates under section [25.1 (2) (3)] that the committee shall have 13 members who shall be accountable for matters as the by-laws relating to regulation of persons providing legal services in Ontario.
A person is a licensee who meets the qualifications of by-laws and other requirements stipulated under this Act and a license is issued to such person as stipulated under section [27(3)] of the Act. Under section [56(3.4)] of the Act, a licensee must be responsible to his or her clients for operating a joint account that is maintained by the Licensee under section [57.1] as if it is a trust account held by the licensee only.
A licensee must not engage in professional misconduct and if licensed has violated section 33, then under section [35(1)], licence of the licensee shall be revoked or permit the licensee to surrender his or her license. Under section [35(4)], the licensee shall impose a fine of not more than $10000 that is payable to the Society.
According to section [48 (1)] of the Act, any person that has been appointed by Convocation may revoke a licence of the licensee provided an order under section [46] clause 47 (1) (a) or section [47] is still in effect for a period more than 12 months after it was made.
If a Law Society Tribunal tends to determine whether a license has mental capacity, it shall consider whether such licensee has been found incapacitated under any other Act within the meaning of the Act as stated under section [ 37(3)]. Under section [39(1)] of the Act, on an application made to the Hearing Division, it may make an order that requires the licensee to undergo psychological examination by one or more Psychologists or Physicians.
References
Bishop v Law Society of Upper Canada [2014] ONSC 5057 at para 31
Law Society Act, R.S.O. 1990, c. L.8
Law Society of Manitoba v Maclver [2003] L.S.D.D. No. 29
Law Society of Upper Canada v Czernik [2010] ONLSHP 122
Law Society of Upper Canada v Lee 2017 ONLSTH 210
Law Society of Upper Canada v. Adams, 2018 ONLSTH 20
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