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Surrender your licence or be disbarred, lawyer told

|Written By Robert Todd

A Law Society of Upper Canada hearing panel has given a Toronto lawyer 30 days to surrender his licence after ruling it untenable for him to remain in the profession after being slapped with a criminal conviction for theft over $1,000.

Paul Schabas, above, chaired the law society disciplinary panel that gave Brian Horgan 30 days to hand over his licence.

In doing so, the panel said it was showing “compassion” for Brian Horgan in recognition of the “humiliation and stigma” he has suffered. If he doesn’t comply by next week, the LSUC will disbar him.

The decision last month puts an official end - barring an appeal - to the long saga and career of Horgan, who was called to the bar in 1976 but hasn’t been practising since 1994. That’s when Sun Life Assurance Co. discovered Horgan had been erroneously receiving annuities through a bank account he controlled on behalf of a client who had died four years earlier.

“We are satisfied that the offence of theft, and based on the facts provided to us in the documents, is in fact a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer,” said tribunal chairman Paul Schabas in oral reasons on behalf of fellow panellists Constance Backhouse and Baljit Sikand.

Horgan had power of attorney over the woman’s financial affairs and was the executor and sole beneficiary of her will, according to a November 2007 endorsement from the Ontario Court of Appeal. Appeal court justices Marc Rosenberg, Susan Lang, and Paul Rouleau noted Horgan argued he had notified Sun Life of the woman’s death and believed the annuities remained payable for the following five years.

Horgan maintained his innocence and belief that he was wrongly convicted of the offence in his affidavit to the law society tribunal.

Throughout the saga, Horgan repeatedly sought to delay and overturn the legal proceedings against him.

The appeal court endorsement noted Horgan was hospitalized for depression when charged in 1998 and was therefore not arrested until 1999. He was eventually convicted in December 2004 and in November 2005 received a conditional sentence of two years less a day.

Horgan had earlier carried out an unsuccessful bid to reopen the trial and seek a stay of proceedings by arguing abuse of process.

At the Court of Appeal, Horgan took odds with Superior Court Justice John Hamilton’s ruling that turned down the stay application.

But the appeal court sided with the application judge, finding that various delays were outweighed by “the societal interest in the prosecution of the offences.” It also found that while the judge had twice wrongly interpreted evidence, those mistakes were “inconsequential.”

Finally, the appeal court ruled the judge was right to conclude Horgan possessed the necessary subjective mens rea. That included the withdrawal of more than $100,000 from the client’s account after her death, according to the appeal court decision.

Horgan sought leave to appeal from the Supreme Court of Canada, which it denied in April 2008.

When the matter came before the LSUC hearing panel in August, Horgan’s lawyer, James Girvin, sought the ouster of Schabas.

He argued that the panel chairman should recuse himself because he had worked as an associate in the law office of Morris Manning, which in the late 1980s had represented Horgan in LSUC proceedings that were later dropped.

Girvin argued that “this raises an apprehension bias and possible conflict and the potential for an issue to arise as the matter proceeds,” according to the panel decision.

However, the panel denied that motion, ruling the issue didn’t raise a reasonable apprehension of bias as Schabas said he had no memory of the matter or Horgan.

Girvin went on to seek an adjournment of the hearing, but that, too, was turned down. The lawyer unsuccessfully reasoned that he had just recently been retained on the matter and didn’t have enough time to properly prepare for the hearing. He also referred to concerns about the legal aid certificate, the panel noted.

Girvin also pointed to an “undefined medical illness”

Horgan suffered that should force the matter to be heard at a later date, according to the panel decision. That argument was supported by a letter from Horgan’s physician, who wrote: “Brian is medically unfit and is not capable of appearing or participating directly in this tribunal due to the above medical conditions.”

Regardless, the panel ruled the hearing should go on after finding Horgan hadn’t presented sufficient medical evidence to support an adjournment. It also noted two previous sets of dates had been arranged for the matter.

After the panel refused to adjourn, Horgan requested to be excused from the hearing. The panel denied that request.

The hearing panel would later reconvene to hear submissions on penalty. The panel at that time reviewed Horgan’s affidavit evidence, noting he continued to maintain his innocence.

He also outlined the impact the matter has had on his life, including health problems, damage to his legal practice, and financial destitution.

Girvin urged the panel to impose a suspension of about two years or otherwise allow the lawyer to resign his licence to practise rather than have it revoked.

In the end, the panel ruled the punishment must serve to maintain public confidence in the legal profession. But it allowed Horgan to relinquish his licence, noting the “public humiliation and stigma” and overall damage to his life caused by the theft.

“And the panel accepts that compassion does have a place in this process,” the decision stated.

At press time, the law society hadn’t received a notice from Horgan to surrender his licence. Neither his lawyer nor Sun Life responded to requests for comment.

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