Skip to content

Does LSUC target small-firm lawyers?

|Written By Michael McKiernan

A rash of disbarments has raised concerns about the Law Society of Upper Canada’s treatment of sole and small-firm practitioners as well as lawyers from diverse backgrounds.

The law society takes action wherever necessary without regard to the firm’s size, says Diana Miles.

The law society capped a busy disciplinary period by announcing the disbarments of three sole practitioners on Nov. 5. A fourth solo lawyer received permission to resign for his misconduct.

The decisions come as the law society turns up the heat on small firms by recalibrating the selection criteria for its practice-management review program to increase the proportion of sole and small-firm practitioners caught in the net of its random checkups.

Joe McCallum, chairman of the Ontario Bar Association’s sole, small firm, and general practice section, says spot audits serve an important purpose but suspects a disproportionate number of them translate into disciplinary proceedings for lawyers in small practices compared to their counterparts at larger firms.

“It probably has something to do with the fact that small firms tend to be better targets,” says McCallum, who practises at Heelis Williams Little & Almas LLP in St. Catharines, Ont.

“I don’t think people are as intimidated going after a sole or small-firm lawyer as they would be going after one of the bigger firms. How many large firms aren’t being called on things because they are large firms?”

But Diana Miles, director of professional development and competence at the law society, insists her department takes action wherever necessary without regard to the firm’s size.

“If we find someone in a large or small firm who is not acting in the best interests of their clients, we’re going to make sure that’s corrected,” she says.

Miles notes the predominance of sole practitioners involved in disciplinary proceedings at the law society is to be expected given that more than half of the province’s lawyers fall into that category.

“Ninety-nine per cent of all claims paid out involve sole and small-firm practitioners, and 80 per cent of complaints we receive involve sole and small-firm practitioners. That is the reality of the legal profession.”

The comments follow the release on Nov. 5 of four LSUC decisions either disbarring the lawyer in question or, in one instance, allowing the practitioner to resign.

In one case, Robin Scott of Whitby, Ont., was disbarred for failing to fulfil an undertaking to close his trust account by October 2005 and failing to respond to the law society’s investigation. It was the fourth finding of misconduct against him in eight years. The LSUC also ordered him to pay $3,000 in costs.

Moeen Mahmood Ahmad Janjua of Mississauga, Ont., had his licence revoked in his absence after he disappeared with $4 million in fraudulently acquired mortgage funds on 13 properties.

The law society made an optimistic order for costs of $36,000 but acknowledged that not even his wife appeared to know where he had gone.

In the third case, the law society found Richard Chojnacki, another sole practitioner based in Mississauga, to have misappropriated more than $3 million from funds held in trust for two toy company clients, including $500,000 applied to pay his law practice and personal expenses.

He withdrew his co-operation halfway through the 19-day hearing, which left the panel with no choice but to ignore a half-argued mitigation defence involving a recurring addiction to Percocet since a serious car accident in 1984. It ordered him to pay costs of almost $280,000.

Finally, the law society granted Jaikrishin Ambwani permission to resign his LSUC membership after a panel found the Toronto sole practitioner to have knowingly participated in a mortgage fraud involving 17 properties. He also must pay $5,000 in costs.

Besides issues related to small-firm practitioners, the string of disbarments and disciplinary proceedings in general also raises diversity concerns.

Sudevi Mukherjee-Gothi, a partner with Torkin Manes LLP who’s also president of the South Asian Bar Association, says lawyers from ethnic minorities will often be involved in disciplinary cases against sole practitioners because so many of them end up working alone.

In fact, she notes many foreign-trained lawyers come to her for help in finding a placement at a larger firm but run into roadblocks. “It’s very difficult for them to get placements when they get their qualifications here,” she says. “Often, their only recourse is to set up their own shop.”

Her association has tried to help, however, by setting up a mentorship scheme to match sole practitioners with lawyers at larger firms who can help them out with advice and support.

“They have very limited resources,” Mukherjee-Gothi says. “I’m not using that as an excuse, but there has to be a mechanism in place to provide them better support.”

When LawPRO presented its most recent report to Convocation in September, it highlighted the continuing trend of increased claims and rising costs per claim.

In turn, law society CEO Malcolm Heins told benchers they must be more proactive about practice reviews. “Our audit

program is really the only way we’re ever going to get at this issue,” he said. “If we can’t go in and look at the way people are practising and change the way they practise, we’re going to be faced with this issue on an ongoing basis.”

Miles agrees. “We feel strongly that if we can get out there early, we can help practitioners make changes, even if they’re small changes, to make them more viable and ensure they avoid any issues in the

future,” she tells Law Times.

Last year, the LSUC changed the selection criteria for the practice-management review program to bring it in line with the percentages of lawyers involved in conduct proceedings and negligence claims. That has meant a greater focus on recent calls as well as sole and small-firm practitioners.

But rather than feeling targeted, Miles says small-firm lawyers are grateful for the guidance they receive during practice reviews.

“Although some may be a bit concerned when they get the notice from us, on balance, almost 100 per cent feel it is a really good, positive experience for their practice.”

One lawyer who has had his own run-ins with the law society is Munyonzwe Hamalengwa. He received a one-month suspension earlier this year for failing to produce his records for examination.

He’s currently appealing that decision and believes lawyers from minority groups are being targeted.

“There are hardly any black lawyers in Toronto who have not experienced some kind of investigation or discipline,” he says.

Hamalengwa also feels small-firm practitioners get too much attention more generally from the law society. Although large-firm lawyers may account for fewer LawPRO claims, he says the cost to the profession is balanced by the greater value of their cases.

According to McCallum, the upheaval of a practice review can have a significant effect on small-firm lawyers. “If it takes a day, that’s 20 per cent of my income for the week gone,” he says.

  • VICTIM

    George Mooney
    WHEN A LAWYER MISAPPROPRIATES MORE THAN 3 MILLION DOLLARS AND ALLOWED TO CONTINUE TO PRACTICE WITHOUT STRICT SUPERVISION, THERE IS SOMETHING WRONG. THEY NEED TO BE MORE ACCOUNTABLE!!! ITS A DISGRACE.
  • Just So You Know
    You are absolutely correct. It is a total disgrace. And Just so you know this lawyer was allowed to continue to practice only to continue this pattern.
    [quote name="George Mooney"]WHEN A LAWYER MISAPPROPRIATES MORE THAN 3 MILLION DOLLARS AND ALLOWED TO CONTINUE TO PRACTICE WITHOUT STRICT SUPERVISION, THERE IS SOMETHING WRONG. THEY NEED TO BE MORE ACCOUNTABLE!!! ITS A DISGRACE.[/quote]
  • We musyt check wild lsuc accusations

    Just Askin
    Just checking, but in the Ambwani matter, was there a criminal finding of fraud of is this more law society ineptness at work here?

    I know nothing of this case, but did not read anything about a criminal finding.
  • Where are the authorites?

    Sarah
    Hey Law Times - why not ring up the LSUC ask them what their annual reportsshow on ethnicity and race vs. ethnicity and race in discipline.

    If they open their books, it is a story (I believe the prosecution rate is 30 to 50% higher for ethnics and minorities) and if they refuse, it is a bigger story!

    Ditto for those hidden cases and the early 2008 convocation minutes on finally reveally deciions where the law society lost and lawyers won. Where are the motion decisions?

    Can prosecuted lawyers now get access to decisions to perform legal research? Has it affected LSUC prosecutions?

    And you could ask them how sched. 2 (non-profit corp) directors can sit as "impartial" adjudicators given the very disparate legal duties and legal responsibilities of each. How can anyone who is a lawyer be involved in so many conflicts of interest? Should those who operate so scandalously be investigated by authorities, especially as case law show them to be public officials?

    Whether they talk or not, it is a world-wide story our media needs to cover.

    As textbook corruption, surely the police have something to say. Are they investigating? As the AG is head of the LSUC is he being investigated oris he trying to prevent an investigation?

    Do you realize that if we were in the U.S,, you could make a dozen phonecalls and win a Pulitzar?
  • ZZZZZzzz

    Hey don\t knock Kool Aid just
    Am I missing something here, a couple crooks who happen to have not been white get disbarred and suddenly some people claim there is a race based pogrom going on at LSUC?

    huh?

    Show me the south asians who are being 'profiled' and forced to submit to undue examination who have done nothing wrong before you write an article like this if you don't want people crying foul ball.
  • Compare anual report ehtnicity with discipline

    A really big Sopinka fan
    The LSUC already has this info on file from annual reports. They can compare ethnicity with 'ethnicity in discipline' and find the bias instantly.

    I strongly suggest to you thayt they have finally been caught, at this at least. There is much much more that is wrong with the lsuc.
  • barrister

    Observer
    If "Cynic by Nature" believes that the least competent lawyers end up in small firms, then the law society should not be reducing the bar ad course, nor eliminating articling. Big firms provide a lot of mentoring and education on site, giving them a great advantage over firms that cannot easily provide this. It is certainly not in the interest of small firms and sole practitioners and ultimately the public to reduce bar ad and articling. Why is this trend taking place? Who is being served by it. The bar ad course was always self-funded by the students, not costing the law society nor it's members anything. Some brilliant lawyers in the past came from small firms, but will this continue to be the case.
  • Bay Street benefits

    franklin galvin
    I hope Ontario lawyers have finally had enough and will stand up to end the war on sole practitioners, and by extension plaintiffs, being run by this outmoded organization.

    As in Europe and the U.S., discipline hearings need to be moved to the courts for fair hearings, case law needs to be handled by a non-party (it's currenently being filtered for canlii.org through this oligarchy where many disappearances occur) and a competent impartial professional legal regulator needs to be created.
  • Large firm Kool Aid

    Kenny
    There is a premise in your comment that large firms represent a standard that our legal community should strive towards.

    "Large firm" does not equal the best delivery of legal services.

    Full stop.

    Bigger is not always better.
  • No surprises here

    Cynical By Nature
    I've worked at both a large (350+) Bay Street firm, and a small (6 lawyer firm) and would suggest that:

    a. working alone or in a small firm contributes to the likeihood of conduct resulting in discipline (but it doesn't excuse it);
    b. larger firms have more internal "checks" on lawyer conduct--oversight by accounting staff and external auditors and senior lawyers--which catches and corrects at least some problems before they become "discipline" issues; so in many cases, even a lawyer who is tempted to misuse trust funds simply can't do it without immediately being caught by his/her firm; in contrast, a sole practitioner has no internal checks on his behaviour other than his/her conscience/experience/training.
    c. And although there are many, many excellent lawyers practising alone or in small firms--the fact is that this is also where the least competent lawyers end up as well. (The hiring practices of the large firms--flawed as they are--at least tend to weed out any seriously incompetent lawyers very quickly.)

    Ethnicity, firm size, etc are no excuse for committing fraud or failing to live up to the admittedly high demands of practising law in Ontario today.
  • Reality Check

    B. Real
    If the Law Society were truly serious about ensuring that enforcement is even-handed, ethnicly neutral, firm size neutral, and that it is truly directed to the best interests of the client, then they would have long ago investigated the wide spread "value billing" and pervasive conflicts of interest by large firms. Clients acccept it with resignation as part of the fact of certain legal services in this country but I do not think they are pleased about it. Those practices are nothing for our profession to be proud of either, but they have the dubious distinction of having now become normalized and institutionalized in the large firm culture and are rationalized with various waivers and retainers that many clients have no choice but to sign if they want access to the premium insurance, brokerage or banking services of these firms' standing clients.
  • Yikes

    David
    The lawyer who ran off with 4 million doesn't provide a glowing endorsement for this article. You won't get disbarred if you make an effort to run a decent practice. A big firm has to look out for its brand image. A mismanaged file can really hurt a reputation. Small firms or sole practitioners may just see dollar figures and not the long-term repercussions. Sole practitioners may require the law society to fill the check and balance void. It's not to say that the big firms are self-regulated, but sole practices can be a disaster waiting to happen.
  • If a fair process w jurisdiction.....

    Oliver
    No, fair hearings are not provided when bencher/corporate directors of this sched, 2 corporation purport to serve as "impartial" adjudicators. Favourable court treatment in the only provincial courthouse to house a regulator it is supposed to supervise through the courts, not befriend. A registry of matters heard and the provision of access to decisions made are basic requirements of any legal process. The Law Society of Upper Canada lacks all of these and this supposed justice system entity is headed by a politician, another faux pas. Unfairness rules at the lsuc and anyone can be and is targeted with media synchophants, at least in the past, merrily going along. Issues of training, competence and policy rank very high among concerns involving this entity from another era. It and it's legendary dirty tricks have no place in this one. A proper legal regulator must be set up.
cover image

DIGITAL EDITION

Subscribers get early and easy access to Law Times.

Law Times Poll


It's unknown how widely police in Ontario utilize controversial surveillance techniques that can capture private data from non-targets in criminal investigations. Do you think there should be formal requirements to release this information?
RESULTS ❯