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 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.