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Suspended lawyer turns on counsel in civil suit

|Written By Michael McKiernan

A lawyer suspended for incapacity has turned on her own counsel, accusing him of negligence in the hearings that saw her forced to stop practising.

In order to defend himself, Kenneth Hughes has now turned to the Law Society of Upper Canada to reverse an in camera order he originally requested on behalf of his suspended client, Tracey Marie Foster.

On June 20, 2007, a law society panel suspended Foster, who was then known by her married name Tracey Marie Resetar, indefinitely “until she provides medical evidence” that she’s fit to practise law.

The panel acted based on a medical report that found she suffers from a “significant psychiatric disorder.” As part of the ruling, it sealed the document brief and almost all of the medical report’s contents because of their intimate and personal nature.

But in a statement of claim filed on June 19, Foster is seeking more than $10 million from Hughes for alleged breach of contract, breach of fiduciary duty, negligence, loss of income, and loss of reputation.

Foster claims Hughes was negligent through his failure to produce medical reports to counter the one provided to the LSUC and by not cross-examining the doctor whose report was the basis for the suspension.

According to Foster’s claim, which hasn’t been proven in court, Hughes “arrived at the hearing of the applications unprepared, not having served or filed any documentation or medical evidence in defence of the plaintiff, making it impossible for the plaintiff to prevail at the hearing.”

Hughes coerced her into providing consent, Foster says in her claim, “in essence railroading the plaintiff into an unjust and unsubstantiated finding by the LSUC.”

But in his statement of defence, Hughes, who maintains he acted on Foster’s instructions, says she “consented to the disposition

in exchange for the law society withdrawing misconduct charges against her.”

He claims Foster told him she planned to move to the United States to practise andthat it was “crucial that the plaintiff not be found guilty of professional misconduct.”

He also quotes an e-mail to Foster three days before the panel’s decision requesting instructions to allow admission of the medical report on the understanding that the LSUC would discontinue misconduct applications against her in return.

According to Hughes’ defence, Foster replied: “Hi Ken, this is fine, please proceed. Thanks, Trace.”

In an application for reinstatement to the law society filed on May 10, Foster repeats many of the allegations made in her civil action and claims to have medical reports from a psychiatrist and family doctor confirming her fitness to practise law once again.

At a hearing on June 18 to deal with a motion by Hughes to allow him to participate in the matter, Foster’s duty counsel, Phil Downes, explained that she had abandoned the application for reinstatement after receiving advice that it wasn’t necessary under the terms of her suspension.

“She will go to the director of professional regulation and provide them with the information,” said Downes, adding Foster would restart proceedings should the LSUC deem her unfit to practise.

But Hughes’ counsel Helen Daley said her client would still need the in camera order varied so he can use the medical report and transcript of the hearing in his defence of the civil suit.

“The order makes it impossible to defend the civil suit, and I’m sure that was not the intent of the order,” Daley said. “Even if he has access to the report, which he does, he can’t use it.”

Daley said she could get around the concerns about privacy by holding the documents back until Foster can apply to have them sealed from the public record.

“If she wishes, in the civil action she is perfectly able to ask the court to make an order akin to a publication ban,” she said.

But while panel chairman Patrick Furlong expressed doubts about whether he had jurisdiction to overturn the

decision of a previous panel, after consideration he ordered the transcript and medical report released exclusively for use in the civil suit.

Even if she can convince the director of professional regulation that she’s once again fit to practise, Foster is still facing potential problems. In an endorsement dated May 6, Ontario Superior Court Justice Leonard Ricchetti expressed concerns about Foster’s conduct as trustee of her sister’s estate.

He details a number of payments Foster made to herself for expenses and legal services. Two payments for legal fees, totalling almost $60,000, took place after the law society had suspended her, but Foster claims they were for services performed in advance of the LSUC’s action.

She purchased a $30,000 car with estate money and used it for more than a year after her removal as trustee despite “several court orders directing its sale,” according to the endorsement. She also paid her husband $114,000 out of the $1-million estate.

“The suspicions . . . that Ms. Foster used the estate monies as her own ‘piggy bank’ are real and may very well be justified,” Ricchetti wrote.

He copied his endorsement to the LSUC, noting Foster “has apparently not kept the estate accounts as required” by the Law Society Act. Ricchetti also questioned whether she should have operated an estate trust account after the 2007 panel

decision because the act prohibits suspended members from handling money held in trust for another person.

The matter now goes to trial to determine whether Foster’s application to pass accounts disclosed all of the assets she received and whether the expenses and disbursements she made were proper.

“This is not just a case of bad bookkeeping but rather suggests a deliberate breach of Ms. Foster’s obligation to maintain and pass the estate accounts,” Ricchetti wrote.

Foster couldn’t be reached for comment on the matters, while Hughes referred questions to Daley, who didn’t respond by press time.

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