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Taxing Aziga case sparks lawyers’ spat

|Written By Michael McKiernan

A Law Society of Upper Canada panel has found a Toronto lawyer not guilty of professional misconduct related to a dispute with a colleague over his failure to pay their office rent after a groundbreaking case of murder through HIV transmission left him in financial distress.

But during the same week in late June that Johnson Aziga, the man convicted in the high-profile HIV case, returned to court for his dangerous offender hearing, a law society panel found his lawyer, Davies Bagambiire, guilty of professional misconduct for failing to serve another client.

The other disciplinary matter stemmed from Bagambiire’s failure to pay his rent, which resulted in him and his subtenant lawyers being locked out of their law offices in August 2008 on the eve of Aziga’s original trial. Selwyn Pieters, one of the subtenants and also co-counsel to Aziga, complained to the law society about the rental situation. He claimed Bagambiire had failed to honour the financial obligations of his practice and that he had misappropriated Pieters’ $1,600 in rent payments by failing to pass them on to the landlord. But the panel, deciding the situation didn’t justify a finding of professional misconduct, disagreed.

Relations between the two lawyers were already strained by the impact of the murder case and their problems handling Aziga, whom Bagambiire described to the panel as a “very difficult client to manage.”

“The Aziga murder case was a strain both professionally and financially,” the law society panel noted.

Bagambiire, who became the first black law professor in Canada when he took a position at Dalhousie University in 1990 and is also a former executive director of the African Canadian Legal Clinic in Toronto, declined to comment on Aziga, whose dangerous offender hearing is still before the courts in Hamilton, Ont. “I am satisfied with the law society ruling on the matter and would rather not say anything more,” he tells Law Times.

In an e-mailed statement, Pieters said he had moved on and wished Bagambiire well in keeping his financial affairs in order. “For Mr. Bagambiire to really get into the situation like that without even believing that he had to tell his subtenants, particularly me, is puzzling,” he said. “However, life goes on. The decision is instructive to other lawyers dealing with persons like the lawyer in this case to simply sue civilly or call in the police when such issues arise. The law society is not the forum.”

According to the law society decision, Bagambiire, who intervened in the Aziga case on a pro bono basis in June 2007, used their shared Ugandan heritage to smooth over communication difficulties between the accused and his lawyer. By December 2007, four years after his arrest, Aziga had gone through six defence lawyers and decided to retain Bagambiire.

Since Bagambiire had little experience in criminal law, he took on Pieters as co-counsel. Pieters was forced to take full carriage between March and April 2008 while Bagambiire served an earlier suspension for charging excessive and unreasonable fees to clients. That case also resulted in a two-year supervision of Bagambiire’s practice as well as an order to pay $100,000 to the law society’s compensation fund.

With Bagambiire temporarily out of the picture, Pieters and Aziga began to clash, according to the law society decision. Even after he returned, the relationship didn’t improve.

In August 2008, the lockout ignited a combustible situation. Bagambiire was months behind on the rent at their office at 372 Bay St. Pieters was up to date with his sublease payments, but a third lawyer hadn’t paid his share for months. Meanwhile, Bagambiire told the panel that arrears in legal aid payments had left him $40,000 out of pocket, despite the fact he was being paid on a special basis under the Rowbotham rules.

According to the decision, Bagambiire was taken by surprise on Aug. 5, 2008, when he found the landlord had locked him out of the premises. Despite the problem, he had to be in Hamilton for a meeting and court appearance with Aziga.

In the meantime, Pieters had to pay the landlord to retrieve his client files, court robes, and personal effects locked up inside the office.

The next day, Pieters was removed from the record on the Aziga file after bringing a motion citing the difficulties between the two lawyers and “an effective breakdown in the relationship between solicitor and client.”

After getting out of court, Pieters made his complaint to the law society. He noted he viewed Bagambiire’s failure to transmit his payments to the landlord as theft, according to the decision. While law society staff advised Pieters that the issue was a civil matter, he declined to go down that route.

By mid-August, Bagambiire had apologized and repaid Pieters four months of rent. In its recent decision, the law society panel ruled that being in arrears with office rent doesn’t constitute professional misconduct. “To hold otherwise would potentially be to subject a large swath of financially precarious practitioners to disciplinary suspension in economically distraught times,” wrote Bencher Constance Backhouse in the decision.

But Bagambiire did admit misconduct in relation to another client he took on around the same time as Aziga for a medical malpractice claim. He accepted a $5,000 retainer from the client but never deposited it into his trust account and failed to respond to her request for a written analysis of the case. When she switched lawyers, he also failed to turn over the file.

The panel, while impressed by Bagambiire’s character references and his “genuine remorse,” said his actions demanded a suspension. It also ordered him to return the $5,000 retainer and pay the law society $5,000 in costs.

Following a six-month trial, Aziga, who has HIV, was found guilty in April 2009 of first-degree murder in the deaths of two sex partners. A further five women were also infected with HIV following encounters with Aziga, while four others tested negative for the virus.

In late June this year, Aziga, who is still represented by Bagambiire, returned to court after a Crown application to have him designated a dangerous offender. Crown lawyers argued at the hearing that Aziga’s high libido could cause him to reoffend, while defence counsel said he had learned his lesson and promised to wear condoms and inform potential partners about his HIV status. Ontario Superior Justice Thomas Lofchik has reserved his decision until Aug. 2.

For his part, Pieters has since moved to another office where he shares space and resources with 25 independent lawyers.

“Quite frankly, despite the stress, frustration, and humiliation that situation caused, and I have not really spoken to many people about it because I was ashamed that I became part of a lockout, like I did something bad, things worked out for the better for me,” he said.

  • B. Jones
    Has the law society discovered the correct regulatory legal standard in disciplinary proceedings, which is strict liability? Does it know how to apply the standard?
    It's about time it acquired some grasp although insurmountable admin. law deficits sadly remain.
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