Focus On

PRACTICE BY UNAUTHORIZED PERSONS - Suspended or disbarred lawyers

Tuesday, June 22, 2021 @ 1:13 PM  

Lexis Advance® Quicklaw®
Appeal by Beaver, a disbarred lawyer, from decisions of a chamber judge that found him in civil contempt of court for breaching an injunction prohibiting the appellant from providing legal services and imposed a sentence of one year in jail. The injunction was granted in 2016 while the appellant was suspended. The appellant’s appeal of the injunction was dismissed. In 2017, the appellant was disbarred after he was found guilty of seven citations related to the misappropriation of client trust funds. The chambers judge found the appellant was clandestinely engaged in the practice of law until 2019. He accepted evidence from a junior lawyer, subsequently disbarred, that she had an arrangement with the appellant for six months that involved at least seven matters. The appellant directed her to conceal his activities, destroyed incriminating evidence and laid a trail of false evidence. The chambers judge found there was no reasonable way for the appellant to purge his contempt and that a substantial period of incarceration was warranted by the appellant’s misconduct.

HELD: Appeal allowed in part. The foundation of the injunction, being a desire to protect the public from unauthorized practice, remained unaffected, and existed independently of the appellant’s change in status from suspended to disbarred. The chamber judge’s findings on credibility were reasonable and well supported by the evidence. His finding the appellant was guilty of civil contempt of court was reasonable, based on compelling evidence and was proven beyond a reasonable doubt as required. The chambers judge did not err in finding the appellant minimized his conduct. Deference was owed to his finding the appellant’s apology was disingenuous. It was appropriate for the chambers judge to find the appellant was not mistaken about the scope of the injunction. It was clear the appellant did not fully disclose his activities in practicing law to purge his contempt. It was an error in principle to wholly reject mitigating factors such as the appellant’s personal circumstances, character, current pro-social lifestyle, evidence of a changed attitude, realization of a need to change his behaviour, and the effect of imprisonment on his family. The period of imprisonment imposed was out of the range that was reasonable and was demonstrably unfit. A fit and reasonable sanction was 90 days’ intermittent imprisonment and 200 hours of community service.

Law Society of Alberta v. Beaver, [2021] A.J. No. 617, Alberta Court of Appeal, J. Watson, D. Pentelechuk and K.P. Feehan JJ.A., May 6, 2021. Digest No. TLD-June212021003