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BARRISTERS AND SOLICITORS - Duties to the profession - Relationship with others - Solicitors’ undertakings

Friday, August 20, 2021 @ 5:23 AM  

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Appeal by MacKay, a lawyer, from a conduct unbecoming ruling by the Law Society of Saskatchewan (“LSS”). The appellant was retained by a client to act on his behalf with respect to the transfer of his interest in an Arizona property to his former spouse. He agreed to the procedure proposed by the Arizona lawyer that he would hold the funds in trust until the executed quit claim deed was received and registered by the Arizona lawyer. Before the quit claim deed was registered in Arizona, the appellant released the settlement funds to his client. The transaction was subsequently delayed by several months after the client refused to sign an affidavit of value required to register the quit claim deed in Arizona. An e-mail exchange between the appellant and his client was admitted into evidence at his disciplinary hearing. The LSS found the appellant was guilty of conduct unbecoming as after agreeing to trust conditions, he failed to comply with those trust conditions by releasing the settlement funds without ensuring the trust conditions had been met. The LSS sentenced the appellant to a reprimand, a $1,000 fine and costs of $11,000.

HELD: Appeal allowed in part. The correspondence between counsel sufficiently evidenced the creation of trust conditions. Having accepted the trust conditions, the appellant was duty-bound to honour them. If the appellant was uncertain about the trust conditions imposed, he was obliged to clarify them before he accepted the funds in question. The LSS made no palpable and overriding error in finding express trust conditions had been imposed and accepted by the appellant. Section 84.1(2) of the Legal Profession Act, under which the appellant could not refuse to answer questions or produce records in any proceeding based on grounds of solicitor-client privilege, was broad enough to include his disciplinary hearing. The e-mail exchange between the appellant and his client was clearly material to the charge and critical to the issue of the appellant’s credibility. The LSS did not err by admitting the exchange into evidence. The LSS did not err in its implicit interpretation of conduct unbecoming or its application to the appellant. The appellant should have been given the opportunity to respond to the LSS’s submissions on costs. The matter of costs was referred to the registrar for assessment.

MacKay v. Law Society of Saskatchewan, [2021] S.J. No. 310, Saskatchewan Court of Appeal, R.K. Ottenbreit, N.W. Caldwell and L.M. Schwann JJ.A., July 14, 2021. Digest No. TLD-August162021009