Discipline Decision – 1998

http://www.canlii.org/en/nl/nlls/doc/1998/1998canlii12417/1998canlii12417.html

Summary

Two complaints were registered with the Law Society against Fahey. The first complaint alleged that he:

1. 1. ) failed to respond to communication from another lawyer (Lawyer A) in a timely manner,
   2. ) conducted himself in a rude and menacing manner toward Lawyer A, and
   3. ) purported to have to seek instructions from his client when in fact Fahey was representing himself

   The second complaint alleged that Fahey:

2. 1. ) withdrew or permitted to be withdrawn $14,456.00 from his trust account standing in the name W.O. in circumstances other than those authorized by the Trust Account Rules of the Law Society, which monies were subsequently transferred to Fahey’s general account,
   2. ) withdrew or permitted to be withdrawn $8,000.00 from his trust account standing in the name W.O. in circumstances other than those authorized by the Trust Account Rules of the Law Society, which monies were subsequently transferred to Fahey’s general account,
   3. ) failed to make good a shortage of $968.70 in his trust account standing in the name of W.O.,
   4. ) failed to prepare or cause to be prepared monthly trust reconciliations for a period of 1 year,
   5. ) failed to maintain a record of the client on whose behalf he deposited the sum of $200.00 into his trust account,
   6. ) withdrew or permitted to be withdrawn $2,650.00 from his trust account standing in the name H.R. in circumstances other than those authorized by the Trust Account Rules of the Law Society, which monies were subsequently transferred to Fahey’s general account,
   7. ) withdrew or permitted to be withdrawn $1,450.00 from his trust account standing in the name F.H. in circumstances other than those authorized by the Trust Account Rules of the Law Society, which monies were subsequently transferred to Fahey’s general account,
   8. ) misappropriated $17,940.92 of clients’ trust funds to his own use or to the use of companies in which he had an interest, and
   9. ) maintained a debit balance of $27,187.37 in his trust account.

The Disciplinary Panel recommended that the first complaint be dismissed. In a separate hearing, the Panel found that although the lawyer had breached a Law Society Rule in allegation 2.(d) above, the Panel did not recommend a finding of professional misconduct.

With respect to the other allegations in Complaint #2, the Panel recommended that the lawyer be found guilty of professional misconduct.

Benchers accepted the recommendation of the Panel with respect to Complaint No. 1 and dismissed this complaint.

On Complaint no. 2, Benchers differed slightly in their deliberations from that of the Panel. Benchers found the member guilty of professional misconduct on all counts except for Item 2(e). In deciding on the appropriate penalty, Benchers noted that there was a lack of planning and deliberation, a clean disciplinary record, a relatively prompt reimbursement and “the present situation of the member” [referring presumably to the member’s medical problems]. Benchers directed that the member pay the expense of the Law Society incurred in the investigation and hearing of Complaint #2, that he be suspended for 2 years and thereafter until he would produce a certificate from an accountant that he has a trust account system in place which meets the requirements of the Trust Account Rules, and the costs of the investigation and hearing have been paid. Benchers further ordered that for a period of three years from his resumption of practice, the member would have all trust account cheques co-signed by another member of the Society and that he would file quarterly trust account reconciliations with the Executive Director of the Law Society.