Citation: Law Society of Upper Canada v. Mark James Kevin Peters, 2004 ONLSHP 0020
Date: September 27, 2004
Docket: 2004-00009
File No.: CN02/04
BETWEEN:
The Law Society of Upper Canada, Applicant
v.
Mark James Kevin Peters, Respondent
of the Town of Muncey
Before: Carole Curtis (chair)
Anne Marie Doyle
Tracey O’Donnell
Heard: May 25, 2004, in Toronto, Ontario
Counsel: Maureen Helt, for the applicant
Mark James Kevin Peters, on his own behalf
PETERS, M.J.K.
Professional misconduct – Failure to co-operate with the Society – Investigator
Professional misconduct – Failure to maintain books and records
Professional misconduct – Failure to report to client
Professional misconduct – Failure to account to client
Professional misconduct – Failure to reply to the Society
The particulars of the professional misconduct alleged against the member were that he:
1. failed to co-operate with the Society’s investigation into his books and records and failed to maintain them as required by the Society’s by-laws;
2. failed to report to one of his clients and failed to provide an accounting to that client for the monies he received; and
3. failed to respond promptly to communications from the Society.
The member admitted these particulars and that, together with the facts set out in an agreed statement of facts, they constituted professional misconduct.
The member was a sole practitioner who was called to the Bar in February 1994. He left the practice of law to hold office as a band council Chief. The member decided to return to practice in 2000. In 2001, the band re-elected him as Chief. The member resigned from the position of Chief in January 2002, but when elections were held again in May 2002, he was re-elected. He attempted to act as Chief (a full-time job) and also tried to maintain his law practice at the same time.
The member did not co-operate with the Society’s Spot Audit Department’s attempt to audit his books and records in 2001. He also failed to co-operate with the investigation into his books and records since the involvement of the Investigations Department in March 2003. The member admitted to not maintaining his books and records since he returned to his sole practice in 2000. The reasons he gave for not doing so were his health problems and his inability to hire a competent bookkeeper.
In 2001, a client retained the member to act on a Children’s Aid matter, and various other matters including a matrimonial matter, some traffic violations and an insurance matter. The client paid the member a total of $5,750 in retainer fees. A short time later, he informed the client that he was only able to assist her with her matrimonial matter. The member promised to return part of the retainer for the matters on which he was unable to represent her. The client never received the refund or a statement of account.
The member spent a significant amount of time on the client’s child protection matter from September 2001 to December 2002. He admitted that he did not provide the client with a proper account for this period, but he stated that he did provide her with the hours and tasks completed. In June 2002, the member ceased communications with the client, despite her numerous attempts to obtain an update on her matter. At that point she officially terminated the retainer and requested the contents of her file. The client received a partial statement of account for her child custody matter. The member admitted to not providing a full accounting to her and he also admitted to not responding to the client’s e-mails or telephone calls.
In October 2002, the member admitted to the Society that he did not return the client’s telephone calls and admitted to receiving retainer fees from her. He indicated that her first retainer was in the amount of $1,200, and the second was a certified cheque in the amount of $5,000. However, he alleged that he returned $1,000 of the retainer to the client. The Society requested that the member write to his client and provide an update on all of her matters. The member admitted that he did not do so. The client’s new solicitor received her file from the member in October 2003.
The member produced a letter from a doctor who was treating him for substance abuse and depression. The member admitted he had suffered from depression and substance abuse all of his life, though for some periods the diseases were under control. The member was admitted for treatment to a health centre, for 30 days, in the autumn of 2003. As a result of his illness, he had not been able to bill legal aid for three years, and had lost thousands of dollars. The member admitted that he lacked the energy to do what he needed to do. He admitted that he felt humiliated and that he did not intend to practise law for at least six months.
The member was getting medical treatment. He contacted the Ontario Bar Assistance Program, and was referred to a psychotherapist. At the time of the hearing, the member was on medication, was involved in an intensive program, was seeing a doctor twice weekly and was providing urine samples.
Order of the Hearing Panel (C. Curtis (chair), A.M. Doyle, T. O’Donnell): A finding of professional misconduct was made. The member was suspended for two months definite and then indefinitely until he produced his books and records.
The member needed to get well. It was necessary to determine a penalty that both recognized the illnesses that the member was fighting and protected the public. The appropriate penalty was:
1. two months suspension, definite;
2. an indefinite suspension until the member produced his books and records to the satisfaction of the Society;
3. the member was to produce a letter from a medical practitioner indicating his fitness to return to practice;
4.on his return to practice, the member was to enter practice review;
5. the member was to provide a proper accounting to the client regarding the retainer and the work performed; and
6. >no costs.
[1] The particulars of the professional misconduct alleged are set out below.
1. the lawyer failed to co-operate with the Law Society’s investigation into his books and records and he failed to maintain his books and records as required by By-laws 18 and 19, as amended, made under the Law Society Act;
2. the lawyer failed to report to his client, D.V., and failed to provide an accounting to his client for the monies he received; and
3. the lawyer failed to respond promptly to communications from the Law Society.
[2] At the start of the hearing, the lawyer asked for an adjournment, assisted by counsel Paula Platero. The lawyer had retained counsel late on Friday 21 May 2004 (two business days before the hearing). The lawyer and his new counsel wanted an adjournment to have time to prepare, to help the lawyer with the client files which had been unattended, and to correct the books and records. The earliest the lawyer's new counsel was available was mid-July 2004.
[3] The pre-hearing in this matter had been set, unsuccessfully, two times. The first time, at the last moment, the lawyer said he could not come. The second time, the lawyer did not show up. The lawyer had been recently very co-operative with the Law Society and had reached and signed an agreed statement of facts. The lawyer was not practising, and had told the Law Society that, around the beginning of May 2004.
[4] However, the application was issued 15 January 2004 (over four months ago). This hearing date was set, on consent, on 29 March 2004 (two months ago). The lawyer has had plenty of time and opportunity to retain counsel. The request for an adjournment was refused.
[5] The lawyer has reviewed Notice of Application CN02/04 and admits the particulars contained. The lawyer further admits that the particulars together with the facts set out in the Agreed Statement of Facts constitute professional misconduct. A finding of professional misconduct was made, based on the admissions in the Agreed Statement of Facts.
[6] The lawyer was called to the Bar on 1 February 1994. He is a sole practitioner in Muncey, Ontario and his office is located in his residence. His practice consists primarily of criminal and family law matters, mostly received from Duty Counsel work.
[7] On 11 December 2001, the lawyer was contacted by the Law Society’s Spot Audit Department, and was advised that his law practice was scheduled for an audit. Appointments were set up to perform the audit on two occasions.
[8] The lawyer had left the practice of law to hold office as a band council Chief, an elected office. He decided to return to practice in 2000 and established a general and trust bank account. At some point in 2001, the band re-elected the lawyer as Chief. The lawyer resigned from the position of Chief in January of 2002 and when elections were held again in May 2002, he was re-elected. He attempted to act as Chief (a job that is more than a full-time job) and also tried to maintain his law practice at the same time. The lawyer had no assistant to help him with his bookkeeping and as a result, let his books and records fall behind.
[9] On 21 January 2002, a facsimile was sent to the lawyer, confirming the results of the 18 January 2002 meeting, and telling the lawyer he had until 18 February 2002 to bring his books and records up to date.
[10] The auditor set up a further appointment with the lawyer, but the lawyer was not there when the auditor attended. The auditor attempted unsuccessfully several times to set up an appointment for a meeting. Eventually a meeting was set up for 22 March 2002 at 10:00 a.m. The lawyer was not there when the auditor attended.
[11] The lawyer was informed that the Law Society had been instructed to conduct an investigation of his practice, which would include examination of client files and an examination of his books and records, and an appointment was scheduled. The lawyer arrived late. The lawyer advised that he had not brought his books and records up to date, nor had he been maintaining them since opening his sole practice in 2000. He admitted that he had been delaying bringing his books and records up to date because he had difficulty finding a bookkeeper, and that he had little energy due to health problems.
[12] The lawyer and the investigator reached the following agreement:
a) the lawyer would sign an undertaking to have his books and records brought up to date and into compliance by 1 May 2003;
b) co-signing controls were to be placed on the lawyer's trust account, the co-signor to be approved by the Law Society;
c) The lawyer agreed that his current trust account would be frozen by the Law Society; and,
d) The lawyer agreed to open a second trust account, to be opened jointly with the co-signor.
[13] Between 19 March 2003 and 16 October 2003 the Law Society investigator made numerous, unsuccessful attempts to contact the lawyer (variously by telephone calls (at least 12 times), voice mail message and fax (at least four times)).
[14] The lawyer did not co-operate with the Law Society’s Spot Audit Department’s attempt to perform an audit on his books and records in 2001. The lawyer has also failed to co-operate with the investigation into his books and records since the involvement of the Investigations Department in March 2003.
[15] The lawyer admits to not maintaining his books and records since he opened his sole practice in 2000. The reasons he gives for not doing so are his health problems and his inability to secure the employment of a competent bookkeeper.
[16] The lawyer admits to having the office accounting software Simply Accounting all along, however, after several unsuccessful attempts at using the software he reverted to handwritten books.
[17] During the period of 16 September 2003 to 18 October 2003 the lawyer was admitted as a patient at Homewood Health Centre in Guelph.
[18] In 2001, a client, D.V. retained the lawyer to act on a Children’s Aid matter, and various other matters including a matrimonial matter, some traffic violations and an insurance matter. The client paid the lawyer a total of $5,750 in retainer fees. A short time later, the lawyer advised the client that he was only able to assist her with her matrimonial matter. The lawyer promised to return part of the retainer for the matters he was unable to fulfill. The client has never received the refund or a statement of account.
[19] The lawyer spent significant time on D.V.’s child protection matter from September 2001 to December 2002. The lawyer states: that approximately 125.9 hours were spent on the child protection matter, which does not include numerous lengthy telephone calls and sending and receiving facsimile materials; that photocopying charges and transcripts were paid out of his pocket; and that he charged D.V. a discounted fee in the amount of $70 per hour. He admits that while he did not provide D.V. with a proper account for this period, he did provide her with a copy of the hours and tasks completed.
[20] In June 2002, the lawyer ceased communications with D.V. despite her numerous attempts to obtain an update on her matter. On 26 June 2002, D.V. officially terminated the retainer and requested the contents of her file. The lawyer did not respond to D.V.’s request for her file nor did he forward a statement of account for work completed.
[21] D.V. has received a partial statement of account for her child custody matter, however she has misplaced it. The lawyer has not accounted to D.V. for the remainder of her retainer. The lawyer states that he has returned a portion of D.V.’s retainer to her in the amount of $1,000 but admits to not providing a full accounting to her. The lawyer also admits to not responding to D.V.’s emails or telephone calls.
[22] On 23 October 2002, the Law Society's Complaints Resolution Officer telephoned the lawyer to discuss the allegations raised by D.V. The lawyer admitted to not returning D.V.’s telephone calls and admitted to receiving retainer fees from her. The lawyer indicates that D.V.’s first retainer was in the amount of $1,200, and the second was a certified cheque in the amount of $5,000, however, he alleges that he returned $1,000 of the retainer to D.V. The Law Society requested that the lawyer write to D.V. and provide an update on all of her matters.
[23] Between 6 January 2002 and 21 October 2003 the Law Society attempted to contact the lawyer (at least five telephone calls and two faxes) to obtain a copy of his promised written response to D.V. The lawyer admits that he attempted to prepare a response to the Law Society and D.V. but was unable to complete it.
[24] On 1 December 2003, a representative from D.V.’s new solicitor P.L., telephoned the Law Society and advised that their office received D.V.’s file from the lawyer on 2 October 2003.
[25] As noted previously, the lawyer was admitted as a patient at the Homewood Health Centre in Guelph from September 16, 2003 to October 18, 2003
[26] The lawyer does not have a discipline history.
[27] This application arose as a result of attempts by the Law Society to perform a spot audit. The lawyer was not co-operative in efforts to perform the audit.
[28] The lawyer was called to the bar in February 1994, and has been in sole practice. The lawyer left his practice to hold office as band Chief. This is a full-time job. It was unrealistic of the lawyer to expect he could hold that job and continue to practice law at the same time.
[29] The lawyer produced a letter from a doctor who was treating him for substance abuse and depression. Although the medical evidence was not detailed, the lawyer admitted he had suffered from the diseases of depression and substance abuse all his life, and that for some periods, the diseases were under control.
[30] The lawyer was admitted for treatment to Homewood Health Centre in Guelph, for 30 days in Fall 2003. A symptom of his illness was that he had not been able to bill legal aid for three years, and as a result, had lost thousands of dollars.
[31] The lawyer admitted that he does not have the energy needed to do what he needs to do. He admitted that he feels humiliated. He also admitted that he did not intend to practise law for at least six months, and that he is getting medical treatment.
[32] The lawyer contacted the Ontario Bar Assistance Program, and was referred to a psychotherapist. At the time of the hearing, the lawyer was on paxil and lithium, and was involved in an intensive program, was seeing Dr. Judson two times per week, and providing urine samples.
[33] This lawyer needs to get well. It is necessary to determine a penalty that both recognizes the illnesses that the lawyer is currently fighting and working on, and a penalty that protects the public. This is the appropriate penalty:
a) two months suspension, definite;
b) >an indefinite suspension until the lawyer produces his books and records to the satisfaction of the Law Society;
c) the lawyer will produce a letter from a medical practitioner indicating that he is fit to return to practice;
d) on his return to practice, the lawyer will enter practice review;
e) the lawyer will provide a proper accounting to the client regarding the retainer and the work performed; and
f) no costs.
