Law Times

Law Times • may 7, 2018 Page 3 www.lawtimesnews.com Ottawa lawyer has licence revoked by tribunal BY DALE SMITH For Law Times O ntario's Law Society Tribunal has ordered that an Ottawa law- yer's licence be re- voked after allegations of misal- location and misappropriation of client funds from his firm's trust account. Paul McEnery was apparently suffering from memory loss following his re- turn to practice after suffering a stroke in the summer of 2013. According to the Law Society of Ontario's Request to Admit, McEnery had misappropri- ated or misapplied funds from 10 clients, totalling $116,198.09 in funds that were found to be misappropriated and another $2,491,603.13 in funds that were either misappropriated or mis- applied. According to the request to admit, concerns were brought to McEnery's partner, Eric Wil- liams, in June of 2015 regarding McEnery's memory, as well as ir- regularities with the trust fund. In October of that year, Wil- liams contacted the Law Society. William Trudell, a sole prac- titioner based in Toronto who represented McEnery in the proceedings, says his client had health issues with which he was grappling. The episode should be a reminder to lawyers to look after themselves, he says. "We have to really monitor our health and take ourselves out of the practice when it really is time," says Trudell. "We need to rely on colleagues to help us make that decision, but this is a sad and unique case in some ways." The request to admit asks the lawyer to admit or deny the allegations, and if not denied within a certain period of time, it is deemed to be the evidence. Trudell says that because McEn- ery was unable to confirm or deny the request to admit, that became the uncontested evi- dence. On Dec. 9, 2015, the Law Society Tribunal's hearing di- vision ordered an interim sus- pension of McEnery's licence to practise law until a motion for an interlocutory suspension could be heard. At various points in the pro- ceeding, Trudell grew concerned about his ability to receive in- structions from McEnery be- cause of his memory issues, so he was appointed amicus for some pre-hearing conferences. Trudell says that when the hear- ing did happen, he did act as counsel, as McEnery met the narrow definition of fitness. "He was able to instruct me in relation to the final hearing," says Trudell. "His health is very bad. He really doesn't have a memory of the events, so it really ended up being a difficult and sad case at the end. "The problem at that par- ticular time and throughout was that he was really unable to help in terms of what happened," says Trudell. McEnery remained suspend- ed until the hearing on April 10, when his licence was revoked by order of the Law Society Tribu- nal hearing division panel. He was also ordered to pay the Law Society's compensation fund. "The Law Society's focus is on protecting the public and we regulate to ensure that lawyers and paralegals abide by the law society's rules, bylaws, under the Law Society Act," said Susan Tonkin, spokeswoman for the Law Society of Ontario, in an emailed response. "When there are allegations of misconduct, we investigate and take disciplinary action where warranted. The public confidence and trust in the legal profession and the administra- tion of justice is critical." Daniel Naymark of Naymark Law in Toronto says the law soci- ety can protect the public under a couple of different schemes — one related to conduct and one related to capacity. "Often, one sees lawyers do- ing things that could be classi- fied as misconduct when the un- derlying issue is really a capacity issue," says Naymark. "There are questions of how apt the conduct scheme is to a situation that is really a capacity issue because there is a different stigma and potentially different practical outcomes when the is- sue is labelled as misconduct as opposed to incapacity." Naymark adds that the case should be a reminder that in- capacity isn't a justification for misconduct. "If you as a lawyer are wor- ried that you have some kind of health problem that prevents you from fulfilling your profes- sional responsibilities to the ex- tent that you aware of that, you would be well advised to try to address it in a way that prevents you becoming the subject of dis- cipline," says Naymark. Trudell says it's obvious that McEnery did not personally benefit from the funds, and that he really has nothing at a point where he can no longer manage his own affairs. "I didn't have any informa- tion that he benefited — his life- style didn't change and he and his family lost significantly," says Trudell. He says that through the course of the investigation and hearings, McEnery would have good days and bad days, but that toward the end, the bad days would take over in terms of his memory. "I was able to help him in a limited way in the hearing," says Trudell. He says McEnery's firm, Wil- liams McEnery Barristers and Solicitors, now Williams LLP, bears no responsibility in terms of the events, but Trudell adds that, clearly, McEnery had be- gun to decline in terms of mem- ory and health issues. "Any situation when you have one partner in a partnership misapplying or misappropriat- ing trust funds is a devastating problem for all of the partners in the partnership," says Naymark. "If you as a lawyer have con- cerns about a partner's ability to manage trust funds in the way he or she is responsible for, that's something you really need to be proactive about and not wait un- til it's a problem." For those clients who lost funds due to McEnery's actions, the LSO has its compensation fund, which McEnery had been ordered to pay into as part of the tribunal's decision. "We have to take care of our- selves, and when we reach that certain time in our practices where we're not as sharp or our health is starting to diminish our ability to make decisions, we have to take ourselves out," says Trudell. "When someone who has nev- er been in difficulty before and suddenly find themselves in seri- ous difficulty, we all say, 'I wonder what happened?'" says Trudell. "We're still in that position, even though the matter is over. We can't answer that question about what happened and that's the sad part because, at a certain point in time, he would have liked to have been able to get to the bottom of it, but he wasn't able to." LT NEWS 0LFKDHO6FKDÀHU3DUWQHU'HQWRQV "This is the A-Z course about arbitration essentials - fabulous!" Gold Standard © Course in Commercial Arbitration Now Registering for the 2018/2019 Course Course and Registration details http://torontocommercialarbitrationsociety.com/ gold-standard-course-arbitration/ Untitled-5 1 2018-04-03 1:20 PM A Law Society of Ontario tribunal has ordered that an Ottawa lawyer's licence be revoked, after memory loss from a stroke. CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online Often, one sees lawyers doing things that could be classified as misconduct when the underlying issue is really a capacity issue. Daniel Naymark

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