Law Times

PAGE 4 NEWS January 10, 2011 • Law Times Suspended lawyer challenges LSUC BY MICHAEL McKIERNAN Law Times T he Ontario Securi- ties Commission has banned a Toronto lawyer from trading securities until a hearing can be held into allegations that he was in- volved in a fraudulent scheme that bilked U.K. investors out of almost $150,000. Th e OSC obtained its tem- porary cease order against Da- vid Michael O'Brien late last month after issuing a state- ment of allegations dated Dec. 8. In it, the OSC alleges that between July and December 2009, O'Brien recruited U.K. investors on behalf of Platinum International Investments Inc., an Ontario corporation reg- istered in Toronto. Th e OSC says Platinum promised the investors a premium rate on securities they held but de- manded payments upfront to cover performance bonds and non-resident taxes in Canada. It goes on to allege that money was wired to Platinum, which would then demand further payments before completing the trades. Th e investors refused, the sales never went through, and, according to the OSC, about $120,000, or 82 per cent of the money wired to Platinum, went to David M. O'Brien Professional Legal Corp. But O'Brien says he helped the company with its bank- ing and was merely distribut- ing money from his account in exchange for a percent- age of the funds that arrived in it. He says the threshold for a temporary cease or- der by the OSC is very low and denies any wrongdoing. "I got caught up because I was in the banking chain," he tells Law Times. "I was doing banking for these people but I didn't scam anyone. I didn't devise any schemes; I didn't make any calls; I didn't make any trades." O'Brien has had his law practice restricted ever since he received a 20-month suspen- sion in 1996 that has recently become the subject of a lawsuit against the Law Society of Up- per Canada. Michael Elliott, the law society's manager of monitoring and enforcement, is also named as a defendant. In the claim fi led with the Ontario Superior Court of Jus- tice on Oct. 22, O'Brien says the law society has stood in the way of his attempts to return to practice under supervision with a string of what he calls "frivolous objections." "Th e defendants have sys- tematically, deliberately, wil- fully, negligently, maliciously, and/or in breach of contrac- tual, fi duciary statutory, and other duties owed to the plain- tiff , interfered with the plain- tiff 's ability to earn a living and utilize his professional licence, from the point of the initial in- vestigation in the early 1990s to the present date," O'Brien claims. None of the allegations have been proven in court. O'Brien wants an astonish- ing $2.5 billion in damages plus $250 million in punitive damages. He's basing the mas- sive total on loss of income, business, and investment op- portunities he would have had in the course of his law practice. Susan Tonkin, a spokeswoman for the law society, says it hasn't yet seen O'Brien's claim and can't comment on it. O'Brien was called to the bar in 1986 and opened his own fi rm in 1988. By 1991, he states in his claim that his net income was $25,000 per month on the back of bill- ings in excess of $100,000 per month. Th ings began to go off the rails, according to O'Brien's claim, when he was involved in a serious car accident in February 1991 while in the midst of a planned expansion of his practice. He says he began to suff er diffi cul- ties with his practice almost im- mediately, including "short-term memory defi cits and other cog- nitive outcomes." However, he ploughed on with his expansion plans, hiring fi ve lawyers to work out of three offi ces and launching an advertising campaign. It was a decision, he admits in the claim, that proved "to be a business and professional disaster in the mak- ing." In 1992, a spot audit by the law society found he had trans- ferred trust money to himself without sending proper bill- ings to clients. It then found him guilty of professional mis- conduct in February 1996 for misapplying funds, failing to serve numerous clients, and failing to respond to commu- nication from the law society. O'Brien received a 20-month suspension as a result. By that time, he had already Ontario Lawyer's Phone Book 2011 Your most complete directory of Ontario lawyers, law firms, judges and courts With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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In his claim, O'Brien brush- es off the misconduct, blaming impairment from the car crash for "innocent errors" in offi ce billing and communication practices. At the same time, he blames the law society for be- ing able to practise just three years out of the past 16 and claims lawyers disciplined for more serious misconduct than his own could return to prac- tice more easily than he has found it. O'Brien says he never real- ized what he was committing himself to when he signed the undertaking. He alleges the law society's criteria for a suitable supervisor were "unnecessarily restrictive and commercially unreasonable." It allegedly turned down proposed super- visors because they had mi- nor disciplinary histories, and O'Brien claims the law society told him any members with open complaints against them were unsuitable. In 2002, he spent six months working under a law- yer in Woodbridge, Ont., but O'Brien says in his claim that the law society refused to give him credit for that time when he began working for another lawyer in Mississauga in 2005. After two years and nine months with that lawyer, O'Brien claims the law society denied him a full return to practice in late 2009 even though, he says, "there was no requirement that the en- tire period be completed with one lawyer." Th at was the "fi nal straw," O'Brien says. "Th ey destroyed my life. For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, A Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com OLPB_2011 LT-1/2pg 4X.indd 1 11/9/10 3:41:59 PM HA1210 Th ey took a fl ourishing busi- ness and they destroyed it. It would have been better for them to take my licence instead of keeping me in this state of perpetual suspension." 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