Law Times

Law Times • June 7, 2010 NEWS PAGE 5 'We are not revisiting the principle': Millar Continued from page 1 the amendments he presented were the product of a rigorous process. "It's a good point but it's not an easy point, and we wrestled long and very te- diously with how best to structure these principles," he said. The functions of the new emeri- tus benchers, the honourary ti- tle given to elected benchers who reach the 12-year limit, irked an- other former treasurer, Sydney Rob- ins. They can sit on hearing panels, appeal panels, and standing commit- tees but can't vote at Convocation. No special provisions exist for emeritus benchers who once served as treasurer, effectively cutting them off from the body they once headed, Robins said. "To come back here and not be pres- ent in Convocation where decisions are made, where the action is, is not something that would be very desir- able, and I don't think it's in the best interests of Convocation," Rob- ins said. "I don't know anyone, any organiza- tion who has treated, in my view, a current treasurer, an immediate past treasurer, an im- mediate past chair, im- mediate past president, in as what I consider a shabby a way as that." Robins also suggest- ed the timing of the election for treasurer could result in man- dated one-year terms as opposed to the Derry Millar customary two years. That's because elec- tions occur in the first and third years of four- year bencher terms, meaning benchers with 11 years of experience could become treasurer and then have to step down from the post just a year later when they reach the 12-year limit. Heintzman ad- mitted the task force had missed that possi- bility in its attempts to account for every per- mutation. "I would be very sympathetic to that amendment being made, but again, I would have to think it out. I wish I had heard it earlier." Bradley Wright, a bencher from Ot- tawa, also suggested setting the new bylaws aside until the problems are ironed out. "There are numerous flaws with this bylaw, and the defence of it is that the task force worked very hard on it," he said. "That's an insufficient defence." Treasurer Derry Millar intervened testily on a number of occasions as some benchers returned to arguments made in the December debate against the reforms. "I appreciate there are people in the room who voted against these reforms, but we are not revisiting the principle adopted by Convocation today," he said. LT Cengarle admitted to making loans Continued from page 1 Cengarle to make a probate ap- plication after the death of the testator in 1979. In 1988, the same person asked Cengarle to take over the trustee role with the estate valued at $250,000. Cengarle admitted to mak- ing the loans but denied they were imprudent. They included one for $118,000 to his legal assistant, who in turn lent it to borrower clients of the firm with cash-flow problems who were receiving threats from their lender. It was supposed to be repaid within weeks, but the clients eventually went bank- rupt. The loan was eventually repaid after the law society's in- vestigation began. At the original hearing, Cen- garle argued he was acting only as estate trustee and not in his capacity as a lawyer. He said there's no such thing as a "so- licitor for the estate" in law and claimed he owed no other du- ties because of his law licence. The appeal panel highlight- ed passages from the original hearing in which Murray chal- lenged Cengarle after admitting to holding funds in his firm's trust account. "Well, in doing it that way, you are acting as a solicitor," Mur- ray said. "You are putting that money into your trust account . . . for a client, and the client is Sykes estate; isn't that right?" Murray later told Cengarle that "it defies logic for you to say that you weren't acting as an estate solicitor, and that is as I see it based on the evi- dence so far." Taken together, the interven- tions "appear to be attempts to extract a clear admission from the lawyer that, contrary to the theory of the defence, he was indeed acting as a solicitor for 'the estate' and not only as an estate trustee," Banack wrote. In his dissenting opinion on appeal, Bencher Bradley the Wright defended Murray and the rest of the panel, saying there was no appearance of bias. "It is my contention that the hearing panel's interventions were the product of their genu- ine and understandable puzzle- ment at several of Mr. Cengarle's positions and the panel's desire to express their doubts about them and to give him and his counsel opportunities to address those doubts," he wrote. Wright also said that by ex- pressing doubts with qualifiers such as "so far" and "at the moment," Murray showed that his mind was open. "Given that no miscarriage of justice occurred and given the lack of bias, the fairest result would be to uphold the find- ings of the panel and trust that Mr. Cengarle comes to realize that the penalty they imposed was at the low end of the range for the misconduct established in this matter." Wilton says he couldn't find any other examples of a law society appeal panel making a finding of reasonable appre- hension of bias as he prepared for the case. He says the unique dynamics among benchers hearing the case made the de- cision even more noteworthy. "An appeal panel of benchers is being called upon to find against fellow benchers, so these are individuals who they interact with on a regular basis. The panel was prepared to make this difficult decision even if it makes implied criticisms of fel- low benchers. To me, it demon- strates that the law society can be robust and very fair in its self-regulating function." However, Wilton says the decision to order a new hearing rather than put an end to the matter was a disappointment. "In many ways, it's a pyrrhic victory. He won but he didn't win and he's back to Square 1 again. I think we have some really strong defences and I've always believed that. So I'm optimistic we'll have a positive result next time." 'To me, it demonstrates that the law society can be robust and very fair in its self-regulat- ing function,' Matthew Wilton LT says of the appeal ruling. When it comes to IP in Canada, We're Well Read Ridout & Maybee LLP: Editors of the Canadian Patent Reporter it all starts somewhere www.ridoutmaybee.com Ridout_LT_Feb9-16_09.indd 1 www.lawtimesnews.com 2/5/09 10:52:55 AM

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