The Law Society of Upper Canada | Barreau du Haut-Canada
LAW SOCIETY HEARING PANEL
Citation: Law Society of Upper Canada V. Cameila Anderson, 2006 ONLSHP 0092
Date: November 21, 2006
Docket: 2005-00050, 2005-00127
File No.: CN33/05 and CN78/05
BETWEEN
The Law Society of Upper Canada,Applicant
v.
Cameila Anderson, Respondent of the City of Windsor
Before:
Joanne St. Lewis (chair)
Abdul A. Chahbar
J. James Wardlaw. Q.C.
Heard: May 31, 2006, in Toronto, Ontario
Counsel:
Lisa Freeman, for the applicant
Nadia Liva, for the respondent
REASONS FOR DECISION
INTRODUCTION
[1] The Law Society of Upper Canada (the Society) alleged that the member had engaged in professional misconduct by: borrowing from clients without ensuring that they had independent legal representation, failing to pay default judgments taken against her arising out of such borrowing, failing to satisfy financial obligations incurred in the course of her practice, practising law while under administrative suspension, and for several incidents of failure to serve clients including failing to respond to messages, misleading them, failing to report, failing to forward files to other solicitors, failing to account for money received on account, failing to represent them on Criminal Code charges, and failing to fulfil undertakings.
AGREED STATEMENT OF FACTS
[EDITED OUT: relates to clients other than Petar Vucicevich]
Background to the Borrowing Particulars (Particular I)
7. In and around May of 2000, Peter Vucicevich, an ongoing client, retained the Member to negotiate with his various creditors. At that time, the Member had a trust account with the HSBC Bank in Windsor. Mr. Vucicevich told the Member he had a valuable piece of machinery he was trying to sell, and that he would deposit the proceeds to her trust account when the sale was made. The Member, in turn, would use the proceeds to settle any outstanding claims by creditors.
8. On or about May 5, 2000, Mr. Vucicevich informed the Member he would be depositing $150,000.00 to her trust account. On the strength of this information, $15,000.00 was transferred from trust in payment of the Member's fees, and approximately $30,000.00 was transferred in trust funds were paid to Mr. Vucicevich's creditors [sic]. However, the $150,000.00 deposit was not made at that time. A conduct application (CN05/03) was issued in relation to these transfers. The Member raised the defence that the funds were transferred without the Member's instructions, and that the transfers were only discovered by her several weeks later. This defence was investigated by the Law Society, and in light of the Law Society's investigation, authorization to withdraw CN05/03 was successfully sought from PAC, and the conduct application was subsequently abandoned.
9. On May 25, 2000, Mr. Vucicevich told the Member that he had just sold a piece of machinery to a company called G&G Fab Inc, owned by two brothers, Frank and Gino Guglielmello, and a third party. The transaction took place in Toronto.
10. Mr. Vucicevich told the Member he had received a cheque in the amount of $143,800.00 as payment for the machine and that he had deposited it into the Member's trust account, via an HSBC Bank branch in Toronto. As G& G Fab. Inc., had their account at the same branch, the Bank was able to clear the cheque immediately, and informed Mr. Vucicevich accordingly.
11. Immediately after her conversation with Mr. Vucicevich on May 25th, the Member contacted the HSBC in Windsor, and spoke with a bank employee, Theresa Aymotte. Ms. Aymotte confirmed that a cheque in the amount of $143,800 had been deposited to the Member's trust account. The Member specifically asked if the cheque had cleared, and Ms. Aymotte responded in the affirmative.
12. In reliance on the information received from the bank, the Member immediately wrote three certified trust cheques, totaling $57,000.00, to her client as per his instructions. The Member also wrote six cheques totalling $41.302.08 to Helen Domitrovic, one of Mr. Vucicevich's creditors. These six cheques were not certified, and were not honoured due to insufficient funds in the Member's mixed trust account.
13. On May 26, 2000, the day after the Bank had confirmed the $143,000.00 deposit to the Member's trust account, Frank Guglielmello contacted the Bank and informed them that the cheque which Mr. Vucicevich had deposited was fraudulent. Apparently, Gino Guglielmello had kept a cheque which Frank had written to him in the amount of $51.00, and used it to create a phony cheque, which Gino gave to Mr. Vucicevich as payment for the machine. The Bank immediately reversed the deposit, causing a trust shortage in the amount of $102,000.00 to occur in the Member's account.
14. The Member later sued the HSBC bank as the Bank had not only confirmed the funds had been transferred into her trust account, but the bank also provided the Member with certified cheques derived from the funds. In November, 2005, the Member declared bankruptcy as a result of the financial chaos caused by the Bank' actions. Due to her financial situation, the Member was unable to continue litigation against the Bank and on the advice of her trustee in bankruptcy, settled the matter for $60,000. Of those funds, the Member is advised that $18,000 went to LPIC to cover payments to a client, legal fees and creditors.
15. Upon discovering the trust shortage caused by the bank's reversal, the Member attempted unsuccessfully to negotiate a resolution with the HSBC ombudsman. After having consulted with counsel, the Member wrote a letter to the Law Society, dated August 8, 2000, in which she reported the trust shortage. The Member consented to the freezing of her trust account, and opened a second trust account with co-signing controls. The Member maintained the trust shortage in the frozen account until December 10, 2002, when she made full restitution of $102,000.00 to the trust account.
[EDITED OUT: remainder of document that deals with personal issues] |
