Law Society of Ontario v. Comartin 2019 ONLSTH 160 (CanLII)

In December of 2019, the Law Society Tribunal found that a lawyer had engaged in professional misconduct while acting as an estate trustee, an attorney, under powers of attorney, and a solicitor for the same estate. The panel specifically found that Robert Comartin (the “Lawyer”), who did not appear at the hearing:

“(i) fell below the required standards of competence as a lawyer; (ii) misappropriated $2,400 from the estate; (iii) failed to be honest and candid with the court and others in his application to pass accounts; and, (iv) engaged in conduct unbecoming of a lawyer when he paid himself monies to which he was not entitled from the estate.”

Background and Findings

The Lawyer was one of two estate trustees of the estate of a deceased person who had died in 2004. He was also one of two attorneys for the deceased’s son, who was incapable of managing his own property and personal care, and was the beneficiary of a Henson trust. The Lawyer’s co-estate trustee and co-attorney were not the same person. The panel noted that the Lawyer did not have prior experience acting as an estate trustee, or with administering a Henson trust.

The panel found that the Lawyer had:

• Minimized the involvement of his co-estate trustee and co-attorney by providing both with little information regarding these roles. The co-estate trustee, who trusted the Lawyer to manage the administration because he was a lawyer, was provided with blank checks to sign and little other opportunity to be involved. The co-attorney did not even understand that she was an attorney for property, or for personal care, and was not provided with financial information or an explanation of her duties as a fiduciary.
• Acted as a solicitor for the estate without a formal retainer, and without the other estate trustee’s understanding that he was providing legal services.
• Failed to pass his accounts for over ten years, and eventually provided accounts that the panel described as “deficient and misleading”.
• Taken compensation for his work as an attorney, and given compensation to the other attorney, despite the power of attorney documents not permitting the taking of compensation.
• Mischaracterized his administration of the estate as legal work, and billed the estate for it at his legal rate. The result was that, while not formally claiming any compensation as an estate trustee, he had charged in fees over $350,000 to $600,000, paid out of the estate. The other estate trustee received a far more reasonable amount taken as compensation. The panel also found that the Lawyer’s accounts were “fabricated”.
• Failed to serve a number of relevant parties when he attempted to pass his accounts, while also failing to disclose that the beneficiary of the Henson trust was a person with a disability and had no litigation guardian.
• Billed the estate for the time that he had spent on a spot audit of his practice by the Law Society.

Takeaways

For lawyers involved in estate administration and related work, it is important that they be mindful of their various professional responsibilities at all times.

The panel’s findings highlight a number of dangerous situations that a lawyer should cautiously avoid falling into, including but not limited to: providing legal services without a clear retainer agreement, overcharging for services by improperly docketing their time, and, over-taking compensation in a fiduciary role.

Lawyers must also be mindful of the position of trust that they occupy, even in relation to co-fiduciaries.

In this case, the panel noted that the Lawyer’s fellow estate trustee had allowed the Lawyer to proceed with little financial disclosure precisely because of the trust that he placed in him as a lawyer.

For other fiduciaries, such as non-lawyer estate trustees and attorneys, it is important that they understand their various duties, and position themselves to carry those duties out.

Those who do not understand their specific duties should seek to learn about them promptly. Co-trustees and co-attorneys should be transparent with each other, expect transparency from each other, and cooperate in making major decisions.

Information should be shared freely between them. Fiduciaries should be aware of their obligations to account, and keep detailed financial records that are accurate and easily explained to a court, in order to best protect themselves from any sort of liability. They should also seek to understand what entitlements they might have in their particular situations, such as whether they may claim compensation and in what amount.

For other clients involved in estate, or substitute decision-making matters, it is again, important that they understand what information they are entitled to, and be prepared to take steps to ensure that this information is disclosed to them. By pushing for transparency, clients can put themselves in a position to spot red flags before the assets of an estate, or of an incapable person are so greatly depleted.

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.