On February 21, 2024, the Hearing Division of the Law Society of Ontario (“LSO”) released its decision in Law Society of Ontario v. Sharan,[1] a case which concerned a motion brought for an interlocutory order under s. 49.27 of the Law Society Act,[2] and Rules 8 and 12 of the Rules of Practice and Procedure[3] for the purpose of suspending the licence of a practicing lawyer (the “Respondent”).
The case surrounded allegations that the Respondent attempted to destroy evidence and mislead the Law Society during an investigation interview concerning the Respondent’s purchase of the home of her elderly neighbour in a private sale, on favourable terms, when the neighbour may have lacked capacity.
Background
The Respondent is 49 years old and has been licenced to practice law in Ontario since January 2021.[4] On April 6, 2022, the LSO received a complaint regarding a suspicious transaction involving a lawyer and a vulnerable older adult (“Ms. A”). Ms. A and the Respondent lived across the street from each other in Burlington, Ontario.
On July 9, 2021, Ms. A executed an agreement of purchase and sale (“APS”) wherein she agreed to sell her home to the Respondent and her husband for $900,000, with a deposit of $5,000, and a closing date of April 7, 2022. On October 31, 2021, Ms. A executed a power of attorney for property (the “2021 POA”) in favour of her tenant (the “Tenant”). On November 11, 2021, Ms. A also executed a “living will” stating that she was in the process of selling her home and that she intended to make a gift to the Tenant in the amount of $100,000. On January 13, 2022, Ms. A executed a power of attorney for personal care and property in favour of the Respondent, with the Tenant as an alternative attorney. Also on January 13, Ms. A executed a last will and testament which named the Respondent as her estate trustee. On April 11, 2022, Ms. A’s home was transferred to the Respondent and her husband for $900,000, by way of the 2021 POA.[5]
Ms. A was reported as having capacity issues, having been diagnosed with Alzheimer’s. In December of 2021, her doctor determined she suffered from dementia and was unable to function independently or manage her finances. Notwithstanding this, the Respondent proceeded to purchase her home in a private sale, at a price that was well below fair market value.[6]
The family of Ms. A held a family meeting which included Ms. A, her family, the Respondent, and the Tenant for the purposes of discussing the potential sale.[7] The family later learned that the Respondent contacted Ms. A’s financial advisor and misrepresented herself as Ms. A’s lawyer to discuss Ms. A’s finances.[8] Unbeknownst to the family, the sale of Ms. A’s home closed. Upon learning this, they contacted Halton Police and later commenced civil proceedings against the Respondent, her husband, and the Tenant.[9]
Interview with the Investigator
During the interview, the Respondent was questioned on several issues, including the $100,000 to the Tenant from the proceeds of the sale. The Respondent told the LSO that this was in repayment of a loan for renovations to the basement of Ms. A’s home, however, no proof or supporting documentation was provided.
While the Respondent acknowledged the family meeting in 2021 where family raised issues of Ms. A’s capacity, the Respondent told the investigator that when preparing the APS, the 2021 POA, and the living will, she had no concerns about Ms. A’s mental capacity. However, during the interview, evidence was uncovered that as early as December 14, 2021, the Respondent was aware of a doctor’s note which found Ms. A incapable of living independently or managing her finances.
During the interview, the investigator asked the Respondent to share and forward several relevant emails related to her transactions with Ms. A and the Tenant. During this time, she took a brief break to get water. When she returned, she was unable to forward two requested emails and was directed to open her deleted items folder. She was also asked to click on a link which would recover emails that had been recently deleted or removed. A screenshot of recovered items taken during the video-recorded interview shows that the Respondent deleted four emails within the span of four minutes, on the day of the interview, when she took a break to get water.[10]
Analysis
The LSO found that the allegations against the Respondent demonstrate clear concerns about her integrity and trustworthiness. The evidence suggests that she was aware of Ms. A’s capacity issues. The decision held that “[a] prudent and ethical lawyer is obliged to take every necessary step to satisfy her- or himself of a party’s capacity before proceeding with a sale, especially in respect of an older and potentially vulnerable individual.”[11]
The Respondent’s behavior with the financial advisor raised questions about her integrity. Where it concerned the sale, the Respondent took no attempts to address the inherent conflict of interest that existed in preparing estate planning documents on behalf of Ms. A.[12]
Further, where it concerned her conduct in deleting emails during the investigation interview, the decisions noted there was serious, compelling and credible evidence demonstrating that the Respondent apparently engaged in dishonest misconduct which might have impeded the regulatory and supervisory functions of the Law Society.[13]
Ms. A was a vulnerable older adult and the deal which transpired was not financially advantageous to her as her home was sold at less than fair market value and facilitated a $100,000 “windfall” to the Tenant. The Respondent and her husband provided a minimal (0.556 %) down payment of $5,000 for the $900,000 purchase. Concerningly, Ms. A was never referred to and never obtained independent legal advice in the transaction. In fact, the lawyer who represented her in the transaction was a colleague or acquaintance of the Respondent.
Disposition
The Tribunal found that the evidence before them suggests “a troubling lack of honesty and integrity in her dealings with Ms. A (a vulnerable individual), with the family of Ms. A, with her regulator and with others including the financial advisor.
The Respondent’s licence to practice law was suspended on an interlocutory basis. That order is to remain in effect until a final order is made in any application related to the motion or if the Law Society’s Tribunal varies or cancels the order.
Concluding Comments
This is yet another alarming example of a professional, stepping outside of the bounds of their duties and obligations to take advantage of a vulnerable older adult for personal gain. The decision of the Hearing Division’s panel is a stark reminder to act with integrity at all times and shows clearly that this kind of conduct will not be taken lightly by the LSO.
—
[1] 2024 ONLSTH 21 [Sharan].
[2] RSO 1990, c. L.8 [Act].
[3] Law Society Tribunal, “Rules of Practice and Procedure” (2024), accessed online: https://lawsocietytribunal.ca/rules-of-practice/.
[4] The Respondent received her law degree in Delhi, India in 1999, and practiced there from 1999-2003. She received a master’s degree in law in Cardiff, Wales in 2004, practising law in Wales part-time. In 2010, she relocated to Ontario with her family. From approximately 2012 onwards she worked as a law clerk or legal assistant in different law offices. In 2015 she started her NCA exams which she passed in 2018.
[5] Sharan, supra note 1 at paras 7-9.
[6] Pursuant to an order obtained by Ms. A’s family, an appraisal of the home determined its value as at July 9, 2021, to be $968,000 and $1,100,000 as at April 12, 2022.
[7] At this meeting the family advised that they were not opposed to the sale but wished that the home be sold for at least fair market value. The Respondent was also reported to have dismissed the family’s concerns over Ms. A’s capacity issues by saying Ms. A was not “going crazy.”
[8] The financial advisor informed the Respondent that she could only communicate with the designated POA pursuant to the POA document that had been submitted, along with a doctor’s note.
[9] The family obtained a number of orders, including an order: appointing counsel for Ms. A pursuant to s. 3 of the Substitute Decisions Act; declaring Ms. A incapable of managing her property and personal care; appointing family members as guardians of Ms. A; registering a Certificate of Pending Litigation on title against Ms. A’s property; an interim injunction against the Respondent to refrain from contacting Ms. A; and compelling the Respondent and her husband to permit access to the property to prepare an appraisal.
[10] Sharan, supra note 1, at paras 43-44.
[11] Ibid., at para 59.
[12] Ibid., at paras 60-61.
[13] Ibid., at para 62.
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Written by: Brett Book
Posted on: March 18, 2024
Categories: Commentary, WEL Newsletter
On February 21, 2024, the Hearing Division of the Law Society of Ontario (“LSO”) released its decision in Law Society of Ontario v. Sharan,[1] a case which concerned a motion brought for an interlocutory order under s. 49.27 of the Law Society Act,[2] and Rules 8 and 12 of the Rules of Practice and Procedure[3] for the purpose of suspending the licence of a practicing lawyer (the “Respondent”).
The case surrounded allegations that the Respondent attempted to destroy evidence and mislead the Law Society during an investigation interview concerning the Respondent’s purchase of the home of her elderly neighbour in a private sale, on favourable terms, when the neighbour may have lacked capacity.
Background
The Respondent is 49 years old and has been licenced to practice law in Ontario since January 2021.[4] On April 6, 2022, the LSO received a complaint regarding a suspicious transaction involving a lawyer and a vulnerable older adult (“Ms. A”). Ms. A and the Respondent lived across the street from each other in Burlington, Ontario.
On July 9, 2021, Ms. A executed an agreement of purchase and sale (“APS”) wherein she agreed to sell her home to the Respondent and her husband for $900,000, with a deposit of $5,000, and a closing date of April 7, 2022. On October 31, 2021, Ms. A executed a power of attorney for property (the “2021 POA”) in favour of her tenant (the “Tenant”). On November 11, 2021, Ms. A also executed a “living will” stating that she was in the process of selling her home and that she intended to make a gift to the Tenant in the amount of $100,000. On January 13, 2022, Ms. A executed a power of attorney for personal care and property in favour of the Respondent, with the Tenant as an alternative attorney. Also on January 13, Ms. A executed a last will and testament which named the Respondent as her estate trustee. On April 11, 2022, Ms. A’s home was transferred to the Respondent and her husband for $900,000, by way of the 2021 POA.[5]
Ms. A was reported as having capacity issues, having been diagnosed with Alzheimer’s. In December of 2021, her doctor determined she suffered from dementia and was unable to function independently or manage her finances. Notwithstanding this, the Respondent proceeded to purchase her home in a private sale, at a price that was well below fair market value.[6]
The family of Ms. A held a family meeting which included Ms. A, her family, the Respondent, and the Tenant for the purposes of discussing the potential sale.[7] The family later learned that the Respondent contacted Ms. A’s financial advisor and misrepresented herself as Ms. A’s lawyer to discuss Ms. A’s finances.[8] Unbeknownst to the family, the sale of Ms. A’s home closed. Upon learning this, they contacted Halton Police and later commenced civil proceedings against the Respondent, her husband, and the Tenant.[9]
Interview with the Investigator
During the interview, the Respondent was questioned on several issues, including the $100,000 to the Tenant from the proceeds of the sale. The Respondent told the LSO that this was in repayment of a loan for renovations to the basement of Ms. A’s home, however, no proof or supporting documentation was provided.
While the Respondent acknowledged the family meeting in 2021 where family raised issues of Ms. A’s capacity, the Respondent told the investigator that when preparing the APS, the 2021 POA, and the living will, she had no concerns about Ms. A’s mental capacity. However, during the interview, evidence was uncovered that as early as December 14, 2021, the Respondent was aware of a doctor’s note which found Ms. A incapable of living independently or managing her finances.
During the interview, the investigator asked the Respondent to share and forward several relevant emails related to her transactions with Ms. A and the Tenant. During this time, she took a brief break to get water. When she returned, she was unable to forward two requested emails and was directed to open her deleted items folder. She was also asked to click on a link which would recover emails that had been recently deleted or removed. A screenshot of recovered items taken during the video-recorded interview shows that the Respondent deleted four emails within the span of four minutes, on the day of the interview, when she took a break to get water.[10]
Analysis
The LSO found that the allegations against the Respondent demonstrate clear concerns about her integrity and trustworthiness. The evidence suggests that she was aware of Ms. A’s capacity issues. The decision held that “[a] prudent and ethical lawyer is obliged to take every necessary step to satisfy her- or himself of a party’s capacity before proceeding with a sale, especially in respect of an older and potentially vulnerable individual.”[11]
The Respondent’s behavior with the financial advisor raised questions about her integrity. Where it concerned the sale, the Respondent took no attempts to address the inherent conflict of interest that existed in preparing estate planning documents on behalf of Ms. A.[12]
Further, where it concerned her conduct in deleting emails during the investigation interview, the decisions noted there was serious, compelling and credible evidence demonstrating that the Respondent apparently engaged in dishonest misconduct which might have impeded the regulatory and supervisory functions of the Law Society.[13]
Ms. A was a vulnerable older adult and the deal which transpired was not financially advantageous to her as her home was sold at less than fair market value and facilitated a $100,000 “windfall” to the Tenant. The Respondent and her husband provided a minimal (0.556 %) down payment of $5,000 for the $900,000 purchase. Concerningly, Ms. A was never referred to and never obtained independent legal advice in the transaction. In fact, the lawyer who represented her in the transaction was a colleague or acquaintance of the Respondent.
Disposition
The Tribunal found that the evidence before them suggests “a troubling lack of honesty and integrity in her dealings with Ms. A (a vulnerable individual), with the family of Ms. A, with her regulator and with others including the financial advisor.
The Respondent’s licence to practice law was suspended on an interlocutory basis. That order is to remain in effect until a final order is made in any application related to the motion or if the Law Society’s Tribunal varies or cancels the order.
Concluding Comments
This is yet another alarming example of a professional, stepping outside of the bounds of their duties and obligations to take advantage of a vulnerable older adult for personal gain. The decision of the Hearing Division’s panel is a stark reminder to act with integrity at all times and shows clearly that this kind of conduct will not be taken lightly by the LSO.
—
[1] 2024 ONLSTH 21 [Sharan].
[2] RSO 1990, c. L.8 [Act].
[3] Law Society Tribunal, “Rules of Practice and Procedure” (2024), accessed online: https://lawsocietytribunal.ca/rules-of-practice/.
[4] The Respondent received her law degree in Delhi, India in 1999, and practiced there from 1999-2003. She received a master’s degree in law in Cardiff, Wales in 2004, practising law in Wales part-time. In 2010, she relocated to Ontario with her family. From approximately 2012 onwards she worked as a law clerk or legal assistant in different law offices. In 2015 she started her NCA exams which she passed in 2018.
[5] Sharan, supra note 1 at paras 7-9.
[6] Pursuant to an order obtained by Ms. A’s family, an appraisal of the home determined its value as at July 9, 2021, to be $968,000 and $1,100,000 as at April 12, 2022.
[7] At this meeting the family advised that they were not opposed to the sale but wished that the home be sold for at least fair market value. The Respondent was also reported to have dismissed the family’s concerns over Ms. A’s capacity issues by saying Ms. A was not “going crazy.”
[8] The financial advisor informed the Respondent that she could only communicate with the designated POA pursuant to the POA document that had been submitted, along with a doctor’s note.
[9] The family obtained a number of orders, including an order: appointing counsel for Ms. A pursuant to s. 3 of the Substitute Decisions Act; declaring Ms. A incapable of managing her property and personal care; appointing family members as guardians of Ms. A; registering a Certificate of Pending Litigation on title against Ms. A’s property; an interim injunction against the Respondent to refrain from contacting Ms. A; and compelling the Respondent and her husband to permit access to the property to prepare an appraisal.
[10] Sharan, supra note 1, at paras 43-44.
[11] Ibid., at para 59.
[12] Ibid., at paras 60-61.
[13] Ibid., at para 62.
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