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Ken Adessky/CFO: [ 23 ] The Council does not state in its decision that the appellant was convicted of embezzling a sum or is guilty of having used for a purpose other than that which was given him.

[ 37 ] However, these circumstances favor the appellant in his application for a stay

FOR THESE REASONS, THE COURT:

ORDERS the suspension of the provisional execution of the temporary delisting of four years imposed by the Disciplinary Board of the Québec Bar in its decision on penalty of 6 August 2014, in the case of 06-10-02593 Bar Disciplinary Board Quebec;


[ 32 ] At first, with regard to the removal of four years, the appellant raises arguments that, at this stage, appear defensible. Even more so, considering that the appellant offered to reimburse him AND the sum of $ 125,000, which it refused, and a settlement was reached Aug. 8, 2008 between all stakeholders including the caller and ET About this transaction, the Commission wrote:

[61] Under that regulation, the parties agreed that [Company B] would receive a total of 281,250 tradable shares of [Company A] (ie 125,000 original shares plus 156,250 new shares) to the amount invested April 15, 2008 when [Company A] FINRA receive permission for them to become tradable (Exhibit P-60). Similarly, Mr. MS and [company E] (for Mr. VF) also received shares of [Company A] (Exhibit P-60).

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http://www.canlii.org/fr/qc/qctp/doc/2014/2014qctp110/2014qctp110.html



http://www.canlii.org/fr/qc/qctp/doc/2014/2014qctp110/2014qctp110.html

629


Adessky c. Lawyers (Ordre des)


2014 QCTP 110


COURT OF OCCUPATION


(Practice Division)




CANADA

PROVINCE OF QUEBEC


DISTRICT


MONTREAL

No:


500-07-000862-148


DATE:


September 16, 2014


IN THE CHAIR:


THE HONOURABLE


JACQUES PACKAGE JCQ


KENNETH S. Adessky


CALLER-respondent


c.

CLAUDE G. LEDUC, in ad hoc trustee of the Quebec Bar


RESPONDENT-complainant

and

NANCY J. TRUDEL, as Secretary of the Disciplinary Board of the Québec Bar

GETTING INVOLVED


JUDGMENT


[ 1 ] The appellant asks me to order the suspension of radiation of four years imposed on him by the Disciplinary Board of the Québec Bar (the Council) in a decision on punishment made ??6 August 2014.

[ 2 ] This penalty is enforceable notwithstanding appeal following as required under Article 166, para. 2, para. 4 of the Professional Code [1] (C. prof.), because the appellant has previously been found guilty by the Council Decision of 29 April 2014 of the offense and denominated in the complaint against him:

3. From April 2008 to date, appropriated without the right and / or used for any other purpose a sum of $ 125,000 received from USF AND and / or [Company B] and deposited in his trust account, which sum was to be used for the purchase of tradable shares (free trading shares) of [Company A], all in contravention of sections 2.00.01 and 3.00.01 of the Code of Conduct lawyers ( RRQ, 1981, c. B-1, r-1 , as amended March 1, 2007, section 59.2 of the Professional Code (RSQ c. C-26 ) and section 3.06 of Regulations on Accounting and trust accounts of lawyers ( RRQ, 1981, c B-1, r.3. )

[ 3 ] These two decisions of the Board are subject to a motion to appeal on which the appellant requests the Court to refer as if it were reproduced in full in its motion for a stay.

BACKGROUND

[ 4 ] The original case of an inquiry request to the Bar of the trustee's office by a person identified by his initials ET

[ 5 ] Following an investigation following such termination, an assistant syndic of the Bar, in this case Mr. Jean-Michel Montbriand, comes to the conclusion that there are no grounds for complaint against the caller.

[ 6 ] When informed of this decision of the trustee's office, AND ask that this decision be reviewed. He gets satisfaction; the Review Committee decides that the trustee must complete its investigation:

Verify if, in virtue of Section 3.06 a) of the By-law Respecting accounting and trust accounts of advocates , Me Adessky dishursed sums Could Have Held In His trust account as he About did.

[ 7 ] After this decision of the Review Committee, the respondent investigates and decides at the end of it to bear against the appellant the following complaint, dated 28 September 2010:

1. In April 2008, filed a sum of $ 125,000 received from USF AND and / or [Company B] in his trust account so that this amount should not have to be filed, all con contravention of section 3.05 of the Regulation respecting accounting and trust accounts of lawyers , as amended March 1, 2007;

2. From April 2008 to August 18, 2008, failed to avoid any situation of conflict of interest by acting firstly as secretary, director, executive officer (CFO), the main shareholder and attorney the company [Company A], which was looking for funding and secondly, using his lawyer trust account to collect, retain and use the sum of $ 125,000 received from USF AND and / or of [Company B], all in contravention of section 3.06.06 of the Code of ethics of advocates (RRQ, 1981, c B-1, r-1. )

3. From April 2008 to date, appropriated without the right and / or used for any other purpose a sum of $ 125,000 received from USF AND and / or [Company B] and deposited in his trust account, which sum was to be used for the purchase of tradable shares (free trading shares) of [Company A], all in contravention of sections 2.00.01 and 3.00.01 of the Code of Conduct lawyers ( RRQ, 1981, c. B-1, r-1 , as amended March 1, 2007, section 59.2 of the Professional Code (RSQ c. C-26 ) and section 3.06 of Regulations on Accounting and trust accounts of lawyers ( RRQ, 1981, c B-1, r.3. )

4. On or about August 18, 2008, made a false statement and misled sir AND and / or [Company B] representing to him and letting him believe that the actions he received came from [the Company C] as they were from the [Company D], contrary to section 59.2 of the Professional Code (RSQ c. C-26 ) and sections 2.00.01 , 3.00.01 and 4.02.01 ( d) of the Code of Conduct for Lawyers (RRQ, 1981, c B-1, r-1. as amended March 1, 2007);

5. From April 2008 to 18 August 2008, while serving activities do not constitute the practice of the legal profession, failed to avoid creating or allowed to continue any ambiguity on quality under which he was not mentioning ET and / or [Company B] he was the secretary, a director and executive officer (CFO), a lawyer and a major shareholder of [Company A] while receiving, retaining and featuring an investment of $ 125,000 USF for the purchase of shares (free trading shares) in the capital of [Company A], all in contravention of Article 4.01.00.01 of Code of ethics of advocates (RRQ, 1981, c B-1, r-1. , as amended March 1, 2007);

6. From April 2008 to 18 August 2008, does not ensure that the activities he performed as part of a business or office as secretary, director and executive officer (CFO) of [ Company A] will undermine respect for their ethical obligations, including the honor, dignity and integrity of the legal profession using his legal status for ET and / or [Company B] a investment of $ 125,000 to be used for USF purchase tradable shares (free trading shares) in the capital of [Company A], without ever informing AND and / or [Company B] that this sum of $ 125,000 USF would be used for current operations of [Company A], the payment of legal bills for professional services due to his cabinet Adessky Lesage, all in contravention of Article 4.01.00.02 of lawyers Code of Conduct (RRQ 1981, c. B-1, r-1 , as amended March 1, 2007) and section 59.2 of the Professional Code (RSQ, c. C-26 );

7. On 18 August 2008, evaded or attempted to evade personal civil liability by ratifying a document titled "memorandum of settlement agreement", contrary to the provisions of sections 3.00.01 and 3.04.01 of the Code of Conduct for lawyers (RRQ, 1981, c. B-1, r-1 , as amended March 1, 2007) and in section 59.2 of the Professional Code (RSQ, c C-26 ).

[ 8 ] At the end of the investigation of this complaint for 12 days, the Board concluded that the appellant guilty on counts 2, 3 and 5.

[ 9 ] Subsequently, the parties are summoned to a hearing on punishment. For the reasons set out in its decision of 6 August 2014, the Commission imposed on the appellant fines of $ 5,000 on counts 2 and 5, and a temporary radiation of four years on count 3.

[ 10 ] The appellant appeals against these decisions. However, this appeal does not suspend the execution of the decision that, with respect to fines on counts 2 and 5. In terms of radiation than four years, as mentioned earlier, is enforceable notwithstanding appeal, Unless the Tribunal decides otherwise, the caller asks her request.

DISCUSSION

[ 11 ] The criteria taken into account when an application to suspend the enforcement of a judgment that the legislature declared enforceable notwithstanding appeal are:

- The economy of the law

- The apparent weakness of the contested decisions

- The existence of exceptional circumstances

- The existence of a serious and irreparable harm

- Balance of convenience.

[ 12 ] In considering the application for a stay, you have to weigh these criteria and determine if it is justified to grant the reprieve.



- The economy of the law

[ 13 ] Protection of the public is at the heart of disciplinary law. In this perspective, the legislature intended, first, that a professional convicted of an offense like that contained in Count 3 of the complaint against the appellant be removed (art. 156, para. 2 C. prof.) and, secondly, that this radiation is enforceable notwithstanding appeal (art. 166, para. 2 C. prof.).

[ 14 ] While in general the appeal of a decision suspends execution in the case, among others, radiation imposed under section 156 para. 2 C. prof., as is the case here, there is no such suspension. To get the professional in question must make the request and determine that it is in the conditions justify it.

[ 15 ] Under these conditions, the test for the economy of the law, in this case the Professional Code , is not favorable to the appellant.

[ 16 ] By cons, it is clear that the situation in this case is not among those that affect direct and immediate protection of the public.

- The apparent weakness of the contested decisions

[ 17 ] In a decision that makes 12 May 2010 in Légaré v. Occupational Therapists (Ordre des) [2] , Judge Denis Lavergne added that test "the seriousness of the issues raised."

[ 18 ] The application of this criterion is also a delicate approach. We must firstly examine the decisions in question and, secondly, to avoid ruling on the appeal fund.

[ 19 ] If the chances of success on appeal appear to already existent, obtaining a stay will not often granted.

[ 20 ] By cons, if the issues raised on appeal are serious and they suggest the possibility of a favorable outcome to the caller, the suspension should be considered subject to the application of other criteria.

[ 21 ] In this case, both the appeal of the decision on guilt that the appeal of the decision on sanction highlight weaknesses in the contested decisions, or at least serious questions.

[ 22 ] In the decision on guilt, the Council found the appellant guilty of the offense as worded, that is to say, "wrongfully appropriating and / or use for other purposes a sum of $ 125,000 ... ".

[ 23 ] The Council does not state in its decision that the appellant was convicted of embezzling a sum or is guilty of having used for a purpose other than that which was given him.

[ 24 ] However, as these are two different offenses, it was essential for the Council to say, it did not.

[ 25 ] The Council also decides that:

[362] For the Council, as soon as a person or company gives money to a lawyer becomes a client.

[ 26 ] However, the appellant submits a judgment of the Honourable David R. Collier, JCS, of 27 November 2012 [3] in which he writes:

[34] [...] A solicitor-client relationship Does not Arise from the mere receipt of funds for deposit. [... ]dropoff Window

(Citation omitted)

[ 27 ] This judgment was upheld by a judgment of the Court of Appeal of 17 April 2014 [4] .

[ 28 ] The client concept is important because the attachment provision on which the appellant was convicted is the section 3.00.01 of the Code of Conduct for lawyers [5] which provides:

The lawyer owes the client a duty of skill and obligations of loyalty, integrity, independence, impartiality, diligence and prudence.

(Emphasis added)

[ 29 ] In addition, AND instructions were not as clear as it claims, as indeed emphasizes Montbriand trustee's report, and the amounts that were given to the caller may have used for the purpose for which they were delivered, but prematurely. The Council does not specifically address this issue.

[ 30 ] While not limiting, the three points discussed above highlight serious issues that do not render illusory the appeal of the decision on guilt.

[ 31 ] With respect to the sanction, the Commission imposes on Count 3 a period of four years of radiation, although he mentions in paragraph 367 of its decision that "the respondent [...] been imprudent" .dropoff window

[ 32 ] At first, with regard to the removal of four years, the appellant raises arguments that, at this stage, appear defensible. Even more so, considering that the appellant offered to reimburse him AND the sum of $ 125,000, which it refused, and a settlement was reached Aug. 8, 2008 between all stakeholders including the caller and ET About this transaction, the Commission wrote:

[61] Under that regulation, the parties agreed that [Company B] would receive a total of 281,250 tradable shares of [Company A] (ie 125,000 original shares plus 156,250 new shares) to the amount invested April 15, 2008 when [Company A] FINRA receive permission for them to become tradable (Exhibit P-60). Similarly, Mr. MS and [company E] (for Mr. VF) also received shares of [Company A] (Exhibit P-60).

- The existence of exceptional circumstances

[ 33 ] In this case, not necessarily that circumstances can be regarded as exceptional, it remains that they are special.

[ 34 ] They reside in the fact that after an investigation in which he obtained all the relevant information, assistant syndic Jean-Michel Montbriand decided that there was no need to file a complaint against the caller. In his report to ET he wrote, among other things:

Your April 13 th, 2008 email to Me Adessky is not, in our opinion, as clear and Specifying, as you believe it to be.

[... ]dropoff Window

The interpretation made by me Adessky of your instructions Was therefore, in our opinion, a distinct and real possibility and can not Be Considered unreasonable.

[... ]dropoff Window

[...] Even if a lawyer is Adessky Me, Clearly several, if not most, de son action in the present case, as was done Were GCE representative.

[ 35 ] This means that an experienced trustee concludes at the end of its investigation that no disciplinary offense.

[ 36 ] It is understood that the review process was possible and that the subsequent steps are correct principle. But the fact remains is that a trustee decides that there is no material breach and later, based on essentially the same facts, a disciplinary board found him guilty of the offense and imposed radiation of four years.

[ 37 ] However, these circumstances favor the appellant in his application for a stay.

- Serious Injury and balance of convenience

[ 38 ] These two combined criteria also encourage the caller. As mentioned earlier, public protection is not seriously challenged and the public will suffer no prejudice or disadvantage if the radiation of four years imposed on the appellant is suspended.

[ 39 ] Furthermore, the inconvenience and prejudice to the appellant are obvious. Without the need to expound at length on this point, it has to realize that he is unable to practice his profession for a period of four years and derive revenue. Moreover, it is certainly difficult for a professional to deal with customers in a context like this.

[ 40 ] Furthermore, the appeals of the caller is not at first sight unfounded, maintain a temporary striking four years would make binding its illusory appeal, at least in part.

[ 41 ] The various criteria discussed above lead me to conclude that the application for a stay should be granted.

[ 42 ] When the appeal filed by the appellant against the decision on guilt and the decision on sanction has been decided, if it still persists a period of radiation, it will have to suffer it. In the meantime, it is important to intervene to prevent this period of radiation, which began on the making of the decision on sanction, extends further.

FOR THESE REASONS, THE COURT:

ORDERS the suspension of the provisional execution of the temporary delisting of four years imposed by the Disciplinary Board of the Québec Bar in its decision on penalty of 6 August 2014, in the case of 06-10-02593 Bar Disciplinary Board Quebec;







DISBURSEMENTS TO FOLLOW.










__________________________________

JACQUES PACKAGE JCQ


Mr. Robert Brunet


Brunet & Brunet


For CALLER-respondent



Mr. Daniel Chenard


Daniel Chenard, Ad.E.


For RESPONDENT-complainant


Ms. Nancy J. Trudel

Secretary of the Bar Disciplinary Board Quebec


Hearing Date:


CD No:


September 8, 2014


06-10-02593


Decision on guilt rendered July 5, 2013

Penalty decision on August 6, 2014










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[1] RLRQ, c. C-26 .


[2] 2010 QCTP 51 (CanLII) .


[3] Kaufman Laramée LLP v. Professional Liability Insurance Fund of the Quebec Bar, 2012 QCCS 5981 (CanLII) .


[4] Kaufman Laramée LLP v. Professional Liability Insurance Fund of the Barreau du Québec, 2014 QCCA 804 (CanLII) .


[5] RLRQ, c. B-1, r. 3 .