Following six years of litigation, 130 days of hearing, the reasons of a Hearing Panel dismissing all claims and a request for costs of over $3,000,000, the Law Society has made the astonishing decision to appeal the ruling in its failed prosecution of Torys LLP lawyers Elizabeth DeMerchant and Darren Sukonick.
In two previous articles published in Slaw, “A Prosecutor’s Continuing Duty to Evaluate Evidence” and “Costly Errors”, I discussed the reasons for judgment of the Hearing Panel and the cost submissions filed by the parties. What became apparent from this review was that: (a) the prosecution ought not to have proceeded for as long as it did; and (b) serious failures of judgment occurred in the conduct of the prosecution. The result was a litigation exercise in cost and time of Dickensian proportions. For the Law Society not to close the books on this fiasco but rather to perpetuate it by launching an appeal, strikes me as a travesty.
The Law Society’s Notice of Appeal only confirms this is to be the case. Counsel who acted for the Society throughout the entirety of the proceeding could do no better in formulating grounds of appeal than to say that the Hearing Panel “failed to appreciate material evidence demonstrating (i) conflicting interests on the part of the current clients of the Lawyer and (ii) the failure of the Lawyer to obtain the informed consent of her clients to continue acting in the circumstances.” The Notice of Appeal also alleges the Hearing Panel “erred in its interpretation and application of Rule 2.04” and “erred in its interpretation of the meaning of conflicting ‘legal’ interests in the context of a commercial transaction.”
These meaningless statements say nothing that could conceivably call into question the factual findings made by the Hearing Panel. No doubt new appellate counsel will seek to add to the grounds of appeal, but the absence of detail is striking in its omission. At an appeal management hearing held on January 6, 2014, the Law Society was given until May 15, 2014 to perfect the appeal and the appeal was scheduled for hearing over a three day period in August 2014.
Given that lawyers ultimately pay the cost of disciplinary proceedings through their annual dues, the time has come for an explanation and transparency from the Law Society on its decision making in this case.