During a stretch of four years, between 2007 and 2011, letters outlining collection procedures and seizures launched against him by Revenue Quebec were put by the wayside. Rulings by Quebec Superior Court and by the Federal Court of Canada in 2012 over his tax affairs too were ignored.
On February 2015, it all came to a head when Revenue Quebec sought a petition in bankruptcy, a development that was reported by a French-language paper.
“The respondent was completely demolished,” according to a 19-page ruling issued by the Barreau du Québec’s disciplinary council in Barreau du Québec (syndique adjointe) c. Rivard 2017 QCCDBQ 007. “His family was devastated. The respondent had no choice but to deal with his obligations.”
Rivard, on the roll since 1979, had a “brilliant” career. He was the former head of the Montreal Bar, was elected as president of the Barreau du Québec in 2006, and was awarded Advocatus Emeritus, a distinction bestowed to la crème de la crème of the legal profession.
He also admitted to misappropriating funds. From January 1, 2010 to July 3, 2015, Rivard did not remit $65,000 he collected from clients to pay federal and provincial sales taxes. The “mere fact” that he held on to the monies that were supposed to be handed to federal and provincial tax authorities represents using monies for “other purposes, noted the three-member disciplinary panel. And that, as the Quebec Court of Appeal reminded in a similar case involving a notary in Bourassa c. Gareau, 2015 QCCA 1522, is an act derogatory to the honour, dignity and discipline of the profession, and in breach of article 59.2 of Quebec’s Professional Code.
A CBC news investigation found that the majority of Quebec lawyers sanctioned for having taken or mishandled money from clients or overcharged them, either negligently or intentionally, “were never charged with crimes — and often only disbarred temporarily.” The CBC report reveals that in Ontario, 71 lawyers were disciplined for misappropriating funds, with 17 lawyers suspended and 49 disbarred. In contrast in Quebec, 80 lawyers were disciplined for taking money improperly, with four permanently disbarred and 58 temporarily disbarred.
Claims and settlement expenses for new claims filed in 2015 amounted to $7 million ($8.3 million in 2014), while adverse developments related to claims presented in previous years amounted to $1.3 million, increasing total claims and settlement expenses to $12.5 million ($11.4 million in 2014), according to the 2015 annual report by the Professional Liability Insurance Fund of the Barreau du Québec.
All told, provincial law societies across the country sanctioned 220 members who misappropriated about $160 million of their clients’ funds between 2010 and 2015.
But misappropriation of funds happens more frequently than the profession cares to admit, particularly thefts from a law firm’s general accounts. David Debenham, a certified fraud specialist and investigator who is a partner with McMillan LLP in Ottawa, estimates that only one in ten frauds perpetrated by lawyers, law clerks or staff, come to light. “A lot of firms that had lawyers or law clerks or staff that commit fraud tend to indemnify clients and not report it — it’s sort of the (profession’s) dirty little secret,” told me Debenham, who is also a certified management accountant.
The ruling by the Barreau du Québec’s disciplinary council in the Rivard case appears to provide more fodder to the perception that Quebec is the most lenient province at disciplining lawyers. The Barreau’s assistant syndic, or investigating officer who brought the case before the disciplinary council, argued that the offense committed by Rivard is serious. It was repetitive and took place over a long time. She underlined Rivard’s “cavalier” attitude, and said she heard nothing from his testimony that “reassured” her that he would not do it again. She added that he does not appear to have recognized that he acted wrongly.
And yet she asked only for a month-long temporary disbarment, even though she acknowledged that traditionally longer sanctions are imposed in cases involving misappropriation.
While the Barreau du Québec’s disciplinary council castigated Rivard for neglecting for far too long “to put order in his finances and accounting,” it heeded her suggestion. This sanction, maintained the disciplinary committee, is neither too lenient nor too severe. While not excusing his conduct it points to extenuating circumstances.
“Illness, professional burnout, and numerous conflicts with Revenue Quebec contributed to the downward spiral of a brilliant lawyer, former bâtonnier of the Barreau du Québec, and recipient of the Advocatus Emeritus for excellence in his professional career and his contributions to the profession,” underlined the ruling.