Law in Quebec

The former Montreal lawyer is not the first nor will he be the last advocate accused of misappropriating funds from a trust account. Disciplinary notices posted by law societies are replete with hearings of lawyers who were unable to resist the temptation of dipping into their trust accounts. Even then, it can be forcefully argued that defalcation is anomalous. As Susan Forbes, director of insurance of British Columbia’s Lawyers Insurance Fund, which manages the Law Society’s insurance program_, points out that “when you consider that there are 10,000 practicing lawyers in BC and there are only one or two a year that get involved with theft, that is a very small percentage.” Tom Schonhoffer, the executive director of the Law Society of Saskatchewan, has another take. “If you look through the billions of dollars that go through trust accounts, defalcations would be a fraction of a fraction of one percent.”

Three wise monkeys

But it 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,” says Debenham, a certified management accountant who is hired by law firms to investigate fraud. He says that there is no doubt that the number of misappropriation cases is growing exponentially.

Though he doesn’t go that far, the chief executive officer of the Professional Liability Insurance Fund of the Barreau du Québec says that the insurer has had to grapple with a “significant” increase in defalcations over the past couple of years. What’s more, the amounts being misappropriated are larger than ever. “I have been here for 25 years, and we never saw situations like that ten years ago,” says René Langlois. The figures bear him out, at least in Quebec. The Quebec liability insurer paid out nearly $20 million in claims in fiscal 2011, almost double compared to the preceding year, according to its latest annual report. In Ontario, total claim costs may top the $100-million mark, reveals Lawpro’s 2011 annual report. The number of claims reported – 2,468 – is higher than it has been at any point since 2000 and 11 per cent higher than in 2010. Similarly, claims frequency (number of claims per 1,000 lawyers – a better barometer of trends) is up to 107 from 99 a year earlier.

Yet Dan Pinnington, vice president, claims prevention and stakeholders relations at Lawyers’ Professional Indemnity Company (Lawpro), a wholly Canadian owned insurance company that provides professional liability insurance to lawyers in Ontario and title insurance coast-to-coast, maintains that though the insurer deals with them regularly and “occasion we have seen some very large losses, either through lawyer fraud or staff fraud, I can’t say we have had an increase.”

Most misappropriations are committed by solo practitioners or lawyers practicing in an association where they might be physically be present with other lawyers but are running their own trust accounts. Most thefts are usually small amounts. Cases like Howard Lorne Tennenhouse, who was disbarred by the Law Society of Manitoba last year after pleading guilty to taking nearly $1-million from 54 residential school survivors, is the exception to the norm. “Usually what happens is that it starts as a one-off that they just do for an emergency, then they do it a few more times and it goes from there,” says Debenham, the author of The Law of Fraud and the Forensic Investigator.

Defalcations committed by a partner working in a law firm is atypical. But when it happens the amounts that are misappropriated often are sizeable. Ottawa lawyer Leslie Andrew Vandor was disbarred last year by the Law Society of Upper Canada (LSUC) for misappropriating more than $2-million, most of which came from his father’s estate and Vandor Investments Ltd.. He was also found to have misappropriated funds from Lang Michener, which has since merged with McMillan LLP, in 2008.

The Perras case

The Perras case is all the more exceptional because it is a cautionary tale that underscores the exposure and “world of trouble” law firms can be drawn into when faced with a rogue partner. Kaufman Laramée LLP, the Montreal law firm where Perras briefly practiced for six months in 2011, too has been ensnared in the legal maelstrom and now faces five lawsuits from Perras’ former clients arising from the alleged financial fraud. Even lawyers acting on behalf of “parties that were basically conned by Perras” are sympathetic to the law firm’s plight. “The circumstances here are horrendous for a law firm,” says Neil Stein of Stein & Stein Inc. “The last thing a law firm wants is to be sued. It is not imaginable that one of your own partners would put you into a situation of that nature. They don’t deserve it.”

The plaintiffs, members of the Montreal Jewish community, claim they were approached by Perras to participate in business opportunities that required them to make short term loans to be held into the trust accounts operated by the firm and Perras before paying out a pre-determined rate of interest. The investors are suing Kaufman Laramée for a total of $3.1 million, alleging that the firm was negligent because it failed to inform them that Perras was no longer a partner when they made the deposits, says the plaintiff’s counsel Sylvain Deslauriers, president of Montreal law firm Deslauriers & Cie. The firm and Perras ended their partnership in June 2011, but Perras was allowed to maintain an office until September when he set up his own separate office. “The firm was victimized by an individual who was recommended by a large national recruiting firm who came with good credentials,” says Kaufman’s counsel George Pollack, a partner in the Montreal office of Davies Ward Phillips & Vineberg LLP. “We didn’t know to what extent he was abusing the hospitality that was accorded to him.”

On their own

Making matters worse, Kaufman is on its own to defend the actions. Quebec’s professional liability insurer has denied coverage and refused to defend the firm and its partners because it felt they did not provide professional services – a position that Quebec Superior Court Justice David Collier endorsed in a ruling released just days before the blaze struck Perras’ residence. “It cannot be concluded that Perras or Kaufman rendered professional services to the plaintiffs by accepting deposits, acting as escrow agent, or transferring funds from one trust account to another,” Collier wrote in one of the few decisions in case law that examined the interplay between insurance coverage and professional legal services. “A solicitor-client relationship does not arise from the mere receipt of funds for deposit…Taking the pleadings at face value, it appears they provided investment services to the plaintiffs.”

That was also the conclusion that the Ontario Court of Appeal came to six years ago in a case pitting Cassels Brock & Blackwell LLP against Lawpro. In considering a number of transactions that were similar to the Kaufman case, the appeal court found that a trust account transaction was not a professional service, and that it fell under the policy’s investment exclusion, because it was not “ancillary” to legal services. “A person who is a lawyer may wear more than one hat, but just because at most times that person wears the hat of a lawyer does not mean that he always acts qua lawyer,” wrote the court in a brief three-page ruling.

Professional liability insurers

Those are the kinds of rulings that reassure professional liability insurers. All law societies in Canada provide provides professional liability insurance for negligence, but its scope varies from jurisdiction to jurisdiction. All law societies also have set aside funds to provide trust protection coverage to ensure that innocent members of the public do not suffer a loss through theft by a lawyer – so long as the lawyer who received the monies and deposited it in the trust account performed legal services. Indeed, in Alberta lawyers are prohibited from depositing money into their trust account if it is not in conjunction with legal services, notes Steve Raby, the outgoing President of the Alberta Law Society.

Other compensation funds, like Manitoba’s, are discretionary. “We protect against legal service,” says Allan Finebilt, chief executive officer of the Law Society of Manitoba, echoing the way many other compensation funds are managed by law societies. “We never had to go to court to establish that because it is a discretionary fund. We have no contractual obligation with the party.” In Nova Scotia the Lawyers Fund for Client Compensation takes a slightly different tack. It is a fund of first resort, and claimants are not required to exhaust other remedies, which is not necessarily the case with other compensation funds. “The approach we take is if a lawyer committed a defalcation and the victim is truly innocent, payment will be made,” says Darrel Pink, executive director of the Nova Scotia Barrister’s Society.

The liability and exposure law partners face when one of theirs misappropriates raises “interesting legal issues,” adds Pink. Not just in Nova Scotia, though, but across the country. In Nova Scotia if a lawyer practicing in a law firm steals money from a trust account, then the firm and its partners are jointly and severally liable – and it is an absolute liability. But when Halifax lawyer Srinivasen Pillay bilked $1.3-million from the trust account of the law firm McGinty McCleave between March 2000 and February 2005, the Nova Scotia legal community demonstrated an exceptional display of generosity. With the approval of its members, the law society  imposed a one-time levee of $750 on each lawyer in the province to cover the bill. “In that case although at law the partners might have been liable they would not have provided compensation to the victims because it would have bankrupted them so we paid all those claims,” says Pink. Pillay, who was sentenced to four years in prison, was also ordered to pay $1.3 million in restitution to the Nova Scotia Barristers’ Society.

In Ontario, the legal landscape is slightly different. Minimum level so-called Innocent Party coverage is required for all lawyers practising in association, partnership (including general, MDP and LLP partnerships) or a law corporation with more than one lawyer. The coverage is designed to protect against the dishonest, fraudulent, criminal, or malicious acts or omissions of present or former partners, associates, employed lawyers and firm employees. “But if an employee stole money out of a general account – as opposed to a trust account – and stole the firm’s money, not the client’s money, in that case no client was aggrieved, no professional services were involved so certainly there wouldn’t be no coverage under the Lawpro policy,” notes Pinnington.

At the other end of the spectrum stands B.C. Its trust protection coverage insures all members of the Law Society of BC for claims arising from the theft of money or property relating to the member’s practice of law. Trust protection coverage offers an annual aggregate limit, profession-wide, of $17.5 million; each claimant may recover up to $300,000 per claim. “Where a lawyer does steal, our insurance benefits partners in the firm as well as the victim,” explains Forbes. “When we pay the claim we don’t subrogate the innocent partners in the firm. We protect all of them through compensation so the members are fully protected.”

Alberta law society tackling misappropriation head-on

But at least one law society is aggressively tackling the issue of misappropriation of funds in a no way no other law society has so far dared to. In a bid to address rising threats to the security of trust funds, the Law Society of Alberta introduced in 2011 a new regulatory structure that turns on its head the widely-held premise that lawyers have are entitled to have a trust account. Instead under the new Safety of Trust Property program, a law firm seeking to open a trust account must get approval from the Law Society. The firm must designate a specific lawyer who will be responsible for meeting the requirements set out by the regulator, and who will be held accountable for non-compliance. It has broad audit authority and through an automated audit program the law society is now capable of auditing 100% of accounting transactions of any law firm using approved law firm accounting. “We got scared in Alberta,” acknowledges Raby, who served as Chairman of the Trust Safety Program committee. “The numbers had been quite small until 2004 and it jumped dramatically to $1.4 million and then the next couple of yrs were $864,000 and $754,000. That’s when we had a look at our trust safety program.”

Other law societies such as Manitoba and Nova Scotia are paying close attention. “We probably need to move into the 21^st century in terms of our controls,” says Finebilt. “Given what the risk is people are recognizing over time that they want to invest more because ultimately you pay for the tools or you pay for the loss – and it is way cheaper to pay for the tools.” Pink, however, says that before proceeding law societies must grapple with over the appropriate amount of regulation. “Trust oversight is one of those areas where it is very risky but also very easy to over regulate,” points out Pink.

Nicolas Plourde does not seem to have such reservations. The former batonnier of the Barreau du Québec believes that the Barreau should be examining ways to bolster regulatory oversight over trust accounts. One model that he finds enticing is French-based Caisses des Règlements Pécuniaires des Avocats, better known under its acronym CARPA. In France lawyers are not allowed to hold clients’ money, but must pay it into the bar’s account, under the control of the president of the bar. There are over 100 CARPAs in France, and each is under the political and ethical control of the local bar. CARPA is not itself a bank, but works with banks. “The increase in number of claims and value of the claims from the Quebec professional liability fund, one of the causes being misappropriation of funds is worrisome – and that is why member premiums will be doubling from $600 to $1,286 this year,” says Plourde. “It has led us to question how we can do more to avoid such a situation”.

Left unsaid is that fraudulent schemes allegedly perpetrated by lawyers or former lawyers such as Perras would be snared long before they cause real damage.