One day in January 2004, Kathryn Smithen made the decision to change her life.
After 25 years of trouble with the law, including a string of fraud-related convictions and a spell in prison, her daughter had become aware that she was surviving economically as an escort.
“Never again,”Smithen promised her daughter that day before she set off on the path to a legal career.
That summer, she applied to Osgoode Hall Law School. Seven years later, on May 11, she completed the turnaround when a Law Society of Upper Canada panel decided she possessed the good character necessary to practise law in Ontario.
“It’s been a long journey, but I’m at a stage now where I’m very happy with what’s happened and where I am and I’m trying to move forward in a positive way,” Smithen tells Law Times in an interview. She’s now looking forward to her call to the bar ceremony scheduled for the morning of June 17.
“Despite her horrendous behaviour in the past, she has come to grips with all of the reasons that propelled her to act so badly and has made a commitment to herself and others to conduct herself with honesty and integrity,” wrote Bencher James Caskey on behalf of the three-member law society panel.
Smithen’s lawyer, Bill Trudell, had told the panel it would be easy for them to say no to her on the basis of her past.
“But that’s why law is such a great profession,” Trudell said. “We look at the totality of the individual and not just certain aspects of their lives.”
For her part, Smithen isn’t hiding her past. “I’ve certainly got some aspects of my life that are not admirable and had a lot to answer for but I’m really very privileged and honoured that the panel decided to agree with Mr. Trudell and decided that the sum total of my life experience surpassed my less than admirable moments,” she says.
According to Smithen, the roots of her legal career lie in her childhood. “I’ve always been interested in social justice issues as a young girl. I did a lot of reading on them as a teenager. Unfortunately, along the way, I started having some problems in my late teens and pretty much ruled this out ever as a career,” she notes.
Smithen was born in 1962 in Winnipeg. A doctor who practised in northern Manitoba adopted her 13 days later. She later moved with the family to Ontario, where her problems began.
Between 1979 and 1993, she was convicted almost 40 times of offences including fraud, theft of money and credit cards, and forging documents. The convictions culminated in an 18-month incarceration after the court ran out of patience with her spurned chances at rehabilitation.
According to an agreed statement of facts filed with the hearing, Smithen would pay the first and last months’ rent to landlords and then stay until the eviction process was complete. She also admitted she had stolen from employers and had been dismissed for cause at least five times.
She married in 1987 but divorced her abusive husband in 1991. A Crown attorney who prosecuted Smithen’s husband for assaults on her was one of several people who provided letters of support for her application.
Between 1992 and 1999, and again from 2002 to 2004, Smithen was intermittently involved in the sex trade as an escort, according to the decision. She also collected social assistance for some of that time.
A law society investigation also turned up evidence that she had posed as a landlord in 2004 in order to get credit bureau information about her former husband and his new spouse. She then used the information in family law proceedings against him.
A Superior Court judge who ruled in the case turned over her 2006 judgment that was critical of some of Smithen’s evidence to the law society after encountering her in chambers during her articles.
Smithen has also declared bankruptcy twice. The last time was in 1995, when her liabilities totalled $470,000. She has been able to fund her studies with the help of a close friend who loaned her more than $300,000.
Janice Duggan, counsel for the law society, argued that the large debt she still owed suggested Smithen was still spending excessively and living beyond her means.
Duggan cast doubt on Smithen’s remorse by highlighting her attempts to appeal her jail sentence and compensation orders against her. She has also applied twice for a pardon, according to the decision.
But the panel was convinced of her remorse.
It noted her firm position on cases where she felt she had been treated too harshly indicated “that she was not just saying what she thought the panel would want to hear.”
Panel members were also impressed with the commitment Smithen has shown since her graduation from Osgoode in June 2008. Since then, she has taken 27 continuing legal education programs and continued sessions with a psychotherapist.
The panel granted her a licence to practise on the condition that she continue to take therapy as needed; that she not operate a trust account as the sole lawyer signatory for the first two years; and that she enter a two-year mentoring agreement with another lawyer in good standing with the law society.
Smithen is now planning to start a family law practice as a sole practitioner. “In trying to get licensed, I’ve met some really great people along the way and I’ve benefited from the enormous support of those people, including my daughter, my counsel, my extended family, and many members of the bar,” she says.
“I’ve also been treated exceedingly well by people at the law society and if I’m able to emulate that professionalism in my own law practice when I’m called to the bar, I think my clients are going to be in really great stead.”
Another lawyer applicant seeking redemption wasn’t so successful at the law society earlier this month. Joram Gold, a former lawyer who was disbarred after serving a jail sentence for selling drugs out of his law office, was denied a paralegal licence in a decision released on May 18.
He had also applied for re-entry as a lawyer but abandoned that route in order to concentrate on the paralegal licence.
A hearing panel found he hadn’t met the burden of proof required to show that he was of good character. Bencher Linda Rothstein, writing for the three-member panel, said Gold had made many “earnest efforts” to address his previous misconduct and was unlikely to reoffend but noted there were doubts about his evidence.
“His evidence was frequently self-serving, beyond that which was called for in order to put his best foot forward,” she wrote.
Gold was charged with drug-trafficking offences in 1994 after selling drugs to an undercover police officer out of his office.
He eventually pleaded guilty in 1998 after lengthy investigations into his fitness to stand trial. He was released in June 1999 after serving 13 months of a 39-month sentence and was disbarred shortly after.
According to the decision, Gold met criminals through apartment buildings he owned in the 1990s and hoped to make as much from drugs as he had from real estate.
“I didn’t know anything about drugs or drug dealing and I still don’t know why I even got involved with those people,” Gold told a law society investigator in March 2008.
“Obviously, I thought I could make millions of dollars like they do on TV and that was a big part of it.” But the panel found much of his evidence on his criminal activities was vague.
Members were also troubled by his non-criminal misconduct towards clients. Last-minute repayments to the law society’s compensation fund stemmed from his desire to get licensed rather than remorse, the panel found.
