A Law Society of Upper Canada tribunal has removed a former treasurer from representing a lawyer in a discipline proceeding.
A Law Society of Upper Canada tribunal has removed a former treasurer from representing a lawyer in a discipline proceeding.
In Law Society of Upper Canada v. Polisuk, the law society’s tribunal hearing division disqualified Gavin MacKenzie from serving as counsel for lawyer Barry Polisuk, finding he had breached a policy that benchers cannot be retained to represent practitioners before the tribunal.
Other lawyers who do such work say the decision is unfair to both Polisuk and MacKenzie.
“I think there should remain or be a presumption of credibility, reliability and objectivity,” says Marcy Segal, a Toronto lawyer who represents licensees at disciplinary hearings.
“Until they prove otherwise, I think he should be able to remain as counsel.”
As a former treasurer, MacKenzie participated in Convocation as an ex-officio bencher after his term ended in 2008, but he resigned from the position to represent Polisuk.
In a motion seeking to bar MacKenzie from appearing before the tribunal, the LSUC argued that ex-officio benchers could not resign and that, even if he could, MacKenzie would have an undue influence on the outcome of the proceeding.
The tribunal, however, found that MacKenzie was entitled to resign as a bencher and that he should be able to represent practitioners in such proceedings after a one-year cooling-off period.
The tribunal determined that MacKenzie was in breach of the law society’s conflict of interest policy when he entered the retainer with Polisuk, as he had not yet resigned.
In the decision, the tribunal also said that concerns over a perception of a conflict of interest in such instances do not end on the day a bencher resigns.
“The public’s perception of a bencher appearing as counsel for a licensee in a discipline proceeding the day after leaving office is no different than the day before they left office,” Bencher Christopher Bredt wrote in the decision on behalf of a three-member panel.
“This raises the same concerns about undue influence, and could serve to erode public confidence in self-regulation.”
Bredt noted that Convocation might want to address the issue of what an appropriate cooling-off period would be going forward, but that one year would be appropriate for this case.
MacKenzie says that while he disagrees with the decision, he accepts it, as it will allow him to act for practitioners in conduct proceedings beginning in early 2018.
He says he was surprised by the fact that the law society tried to argue that he should never be allowed to represent lawyers, as ex-officio benchers cannot resign.
“I have never heard of an organization that requires members of its governing body to remain in their positions against their will,” he says.
MacKenzie was formally retained by Polisuk on Feb. 28, and he alerted the LSUC of his intention to represent the lawyer the same day. Polisuk has been accused of knowingly assisting in dishonesty or fraud in connection to three real estate transactions.
MacKenzie later resigned after contacting Treasurer Paul Schabas to ask if that would be the appropriate course of action.
Schabas initially agreed, but he later told MacKenzie he could not accept his resignation as LSUC counsel had told him that ex-officio benchers could not resign.
MacKenzie says counsel for the LSUC brought its motion to kick him off the case two months after he let Schabas know of his intention to resign and just a week before a pre-hearing conference was scheduled.
By this time, he had already spent 50 hours working on the case and that disqualifying him at this juncture was unfair to his client.
“The panel simply ignored the prejudice to my client, and the unfair tactical advantage the Law Society will realize as a result of the disqualification of Mr. Polisuk's counsel at an advanced stage of the proceeding,” MacKenzie says. MacKenzie says he had been asked to act for lawyers in discipline proceedings before, but had declined to do so until recently when he felt enough time had passed. It had been nine years since he was treasurer, and 12 years since he was last an adjudicator.
Segal says she thinks the decision was a knee-jerk reaction to public pressure.
“I think it is exceptionally important for the public to feel the public can trust the law society, and I don’t think this was a decision that needed to be made to instil more trust,” she says.
“There are other pressing issues.”
MacKenzie says that as the panel’s decision is an interim order, there is not right of appeal.
A LSUC spokesman said the tribunal’s decision speaks for itself.
