Lawyer stymied in bid to enforce withdrawal of LSUC complaint

An Ontario judge has ruled against a lawyer involved in an estates dispute who’s seeking to enforce a provision in the settlement agreement that would see a woman withdraw her complaint against him to the Law Society of Upper Canada.

The woman was Sandi Thompson, one of the beneficiaries of her mother’s estate. The beneficiaries delivered notice of objection after the trustees, including lawyer William Martin, began an application to pass their accounts. The parties settled following a pretrial conference on June 14.

Thompson, however, had filed a complaint with the LSUC against Martin two years earlier. The agreement had a term that the beneficiaries would provide the trustees with a full release, including all pending and future actions filed with the law society.

According to last week’s Ontario Superior Court ruling in Thompson (Family Trust), Thompson argued that the provision couldn’t stand. Martin, however, said the agreement was valid and enforceable and noted he wasn’t prepared to be bound by the remaining terms of the settlement unless the withdrawal provision stood.

“As consideration for the withdrawal, the trustees agreed to a reduction in their claim for compensation and agreed to be responsible for certain legal fees,” Justice Thomas Lederer said in reference to Martin’s position.

In dealing with the matter, Lederer approached it from the perspective of public policy. “It is improper for a person, subject to regulation, to require that a complaint about his or her conduct be released or withdrawn in exchange for payment or a benefit, as part of a private settlement in a related civil matter,” he wrote.

For his part, Martin’s lawyer argued that despite the provision, his client couldn’t bind the law society, which would still be free to continue any investigation. Lederer, however, rejected that notion.

“In a theoretical world, this might be possible,” he wrote. “In the practical world, it is not. It is not just that complaints raise matters that have a broader public interest. It is that, by their nature, these matters are important and the way we treat them is demonstrative of the significance we give them. Anything that limits the complainant from willingly and openly taking part would signal a lack of concern for the broader public interest.”

As a result, Lederer dismissed Martin’s motion for an order directing Thompson to comply with the minutes of the settlement.

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