Tony Merchant appealing three-month suspension: media report

Regina lawyer Tony Merchant is appealing the Law Society of Saskatchewan’s decision to suspend him for three months after finding he breached a court order and counselled a client to act in defiance of a judge’s order.

According to the Regina Leader-Post, Merchant filed his appeal yesterday. The suspension is to take effect June 30 unless Merchant seeks an order to put it on hold pending the appeal, the Leader-Post reported.

A law society hearing committee had earlier found Merchant guilty of conduct unbecoming a lawyer for breaching a June 4, 2003, order that required him to pay certain settlement proceeds due to his client, M.H., pending determination of a related family property issue. It also found him guilty of conduct unbecoming by counselling or assisting M.H. to act in defiance of a court order.

In a June 1 decision, the hearing committee considered a range of factors in determining Merchant’s penalty of a three-month suspension. Among arguments for a lesser penalty, Merchant sited the lag time between the complaint about him on Nov. 1, 2004, to the beginning of the hearing in August 2011. Merchant’s counsel also cited, among other things, his co-operation with the law society, his great record of accomplishment, and the lack of relevance of his previous findings of guilt for conduct unbecoming a lawyer.

On the subject of delay, the committee decided it could take that factor into account in mitigating the penalty. But it gave less weight to it given there was “no lengthy period of unexplained delay.”

“Most of the delay in this case is attributable to the legal battle that ensued when the law society sought the member’s complete file for review and the member and his client opposed the application based on concerns pertaining to solicitor and client privilege,” wrote committee chairman Sanjeev Anand. “Although the member and his client were successful in opposing the application at the Court of Queen’s Bench, the law society successfully appealed to the Saskatchewan Court of Appeal and obtained access to the complete file. A subsequent application for leave to appeal to the Supreme Court of Canada by the member and his client was ultimately denied.”

In the end, the committee found a number of aggravating factors justifying the three-month suspension. They included the fact that Merchant “acted to breach the court order in a calculated manner;” that the breach of the court order “had the potential to irreversibly and unfairly dispose of money held pursuant to the order for the benefit of an individual who was claiming arrears of child support;” and that Merchant “chose to let his client remain in harm’s way on two contempt applications instead of revealing the true nature of the transactions that had occurred.”

The committee suspended Merchant on the two counts concurrently. Besides the suspension, he’s to pay almost $29,000 in costs. Legal Feeds was unable to reach Merchant for comment this morning.

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