23 October 2007
Merchant Appeal
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Tony Merchant.
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Regina Saskatchewan - Following a Monday hearing, it's now
up to the Saskatchewan Court of Appeal whether to uphold a Law Society of Saskatchewan decision to discipline Regina lawyer Tony
Merchant over two convictions of conduct unbecoming a lawyer.
Merchant has appealed both the convictions and the sentence, which stemmed from two separate incidents.
The first involved Merchant's handling of a trust account which was tied into divorce proceedings. Merchant, who had been representing
the woman, held money from the sale of the matrimonial house in trust, refusing to pay the man's portion once the appeal period had
expired because the man owed money to Merchant's client. The man's lawyer objected upon learning Merchant transferred some of the money
to Merchant's firm, stating there wasn't an agreement on how much of that was owed to Merchant's client.
In that case, the law society found Merchant guilty of withdrawing trust funds contrary to a court order and without consent.
The second conviction related to a letter from August 2004 to Estevan residents affected by a train derailment involving hazardous
chemicals. The letter had invited the residents to join a class action against Canadian Pacific Railway, but the law society found the
letter and its attached retainer agreement were capable of misleading recipients.
Following convictions in 2006, the law society handed Merchant a two-week suspension and a formal reprimand, also ordering
he pay a $2,500 fine and costs totalling $57,869. The sentence was stayed pending appeal.
On Monday Merchant's lawyer, Gord Kuski, argued before Justices Robert Richards, Darla Hunter, and Ysanne Wilkinson why the convictions
should be overturned.
Kuski argued that, in the Estevan case, the combination of the letter and retainer was sent out by mistake from someone in Merchant's
office, adding Merchant was "shocked and upset" to learn that combination of papers had been sent - that combination having
been the reason for previous disciplinary action against Merchant.
"It was clear that it was an inadvertent error, and in our respectful view, the law society should not be disciplining lawyers for
errors that occur: Errors happen to everybody," Kuski said outside of court.
"With respect to the second complaint, our view was that what Mr. Merchant did was entirely transparent. He informed the other
side what he was doing and he was representing the interests of his client and that certainly did not amount to conduct
unbecoming."
In both cases, Kuski said his client lacked intent, something the hearing committee should have considered.
Law society lawyer Gary Young asked the court to see things differently, also referring to the previous case of disciplinary action
against Merchant for sending out misleading letters in an attempt to solicit clients for a class action suit.
"But at that particular stage, he did it deliberately," Young said outside court. "This time he says that it was by
reason of mistake in his office... We're not suggesting that it wasn't a mistake. What the law society has said, though, is that in
those circumstances, he should have supervised his staff better than what he did."
In regards to the trust account conviction, Young maintained the law society's position that Merchant's actions were not acceptable,
"even if he thought it was OK for it to be done."
He warned the Appeal Court justices that, should such actions be allowed, it could have severe ramifications in that "no person in
his or her right mind would allow Mr. Merchant or any other lawyer to hold funds in trust."
The court reserved its decision.
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