of self regulation? - The Law Society of Upper Canada

For the 2002 convictions by the Law Society, Mr. Merchant was fined $5000 and
$10,000 in costs by the Law Society, and was reprimanded. 40 This seems a relatively
minor sanction, particularly in light of the amount in fees that is now clearly at stake.
Unfortunately the finding and sentence did not alter Mr. Merchant’s style of practice; this
was not to be his last encounter with the disciplinary process. In 2006, he was again
convicted of two counts of conduct unbecoming, first on the basis of trust fund
irregularities, and second on another solicitation letter deemed by the panel to be
reasonably capable of misleading the recipient. 41 In this case, he was fined $60,000 and
suspended for two weeks. 42 This case remains before the Saskatchewan Court of
Appeal. 43
It seems then that the sentence initially handed down by the Law Society
disciplinary committee in the 2002 decision against Mr. Merchant was not enough to
drive home the ethical problems with his style of solicitation. $5000 was clearly too little
– the benefits outweighed the costs. It’s what an ethinomicist might describe as an
“efficient ethical breach.” 44
Perhaps the disciplinary process needs to be reviewed for
effectiveness as a mechanism to protect the public, in order to drive the point home with
the first conviction rather than the second or third.
6. Billing and Fees in the Residential Schools Cases
40 LSS v. Merchant, supra note 38.
41 “Lawyer Found Guilty of ‘Conduct Unbecoming,’” (February 8, 2006) CBC News, online:
;
42 Jonathan Gatehouse, “Residential Schools Settlement Enriches Lawyer,” (11 September 2006)
Maclean’s online:
43 Kirbyson, supra note 39 at 24.
44 See e.g. Randal Graham, Legal Ethics: Theories‚ Cases and Professional Regulation (Toronto: Emond
Montgomery, 2004) 192-196, 201-205. On the virtues of “ethinomics” see vii-viii.
14