Dishonorable Mentions: Professionals lacking integrity

IN THE MATTER OF:            The Legal Profession Act, SNS 2004, c. 28 and the    

                                                     Regulations of the Nova Scotia Barristers’ Society

                                                -and-

IN THE MATTER OF:            Raymond Jacquard, of Yarmouth, Province of Nova Scotia

SETTLEMENT AGREEMENT

Raymond Jacquard, a member of the Nova Scotia Barristers’ Society, hereby admits the following facts and consents to the following disposition of the complaint of the Nova Scotia Barristers’ Society, dated ­­­­­July 16, 2010 as amended March 8, 2012, a copy of which is attached to this agreement as Appendix “A”.

Member’s background

1.         Raymond Jacquard has been a member of the Nova Scotia Barristers’ Society since 1991.

2.         Mr. Jacquard currently, and at all times relevant to this matter, practices law with the firm Nickerson Jacquard in Yarmouth, Nova Scotia.

3.         Mr. Jacquard has a mixed litigation/solicitor type practice which includes criminal and family law, real property law, wills and estates, some civil litigation and some basic corporate work. 

4.         Approximately 25-30% of Mr. Jacquard’s practice relates to real property work, and in this regard he currently, and at all times relevant to this matter, employs a property paralegal, Donna Doucette. Ms. Doucette has worked with Mr. Jacquard since approximately 2004.

Complaint and Investigation

5.         On June 30, 2009, the Nova Scotia Barristers’ Society was contacted by Doug Dixon, the Registrar of the Nova Scotia Real Estate Commission (NSREC) to express concerns regarding real estate transactions which involved Mr. Jacquard’s clients. Mr. Dixon did not allege specific activity by Mr. Jacquard, but expressed concern regarding “a lack of action or reaction to issues around real estate transactions, which were handled by him.”

6.         The Executive Director of the Society made a determination that the information provided by Mr. Dixon established reasonable grounds for an investigation, and pursuant to Regulation 9.2.3 of the Act, commenced an investigation on July 9, 2009. On July 21, 2009, Michael Brooker, Q.C. was retained to assist in the investigation. On August 27, 2009, Mr. Brooker was further retained by resolution of the Complaints Investigation Committee to conduct a practice review of Mr. Jacquard’s practice.

7.         Mr. Brooker attended at Mr. Jacquard’s offices in Yarmouth during the summer of 2009 and conducted a detailed practice review, including interviews with Mr. Jacquard and Ms. Doucette and a review of Mr. Jacquard’s property files. Mr. Jacquard was co-operative throughout the time of the practice review.

8.         In her interview with Mr. Brooker, Ms. Doucette advised that she conducted Mr. Jacquard’s property practice quite independently of Mr. Jacquard, would communicate directly with the mortgage brokers with respect to the transactions, and would take instructions directly from Mr. Jacquard’s clients. 

9.         During his interview Mr. Jacquard confirmed that Ms. Doucette had his private password for Property On-Line and completed all submissions on the property files in question. Mr. Jacquard also confirmed that he would often represent all sides in a property transaction without advising all of his clients of this fact, and without obtaining their informed consent.

10.       Mr. Brooker’s Practice Review Report of January 28, 2010, raised concerns regarding various property transactions by Mr. Jacquard’s clients which were thought to be suspicious in nature. These transactions occurred in the time period 2006-2008. These included quick property flips for increased value, non-arm’s length transactions between clients, backdated agreements of Purchase and Sale, use of non-standard private Agreements of Purchase and Sale, real estate commission and deposit issues, and the representation to lenders that purchases were refinances. Mr. Brooker’s report identified 67 properties of concern.

11.  The property flips identified by Mr. Brooker involved purchases and sales in rapid succession, sometimes within one day, with the mortgage amounts increasing with each subsequent transaction. These transactions would typically involve the same core group of people, most of whom were represented by Mr. Jacquard. In the instances where Mr. Jacquard represented multiple parties, including the lender, he failed to ensure each party gave informed consent.

12.      Mr. Brooker’s Report also identified that Mr. Jacquard had business dealings with his clients. In some instances, Mr. Jacquard was himself a party to the property transactions under review, either in his personal capacity or in trust for these clients.

13.       Mr. Brooker’s Practice Review Report concluded that:

1.  Mr. Jacquard shared his private password with his property paralegal contrary to Schedule B, Clause 6 of the Property On-Line “Authorized Lawyer User Agreement” and Commentary 19.7 of the Legal Ethics Handbook.

2.  Mr. Jacquard represented both sides in property transactions on a regular basis and in so doing may have acted contrary to standard 1.4 of the Real Estate Practice Standards and Chapter 6 of the Legal Ethics and Professional Conduct Handbook.

3.  Mr. Jacquard failed to monitor his property practice and failed to properly supervise his property paralegal in the tasks and functions delegated to her.

4.  Mr. Jacquard acted as legal counsel with respect to mortgage transactions which were suspicious and raised questions with respect to whether or not a reasonably competent lawyer would have been put on notice of inappropriate client activity. Of specific concern were issues relating to property “flips” and representation of property purchases as refinances to the lending institutions. 

14.      Between January 28, 2010, and July 2010, Mr. Brooker carried out a further review and investigation. This included contact with the one of the lenders represented by Mr. Jacquard who confirmed that they had retained Mr. Jacquard on twenty transactions which were represented to them as refinances, but were later discovered to be purchases. Mr. Jacquard did not disclose this information to them.

The Complaint

15.      The Complaints Investigation Committee instructed the Executive Director to prepare charges against Mr. Jacquard, and thereafter the Society served a complaint against Mr. Jacquard on July 10, 2010, alleging that in the period 2006-2008, Mr. Jacquard had breached provisions of the Legal Profession Act, Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia (“Handbook”), the Land Registration Act and Regulations and the Practice Standards for Real Property Transactions in Nova Scotia. The alleged breaches related to Mr. Jacquard allowing himself to be used as a dupe in an apparent scheme to defraud lenders, his failure to supervise his property practice, conflicts resulting from his representation of multiple clients in various listed transactions, his failure to recognize red flags which were suggestive of fraudulent transactions, and his resulting failure to make appropriate inquiries and disclosures.

16.      This Complaint was amended on March 8, 2012, and is attached to this agreement as Appendix “A”.

Further Investigation and Reports

17.       The Society retained Ian MacLean, Q.C. to advise them with respect to whether or not Mr. Jacquard had been conducting his real estate practice in a manner expected of a reasonably competent real estate lawyer practicing in Nova Scotia. In particular, Mr. MacLean reviewed Mr. Jacquard’s practice in light of the Professional Standards Real Property Transactions in Nova Scotia which had been adopted by the Society in 2002. All real estate lawyers are required, pursuant to the Legal Profession Act, to comply with these standards.

18.      In an April 5, 2011 report, Mr. MacLean provided an opinion that Mr. Jacquard had failed to conduct his real estate practice in a manner to be expected of a reasonably competent real estate lawyer practicing in Nova Scotia by:

•  Providing his private Property On-Line password to his property paralegal, and allowing her to handle all aspects of real estate transactions for which his services had been retained.

•  Not supervising his property practice.

•  Not appropriately disclosing and dealing with potential conflicts and risks arising from two or three party representation of clients.

•  Not recognizing and questioning irregular and suspicious features of certain property transactions.

19.       The Society also obtained an opinion from Reuben Rosenblatt, Q.C., an acknowledged expert in the subject matter of mortgage fraud. In an April 29, 2011, report, Mr. Rosenblatt opined that:

In my opinion there were many red flags, warning signs, suspicious circumstances and badges of fraud which should have alerted Raymond Jacquard that the purchase and sales and mortgage transactions were not legitimate, not bona fide and were entered into as a scheme to deceive the mortgage lenders. There are many unusual features associated with these transactions which were not consistent with typical bona fide residential real estate transactions.

In my opinion a reasonably competent solicitor should have recognized these unusual features and would not have participated in what appears to be a scheme to deceive the lenders.

Follow up Practice Review

20.      A follow up review of Mr. Jacquard’s practice was conducted by Mike Brooker, Q.C. in October 2010. 

21.      In his October 13, 2010, Practice Review Report, Mr. Brooker found that Mr. Jacquard had made significant improvements in the manner in which he carried out his property practice. In particular:

•  He was now fully involved in all aspects of his property practice, with staff carrying out appropriate roles.

•  There were no longer issues of concern regarding his previous failure to properly supervise his property practice.

•  He no longer shared his private password with his paralegal.

•  He had made a dramatic improvement in the manner in which he dealt with dual representation cases, would rarely represent both sides of a transaction, and if he did, he would obtain conflict waivers and make appropriate referrals for independent legal advice.

22.      Mr. Brooker concluded that:

It appears reasonable to conclude, based on the interviews conducted with Mr. Jacquard and Donna Doucette and the files reviewed during the course of the October 7, 2010 practice review, that Mr. Jacquard is in fact meeting his ethical obligations and has provided a quality of service at least equal to that which lawyers generally expect of a competent lawyer in like situations.

Admissions

23.       Mr. Jacquard admits to the charges as set out in Appendix “A”, and admits that they constitute incompetence, conduct unbecoming and professional misconduct.

Mitigating Circumstances and Further Admissions

24.      Mr. Jacquard has no previous discipline history.

25.      Mr. Jacquard has been co-operative throughout the practice review and investigation.

26.      There is no evidence that, other than fees, Mr. Jacquard personally gained from any of the suspicious transactions.

a)  Mr. Jacquard’s practicing certificate shall be suspended for a period of twelve months commencing July 1, 2012, and ending on June 30, 2013.

b)  Mr. Jacquard will make the necessary arrangements for his practice in accordance with the Guidelines for Suspended Members established by the Nova Scotia Barristers’ Society and confirm with the Executive Director by June 15, 2012, that these arrangements are in place. Failure to do so will result in the appointment of a Receiver by the Society for Mr. Jacquard’s practice with the costs associated with that Receivership being payable in full by Mr. Jacquard, as a condition of his reinstatement to practice.

c)  During the period of suspension, Mr. Jacquard shall adhere to the Guidelines for Suspended Members established by the Nova Scotia Barristers’ Society.

d)  That for the first full year of practice following his reinstatement, Mr. Jacquard shall practice under the direct supervision of a lawyer acceptable to the Executive Director of the Society who agrees, in writing and in advance, to conduct that supervision and to report on Jacquard’s practice to the Executive Director, in writing and on a monthly basis.  Such supervision may in the alternative be accomplished by Mr. Jacquard working fulltime in a law firm with at least one other lawyer in good standing.  The Executive Director's consent must not be unreasonably withheld.

Costs

28.      Mr. Jacquard will pay costs to the Nova Scotia Barristers’ Society in the amount of $65,000 plus HST of $ 9,750, payable as follows:

1.  25% ($18,687.44) payable on or before the earlier of June 30, 2013 or Mr. Jacquard’s reinstatement of his practicing certificate; and

2.  The remaining costs shall be paid to the Society within 3.5 years  of reinstatement of Mr. Jacquard’s practicing certificate, in monthly installments payable on the first of each month, as follows:

July 2013 – Dec 2013                           no monthly installments 

January 1 – December 1, 2014 $1000 per month

January 1 – December 1, 2015 $1250 per month

January 1 – December 1, 2016             $2421.88 per month

29.      Mr. Jacquard may request a variance to the above costs repayment schedule from the Executive Director, which shall not be unreasonably denied. 

30.      Unless a variance has been agreed to by the Executive Director, failure by Mr. Jacquard to pay costs in accordance with the above shall result in immediate suspension of Mr. Jacquard’s practicing certificate , until such time as the costs due are paid. 

31.      This Settlement Agreement shall only become effective and binding upon its acceptance by the Hearing Panel appointed to conduct the hearing of the Complaint.

THIS SETTLEMENT AGREEMENT made this 28th day of March 2012.