The Law Society of Ontario v. Strashin

Date: September 26, 2018

Tribunal File No.: 17H-037

BETWEEN:

Law Society of Ontario

Applicant

– and –

David Stephen Strashin

 Respondent

Before

Janis P. Criger (chair), Suzanne Clément, Heather Joy Ross

Heard

July 11 and 12, 2018, in Toronto, Ontario

Appearances:

Joshua Elcombe, for the applicant

Benjamin Salsberg, for the respondent

– SUMMARY –

David Stephen Strashin acted in;

  • Professional Misconduct
  • Findings and Penalty
  • Failing to Supervise Non-Lawyer Staff
  • Disclosing Teranet Password
  • Failing to Report a Potential Claim to LawPRO
  • Failing to Keep Trust Account in Balance
  • Engaging in Sharp Practice and Acting in a Conflict of Interest

– REASONS FOR DECISION –

[1]           Janis P. Criger (for the panel):– The Law Society alleged that David Stephen Strashin (the “Licensee”) engaged in professional misconduct by breaching several provisions of the Rules of Professional Conduct, when he:

a.   failed to supervise non-lawyer staff in his office;

b.   disclosed his Teranet password to another person and allowed that person to use his Teranet USB key;

c.   failed to report a potential claim to LawPRO;

d.   misapplied trust funds and failed to keep his trust account in balance;

e.   behaved dishonourably and engaged in sharp practice; and

f.   failed to serve his client and acted in a conflict of interest.

[2]           On the first day of this two-day hearing, we heard evidence including the testimony of Dr. Amarendra N. Singh, a well-qualified psychiatrist called by the Licensee to give evidence to mitigate or explain the misconduct. On the second day, the parties advised that they had resolved the matter by way of an admission of misconduct to all six allegations and a joint recommendation on penalty and costs. A redacted Request to Admit (“RTA”) was filed as evidence of the alleged misconduct. Mr. Strashin admitted the facts in the redacted RTA.

[3]           We found misconduct, accepted the joint submission and signed the draft order for a one-month suspension plus costs. These are our reasons.

– EVIDENCE –

[4]           David Stephen Strashin was called in 1974. He has practised for 44 years and has no previous discipline history. He is a sole practitioner with a focus on cases before administrative tribunals, and some real estate transactions.

[5]           The matters at issue arose between 2013 and 2016

[6]           Starting in 2008, David Stephen Strashin suffered a period of major depression arising from his mother’s serious illness and subsequent death in 2013. The depression affected his mood, impaired his judgment and compromised his decision-making.

[7]           David Stephen Strashin has recovered from the acute symptoms of the depression, although there are some residual effects which could have been improved with prompt treatment.

[8]           The first two allegations relate to the placing of mortgages by an identity thief on a previously unencumbered property. David Stephen Strashin admitted that his Teranet key had been in the possession of his conveyancing clerk, and that the conveyancing clerk registered a fraudulent transaction on behalf of the identity thief. David Stephen Strashin admitted that he failed to supervise the conveyancing clerk who worked with him, and that he provided that conveyancing clerk with his Teranet key and password. These are breaches of Rule 6.1-1 and Rule 6.1-5 of the Rules of Professional Conduct (the “Rules”).

[9]           The third allegation relates to the sale of a property where David Stephen Strashin acted for the vendor. David Stephen Strashin admitted that he was sued by the seller for a shortfall in the proceeds of sale and that he failed to report the claim to LawPRO. He also failed to defend the action and ultimately satisfied the resultant judgment against him from personal funds. Failure to report a claim to LawPRO is a breach of Rule 6.09 of the former Rules.

[10]        The fourth allegation concerns a complaint from another licensee who, upon taking over one of the David Stephen Strashin files, discovered a discrepancy in the David Stephen Strashin trust accounting. David Stephen Strashin admitted that his trust account was overdrawn by $5,304.57 as of September 25, 2015, contrary to By-Law 9, s. 9 and 14 made pursuant to the Law Society Act. David Stephen Strashin corrected the overdraft from personal funds.

[11]        The fifth allegation concerns a complaint from a licensee against whom David Stephen Strashin brought a Small Claims Court action on behalf of a client. A dispute arose over whether the David Stephen Strashin would consent to an adjournment of the mandatory settlement conference at the Small Claims Court. David Stephen Strashin did eventually consent to the adjournment, such that his opponent did not attend. Unbeknownst to the David Stephen Strashin, his client attended the settlement conference, had the defence struck and then proceeded to request an assessment of damages. David Stephen Strashin then attended at the assessment and obtained judgment against the complainant, despite having consented to the adjournment of the settlement conference at which the complainant’s defence was struck.

[12]        David Stephen Strashin admitted to misconduct by way of sharp practice contrary to Rules 6.01(1), 6.03(1) and 6.03(3) of the former Rules.

[13]        The last allegation concerns a real estate transaction that closed in November 2013. David Stephen Strashin admitted that he acted on behalf of both mortgagor and mortgagee with respect to a real estate transaction and withheld the identity of the mortgagee from the mortgagor. The mortgagor complainant would not have consented to a mortgage from the mortgagee, as they were estranged family members. David Stephen Strashin admitted that he failed to serve a mortgagor client and acted in a conflict of interest contrary to Rules 2.01 and 2.04(3) of the former Rules.

– CONDUCT FINDINGS –

[14]        On the basis of the admissions above, we conclude that David Stephen Strashin engaged in misconduct as alleged in the Amended Notice of Application.

– JOINT SUBMISSION ON PENALTY –

[15]        Joint submissions are a proper and necessary part of the system. They benefit the administration of justice and all participants including David Stephen Strashin, complainants, witnesses and counsel. A joint submission on penalty may only be rejected if it is truly unreasonable or unconscionable, or if its acceptance would lead reasonable and informed persons to believe that the proper function of the Law Society’s regulatory system had broken down: Law Society of Upper Canada v. Archambeault, 2017 ONLSTH 86.

[16]        Although we were considering a joint submission, the factors outlined in Law Society of Upper Canada v. Aguirre, 2007 ONLSHP 46and Law Society of Upper Canada v. Strug, 2008 ONLSHP 88 were also relevant as we considered whether the proposed penalty was reasonable and served the public interest.

[17]        These principles informed our decision to accept the joint submission in this case.

– PENALTY ANALYSIS –

[18]        At first glance, David Stephen Strashin’s misconduct appears quite serious and the jointly submitted penalty too lenient. However, Dr. Singh provided medical evidence that was not seriously challenged:

a.   From about 2008 to about 2014, David Stephen Strashin was deeply affected by his mother’s serious illness and subsequent passing in 2013.

b.   Those events gave rise to a major depression which affected his attention, concentration and focus in all areas of his life, including his law practice.

c.   David Stephen Strashin’s depression featured a marked tendency to procrastinate and an inability to meet all the demands of his life, including his practice.

d.   After his mother’s death, David Stephen Strashin began to gain insight into his condition and he felt that his condition had resolved in about 2014.

e.   In Dr. Singh’s opinion, David Stephen Strashin is about 80% better. He could have been 99% better if he had realized earlier what was happening and taken treatment.

[19]        We accept that David Stephen Strashin’s major depression affected his attention, concentration and focus during times when the misconduct occurred, although we cannot say that it directly caused the misconduct admitted. However, his failure to report a potential claim to LawPRO shows impaired judgment. David Stephen Strashin paid the $90,000 claim from personal funds rather than availing himself of his insurance coverage. The problems of lack of attention and foggy thinking caused by the depression contributed to his failure to monitor his trust account properly.

[20]        We emphasize that there is no allegation of dishonesty with respect to the David Stephen Strashin’s handling of trust monies, and no dispute that he brought the account into proper balance with his own funds immediately upon realizing there was a shortfall.

[21]        David Stephen Strashin’s failure to supervise his non-lawyer staff was in relation to giving his Teranet key and password to an employee. These failures contributed to a serious problem, in that an identity thief presented herself to David Stephen Strashin as a client and managed to place one of two mortgages on a previously unencumbered property belonging to the genuine property owner. David Stephen Strashin acted for the identity thief on the second of the mortgages. The identity thief presented credible identification to David Stephen Strashin and the chartered bank granting the mortgage was also duped by the identity thief. We conclude that the identity thief was exceptionally sophisticated and that David Stephen Strashin’s misconduct with his Teranet key and password contributed to, but did not fully cause, the identity thief’s ability to place the mortgage.

[22]        There is no allegation that David Stephen Strashin had any inkling that the transaction was not genuine. While the evidence on this point was not entirely clear, it also appears that the genuine property owner suffered no loss as a result of the fraudulent mortgages.

[23]        We note that the matters giving rise to the sharp practice and conflict of interest particulars occurred during a time close to his mother’s death, when the uncontradicted evidence of Dr. Singh indicates he was suffering from a major depression that affected his mood, impaired his judgment and compromised his decision-making.

[24]        Looking at the Aguirre factors, we note that David Stephen Strashin has been practising for over 40 years and had no disciplinary record. He co-operated fully with the Law Society, both in the investigation and in the hearing process. He was clearly remorseful at the hearing and we consider that the medical evidence at least partly explains the misconduct. These factors all mitigate the penalty that would be reasonable for these serious matters.

[25]        David Stephen Strashin is now largely recovered from his major depression. He has had no previous regulatory contact and we accept that his remorse demonstrated at the hearing is genuine. We conclude that the misconduct is unlikely to recur.

[26]        In our view, the foregoing mitigating factors weigh strongly against the aggravating factor of the significant potential impact of David Stephen Strashin’s misconduct on others.

[27]        Although the penalty jointly submitted is at the very low end for the misconduct admitted, we conclude in the circumstances of this case that it is reasonable. It achieves the goals of specific and general deterrence, without compromising the public’s confidence in the legal profession.

– ORDER –

[28]        We ordered:

1.      The respondent David Stephen Strashin class L1 licence shall be suspended for a period of 30 days commencing on November 1, 2018.

2.      While his class L1 licence is suspended, David Stephen Strashin shall fully comply with the Law Society’s Guidelines for Suspended Lawyers or Who Have Given an Undertaking Not to Practice and the applicable by-laws.

3.      David Stephen Strashin shall pay costs to the Law Society in the amount of $8,000.00 on or before July 12, 2019. Commencing immediately after that date, interest shall accrue on any unpaid part of these costs at a rate of 3% per year.

Amazingly David Strashin uses his own mothers death as an excuse to justify his own illegal behavior. It appears that David Strashin has no limits on what he is willing to do to when caught in the act of illegal activities that could prevent him from making a buck.

Instead of David Strashin putting on his big-boy pants and taking responsibility for HIS OWN illegal actions. Because he is suppose to be a grown ass man. He decided to use the dead mother routine to, blaming her for his professional misconduct and engaging in sharp practice and aActing in a conflict of interest.

But as the sun will rise tomorrow, I am sure that his mom would be okay and proud of her little Davy, and this intolerant and unprofessional behavior. As usually the apple does not fall very far from the tree!

And we see that The Law Society of Ontario, Janis P. Criger (chair), Suzanne Clément, Heather Joy Ross and Joshua Elcombe were all willing participants in this sweetheart of a deal give to David Strashin.

You know the sweet heart deal that allowed a practicing lawyer of 44 years who committed illegal actives, them used and blamed his dead mother for doing it and as a result got a tiny slap on the hand.

And this is why the Judaical System and all of it parts are the way they are. Because in the end they all look out for their own. Doing what is right is not as important as protecting your own.

I am sure that David Strashin will most certainly be glad to give high praise to The Law Society of Ontario for their very noble effort to fix and rid the system of lawyers like himself.