NOVA SCOTIA BARRISTERS SOCIETY HEARING PANEL Citation: Nova Scotia Barristers Society v. Savoie, 2005 NSBS 6 Date: 20051216 Docket: S.H. No. 260151 Registry: Halifax The CANADA EVIDENCE ACT - and - The LEGAL PROFESSION ACT,.S.N.S. 2004, c. 28, and the Regulations of the Nova Scotia Barristers Society, as amended BETWEEN: The Nova Scotia Barristers Society - and - David Savoie, a Barrister and Solicitor of Halifax, Nova Scotia Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on November 18, 2010. Before: Bruce MacIntosh, Q.C., Chair Heard: Counsel: John T. Rafferty, Q.C., for the Nova Scotia Barristers Society (This page did not form part of the original Decision)
2005 S. H. No. 260151 IN THE SUPREME COURT OF NOVA SCOTIA The Legal Profession Act, S.N.S. 2004, c. 28, and the Regulations of the Nova Scotia Barristers' Society, as amended - and - David Savoie, Barrister and Solicitor of Halifax, Halifax Regional Municipality, Province of Nova Scotia ORDER BEFORE THE PROTHONOTARY ANNETTE M. BOUCHER UPON HEARING John T. Rafferty, Q.C., solicitor for the Nova Scotia Barristers' Society; AND UPON READING the Affidavit of Victoria Rees, sworn the it day of December, 2005, the Settlement Agreement, dated the 12 th day of December, 2005 and approved the 12 th day of December, 2005, which is attached to the said Affidavit as Exhibit "A", and the Resolution of the Hearing Panel of the Discipline Committee of the Nova Scotia Barristers' Society, dated the 12 th day of December, 2005, which is attached to the said Affidavit as Exhibit "B"; NOW UPON MOTION: IT IS ORDERED THAT DAVID SAVOIE: 1. be suspended for four months commencing on December 13, 2005; 2. pay a fine of Two Thousand Five Hundred Dollars ($2,500.00) to the Nova Scotia Barristers' Society on or before April 13, 2006;
3. a) successfully complete, including successfully completing all assignments and examinations, either the Professional Responsibility course at the Dalhousie University Law School or an equivalent course from a Canadian law school to be approved by the Society's Executive Director before, or at the first opportunity after, his return to being a practising lawyer with the Society; b) upon his return to being a practising lawyer and until he has successfully completed either of the previously mentioned Professional Responsibility or equivalent courses, he shall only practice under the supervision of a practising member of the Society who has been approved by the Society's Executive Director for such supervision; c) shall ensure that written confirmation of his successful completion of such course is provided from the University directly to the Society's Executive Director, and 4. shall pay costs to the Nova Scotia Barristers' Society relating to the investigation and prosecution of the Complaint in the amount of Fifteen Thousand Dollars ($15,000.00) on or before April 13, 2006. IT IS FURTHER ORDERED THAT: 5. if Mr. Savoie does not pay all of any portion of the fine and costs set out above by April 13, 2006, then the Society may enter judgment against Mr. Savoie upon filing in the Prothonotary's Office the affidavit of the Executive Director of the Society deposing to such deficiency, and 6. Mr. Savoie shall not be entitled to reinstatement as a practising lawyer until he has fully paid the fine and costs set out above and any judgment debt arising from the same. DATED at Halifax, Nova Scotia this 16 th day of December, 2005. PROTHONOTARY
PROVINCE OF NOVA SCOTIA HALIFAX REGIONAL MUNICIPALITY The Canada Evidence Act And The Legal Profession Act, S.N.S. 2004, c. 28, and the Regulations of the Nova Scotia Barristers' Society; as amended And David Savoie, Barrister of Halifax, Province of Nova Scotia RESOLUTION WHEREAS the formal complaint of the Nova Scotia Barristers' Society ("the Society") was filed with the Society, pursuant to the Regulations of the Society, against David Savoie, Barrister of the Supreme Court of Nova Scotia, of Halifax, in the Province of Nova Scotia; AND WHEREAS a Settlement Agreement (attached hereto as Schedule "A") was negotiated between the Society and Mr. Savoie and was presented to the panel composed of members of the Hearing Committee; AND WHEREAS the Settlement Agreement has been executed by Mr. Savoie and consented to by John T. Rafferty, Q.C., Solicitor for the Nova Scotia Barristers' Society, and recommended by the Complaints Investigation Committee; AND WHEREAS the panel of the Hearing Committee unanimously approved the Settlement Agreement; IT IS RESOLVED THAT pursuant to the provisions of Section 42(2)(k) of the Legal Profession Act, S.N.S. 2004, c. 28, the Settlement Agreement, a copy of which is
attached hereto as Schedule "A", be and is hereby approved. DATED at Halifax, Nova Scotia this 12 th day of December, 2005. NOVA SCOTIA BARRISTERS' SOCIETY PER: BRUCE MacINTOSH, Q.C., CHAIR Hearing Committee Panel
PROVINCE OF NOVA SCOTIA HALIFAX REGIONAL MUNICIPALITY SCHEDULE "A" The Canada Evidence Act And The Barristers' and Solicitors' Act, R.S.N.S. 1989, c. 30, and the Regulations of the Nova Scotia Barristers' Society, as amended And David Savoie, Barrister of Halifax, Province of Nova Scotia COMPLAINT The complaint of the Nova Scotia Barristers' Society (the "Society") against David Savoie, of Halifax, Nova Scotia and a Barrister of the Supreme Court of Nova Scotia, charges David Savoie with professional misconduct and conduct unbecoming, in that he breached provisions of the Legal Ethics and Professional Conduct Handbook (the "Handbook"). Specifically, 1. Between January 1, 1997 and December 31, 1999, during which time David Savoie held non-practising status in the Nova Scotia Barristers' Society, he held himself out to be entitled to practice law when he was not authorized to do so, and acted as a lawyer. In doing so, Mr. Savoie breached section 5 of the Barristers' and Solicitors' Act, and further failed to discharge with integrity every duty a lawyer owes to a client and the profession and to observe a standard of conduct that reflects credit to the profession and the system and administration of justice as a whole, contrary to Chapters 1 and 23 of the Handbook, and is thereby guilty of conduct unbecoming a barrister. In particular, he: (i) (ii) prepared a warranty deed dated July 11, 1997, whereby E.L. deeded approximately 50 acres of property to David Savoie; acquired a gift from his client or deemed client by preparing and having executed a warranty deed dated July 11, 1997, whereby E.L. deeded approximately 50 acres of property to David Savoie, in circumstances where Mr. Savoie failed to ensure that E.L. was independently represented or had obtained independent legal advice in the transaction;
(iii) (iv) prepared the Will of E.L., and had the Will of E.L. which he had prepared and in which he would acquire property by way of testamentary disposition, executed on July 11, 1997 in circumstances where Mr. Savoie failed to ensure that E.L. was independently represented or had obtained independent legal advice. 2. While acting as a lawyer for E.L. in 1995 to 1996, and 2000 to 2004, Mr. Savoie breached his duty not to act for a client or a deemed client when his interests were in conflict with those of his client, in circumstances where the client might reasonably have assumed Mr. Savoie was protecting her interests, contrary to the provisions of Chapter 7. In particular, he: (i) (ii) (iii) acquired a gift of $33,260.63 from his client or deemed client, E.L., on August 10, 2000, in circumstances where David Savoie failed to ensure that E.L. was independently represented or had obtained independent legal advice prior to advancing the gift; prepared instruments giving himself substantial gifts from his client or deemed client, E.L., by preparing in or about the month of July, 2001, two warranty deeds, whereby E.L. deeded two parcels of property to David Savoie, and acquired gifts from his client or deemed client, E.L., by preparing in or about the month of July, 2001 and having executed on July 9, 2001, two warranty deeds, whereby E.L. deeded two parcels of property to David Savoie, in circumstances where Mr. Savoie failed to ensure that E.L. was independently represented or had obtained independent legal advice in the transactions. TAKE NOTICE that at the Formal Hearing of this complaint the Hearing Panel may be asked to make a finding of professional misconduct and conduct unbecoming against you on the basis of any evidence brought before the hearing panel. DATED at Halifax, Nova Scotia, this 31st day of January, 2005. AMENDED at Halifax, Nova Scotia on July 20, 2005 and November 25, 2005. NOVA SCOTIA BARRISTERS' SOCIETY Per: Victoria Rees Director of Professional Responsibility
PROVINCE OF NOVA SCOTIA HALIFAX REGIONAL MUNICIPALITY The Canada Evidence Act And The Legal Profession Act, S.N.S. 2004, c. 28, and the Regulations of the Nova Scotia Barristers' Society, as amended And David Savoie, Barrister of Halifax, Province of Nova Scotia SETTLEMENT AGREEMENT David Savoie, a member of the Nova Scotia Barristers' Society, hereby agrees with and consents to the following in accordance with the provisions of the Legal Profession Act, S.N.S. 2004, c. 28 and Regulations made thereunder. A. Statement of Facts 1. David Savoie has been a member of the Nova Scotia Barristers' Society since June 14, 1991. 2. Mr. Savoie held practising insured status from June 14, 1991 to December 31, 1996. He held non-practising status from January 1, 1997 to December 31, 1999. He resumed practising insured status from January 1, 2000 to February 15, 2005. Effective February 16, 2005, he was suspended for non payment of fees, which suspension remains in effect. 3. Mr. Savoie provided various legal services to E.L. commencing in 1995 including the following: - services in relation to the Estate of J.L. and corporate matters in 1995 and 1996, - drafted a power of attorney in the spring of 1996, - drafted a power of attorney, will and deed in or about July, 1997 while non-practising, - services in relation to a dispute involving the Estate of E.L.'s mother in 2000, - drafted two leases and two deeds in July, 2001.
4. Mr. Savoie also assisted E.L. with a residential tenancy dispute in December, 1998, with collecting a debt in August, 1999 and with a dispute with the Nova Scotia Department of Transportation in 2000. Mr. Savoie was a non-practising member in 1998 and 1999, but held E.L.'s power of attorney at those times. 5. The power of attorney, will and deed drafted in of about July, 1997 were all in favour of Mr. Savoie. The power of attorney, which was a general one, appointed Mr. Savoie as attorney with power to deal with all of E.L.'s assets. The will named Mr. Savoie as sole beneficiary of the Estate of E.L.. The deed conveyed a 50 acre parcel of rough undeveloped waterfront land at [...], at or near [...] Halifax Regional Municipality from E.L. to David Savoie. 6. The power of attorney, will and deed drafted in or about July, 1997 were all executed by E.L. on July 11, 1997 at the office of Peter Spencer, Q.C., then a member of the Nova Scotia Barristers' Society. Mr. Savoie arranged to take E.L. to Mr. Spencer, who was not known to E.L., and accompanied her to Mr. Spencer's office, but was not present when E.L. executed these documents in the presence of Mr. Spencer and his assistant. 7. E.L. received no valuable consideration from David Savoie for the conveyance of the 50 acres at [...]. 8. E.L. denies receiving independent legal advice from Mr. Spencer, or anyone else, respecting her execution of the power of attorney, the will or the deed. Mr. Savoie is unable to demonstrate that Mr. Spencer provided independent legal advice and Mr. Savoie failed to ensure that Mr. Spencer provided independent legal advice to E.L. when he met with her to execute her power of attorney, deed and will. No certificate of independent legal advice completed by Mr. Spencer was provided to Mr. Savoie. 9. On August 10, 2000, E.L. gave Mr. Savoie the sum of $33,260.63 as a gift. E.L. received no independent legal advice respecting this gift. Mr. Savoie accepted the gift without ensuring that E.L. obtained such advice. 10. Mr. Savoie returned an aggregate of $13,000 of the $33,260.63 sum to E.L. in instalments of $2,000 on January 11, 2001, $1,000 on March 23, 2001, $5,000 on June 17, 2002 and $5,000 on March 8, 2004 upon E.L.'s request for such sums. 11. Each of the two deeds drafted by Mr. Savoie in July, 2001 conveyed a house with approximately three acres of waterfront land in [...] from E.L. to David Savoie. One of the properties was E.L.'s home and the other a rental income property. No rental income was received by either Mr. Savoie or E.L. following the conveyance. 12. Mr. Savoie arranged an appointment for E.L. with Jacqueline Farrow, a member practising in Tantallon who was not known to E.L., on July 9, 2001 to execute the deeds. Mr. Savoie accompanied E.L. to Ms. Farrow's office, but was not present when E.L. executed the deeds in the presence of Ms. Farrow and her assistant.
13. E.L. received no valuable consideration from David Savoie for the conveyance of the two residential properties. 14. E.L. did not receive independent legal advice from Ms. Farrow, or anyone else, respecting her conveyance of the two residential properties to Mr. Savoie and Mr. Savoie did not ensure that she received such advice. 15. On December 24, 2001, Mr. Savoie executed leases to E.L. for her life to each of the two residential properties which had belonged to E.L. 16. On May 17, 2004, the Society received the complaint of E.L. through her counsel, Brian Smith, Q.C. The original deeds to the three E.L. properties, which Mr. Savoie had never recorded, were forwarded by Mr. Savoie to staff of the Nova Scotia Barristers' Society on May 31, 2004 together with a bank draft in the amount of $20,260.63 and Mr. Savoie's response to the complaint. B Complaint On January 31, 2005, the Nova Scotia Barristers' Society charged Mr. Savoie with professional misconduct and conduct unbecoming a barrister, which charges were amended on July 20, 2005 and November 25, 2005, particulars of which are set out in the Complaint, as amended, which is attached and marked Schedule "A". C Admissions David Savoie admits all of the facts and actions set out in the Statement of Facts and agrees that those actions constitute professional misconduct and conduct unbecoming as alleged in the attached Complaint marked Schedule "A". D Discipline History David Savoie has no prior discipline record. E Acceptance of Penalty David Savoie hereby accepts the following penalties: 1. That he be suspended for four months commencing on December 13, 2005;
2. That he pay a fine of Two Thousand Five Hundred Dollars ($2,500.00) to the Nova Scotia Barristers' Society on or before April 13, 2006; 3. a) That he successfully completes, including successfully completing all assignments and examinations, either the Professional Responsibility course at the Dalhousie University Law School or an equivalent course from a Canadian law school to be approved by the Society's Executive Director before, or at the first opportunity after, his return to being a practising lawyer with the Society; b) That upon his return to being a practising lawyer and until he has successfully completed either of the previously mentioned Professional Responsibility or equivalent courses, he shall only practice under the supervision of a practising member of the Society who has been approved by the Society's Executive Director for such supervision. c) Mr. Savoie shall ensure that written confirmation of his successful completion of such course is provided from the University directly to the Society's Executive Director. F Costs David Savoie shall pay costs to the Nova Scotia Barristers' Society relating to the investigation and prosecution of the Complaint in the amount of Fifteen Thousand Dollars ($15,000.00) on or before April 13, 2006. G Judgment If Mr. Savoie does not pay all of any portion of the fine and costs set out above by April 13, 2006, then the Society may enter judgment against Mr. Savoie upon filing in the Prothonotary's Office the affidavit of the Executive Director of the Society deposing to such deficiency. H Reinstatement David Savoie shall not be entitled to reinstatement as a practising lawyer until he has fully paid the fine and costs set out above and any judgment debt arising from the same. I Effective Date
This Settlement Agreement shall only become effective and binding upon its acceptance by the Hearing Panel appointed to conduct the hearing of the Complaint. 2005. THIS SETTLEMENT AGREEMENT made as at the 12 th day of December, WITNESS DAVID SAVOIE CONSENTED TO BY: JOHN T. RAFFERTY, Q.C. Solicitor for the Nova Scotia Barristers' Society RECOMMENDED BY: APPROVED BY: Complaints Investigation Committee Hearing Committee of the Nova Scotia Barristers' this 7 th day of November, 2005 Society this 12 th day of December, 2005