Written off 18 months! | Law Inc.

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Michael Gauthier began his purgatory last July 27 for having contravened the provisions of section 47 of the Regulation respecting accounting and the standards of professional practice of lawyers and section 59.2 of the Professional Code.

According to the notice of striking off published by the Barreau du Québec, Michel Gauthier used, or allowed to be used, his trust account for purposes not justified in the practice of the legal profession.

The disciplinary decision relates to four separate transactions on four different dates between February 21 and March 3, 2014. A total sum of $120,000 is in dispute.

Michel Gauthier pleaded guilty to the sole count of the complaint during the guilty hearing on October 18, 2021. He then suggested that a limitation of practice be imposed on him and according to which he could not hold a trust account for a period of one or two years. He also offered to impose a fine of $2,500.

The alleged facts are that Mr. Gauthier was approached by two former clients seeking funding for two separate projects. One for the purchase of many apartments worth millions in the Bahamas and the second for the import of goods from China. The two projects are presented by different people, but in the same period of 2014.

In Terrebonne, Michel Gauthier made two withdrawals, one by bank draft, the other by check, both in the amount of $60,000 each, on March 3, 2014, for two withdrawals.

Two projects requiring major investments, hence the involvement of the second suspended lawyer, Wilmar Carvajal. The latter insists that he was only involved in the Bahamas case, not at all in China.

The prosecutors at fault nevertheless resorted to business partners in the financing of private projects to consolidate the sum and then lend it to former clients of Mr. Gauthier, whose identity is protected by the disciplinary tribunal.

A conflict then emerges between the investors of the Bahamas project and that of China regarding the repayment of the sums loaned.

Partners never reimbursed

In March 2017, a business partner claimed in Superior Court the sum of $1,136,750, i.e. the amount loaned as well as the damages.

Two years later, the Honorable Bernard Synnott jointly and severally condemns the two lawyers to pay the sum of $60,000 to the plaintiff.

A reimbursement which will not take place following a Judgment allowing the appeal and reversing the judgment of first instance, in June 2021.

To come back to this file, the Council mentions that Michel Gauthier cannot claim to be a simple intermediary who facilitated the contacting of former clients. “On the contrary, the respondent has rather engaged in deviant conduct on several occasions, which concerns the Board,” reads the 18-page decision.

“Obviously, the respondent did not understand the obligations incumbent on a fideicommissary, or deliberately ignored them”.

The Council refers to the facts that Michel Gauthier was, in 2006, declared guilty of having lacked competence or of having displayed willful blindness, by cashing in his trust account checks made out to persons whose identity had been usurped and then distributing these sums, thus allowing third parties to complete a fraudulent transaction. He was ordered to pay fines totaling $10,000.

In 2011, a three-month disbarment linked to a conviction for having accepted a settlement offer without obtaining the authorization of his client and for having abused the trust of colleagues, in particular.

Another disbarment, this time for six months, in 2020. He was convicted of participating in a false billing scheme.

“I will never have a trust account again”

Invited to comment on the judgment, Michel Gauthier immediately mentioned exclusively to Droit-inc that he was analyzing the possibility of appealing. “The decision to take the money was for a very specific reason which was not perceived in the same way by the Council”.

However, he mentions having understood the message well: “I will never have a trust account again in my career”, assures the 56-year-old man in a short telephone interview.

Exemplary penalties

The fact that Michel Gauthier had more than 30 years of experience at the time of the offenses was considered an aggravating factor by the Board.

The Board said it was concerned by the behavior of Mr. Gauthier, having shown no regrets and having shown in the past a certain laxity in the management of his trust account.

In the eyes of the three members of the Board, chaired by Me Marie France PerrasMichel Gauthier demonstrated willful blindness which is akin to a lack of professional integrity.

The Council adds that Mr. Gauthier “displays a serious need for introspection if he wants to return to the practice of law”.

The Board also notes that Mr. Gauthier’s acknowledgment of the facts is a mitigating factor.

The spectrum of sanctions in this matter in the case law is very wide, ranging from periods of temporary expulsion imposed varying between a few months and several years.

“The actions taken are serious and inadmissible for an experienced lawyer… The sanction must be severe and dissuasive for the respondent and for the other members of the profession, while achieving the objectives of setting an example for the profession and the protection of the audience “.

In addition to the 18-month radiation, Michel Gauthier is ordered to pay the disbursements, in accordance with section 151 of the Professional Code. And a notice of this decision must be published in a newspaper in Terrebonne, where his professional domicile is.

Wilmar Carvajal

The Board also looked into Wilmar Carvajal’s case, which is closely linked to this case. He who is no longer a lawyer today.

Despite everything, the sums of the China file or the Bahamas file were transacted either in Mr. Carvajal’s account or in that of Mr. Gauthier.

Unlike Michel Gauthier, the assistant syndic Me Samy Elnemrconsiders the risk of recidivism low in the case of Mr. Carvajal, or even almost zero.

Following an agreement, the parties came to a joint suggestion to impose an 18-month disbarment period.

Another big difference with Mr. Gauthier, Mr. Carvajal had only one disciplinary record and he had expressed sincere remorse and regret when the sanction was pronounced.

Our efforts to contact Wilmar Carvajal were unsuccessful.

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