The Law Society of Upper Canada’s conduct case against Douglas Keshen, of Keshen & Major in Kenora, Ont., was concluded on Tuesday, by mutual agreement between the parties. The longstanding case involved allegations of professional misconduct related to the handling of compensation paid under the Indian Residential Schools Settlement Agreement.
|LSUC treasurer Paul Schabas says the Law Society’s experience with the Keshen case ‘exposed serious systemic issues involving the Law Society’s regulatory and hearing process in relation to Indigenous issues.’|
As previously reported in Law Times, Keshen was accused of several acts of misconduct, including failing to pay Indian residential school clients their full settlements within a reasonable period of time after receiving them, and transferring settlement funds for clients from his trust account to his general account “without any legal entitlement to the monies.”
“The case did not unfold as expected and the outcome of supervisory conditions was the only viable option,” Law Society treasurer Paul Schabas said in a statement on Tuesday. “Our experience with this particular case exposed serious systemic issues involving the Law Society’s regulatory and hearing process in relation to Indigenous issues. We need to listen and learn from this, so that we can do better.”
There were three main reasons given by the Law Society Tribunal for the decision, in support of its joint submission with Keshen. “First, it says, the nature of the evidence was different than had been expected in the initial allegations. Second, it notes that the hearing was stressful for many of the complainant witnesses and this stress warranted a reconsideration of the nature and goals of the prosecution. Third, it states that the rules of evidence led to a gap between what complainants wanted to say to the Tribunal and what it was possible for them to say. The Law Society believes that moving to a process that can be more attentive to this and to processes familiar to the Indigenous community may be helpful.”
Keshen participated in an Invitation to Attend before the Tribunal hearing panel on Tuesday to receive corrective advice and guidance, “so that past lapses and mistakes are not repeated,” the Law Society said. He is expected to attend another ITA in Toronto in a few months, “after he has had time to reflect further on his actions.”
Keshen has also agreed to undergo a number of practice reviews, including a spot audit of his books and records, and professional development requirements to ensure his practices meet the required standards.
Finally, Keshen will participate in up to three circles funded by the Law Society, “if the community leaders and Elders consider them valuable,” the Law Society said in its statement.
The Law Society Tribunal hearing was before David A. Wright (chair), Janis P. Criger and John F. Spekkens. Graeme Cameron represented the Law Society, while Keshen was represented by Robin Parker and Daniel Naymark.
In a statement, Keshen’s counsel said their client was “pleased that the Law Society’s case was resolved yesterday and the charges against him dismissed with no findings.”
Keshen has always denied wrongdoing in the case.
“We sincerely hope the communities in northwestern Ontario will accept these decisions,” his counsellors said in their statement, referring also to a decision of Superior Court of Ontario Justice Paul Perell in September that rejected allegations Keshen had misappropriated residential school settlement awards made to residential school survivors.
“Mr. Keshen is not an exploiter of Residential School survivors,” his lawyers said. “Just the opposite. … [H]e is deeply committed to the First Nations of northwestern Ontario. He has been working on behalf of their communities for the past 40 years.”
The statement also noted that Keshen had met on Tuesday with two elders and the members of the Tribunal hearing panel to receive advice, “which he found valuable. Mr. Keshen also looks forward to the opportunity to take part in community circles that the Law Society has offered to fund . . . “