Failure to properly balance cultural practices and Canadian commercial standards casts suspicion of fraud over lawyer
In his article “Manage Malpractice Risk by Recognizing Cultural Diversity“, Lorne Shelson (Litigation Director & Counsel in the Specialty Claims Department at LAWPRO) gives five ‘culturally-based’ claims scenarios loosely based on real LAWPRO claims.
Here is one scenario:
The lawyer belonged to a tight-knit community where loan transactions were rarely documented. Community members generally relied on the word of others with respect to repayment of loans. The community was also generally distrustful of financial institutions, and completed large transactions without involving banks.
It was also commonplace for one community member to support others by giving them money to assist in purchasing property. The money was typically repaid on the sale of the property, all without any written agreement. Consequently, undocumented funds would be paid from the lawyer’s trust account on real estate transactions between community members. The lawyer, who was ultimately exonerated, fell under suspicion of being involved in value frauds because he had not obtained proof for the mortgagees that the deposits stipulated in various agreements of purchase and sale had in fact been obtained. The case illustrates the risk a lawyer faces in failing to balance the needs and traditions of a given cultural community with the expectations of local business enterprises. A less risky approach would be for a lawyer who is familiar with the particular financial practices of a community to make efforts to educate institutional clients about those practices. By doing so, the lawyer may be able to meet the needs of both the lawyer’s community and local institutional lenders, in turn facilitating the community’s ease of access to these lenders.
This article appeared in the September 2014 “The Changing Face of the Profession” issue of LAWPRO Magazine. All past LAWPRO Magazine articles can be found at