THE LAW SOCIETY OF ALBERTA RESIGNATION COMMITTEE … · Mary Jo Rothecker – Resignation Committee...

Mary Jo Rothecker – Resignation Committee Report – March 20, 2014 HE20100034

Prepared to Protect Solicitor Client Privilege – March 24, 2014 of 26

THE LAW SOCIETY OF ALBERTA

RESIGNATION COMMITTEE REPORT

IN THE MATTER OF THE LEGAL PROFESSION ACT,

AND IN THE MATTER OF AN APPLICATION TO RESIGN WHILE FACING

CITATIONS, INVOLVING MARY JO ROTHECKER

A MEMBER OF THE LAW SOCIETY OF ALBERTA

1. On December 9, 2013, a Resignation Committee (the “Committee”) of the Law Society

of Alberta (the “LSA”) convened at the LSA offices in Calgary, Alberta, to hear an

application by the Member, Mary Jo Rothecker, to resign from the LSA, pursuant to s. 32

of the Legal Profession Act. The Committee was comprised of Robert Harvie, Q.C.,

Chair, Rose Carter, Q.C., and Wayne Jacques, CA. The LSA was represented by Ms.

Lois MacLean. The Member and her Legal Counsel, Mr. Doug Quirt, attended the

hearing by teleconference.

2. The Member and the LSA submitted an Agreed Exhibit Binder, which contained an

Admitted Statement of Facts which was signed by Ms. Rothecker. It contained certain

admissions which were made part of Ms. Rothecker's application to resign. It was

effectively a Joint Submission as to the appropriateness of the resignation under s. 32 of

the Act in the face of the extant citations and the admissions made. The Resignation

Committee was aware that such a joint submission should receive the deference of a

committee such as this unless that submission is unfit, unreasonable in the circumstances,

or contrary to the public interest.

3. The formal citations faced by Ms. Rothecker were set out in Exhibit 2. That Exhibit is

appended to this Memorandum.

4. Ms. Rothecker's application was constituted by four documents that were entered as

Exhibit 6:

a. EXHIBIT 6(A) - Application for Resignation

b. EXHIBIT 6(B) - Statutory Declaration

c. EXHIBIT 6(C) – Undertaking

d. EXHIBIT 6(D) – Admitted Statement of Facts



Exhibit 6 is appended to this Memorandum.

5. The decision of the Resignation Committee concerned two substantive applications raised

during the hearing. At the outset of the hearing, there was an application by the Member

to have part of these proceedings held in private with respect to certain evidence

respecting the mental health of the Member, and including a medical report submitted on

behalf of the Member by Dr. John Machry, entered into these proceedings as Exhibit 7.

6. The principal application of the Member, as indicated, was then the application brought

under Section 32 of the Legal Profession Act, being an application by the Member to

resign from the Law Society of Alberta.

7. The decision in this matter was given orally by the Chair and was as follows:

THE CHAIR: As indicated earlier, what we have before us is an

application for resignation tendered under Section 32 of the Legal Profession Act.

That request has been made by the member, Mary Jo Rothecker, and has been

supported by representations by her counsel, Mr. Quirt, which application is not

opposed by counsel for the Law Society.

With respect to the application, it should be noted that as part of the materials before

this panel was provided a medical report that outlined to a great degree the history of

mental and physical difficulties encountered by the member.

In that respect I can advise that, based upon review of all the material, this panel has

determined that it would not be contrary to the public interest to allow the application

for resignation under Section 32 of the Legal Profession Act, and that application is

therefore allowed and accepted by this panel.

I would note for the record that in doing that, while we acknowledge receipt of the

agreed statement of facts, the suggestion in the agreed statement of facts in some

regard is that the circumstances of the member are -- and specifically her medical

difficulties -- are a complete answer to the citations which were levied against her.

For the record, this panel takes some issue with that, although the panel

acknowledges that the circumstances are mitigating factors that allow for this panel to

consider that the Section 32 application is not inappropriate; so it is therefore allowed.

The resignation is, however, subject to several conditions, that I'll outline.

The first condition will require as a condition of that acceptance of resignation that

the member will provide a written undertaking to the Law Society of Alberta and the

Law Society of Upper Canada and a general undertaking not to apply for readmission

as a lawyer in either Alberta, Ontario, or any other jurisdiction in Canada.



The second condition would be that prior to applying for readmission, in the event

that she requests to be relieved of that undertaking, that she would be required to pay

costs as set out in Exhibit 8 in these proceedings, in the sum of $90,539.50.

The next condition of acceptance of that resignation is that the member will provide

an undertaking in writing not to act as agent on any legal matter before any court in

Canada or any administrative tribunal or other quasi legal proceeding.

A further condition of acceptance of resignation would be that in the event that the

member seeks to be relieved of her undertaking not to apply for readmission, that she

would provide as a condition of that application a report of an appropriate psychiatrist

or chartered psychologist affirming her mental stability to allow her to return to the

practice, which report would be obtained at her own expense.

The next condition would be that the member will use her best effort to obtain and

then return her certificate of admission to the Law Society of Alberta.

The next condition would be that in the event the member applies to be relieved of

her undertaking not to seek readmission in Alberta or elsewhere that she would be

required, as a condition of that readmission, to complete the full CPLED course or

equivalent course for admission of law students in Alberta, or such jurisdiction as she

may apply for readmission.

So that would be the order relative to the application for resignation.

With regard to the ancillary matter regarding effectively the application of the

member to have the medical report considered private and not open to public scrutiny,

the panel has considered that request and the panel is denying that application.

In a review of the report, we believe there is nothing in that report that is of what we

would term significant embarrassment to the member. In many respects it is in some

regard admirable that the member has undergone those trials and has succeeded in

many respects in overcoming them, notwithstanding what brought her here.

We make that determination to a great extent based on the presumption that

proceedings before this panel are public and that we as the Law Society have a duty

of transparency to the public and in the public interest to allow the public to be aware

of the basis upon which determinations are made at this level.

I would make comment in that regard as well that the citations that the member was

facing were serious and numerous. And again in line with the obligation of

transparency in the interest of the public, I think it's important in this case that public

is aware of what we would call clearly mitigating factors that resulted in this matter

not proceeding to an ultimate determination or by way of a Section 61 application

that we've discussed.



So with regard to the substantive matters, that would conclude our determination.

The results of these proceedings shall be published as required by the executive

director. So there will be a Section 32 notice to the profession. And the results of

these proceedings will be entered on the roll of the member as well.

There is not a request for a referral to the Attorney General's office?

MS. MACLEAN: No, sir, there's no request for the referral to the Attorney

General. Can I simply ask for confirmation, sir, that the names of any clients or third

parties will be redacted from the record prior to publication with respect to the

exhibits and the statement of facts and any other matters on the record?

THE CHAIR: And that will be the case. There will be an order that there

will be a redaction of any identification of any third parties or clients that would

otherwise be contained within the record.

MS. MACLEAN: And simply reviewing the guidelines, sir, I don't think --

competence is not an issue. And with respect to the member's practice, as I

previously indicated, she has not been in practice since 2007, and the practice was

dealt with by way of Ms. Edwards, who was formally appointed as a custodian. So I

don't think that there's anything that you need to deal with with respect to any

directions in that regard.

THE CHAIR: The only comment I would make, counsel, is we do believe

the competence is a bit of an issue, and that was the basis of the order that if there's an

application for readmission that there will be basically a retraining of this member in

accordance with CPLED.

MS. MACLEAN: Okay. Then that -- will there be written reasons, sir?

THE CHAIR: There will be.

MS. MACLEAN: Then that would be addressed, presumably, in those written

reasons, but there's nothing else that needs to be done?

THE CHAIR: No.

MS. MACLEAN: Then I think that those are all the matters that I need to ask

you to deal with.

THE CHAIR: Anything further, Mr. Quirt?

MR. QUIRT: No. I would just like to thank you for your consideration in

these circumstances.



THE CHAIR: And I thank you as well, Mr. Quirt, for your cooperation in

allowing this matter to be concluded, and I thank counsel as well for the Law Society

in that regard as well. Thank you very much.

MS. MACLEAN: Thank you, sir. Then --

THE CHAIR: That concludes these proceedings. We stand adjourned.

Dated at Calgary, Alberta, the 20th

day of March, 2014

Robert G. Harvie, Q.C.,

Chair

Rose Carter, Q.C.

Wayne Jacques, CA.



MARY JO ROTHECKER - FORMAL CITATIONS

CITATION 1: It is alleged that you failed to meet your commitments to your clients and that such conduct is deserving of sanction. CITATION 2: It is alleged that you withdrew funds from trust without forwarding an account to the complainants and that such conduct is deserving of sanction. CITATION 3: It is alleged that you misappropriated the complainants’ trust funds bringing discredit to the profession and that such conduct is deserving of sanction. CITATION 4: It is alleged that you failed to respond on a timely basis to communication from the Law Society that contemplated a reply and that such conduct is deserving of sanction. CITATION 5: It is alleged that you rendered an account without instructions and without having provided any services to the client and that such conduct is deserving of sanction. CITATION 6: It is alleged that you applied funds from trust for an account that had not been rendered to the client and that such conduct is deserving of sanction. CITATION 7: It is alleged that you failed to respond to the Law Society and that such conduct is deserving of sanction. CITATION 8: It is alleged that you failed to fulfill a financial commitment incurred in the business aspects of your practice and that such conduct is deserving of sanction. CITATION 9: It is alleged that you failed to respond to communications from the Law Society that contemplated a reply and that such conduct is deserving of sanction.



IN THE MATTER OF THE LEGAL PROFESSION ACT

IN THE MATTER OF AN APPLICATION BY MARY JO ROTHECKER

A MEMBER OF THE LAW SOCIETY OF ALBERTA

APPLICATION FOR RESIGNATION

I, Mary Jo Rothecker, hereby make application to the Benchers of the Law

Society of Alberta to resign as a member of the Law Society of Alberta pursuant to

Section 32 of the Legal Profession Act.

DATED at the City of Milton, in the Province of Ontario this 9th day of December,

2013.

_________________________________

Mary Jo Rothecker



IN THE MATTER OF THE LEGAL PROFESSION ACT

IN THE MATTER OF A RESIGNATION APPLICATION BY

MARY JO ROTHECKER A MEMBER OF THE LAW SOCIETY OF ALBERTA

STATUTORY DECLARATION

I, Mary Jo Rothecker, of the City of Mississauga, in the Province of Ontario, DO

SOLEMNLY DECLARE THAT:

1. I was born August 19, 1947.

2. I was admitted to the bar in the Province of Alberta on June 30, 1988.

3. I reside in Mississauga, Ontario.

4. I am currently suspended, effective June 24, 2010. The suspension resulted

from a Hearing Committee decision. I was previously suspended since

November 30, 2007, due to non-payment of hearing fines and/or costs.

5. The history of my practice status is as follows:

a) Dawe & Company August 12, 1988 to November 1, 1988

b) Rothecker Law Office November 1, 1988 to August 8, 1998

c) Franchi-Rothecker Law Office August 12, 1998 to November 30, 2007.

6. All trust funds and client property for which I was and am responsible have been

accounted for and paid over or delivered to the persons entitled thereto, or have

been transferred to Brenda Edwards as the Custodian of my former practice.



7. I am not aware of any current outstanding claims against me in my professional

capacity or in respect of my practice.

8. I make my resignation application pursuant to section 32(1) of the Legal

Profession Act.

AND I MAKE THIS SOLEMN DECLARATION conscientiously believing it to be true

and knowing that it has the same force and effect as if made under oath and by virtue of

the Canada Evidence Act.

DECLARED BEFORE ME at the City of Milton, in the Province of Ontario, this 9th day of December, 2013 __________________________ Mary Jo Rothecker __________________________________ A Notary Public



IN THE MATTER OF SECTION 32 OF THE LEGAL PROFESSION ACT

IN THE MATTER OF A RESIGNATION APPLICATION BY

MARY JO ROTHECKER A MEMBER OF THE LAW SOCIETY OF ALBERTA

Undertaking I, Mary Jo Rothecker, undertake and agree to cooperate with the Law Society of

Alberta in the future in respect to any claim made against me or the Assurance Fund

regarding me.

I undertake and agree to pay the Law Society of Alberta, on its demand, any

amount of any claim paid on my behalf by the Law Society’s Assurance Fund, or any

deductible with respect to any claim paid on my behalf by the Law Society’s insurer.

Signed at the City of Milton, in the Province of Ontario this 9th day of December,

2013.

___________________________ Mary Jo Rothecker



In the Matter of the Legal Profession Act

And In the Matter of a Resignation Application

Brought by Mary Jo Rothecker

A Member of the Law Society of Alberta

Law Society Hearing file: 20100034

ADMITTED STATEMENT OF FACTS

Ms. Rothecker was called to the bar on June 30, 1988, and practised in Cochrane,

Alberta. She was suspended as a result of nonpayment of fines and costs on November

30, 2007 and on June 24, 2010 she was further suspended for a period of 15 months, as a

result of a discipline hearing.

Ms. Rothecker was a general practitioner.

Ms. Rothecker has applied to resign as a Member of the Law Society pursuant to s. 32

and admits all the contents of this statement of facts which is tendered as an admission of

facts in support of her resignation application.

Ms. Rothecker has provided a medical report summarizing a psychological assessment

done by Dr. J.M. The contents of that report are dealt with in some detail below.

Ms. Rothecker faces 18 citations as follows:

Re: B.D. and C.D.

1. It is alleged that you failed to meet your commitments to your clients and that

such conduct is deserving of sanction.

2. It is alleged that you withdrew funds from trust without forwarding an account to

the complainants and that such conduct is deserving of sanction.

3. It is alleged that you misappropriated the complainants= trust funds bringing

discredit to the profession and that such conduct is deserving of sanction.

4. It is alleged that you failed to respond on a timely basis to communication from

the Law Society that contemplated a reply and that such conduct is deserving of

sanction.



Re: R.R.

5. It is alleged that you rendered an account without instructions and without having

provided any services to the client and that such conduct is deserving of sanction.

6. It is alleged that you applied funds from trust for an account that had not been

rendered to the client and that such conduct is deserving of sanction.

7. It is alleged that you failed to respond to the Law Society and that such conduct is

deserving of sanction.

Re: C.W.

8. It is alleged that you failed to fulfill a financial commitment incurred in the

business aspects of your pract8ice and that such conduct is deserving of sanction.

9. It is alleged that you failed to respond to communications from the Law Society

that contemplated a reply and that such conduct is deserving of sanction.

Re: Hagel and Morgan

10. It is alleged that you misappropriated or converted to your own use trust funds

which you were to have held for the benefit of your clients and that such conduct

is deserving of sanction.

11. It is alleged that you failed to comply with the accounting rules of the Law

Society and that such conduct is deserving of sanction.

12. It is alleged that you breached trust conditions imposed upon the use of funds and

that such conduct is deserving of sanction.

13. It is alleged that you failed to notify the Law Society of the issuance of a Writ of

Enforcement against you, and that such conduct is deserving of sanction.

14. It is alleged that you failed to keep confidential a client=s property or information

and such conduct is deserving of sanction.

15. It is alleged that you engaged in the practice of law when you were not entitled to

do so by reason of the suspension of your membership in the Law Society and

such conduct is deserving of sanction.



16. It is alleged that you participated in transfers of property in which your office in

residence were located, and that such transfers were intended to, or had the effect

of misleading mortgage lenders, and that such conduct is deserving of sanction.

17. It is alleged that you failed to be candid with opposing counsel and that such

conduct is deserving of sanction.

18. It is alleged that you failed to be candid and to respond in a complete and

appropriate manner to the Law Society and that such conduct is deserving of

sanction.

Citations 1 – 4: the BD and CD complaint:

1. BD and CD state that sometime prior to March 2007 they retained Ms. Rothecker to

prepare wills, and that they provided a $600 retainer to her. Drafts were prepared and

forwarded to BD and CD for review. The complainants state that the draft wills contained

numerous mistakes. Final documents were not prepared or executed.

2. A statement of account dated March 7, 2007 was found in the client’s file by the

custodian. The custodian advises that she forwarded the account to BD and CD in

February 2008.

3. The account is produced at Exhibit 2, Tab 1 of the Conduct Panel Binder.

4. The account totalled $600 including a GST of $33.96.

5. The account was paid by way of trust transfer.

6. The Member admits that the payment to her from trust was made prior to the satisfactory

completion and execution of the wills.

7. For the purposes of the resignation application, Ms. Rothecker admits the facts relating to

this complaint. She takes the position that her medical difficulties as described in the

report of Dr. M. are a complete explanation and defence to this Citation.

Citations 5 – 7: the RR Complaint

8. R.R. made a complaint to the LSA on April 9, 2008.



9. He advised that he met with 2 lawyers at Ms. Rothecker’s office in May 2007 to discuss

the preparation of a will and a prenuptial agreement. He paid a $1000 retainer and was

provided with a questionnaire that he was to complete and return to Ms. Rothecker. R.R.

did not follow up and did not complete the questionnaires.

10. Ms. Rothecker sent R.R. a retainer letter asking that he sign and return the retainer letter

in May 2007. The complainant did not do so. A duplicate letter was sent on June 4, 2007.

That letter was not signed or returned.

11. After the appointment of the custodian, an account dated June 4, 2007 was found on the

file. The account indicated that $503.50 had been paid to the Member from trust to pay

the account.

12. The complainant indicated that no services had been rendered.

13. The Member asserts that all services relating to this client were to be provided by another

lawyer from her office. She admits that the payment to her from trust was made without

confirmation that the work requested by the client had been completed.




Citations 8 – 9: the CW complaint

15. CW was employed by Ms. Rothecker’s office from October 2007 to mid-January 2008.

16. CW was not paid for the last month that she worked. When she questioned Ms. Rothecker

she was told that Ms. Rothecker was unable to pay her.

17. In her complaint she calculated the amount owed to her as approximately $1,500.

18. The Complaints Resolution Officer of the LSA forwarded the complaint from CW to Ms.

Rothecker on February 25, 2009 asking for a response by March 23, 2009. The Member

did not respond.



19. A letter setting out a section 53 demand for a formal response was sent on April 30, 2009.

That letter was returned unclaimed.

20. On June 4, 2009 a further letter was couriered. There was no response.




Citations 10 - 18: the Hagel and Morgan complaints

Information from Hagel and Morgan

22. Ms. Rothecker was suspended on November 30, 2007 for failure to pay costs ordered in

LSA hearings. She arranged for Ms. Terry Hagel and Mr. Scott Morgan to function as the

informal custodians of her practice. The LSA accepted Ms. Rothecker’s proposal in that

regard.

23. On December 19, 2007 Hagel and Morgan wrote to the Law Society confirming their

agreement to jointly oversee the Member’s practice. (Conduct Panel Binder - Exhibit 23,

Tab 3)

24. After Ms. Hagel and Mr. Morgan became involved as the informal custodians, they

expressed a number of concerns with respect to the status of her files and her practice.

25. On January 3, 2008 Hagel wrote to the Law Society to advise of concerns that had arisen

as follows:

- improper instructions to staff – one of the staff advised Hagel that Ms.

Rothecker had instructed her to increase the amount billed to a particular

client to cover the expenses that Ms. Rothecker was incurring by having to

pay Hagel and Moran Morgan to run her practice. Hagel directed the staff

member to bill the client for what Hagel believed to be a proper amount

rather than the increased amount.

- transactions concerning Member’s office building – the Member operated

from premises located in Cochrane, Alberta. The Member’s office was

located on the main floor of the property and her residence was on the 2nd

floor.

- the registration of this property was transferred several times between the

Member and a numbered company owned by Members of Ms.



Rothecker’s family (XXXXXX Alberta Ltd.).

- in addition, a mortgage which was registered against the property listing

Ms. Rothecker and her husband as the mortgagors was registered in 2007.

Subsequently the property was transferred by the Rotheckers to a

numbered company for nominal consideration. When an issue arose as to

whether it was properly done and as to the signing authority for the

numbered company, the complainants alleged that Ms. Rothecker

contacted the purchaser of the building directly, and the purchasers’ title

insurance company, and that the information she provided to those two

entities was inappropriate and inaccurate.

- conflict-of-interest – Ms. Rothecker acted for an employee with respect to

a number of files including a foreclosure action and the divorce. There

were significant issues with respect to fees charged to this client

- poor condition of the Member’s practice – the general account was

overdrawn, there were a number of creditors and employees who could not

be paid, and there were issues with respect to control of trust account and

general account cheques. (Conduct Panel Binders - Ex. 1)

26. On January 7, 2008 Hagel sent a further letter outlining concerns with respect to the

following:

- transactions concerning the Member’s office building

- trust irregularities – Ms. Rothecker handwrote a trust cheque to herself for

$2000 in November 2007. Ms. Hagel believed that those funds were to

have been released to the client.

- In early December 2007 Ms. Rothecker wrote a trust cheque payable to

herself for $1500, with no indication of where the funds originated.

- Poor condition of the Member’s practice – this relates to a claim brought

by a recruitment agency that successfully sued the Member and obtained a

writ of enforcement against her.

- conflict-of-interest. (Conduct Panel Binders - Ex. 2)

27. On January 10, 2008 Hagel sent a further letter to the Law Society expressing concerns

about the previous topics with further information, and adding a concern that Ms.

Rothecker had been practising while suspended. The items dealt with included the

following:

a. The transfer documentation with respect to the office building,

b. Payments from the law firm’s general account to the account of the numbered

company,



c. Office management issues relating to unpaid accounts,

d. The Z. suit against Ms. Rothecker,

e. Ms. Rothecker’s direct communications with Ms. Davis,

f. Possibly wrongful withdrawals from trust re: the H. file,

g. The missing engagement ring belonging to a client,

h. Missing bank statements and cancelled cheques,

i. Possible failure to properly review files sent for shredding to ensure no original

documents were destroyed,

j. Attempts to access the office computer by LG (a contract or former employee of

Ms. Rothecker),

k. Missing keys to the storage unit. (Conduct Panel Binders - Ex. 9)

28. Those letters resulted in a further investigation the results of which are summarized in the

Investigation Report (IR) which is 3 binders, which in turn is the basis for citations 10 to

18.

Citation #10 - conversion of trust funds

29. On November 30, 2007 Ms. Rothecker wrote a cheque on her trust account to one of her

staff – C.W. Ms. Rothecker has said she thought that she had drawn these funds from

the general account, however the general account did not have sufficient funds to cover a

cheque in that amount. Ms. W. was given instructions to purchase drafts for the various

staff who were owed salary, and Ms. W. has stated that the Member instructed her to

immediately destroy all records of the transaction. The funds were replaced in trust on

Feb. 4, 2008. (IR Tab 3.7)

30. On November 17, 2007 Ms. Rothecker issued a trust cheque on the H. file in the amount

of $8201.66. There were no funds in trust at the time the cheque was written. The trust

cheque was payable to her firm. The account was therefore in an overdraft position which

continued until December 11, 2007 at which time settlement funds were deposited into

the trust account. The settlement funds, which had been received under trust conditions,

were not releasable until the trust conditions were met by Mr. Morgan on January 8,

2008. – (IR Tab 13.8)



31. The trust cheque for $8201.66, together with other payments which totalled $12,057.66

were deposited into general on November 19, bringing the amount of the general account

to approximately $13,100. – (IR Tab 13.29) On that same day a general cheque for

$12,109.58 was issued to an Ontario lawyer and used by Ms. Rothecker for the purchase

of a residential property in Ontario. The purchase of the property closed on Nov. 15,

2007. (IR page 10)

32. Trust was overdrawn on the K. file by $19,000 as a result of the series of transactions. At

a time when the client trust ledger was it a zero balance, the Member issued trust cheques

between June 25th

and August 3rd

, as set out in the Table on page 11 of the Investigation

Report. The overdraft of $19,000 remained outstanding until settlement funds were

received into trust on August 8, 2007 – (IR page 10 and 11 and Tab 3.14)

Citation 11 – failing to comply with the accounting rules

33. Trust irregularities were identified as follows:

Client Tab Date shortage

occurred

Date shortage

repaid

Explanation Client Trust

balance

B. 11.0 November 15, 2007 January 24,

2008

Payment to

Member

$ (4.10)

F. 12.0 November 21, 2007 January 24,

2008

Payment to

Member

$ (476.98)

S. 17.0 November 6, 2007 January 24,

2008

Payment to

client

$ (1,412.12)

M. 15.0 June 13, 2007 June 15, 2007 Payment to

Member

$ (1,193.90)

M. 16.0 October 22, 2007 January 24,

2008

Payment to

Member

$ (2,000.00)

R. 18.0 December 3, 2007 January 28,

2008

Payment to

Member

$ (1,060.00)

Unknown 39.0 November 6, 2007 January 28,

2008

Payment to

Member

$ (1,500.00)

H. 13 June 6, 2007 December 11,

2007

$ (8,201.66)

K. 14 June 25, 2007 August 8,

2007

$(19,000.00)



34. The Investigation Report indicates that:

a. The Member’s staff reported that they believed that on occasion the Member had

withdrawn funds from trust before rendering an account for the funds. Ms.

Rothecker did admit to one instance of having done so in her 2nd

response letter.

b. On a number of occasions Ms. Rothecker withdrew funds from client ledgers in

excess of the funds available.

c. Ms. Rothecker signed trust cheques after her membership status had been

suspended.

d. Ms. Rothecker did not keep her trust account or her general account current.

e. A deficiency in the trust account was not corrected or reported to the Law

Society.1

Citation 12: breach of trust conditions

35. On Nov. 20, 2007 Merchant Law Group sent Ms. Rothecker a bank draft for $36,000

under 2 trust conditions (see letter at IR Tab 13.28, page 3). The trust conditions were

confirmed by a memo on file to Ms. Rothecker. The funds were not to be released until

proof of discharge of certain encumbrances had been provided, and a consent order was

to be endorsed and filed.

36. It appears that there was a dispute between the client (S.H.) and Ms. Rothecker as to the

legal fees payable.

37. On December 3 the opposing lawyer wrote to Ms. Rothecker and asked for return of the

bank draft. On December 10th

the client endorsed the bank draft and signed the form of

consent order.

38. On December 11th

the bank draft was deposited into Ms. Rothecker’s trust account. At

the time of the deposit the H. trust ledger was overdrawn by $8201.66 and had been since

November 17.

39. On Dec. 13th

, the Member forwarded the Consent Order to the opposing counsel, on trust

that he release the bank draft monies to Ms. Rothecker’s client that same day. (IR Tab

13.28, page7)

40. On December 14 the opposing lawyer again demanded return of the bank draft

immediately.

1 Conduct Panel Binder, Exhibit 19, Tab 3.7



41. On December 19 and 21st, Mr. Morgan (as custodian) and Merchant Law Group

corresponded with respect to a revised draft consent order and the final consent order was

filed on January 8, 2008.

Citation 13: failure to notify the Law Society of the issuance of a Writ of

Enforcement

42. Rule 131(1)(e) requires that a member notify the Law Society in the event that a writ of

enforcement is issued against a lawyer. A recruiting agency sued Ms. Rothecker in

Provincial Court, and following a trial on Nov. 22, 2006, they obtained judgment against

her in the amount of $13,538. (IR Tab 24.3)

43. Ms. Rothecker filed a Notice of Appeal. Settlement discussions then occurred, and a

Consent Order was agreed upon and filed which required payment of $11,770 by

December 1, 2007. – The Order is at IR Tab 24.5.

44. Funds were not paid, and the recruitment agency filed a civil Writ of Enforcement on Jan.

20, 2008 in the Court of Queen’s Bench in Calgary – IR Tab 24.5.

45. Ms. Rothecker did not advise the Law Society of the existence of the Writ.

Citation # 14: failing to keep client information confidential

46. After her suspension Ms. Rothecker instructed her staff to fax client information to her in

Ontario through a UPS store. There is no evidence that any kind of confidentiality

agreement was put in place to ensure the confidentiality of the information in the faxed

documents. (IR page 18)

Citation #15: engaging in the practice of law when not entitled to do so by reason of

a suspension

47. The Member was suspended effective November 30, 2007.

48. Interviews with the Member’s employees, as well as documentary evidence indicate that

Ms. Rothecker continued to represent clients and work on client files after her

suspension.



49. She signed trust cheques to 6 clients between Dec. 6th

and 12th

, 2007.

50. She continued to act in regard to real estate transactions, and she met with clients on

December 12 and 13th

.

51. Most of her staff were not aware that she had been suspended until December 17 or later.

52. There is also evidence to suggest that the Member backdated the mortgage requisition

forms on the W./P. investment transactions to predate a conversation with Gregory Bush

on December 11, 2007.

53. The Law Society’s investigators reported the following actions:

Date Explanation I.R. Tab

November 30, 2007 The Member was suspended for non-payment of fines 2.1

December 1, 2007 The Member’s calendar showed an appointment to

sign the amended wills for B. and C.D.

29.1

December 3, 2007 The Member’s calendar showed a telephone

appointment with member Kate Wood concerning the

L. matter.

29.1

December 5, 2007 The Member’s calendar showed a telephone

appointment with Ray Wong concerning the B.C.

matter.

29.1

December 8, 2007 The Member’s calendar showed appointments to meet

with:

- A.M. at 10:00 a.m. concerning “Wills and

ERA.”

- A.C. at 11:00 a.m.

- J.B. at 1:00 p.m.

- J.F. at 1:30 p.m. to sign an affidavit

29.1

December 6, 2007 The Member signed:

- Trust cheque 8317 payable to G.G. for

$100,000

- Trust cheque 8318 payable to K.B. for

$900,000

9

December 9, 2007 The Member’s calendar established the Member was

to meet with J.F. to sign an affidavit

29.1

December 10, 2007 The Member signed:

- Trust cheque 8339 payable to W.F. for

9 & 29.1



$3,185.56

The Member’s calendar established the Member was

to meet with:

- K.W. at 2:30 p.m.

- F.N. at 3:30 p.m.

December 11, 2007 The Member’s calendar showed that the Member was

involved with:

- F. vs. F. at 10:00 a.m. (matter discontinued)

- A telephone appointment with Tyson Dahlem

(lawyer) at 2:30 p.m.

- A telephone appointment with Lucretia

(lawyer) at 5:00 p.m.

29.1


involved with:

- M. trial (matter discontinued)

- B.L. appointment at 1:30 p.m.

- S.H. appointment at 5:00 p.m.

The Member signed:

- Trust cheque 8339 payable to W.F. for

$3,185.56

- Trust cheque 8341 payable to A.C. for $122.84

- Trust cheque 8342 payable to G.G. for

$154,386.44

- Trust cheque 8343 payable to K.B. for

$117,800

29.1 & 9

December 13, 2007 The Member’s calendar showed an appointment to

meet with:

- W. at 2:30 p.m.

29.1




involved with:

- Franchi-Rothecker v. I. – 15th

floor (1507)

Provincial Court

29.1

December 15, 2007 The Member contacted Theresa Hagel and Scott

Morgan requesting they act as temporary custodians

30

December 17, 2007 Scott Morgan and Theresa Hagel commenced as

temporary custodians at Franchi-Rothecker Law Office

29.1

54. Karen Vanderzweerde, an investigator with the Law Society who reviewed the Member’s

accounting records and other materials, reported that on December 12, 2007, the Member

signed four interim mortgage reports which were faxed to the lender with requests for

mortgage advances.

Citation #16: participating in transfers of property in which her office and

residence were located, when such transfers were intended to, or had the effect of,

misleading mortgage lenders

55. The subject property was transferred back and forth between XXXXXX Alberta Ltd. and

the Member and her husband on several occasions. It appears that the beneficial owner of

the property was the company, but that the property was transferred into the names of the

individuals when the company wished to obtain mortgage financing.

56. Ms. Rothecker signed a statutory declaration with respect to a mortgage which stated that

the down payment for the purchase of the property was coming from her and her

husband’s own resources, and property would be occupied as a single-family dwelling

with no portion to be rented out. – (IR Tab 41.3)

57. The Member stated to the Law Society that this property was purchased with funds

obtained on the sale of one of the Company’s other properties. Further the building was

used as office space as well as a dwelling and Ms. Rothecker stated that she paid or owed

rent to XXXXXX in respect to all of the properties which are would have presumably

included this property.

58. The office building was originally purchased in July, 2005 by Mary Jo and her husband.

A mortgage was obtained from G.M. (Conduct Panel Binder Tab 7).

59. In September, 2005 the property was transferred to XXXXXX (a company owned by the



Member’s father).

60. In January, 2007 a second mortgage was placed on the property. The mortgagor was S.H.

61. In March, 2007 the property was transferred back into the names of Mary Jo and her

husband and was re-financed through F.M.

62. In May, 2007 the property was transferred back into the name of XXXXXX. F.M.

advised the Law Society investigators that if they had known the Member intended to

transfer the ownership back to the numbered company they would have not approved the

mortgage.

63. J.F. was the sole shareholder and director of XXXXXX. At some point Mary Jo

Rothecker was also a director of the company, but ceased to be so on February 1, 2005.

J.F. died on November 22, 2007 leaving his son, M.R. as the sole director of the

company. There is no evidence to indicate there was a power of attorney, however, an

Affidavit sworn by J.F. stated that Ms. Rothecker acted with his permission and authority.

Citation #17: failing to be candid with opposing counsel

64. This citation relates to the proposed sale of Ms. Rothecker’s office building to Nicky

Davis or a numbered company owned by Nicky Davis. The sale was to close Dec. 31,

2007. The registered owner was XXXXXX – whose sole shareholder (Ms. Rothercker’s

father) was deceased.

65. The concerns expressed by Ms. Hagel are set out in her letter to the Law Society which is

included in the Conduct Panel Binder, Exhibit 1. They include the following:

- The Transfer of Land was signed by Ms. Rothecker, who was not a director or

officer and there was no Power of Attorney,

- There were no minutes in the Minute Book which would have supported a

Change of Directors,

- The mortgage was in the name of Ms. Rothecker and her husband, but the

property had been subsequently transferred into the name of the numbered

company.

66. When problems developed with the closing, Ms. Rothecker directly contacted Ms. Davis

saying that Ms. Hagel was too busy caring for a sick mother to deal with the file, and then

followed up in writing to that effect, which was not accurate. Ms. Rothecker’s letter is at



Exhibit 1, Tab 9 of the Conduct Panel Binder.

67. Ms. Rothecker also contacted Ms. Davis’ title insurance company.

68. The reality was that Ms. Hagel had numerous concerns about the transaction and would

not accept Ms. Rothecker’s directions or instructions.

Citation #18: failing to be candid in responses to the Law Society

69. In her first letter of response, Ms. Rothecker stated “I have not acted as a lawyer during

my suspension and I have not signed any trust cheques.” (Conduct Panel Binder - Exhibit

14, page 11).

70. There is evidence that the Member did act as a lawyer after November 30, 2007 when she

stood suspended and even after her December 11, 2007 conversation with Mr. Bush.

71. The Member met with clients, worked on files and signed trust cheques after her

suspension.

72. The Member’s explanation for certain of her actions did not fit with documentation

obtained by the investigator. For example, in responding to Mr. Morgan’s complaint

regarding the trust shortage on the H. file, Ms. Rothecker stated that she had written the

trust cheque on November 16, 2007 in the mistaken belief that Ms. H. had come into the

office and endorsed the bank draft sometime during November 4-14 while the Member

was in Toronto and that the draft had been deposited into trust. In fact, based on the date

of the covering letter, opposing counsel had not sent the bank draft to Ms. Rothecker until

November 20th

(i.e four days after Mr. Rothecker wrote the trust cheque for $8,201.66)

(see IR Tab 13.28, page 3).

73. Despite receipt of copies of extensive materials, Ms. Rothecker failed to respond to the

Law Society’s requests for her response to the investigation report.



74. For the purposes of the resignation application Ms. Rothecker admits all of the facts set

out above. She takes the position that her medical difficulties as described in the report

of Dr. M. are a complete explanation and defense to the citations.

Facts Relating to Ms. Rothecker’s Medical History

75. Since moving to Ontario, Ms. Rothecker has obtained medical assistance and has been

assessed as having suffered from a series of ongoing mental health issues over more than

30 years.

76. A copy of a medical assessment prepared by Dr. M., a registered psychologist practicing

in Oakville, Ontario, will be attached to this Admitted Statement of Facts but will not

form part of the public record of the Law Society.

77. The Law Society does not have information to confirm the validity of the assessment and

diagnosis as set out by Dr. M. but does not object to the presentation of his report to the

Committee for the purposes of this resignation application.

Procedural Information




79. Ms. Rothecker has applied to resign as a member of the Law Society pursuant to s. 32 of

the Legal Profession Act. She admits the facts set out above in accordance with Rule

92(4) and asks that her resignation be accepted.

This Admission is dated the 9th

day of December, 2013.

_______________________________ ________________________________

Witness Mary Jo Rothecker

THE LAW SOCIETY OF ALBERTA RESIGNATION COMMITTEE … · Mary Jo Rothecker – Resignation Committee...

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