Lawyer disbarred for faking documents
Daro Flooring was on a roll in Ontario’s judicial system.
Between 2012 and 2013, the Vaughan-based construction company was granted an injunction against Lafarge Canada, a construction materials firm, in a dispute over rights to a particular product. Daro was then informed it would be receiving $3 million in damages from Lafarge, thanks to a Superior Court ruling.
All of the court orders were issued under the names of actual Ontario judges. But none of them was real. Last week, the Law Society of Upper Canada disbarred Mississauga lawyer Brian Nicholson and slapped him with a $10,000 costs order for faking endorsements and emails from court staff and providing them to his client, Daro owner Rob Danninger.
He even produced phoney rulings dealing with appeals of his fake lower court endorsements.
Nicholson’s conduct is “exceedingly rare” in the legal profession, say lawyers, who note that the case highlights the need for better mental health resources for advocates.
“By doing what this lawyer has done, it really undermines the reputation of all lawyers,” said Toronto criminal defence lawyer Daniel Brown.
Nicholson, 43, told the Star that he was depressed and experiencing a very difficult period in his life; his father had died and he was going through a divorce. He has since remarried.
He said he felt pushed to produce fake documents because he had become afraid of his client.
Danninger had previously been considered a friend, according to the Law Society Tribunal’s agreed statement of facts. Nicholson “soon realized that Danninger’s expectations were unrealistic and that he might be ‘in over his head,’ ” according to the statement. He worried for his friendship but also had “fears and insecuri- ties” about a “potentially threatening situation” if he told Danninger.
Nicholson does not explain the basis for his fear, other than to say Danninger became increasingly angry with Lafarge and “threatened” to deal with Lafarge in his own way. Nicholson claimed he was paralyzed by his fear — it “gripped me on this file and led me to deceive the client and myself.”
Danninger declined to comment, as there are criminal charges pending against Nicholson. Nicholson told the Star he is still facing a charge of uttering a forged document.
He said one of the main reasons he admitted to the misconduct was because he could not afford a costly Law Society Tribunal hearing.
“I was relieved, in a way, to have this over with,” he said.
“I want to get my life back in order and move on with my life . . . These were not judgments that I tried to enter with the court. These were simply documents given to the client to keep him at bay.”
The case dates back to early 2012. Daro sued Lafarge over an agreement between the two companies over the recipe for a particular product. Daro alleges the company was eventually cut out of its share of the sales, while Lafarge maintains it is selling a product based on its own recipe, according to the agreed statement of facts.
“Whether there was/is a binding agreement between Daro and Lafarge is the subject of an ongoing litigation,” reads the document.
Danninger asked Nicholson to seek an injunction against Lafarge, according to the statement.
“While (Nicholson) was taking no steps to pursue the action or the injunction, he was telling his client otherwise,” the document says. “Over the course of a year (September 2012 to September 2013), he told Danninger he had taken a number of increasingly elaborate steps in regards to the injunction.”
It goes on to list several documents — later found to be fake — that Nicholson provided Danninger, including court orders issued in the names of real Ontario Superior Court and Appeal Court judges, and an email from “Naja” at RBC confirming that $3.1 million had been received from Lafarge, pursuant to a court order, and deposited in a trust account. That deposit did not exist.
Nicholson and Danninger had an “informal retainer agreement,” according to the Law Society documents.
Nicholson “periodically billed small amounts or asked for a retainer to cover expenses, but the expectation was he would be paid a contingency fee.” In other words, Nicholson would only be paid once the lawsuit had been settled, and in his interview with the Star, he pointed to this agreement to show he received almost no money for the fake documents. He ended up confessing to Danninger in September 2013. He paid Danninger $25,000 — “a sum meant to cover any possible result that Daro might have got if the claim had proceeded through the small claims court, and to reimburse Daro for any legal fees paid as a kind of settlement,” according to the agreed statement of facts.
He did bill Danninger for $9,775 between 2012 and 2013 for work related to three files. “The fees included amounts for time spent drafting documents that supported (Nicholson)’s misrepresentations about the files and for attendances in court that did not occur.”
The bulk of that money was for actual work, Nicholson told the Star.