Local Internet news site steps over the line

Most Saskatchewan farm boys I grew up with were passionate about hockey.

Not me.

I doubt that I ever saw a game on our little rabbit-eared black and white television.

With parents having no interest in hockey, and only one television set, I had very little exposure to hockey.


Even though I could hardly follow the puck if I had to sit through a game at a friend’s house, I had a favorite team. 

I rooted for the Toronto Maple Leafs. 

They were the underdog of the league at the time and, thinking back, I figure that may have been the only reason I took their side. 

I’ve always had a soft spot for the underdog, which may explain why my legal practice has narrowed to focus on fighting against a huge insurance company.


The underdog topic of this column is a local lawyer who has faced harsh media attention recently named Shawn Swail.
 

Before you jump to hasty conclusions, please accept my assertion that Swail is not, and has never been, a friend of mine. 

This isn’t about defending a buddy.
It’s also not about defending another lawyer. It’s about justice.
 

A recent headline on a local Internet website leaves the reader believing Swail was disbarred for stealing hundreds of thousands of dollars from his clients.

I’ve seen some bad journalism, but that takes the cake. Perhaps there will be a retraction before this column is published. If not, I may offer to handle Swail’s defamation suit for free.

The media has so much influence over public opinion, there ought to be more care taken to fairly report on, and not sensationalize, the news.


I believe the only conduct of Swail’s that could possibly be questioned had to do with how he handled retainers.

Most lawyers who work at an hourly rate require their clients to provide some money up front, before any legal work is done, to secure their fees.

That money is called a retainer. It can range from $1,000 to more than $10,000, depending on how much legal work is anticipated.


There is no allegation that Swail over-charged his clients. There is no allegation any of his clients ended up paying more than they should have for the legal services he provided. There are no allegations of any deficiencies in the legal services that Swail provided.
The allegations, which Swail eventually admitted to, involved transferring the retainer money from his trust account, where retainers are supposed to be kept, to another account, before doing the anticipated work and before issuing the bill that would have made that transfer a proper one.

The clients wouldn’t have known any different nor, I suspect, would have cared.


If I pay a deposit to a jewelry store to hold a piece of jewelry for me, the jewelry store is not required to keep my deposit in a special account until the purchase is completed.

When a deposit is paid to a lawyer, though, the Law Society of B.C. has stringent rules that include that requirement. 

Swail broke those rules.
 

The news story superimposed an allegation, as yet completely unsubstantiated from what I can tell, that a woman and her husband lost $300,000 in an investment with Swail. 

Including that allegation in the news story about the law society infractions makes it sound like the two issues are related, that Swail admitted to them, or was guilty of, stealing from his clients. 

The reality is the two issues are completely unrelated.


Swail also admitted to an “under the table” transaction to try to stiff the government out of some tax. 

This, in my view, is the most serious of allegations against him. 

He made things right after his client, who apparently participated in the transaction, reported it to the law society. But, of course, that doesn’t absolve him.

Any other business person who tries to do a little “under the table” business might pay a fine to the tax department.

Not lawyers.

Lawyers have a more serious authority to answer to—the Law Society of B.C.


I agree with the rules of the society. In fact, I strongly support them. I believe in lawyers being held to the highest of standards. And I believe in harsh consequences for lawyers who fail to meet those standards.

I respect Swail’s decision to voluntarily resign from the practice of law for a period of time until he gets his life back together and can once again meet the high accounting standards expected of lawyers.
 

What I don’t respect is unfair media sensationalism. 



This column is intended to provide general information about injury claims.  It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case. Paul Hergott is a lawyer  at Hergott Law in West Kelowna.

paul@hlaw.ca

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