A Winnipeg defence lawyer with a troubled work history has dodged being disbarred for drawing up a fake bill for the benefit of a client.
Manitoba's Court of Appeal ruled Tuesday that David Guttman will be allowed to continue practicing law, but he must serve a one-year suspension.
Guttman was ordered disbarred by the Manitoba Law Society last summer after an investigation and internal hearing. He pleaded guilty to a charge of professional misconduct.
Guttman — a veteran lawyer who has handled many high-profile criminal and civil cases over the last 20 years — immediately appealed the society's ruling to the province's highest court and has been continuing to practice.
In a 26-page ruling written by Justice Martin Freedman, the appeals court struck down the society's punishment and suspended Guttman from being a lawyer for one year.
A date that his suspension will begin has not been set.
'Unacceptable'
He and his own lawyer had argued for a 45-day suspension, a penalty that Freedman said was "unacceptable."
"Such a disposition would render virtually meaningless [Guttman's] prior disciplinary history," Freedman wrote. "Anything less than a six-month suspension would be seen as regressive, and correctly so."
In his decision, the judge stated that Guttman was cautioned by the law society for "threatening and intimidating witnesses on two occasions" less than a year after he was called to the bar in 1986.
In the early 90s, Guttman pleaded guilty to a number of charges of professional misconduct for failing to appear in court and attempting to mislead a magistrate, Freedman wrote.
It wasn't until 2006 that the allegation that led to his disbarment surfaced, when he falsified a bill for a client.
Illness, stress caused behaviour
At the subsequent Law Society hearing, Guttman's lawyer stated that extreme stress brought about by a family illness and becoming the sole caregiver for his two children while involved in a high-stakes murder trial "led him to give into the temptation to try and recover more money for his client."
More than 20 letters of support from fellow lawyers and members of the public were filed on Guttman's behalf, many of them noting the extreme stress he was under at the time from his personal circumstances.
Guttman himself took responsibility for what he'd done, Freedman said.
But the society ultimately ruled that Guttman failed to prove that his life stress and misconduct were linked. No medical evidence was presented at the hearing.
However, during the appeal process, Guttman consulted a psychologist for an assessment that backed up his claims.
"Without question, these stressors have impacted on his better judgment and undoubtedly have contributed, very significantly, to his current difficulties with the Law Society," his doctor wrote in a report.
Freedman found it was the Law Society's responsibility to properly explain why they didn't accept Guttman's stated reasons for the misconduct.
Appeal court suspends lawyer for one year
Disbarred lawyer gets a break from Appeal Court
The Manitoba Court of Appeal has saved the career of a veteran Winnipeg lawyer who’d been disbarred for lying to a federal department to get more money for a client.
David Guttman learned this week the original sanction - which would have permanently prevented him from practicing law - has been overturned and replaced with a one-year suspension.
In a written decision, Justice Martin Freedman said the Law Society of Manitoba failed to explain why they rejected key pieces of evidence which painted a sympathetic light on Guttman’s troubling actions. They also cited fresh evidence which included a psychiatric assessment about Guttman’s state of mind at the time, which concluded it definitely impacted his judgment.
Guttman, who practices at the McRoberts Law Office, ran afoul of the governing body while representing a client in an unlawful dismissal case in 2007. After a settlement was reached with the employer, the employment insurance paid out had to be given back, minus the lawyer’s bill for services. But Guttman submitted a bill more than $6,000 higher than it actually was so he could give more money to his client. He has since paid the money back.
Guttman’s lawyer, Dave Hill, argued that he was facing "tremendous stresses" when he ordered an assistant to draw up the fake bill. Guttman’s wife had been diagnosed with terminal cancer, and he was struggling in his attempt to support her while being primary caregiver for his teenage daughter and his autistic son. Guttman was also juggling a complex murder trial with his other personal responsibilities at the time of the incident. His wife passed away in 2008.
Guttman had been continuing to practice law while he appealed the Law Society ruling. Allan Fineblit, the Law society’s CEO, said they will now have to meet with Guttman to determine when his suspension begins.
"I understand the rational of the Court of Appeal. It’s a very sympathetic set of circumstances," Fineblit said Wednesday. He said the society has no plans to seek leave to the Supreme Court, which would be the only way to have the new decision overturned.
Guttman didn’t return calls seeking comment Wednesday.
This incident was not the first time Guttman had run into trouble. In 1989, Guttman was fined $1,600 after lying to a judge. At an earlier hearing Guttman told the judge he missed a preliminary hearing because while on vacation his chartered bus was late getting him to Vancouver for his flight to Winnipeg. Guttman later admitted he had been hungover and was too ill to go to court. The law society later suspended him from practising for two months.
In 1992, Guttman was acquitted on a charge of attempting to obstruct justice by counselling his client to identify himself as his brother. The judge said he didn’t believe Guttman would tell his client to do so, because the brother’s fingerprints were on file with police. But just a few weeks later, Guttman was sentenced to eight months in jail after being found guilty of obstructing justice for misleading the court into believing a client was in the courtroom for her trial.
The Court of Appeal later unanimously overturned the conviction, saying Guttman’s actions were wrong, but not criminal. However, he was suspended for six months by the Law Society for "grave professional misconduct."
Appeal court suspends lawyer for one year
Disbarred lawyer gets a break from Appeal Court
The Manitoba Court of Appeal has saved the career of a veteran Winnipeg lawyer who’d been disbarred for lying to a federal department to get more money for a client.
David Guttman learned this week the original sanction - which would have permanently prevented him from practicing law - has been overturned and replaced with a one-year suspension.
In a written decision, Justice Martin Freedman said the Law Society of Manitoba failed to explain why they rejected key pieces of evidence which painted a sympathetic light on Guttman’s troubling actions. They also cited fresh evidence which included a psychiatric assessment about Guttman’s state of mind at the time, which concluded it definitely impacted his judgment.
Guttman, who practices at the McRoberts Law Office, ran afoul of the governing body while representing a client in an unlawful dismissal case in 2007. After a settlement was reached with the employer, the employment insurance paid out had to be given back, minus the lawyer’s bill for services. But Guttman submitted a bill more than $6,000 higher than it actually was so he could give more money to his client. He has since paid the money back.
Guttman’s lawyer, Dave Hill, argued that he was facing "tremendous stresses" when he ordered an assistant to draw up the fake bill. Guttman’s wife had been diagnosed with terminal cancer, and he was struggling in his attempt to support her while being primary caregiver for his teenage daughter and his autistic son. Guttman was also juggling a complex murder trial with his other personal responsibilities at the time of the incident. His wife passed away in 2008.
Guttman had been continuing to practice law while he appealed the Law Society ruling. Allan Fineblit, the Law society’s CEO, said they will now have to meet with Guttman to determine when his suspension begins.
"I understand the rational of the Court of Appeal. It’s a very sympathetic set of circumstances," Fineblit said Wednesday. He said the society has no plans to seek leave to the Supreme Court, which would be the only way to have the new decision overturned.
Guttman didn’t return calls seeking comment Wednesday.
This incident was not the first time Guttman had run into trouble. In 1989, Guttman was fined $1,600 after lying to a judge. At an earlier hearing Guttman told the judge he missed a preliminary hearing because while on vacation his chartered bus was late getting him to Vancouver for his flight to Winnipeg. Guttman later admitted he had been hungover and was too ill to go to court. The law society later suspended him from practising for two months.
In 1992, Guttman was acquitted on a charge of attempting to obstruct justice by counselling his client to identify himself as his brother. The judge said he didn’t believe Guttman would tell his client to do so, because the brother’s fingerprints were on file with police. But just a few weeks later, Guttman was sentenced to eight months in jail after being found guilty of obstructing justice for misleading the court into believing a client was in the courtroom for her trial.
The Court of Appeal later unanimously overturned the conviction, saying Guttman’s actions were wrong, but not criminal. However, he was suspended for six months by the Law Society for "grave professional misconduct."
It's too bad that this happened to Guttman. He is one of my favourite lawyers! He defended Carlos Tavares in a high profile murder trial earlier this year in January which I attended. He is an amazing lawyer and I have sympathy for his situation in that he will be suspended for one year, especially considering his family circumstances.
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