Since Castanet won’t take the article down and I don’t want the inevitable additional media sensationalism to take place that would occur if I were to sue them to force them to remove the article, I am writing this response to clarify the situation of my agreed upon suspension and maybe place a little light on the situation for those job recruiters who keep turning me down and for those the interested individuals who want the truth...
In 2009, Castanet wrote a story on me entitled “Lawyer Disbarred for theft, fraud” which was designed to be sensational, capture reader attention as a front page breaking news article, and it was left on their news website for several days. The article was extremely misleading, if not maliciously defamatory. This story was published on the internet as a news story on November 2, 2009, and then republished again in the Spring of 2015. It involved events involving my former law firm that took place largely from 2000-2002. An average reader would assume that it was a factual story because… well, it was published as a “news story” by “news team”. The writer of the story did not have the guts to assign their name to the article, as is their usual practice, but chose to claim credit for the story as “Castanet staff”.
The story was not factual. In fact it was as independent reader and lawyer Paul Hegott commented 8 days later on November 10, 2009 (http://www.kelowna.com/2009/11/10/respect-for-law-society-not-sensational-reporting-of-lawyer-troubles/):
The snippet on Castanet, entitled “Lawyer disbarred for theft, fraud”, leaves the reader believing that Shawn was disbarred for stealing hundreds of thousands of dollars from his clients. I’ve seen some bad journalism, but goodness, that takes the cake. Perhaps there will be a retraction before my column is published. If not, I may offer to handle Mr. 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 news.
Mr. Hergott was clear set out his independence and neutrality from me by stating at the outset:
Before you jump to hasty conclusions, please accept my assertion that Mr. 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.
So why am I writing this response? Why didn’t I take Mr. Hergott up on his offer to sue Castanet for defamation … for free? In short, the trauma and public humiliation arising from this article was overwhelming to my family, my children, my parents, and myself. I had to move one child to another school as a result of teasing and bullying from this article. I did not want to induce anymore publicity … unchecked publicity and more media sensationalism … by starting up litigation. I wanted the incident to die down and go away for the sake of my kids.
But it didn’t die down. Castanet has kept the article prominent and supported by search engines so that anyone typing my name into a google search engines would get the prominent story that I was a thief who stole peoples money and ripped off seniors of their life savings. It remains there to this day. Yes I had breached some of the Law Society’s accounting rules. Yes I had done a “cash deal” for services with one of my clients. And in doing so, I had set myself up for a “suspension” by the law society, but I had stolen no one’s money. I had not defrauded anyone. Nor had I cheated anyone. No one was out a penny. Believe me? Probably not, because as humans we are designed to think the worst. I will attempt to defend myself more on this later.
After the writing of the Castanet article, in my personal life, going on a date for example, or in applying for a job to find work to support my family… every time someone checks up on me, I am portrayed as a thief and swindler. I have made over 200 job applications … no hiring. If someone wrote a sensational and unfair article about you, do you think you would be hired for a job?
In December 2014, tired of the frustration about not being able to secure a job, I asked another Kelowna news agency to take down their story about my suspension from the internet. That story was a little more accurate, but they agreed that a story from events that took place 12 – 15 years ago was dated and unfair to my ability to support my family. They took down the story from the internet and wished me well. Feeling somewhat comforted by this showing of compassion, I contacted senior writer Wayne Moore of Castanet and made the same pitch to him. I emailed him in December 2014 and asked him to meet with me for coffee to discuss taking down their sensational and now dated article. He didn’t respond. A second request was made and Mr. Moore responded simply that Castanet thought the article was “accurate reporting” and wouldn’t take it down. Really? No meeting to discuss the whole “accurate reporting” thing? No chance to explain myself? I wasn’t given a chance to explain myself prior to writing the article either! I sent him the link to Mr. Hergott’s article describing their “accurate reporting as the worst journalism he has ever seen. No response from Mr. Moore. And then … a short time later they republish the suspension article again on their news website.
Remember these internet articles are permanent. They don’t go away. And Castanet keeps promoting them with internet search engines so they constantly stay up front and center, like today’s news. Since Castanet won’t take the article down and I don’t want the inevitable additional media sensationalism to take place that would occur if I were to sue them to force them to remove the article, I am writing this response to clarify the situation of my agreed upon suspension and maybe place a little light on the situation for those job recruiters who keep turning me down.
So what do I take issue with? Here are some facts Castanet failed to report. Why let facts get in the way of a good story?
Firstly, I was not disbarred. As part of the Law Society’s discipline department I worked with them to have essentially an agreed leave or suspension, wherein I could re-apply for membership in the Law Society after a period of time. We agreed on a leave, where I resign and I look forward to reinstating myself. Disbarment means they have kicked you out and you are gone for good.
Secondly, the issues I have with the stealing part are….
- The events in which I breached Law Society rules were not new. I was not suddenly caught “red handed”, as the story would tend to imply. The events of my suspension happened 7-9 years prior to them writing the article.
- The Law Society began their investigation in 2003 with a full blown forensic audit and review of my files. They received the Auditor’s report shortly after in June 16, 2003. The Law Society didn’t render their discipline decision until 2009, 6 years later. If I was stealing money from clients, do you believe the Law Society would have let me stay in business and keep practicing for 6 years?
- No one’s money was “taken” or stolen from them. The Law Society has rules for how people’s “deposits” or retainers are handled, which are quite distinct from the normal business world. The Law Society investigation concluded at paragraph 14,
The Respondent [me] ultimately did provide the services billed for, anywhere from a few days to a few months after withdrawing the funds from trust.
There is no allegation that Mr. Swail over-charged his clients. There is no allegation that 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 Mr. Swail provided.
The allegations, which Mr. Swail eventually admitted to, involved transferring the retainer money from his trust account, where retainers are supposed to be kept, to another account, before having done 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 they 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 has stringent rules that include that requirement. Mr. Swail broke those rules.
4. Over the course of my years as a practicing lawyer an estimated 350 million dollars passed through my trust accounts. I had informal trust reviews done by the law society on my accounts every year. Over the course of 18 years I had 2 full blown audits of my trust accounts by the Law Society. I passed all. No one was out a penny.
Thirdly, the defrauding seniors of their life savings part…. Castanet ties in a second supposedly related “news story” about a senior couple losing their $300,000 life savings in a scam investment with me. The wife says, “You think you can trust a lawyer at $375 an hour and you can't even trust them”. Whoa! Let’s get some facts here…
- I am very familiar with this unnamed couple. I am aware that they blew over half a million dollars in a short time, only $118,000 which was invested with me in a parcel of land which was to be developed. So if I was responsible in some way for “blowing their life savings”, it was for less than 20% of their life savings. The other 80%+ was all them.
- The gentleman had previous investment and land development experience. He was a joint venture partner of mine who looked into the deal, had all investment contracts and plans put before him and chose to be part of the investment deal. He even visited the property. Not exactly a scam.
- On protecting them…. Well, as an investor everyone is responsible for protecting themselves, but I went over and above that. Of all the life savings he invested with me and others, I was the only one to ensure their $118,000 investment with me was secured with proper mortgages. So I was the only one that actually took steps to protect his money.
- The wife claims I charged them $375 an hour for my services and as a result they lost their money. I have never in 18 years of practice charged above $300 per hour.
- Aside from this, they were never billed anything related to this real estate investment. It was a joint venture with the gentleman who was a partner, not a client, who was in full communication with all plans for development. It had nothing to do with any legal services I provided.
- The real estate transaction failed because of the world 2009 recession and the bank pulling our funding, not because of “fraud” on my part or reason not to “trust me”. The gentleman lost money on other land developments for the same reason, just like millions of people did around the world in 2009. I personally lost more money in this transaction than he did.
So why would they lie about the amount invested with me? About the hourly rate I charge? About the fact there were legal services involved in any way? Let’s dig a little further. Getting wind of the upcoming story about me, he and his wife go and talk to Castanet and plug their case with the media. Castanet loves the sensationalism and adds it into their story, not caring that the 2 stories are completely unrelated, and may not be factual. A short time later, knowing he has foolishly lost almost all of his life savings ($500,000 + again only $118,000 with me) he tries to take a run at the Law Society insurance fund on two occasions trying to recoup his lost investments saying it is all my fault and he is an innocent man who has been defrauded. Documents signed by him at each stage of our investment process are found by investigators to acknowledge he knows what he is doing and what he is investing in. I have not provided any legal advice. After two investigations he fails at both attempts to find me responsible for his losses and is denied twice by the Insurance fund. This couples false claims and attempts to slag me in the media were essentially lies attempting to get at insurance money.
A real good question for Castanet….why would Castanet write down verbatim what the couple told them without checking any of these facts? One word …. Sensationalism.
A final complaint from their article is the comment “Swail is no stranger to fraud…” then linking the viewer to another poorly written (and again inaccurate Castanet article) previous article reporting on a criminal case in which I was defrauded out of $18,000 by a notorious scam artist. I discovered the fraud. I turned him into police. I helped the police find him to arrest him in Vancouver. I helped the crown with their evidence against him. I went to court and testified against him. I helped them get a conviction and jail sentence. But the way Castanet writes the article, they leave the impression I am somehow involved as a con artist helping him. Tying it in with the suspension article is again misleading sensationalism.
I hope this article clarifies my situation. I have not been blameless. I have always maintained I made mistakes 15 years ago and admitted my wrongdoings to the Law Society, and agreed to a suspension accordingly. But I am certainly not the person Castanet tries to make me out to be. Thousands in this community know me and my true character, including mayors, prominent businessmen, lawyers and community services where I have volunteered to help the community and the less fortunate for decades.
Thanks for reading...