New Westminster lawyer agrees to stop practising real estate law after misconduct

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A New Westminster lawyer has agreed to a six-week suspension and promised to give up practising real estate law under a consent agreement with the Law Society of B.C.

Michael Saul Menkes signed the agreement with the law society on June 2, and a summary of it was published online last week.

According to the document, the discipline stems from an incident that began in August 2023, when Menkes was hired to represent borrowers who had taken out a private loan against two properties on Metro Vancouver’s North Shore, one in West Vancouver and one in North Vancouver.

The values of the properties and the mortgages filed against them are not specified in the consent agreement.

The borrowers retained Menkes to help them sell the two properties and pay off the loans. In January 2024, about a month before contracts for the sales of the two properties were set to close, Menkes sent a proposed “discharge and dispute resolution agreement” to the lawyer who represented the lenders.

This other lawyer, who is unnamed, is described throughout the document as the “complainant.”

“On Feb. 13, 2024, following negotiations, the lenders signed the agreement and executed the Form C mortgage discharges for the properties,” the consent agreement reads.

“By email dated Feb. 13, 2024, the complainant delivered the signed agreement and Form Cs to the lawyer, subject to several trust conditions, including a trust condition for the lawyer to not use the Form Cs unless he had received the net sale proceeds of the closing for each property.”

Menkes accepted the trust condition, but then filed the Form Cs electronically the following day, despite not having received the proceeds of the sales, which were due to close later that month.

He notified the other lawyer that he had done so, prompting confusion, according to the consent agreement.

“The complainant requested that the lawyer immediately withdraw the Form Cs, and confirm that this had been done,” the document reads.

“The lawyer was unfamiliar with the process for submitting a withdrawal request. On the (Land Title and Survey Authority) document package page, the lawyer clicked the ‘withdraw’ button, which he had previously noticed but not used. He believed that in doing so, he withdrew the Form Cs. The lawyer received no information from LTSA regarding the withdrawal request, and

has no recollection or documentation of any confirmation notice."

Menkes told the other lawyer that he had withdrawn the documents, but he had not, and the mortgages were discharged from the properties on Feb. 16, 2024, before either sale had been completed.

When Menkes later discovered his error, the consent agreement notes, he did not take any steps to correct his misrepresentation to the complainant that the Form Cs had been withdrawn.

In signing the consent agreement, Menkes acknowledged that breaching the trust condition by filing the Form Cs, telling the complainant they had been withdrawn when he didn’t know if they had or not and failing to correct his error when he discovered they hadn’t all amounted to professional misconduct.

The document lists multiple mitigating factors, including Menkes’ acknowledgment of his misconduct and the fact that he “suffers from a medical condition which, at the material time, was exacerbated by (the) lawyer’s stress and anxiety in relation to this matter, and which contributed to general fatigue and inattention.”

Aggravating factors included the fact that Menkes was a senior member of the bar at the time, and that he has “a significant prior professional conduct record including a previous conduct review relating to a breach of undertaking.”

According to the consent agreement, Menkes has been a member of the law society since 1996. Until signing the document, his practice consisted “primarily of criminal law and civil litigation, with a small amount of real estate and wills and estates work.”