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Lawyer tells court that purpose of loan from client changed

Nancy Vieira

A lawyer accused of dishonestly obtaining a $50,000 loan from a client told a jury that the purpose of the loan was changed after she ran into personal challenges.

Nancy Vieira told the Supreme Court that while the loan from the late Kirsten Badenduck was originally intended to help her to buy into a partnership at MacLellan and Associates, Ms Badenduck agreed to let the funds go towards a mortgage instead.

“I told Ms Badenduck that I was using it to help my family and that it was being put towards the mortgage of our home,” she said. “We also discussed other things that were going on at the time.

“Ms Badenduck agreed to me using the monies for that and simply asked if I was going to be able to pay the money back in December and I told her yes.”

Ms Vieira told the court that the promissory note signed by Ms Badenduck did not specify the purpose of the loan or include a default clause, only that the funds must be repaid within 12 months.

And while she said that she had advised Ms Badenduck to have another lawyer review the promissory note, she did so after she had signed it.

“The money at that point had not been sent from her other account,” she said.

Ms Vieira, from Pembroke, has denied charges that she dishonestly obtained a $50,000 money transfer from Ms Badenduck between January and July 2016.

She has also denied allegations that she stole $28,615 from Ms Badenduck through unauthorised ATM withdrawals and $7,601 through unauthorised debit card transactions between August 2015 and October 2016.

Ms Badenduck, who was paralysed, died in 2019.

In a police interview recorded in 2017, Ms Badenduck said she had loaned Ms Vieira $50,000 to help her to secure a junior partnership at MacLellan and Associates, but she had never been given a copy of the promissory note.

Jacqueline MacLellan, the head of the firm, told the court she had never discussed or considered making the defendant a partner at the firm.

She added that she understood Ms Vieira had been tasked with terminating a caregiver for Ms Badenduck and was unaware about the loan or that she had been given power of attorney over the client until Ms Badenduck made a complaint.

Ms MacLellan said after she ended Ms Vieira’s employment, she returned to the office with two bank drafts — one for $25,000 to repay half the loan and the one for $15,000 to cover funds taken out of Ms Badenduck’s accounts for uncompleted tasks.

Ms Vieira told the court last week that she was given power of attorney over Ms Badenduck so that she could close some of her bank accounts and open new ones.

She also said that Ms Badenduck had given her permission to withdraw cash from her accounts to pay for caregivers and others, along with using her card to purchase groceries, medical supplies and bulk goods on her behalf.

Ms Vieira said she also used the card to purchase coffee, which she claimed Ms Badenduck had allowed, and that she had accidentally used the card to get a hotel room at the Hamilton Princess.

She said she told Ms Badenduck as soon as she realised the error and repaid her in December 2016.

As the trial continued, Ms Vieira testified that in late 2015 Ms Badenduck had offered to help her to buy in to a partnership at MacLellan and Associates.

Ms Vieira said that after discussing the idea with other lawyers, she was advised that the best approach would be to draft a partnership agreement and to have funds available when making the offer.

She said she was also advised that if she was to borrow the money, she should have the lender sign a promissory note.

Ms Vieira said that sometime in late November or early December that year, she spoke to Ms Badenduck and said that she wanted to go ahead with the loan and what advice she had been given.

She said Ms Badenduck signed the loan agreement in December with an “x”.

“At that time I told Ms Badenduck she should seek independent legal advice if she wanted to review the promissory note,” Ms Vieira said.

She added that she made copies of the note and left one in Ms Badenduck’s filing cabinet and said that she would pay the loan back before the December due date if possible.

Ms Vieira said that she received a managers cheque for $50,000 in January 2016, but did not approach Ms MacLellan in the subsequent months because of a variety of issues including a period of illness in which she said she was admitted to hospital.

The defendant said her personal circumstances changed when she received a call from her sister about a trust, which both sisters were trustees of, and a mortgage on the family home.

Ms Vieira said in June 2016 she received an e-mail from Ms Badenduck about a number of issues, including the $50,000 loan.

Ms Vieira said that at the meeting she told Ms Badenduck she would not be able to repay the loan before December 2016 and that she hoped to use the funds to pay down on the mortgage.

She said Ms Badenduck had agreed, and she subsequently contacted Mr Badenduck to make him aware of the change.

Ms Vieira also told the court that she had repaid the $50,000 loan in December 2016 as was required.

The trial continues.

It is The Royal Gazette’s policy not to allow comments on stories regarding criminal court cases. This is to prevent any statements being published that may jeopardise the outcome of that case.