Discipline digest

Please find summaries with respect to:

Brian Borthwick Norton
Khushpal Singh Taunk
Donald Andrew Lyons
Jack Alexander Adelaar
Gregory John Lanning
John Christopher Karlsson
Barry Promislow
Trevors Bjurman
John Owen Richardson

For the full text of discipline decisions, visit the Regulation & Insurance / Regulatory Hearings section of the Law Society website.

Brian Borthwick Norton

Kelowna, BC

Called to the bar: October 1, 1968

Discipline hearing: May 8 (Facts and Verdict) and November 10, 2008 (Penalty)

Panel: Glen Ridgway, QC, Chair, June Preston and Ronald Tindale

Reports issued: July 29 (2008 LSBC 22) and November 25, 2008 (2008 LSBC 36)

Counsel: Eric Wredenhagen for the Law Society and Brian Borthwick Norton appearing on his own behalf

Facts

Brian Borthwick Norton represented client SL in a real estate transaction. On September 25, 2007 Norton received $45,000 in cash from SL as part payment of the real estate purchase. He advised the client that any large cash payments made to him would have to be reported under money laundering statutes. Norton deposited the cash into his trust account.

At the time Norton received the cash deposit, the Law Society had issued 12 publications about Rule 3-51.1, the “no cash rule,” which states that a lawyer must not receive or accept an aggregate amount in cash of $7,500 or more in respect of any client matter or transaction.

Later that evening, Norton reviewed the reporting requirements for large sums of cash and realized he had misunderstood the rule and breached it by accepting the cash deposit. Realizing his mistake, Norton faxed a letter to the Law Society’s Executive Director September 26. Having received no response from the Law Society by September 28, Norton returned the money to his client in cash. He met with his client on October 1 and explained that he had made a mistake in accepting the cash deposit and could not continue to represent her. He then made arrangements to have her file transferred to another law firm.

Verdict

The hearing panel found that, while Norton had committed a breach of Rule 3-51.1, his conduct did not amount to professional misconduct. In reaching this conclusion, the panel noted that Norton acted in good faith in accepting the money and, after realizing his mistake, took all necessary steps to address the error. They also found that Norton’s actions did not cause any harm to the client.

Penalty

In their assessment on Penalty, the panel underscored the importance of the “no cash rule,” noting that this rule is intended to ensure that lawyers do not inadvertently assist in money laundering transactions. They also noted that Norton had no previous professional misconduct record.

Accordingly, the panel ordered:

1. a fine of $500; and

2. $500 in costs.

 

Khushpal Singh Taunk

Surrey, BC

Called to the Bar: May 19, 2000

Discipline hearing: November 27, 2008

Panel: Glen Ridgway, QC, Chair, Gavin Hume, QC and Bruce LeRose, QC

Report issued: December 8, 2008 (2008 LSBC 37)

Counsel: Eric Wredenhagen for the Law Society and Jerome Ziskrout for Khushpal Singh Taunk

Facts

Khushpal Singh Taunk was retained in February 2005 to represent MG in a divorce proceeding. MG wanted to obtain a speedy divorce from KG so that he could proceed with an arranged marriage in India. KG had previously commenced a family law proceeding in Vancouver in January 2004. MG had counterclaimed in that proceeding, seeking a divorce. In April 2004, a case management consent order resolved issues of custody, access and child support, but the issues of spousal support, property division and divorce remained outstanding.

At the time of the retainer, MG provided incorrect information to Taunk, stating that he had not sought a divorce in the Vancouver action and that all issues from that action filed had been resolved except for the divorce.

Taunk commenced a new action on March 10, 2005 in New Westminster, in which divorce was the only relief sought. In April, Taunk became aware that in fact spousal support and property division issues were not resolved and MG had counterclaimed for divorce in the Vancouver action. Taunk filed an amended writ and an amended statement of claim in the New Westminster action, noting that:

The Consent Order was signed on April 15, 2004 by the parties and their respective counsels [sic], resolved all issues other than the divorce, spousal support and property division.

Taunk brought an application in New Westminster on April 29, 2005 seeking an order for divorce. Justice S, who heard the application, was not prepared to grant a divorce until all other issues outstanding between the parties had been resolved.

Despite the fact that the issues of property division and spousal support remained unresolved, Taunk brought the divorce application back to court on June 9, 2005. Justice S rejected Taunk’s submission and ordered instead that the Vancouver action and the New Westminster action be consolidated.

Following two unsuccessful attempts to have the consolidation order entered in the registry, Taunk set his application for July 4, 2005. He did not serve a notice of hearing on KG. At the July 4 hearing before Justice D, Taunk did not advise the court of the two previous attendances before Justice S; the existence of the Vancouver action; the consolidation order; or KG’s reason for opposing the application. The divorce was granted. When KG became aware of the divorce she complained to the Law Society.

In a letter responding to the Law Society, Taunk admitted that he should have advised Justice D of the consolidation order and that he had failed in this duty to the court.

Verdict

The hearing panel accepted Taunk’s admission that he wrongfully obtained the Divorce Order on July 4, 2005 and found his conduct constituted professional misconduct.

Penalty

In their assessment on Penalty, the hearing panel considered Taunk’s failure to meet his responsibilities to the court and particularly his failure to advise Justice D of the directions provided by Justice S on June 9, 2005. Taunk gave an undertaking to the Law Society that he would not appear in court or before administrative tribunals without senior counsel representing his clients, unless he was relieved of this undertaking by the Law Society.

Taunk agreed to review the Law Society’s Practice Refresher Course and Small Firm Practice Course, paying particular attention to ethical issues raised in those courses..

Therefore, the panel ordered:

1. a one-month suspension; and

2. $2,500 in costs.

 

Donald Andrew Lyons

Vancouver, BC

Called to the Bar: July 10, 1979

Hearing dates: January 17 (Facts and Verdict) and October 2, 2008 (Penalty)

Panel: Kathryn Berge, QC, Chair, Anna Fung, QC and Thelma O’Grady

Reports issued: March 14 (2008 LSBC 09), September 29 (2008 LSBC 32) and December 9, 2008 (2008 LSBC 38)

Counsel: Maureen Boyd for the Law Society and Donald Andrew Lyons on his own behalf

Facts

This was a matter of first instance, as it was the first citation issued by the Law Society regarding Rule 3-51.1, commonly known as the “no cash rule.”

Donald Andrew Lyons was retained by client SC to provide services on behalf of his movie production business. On April 10, 2006 SC delivered US $32,900 and CDN $9,000 in cash for deposit into Lyons’ trust account. Lyons advised SC that the Law Society had rules about receiving large cash amounts and needed to confirm what those rules were before he could accept and deposit the money.

After receiving the funds but before depositing them, Lyons contacted the Law Society and informed an employee in the Trust Assurance Department that he had received US $32,000 in cash from a client. The employee drew his attention to Rule 3-51.1. Her note indicated that she used the word “violation”; however, Lyons’ evidence was that the employee used the word “exception”, which he understood in the context of an exception to his annual trust report, rather than a violation which could result in discipline.

After this telephone call, the employee emailed the text of the “no-cash rule” to Lyons, who received and read it prior to determining to deposit the cash.

On or about June 5, 2006, SC delivered additional cash of CDN $14,000 to Lyons, which he deposited in two amounts of CDN $9,000 and CDN $5,000, then subsequently disbursed the money according to his client’s instructions.

On August 4, 2006 Lyons provided the Law Society with a written exception report stating he had received US $32,000 on April 10 and CDN $9,000 on June 5. This report prompted correspondence between Lyons and the Law Society, in which the society sought a written explanation as to why cash of $7,500 or more was received and whether Lyons was still holding the cash in trust.

On September 22, 2006 a staff lawyer in the Professional Conduct Department contacted Lyons to advise him an investigation had commenced regarding the information set out in his exception report and requested a complete written response.

After exchanging multiple letters with the society, Lyons provided a complete written response on January 29, 2007 in which he advised the society he had received more cash than reported in his August 4, 2006 letter: on April 10, 2006 he received and additional $9,000 and on June 5, 2006 the further amount of CDN $5,000. Lyons advised that he had incorrectly reported the cash amounts in his report of August 4, as he had not consulted the relevant trust accounting records prior to filing.

Lyons admitted that he was familiar with the legislation that gave rise to the “no cash rule” and had read articles published by the Law Society about the rule since its implementation.

He admitted that he accepted and received cash in breach of Rule 3-51.1, that he read the Rules before depositing the cash into his trust account and that he did so knowingly in breach of the rule. He admitted that doing so constituted professional misconduct.

At the time these events took place, Lyons was experiencing personal difficulties, including problems arising from the termination of his partnership for which he sought assistance from the Law Society.

Verdict

Lyons committed two breaches of Rule 3-51.1 (the “no cash rule”) over a period of nine months. These breaches were not unintentional nor purely administrative in nature.

Lyons was sufficiently aware of the “no cash rule.” The Law Society published no less than 12 articles about the rule between 2004, when it was first adopted by the Benchers, and 2006, when the alleged behaviour occurred. Lyons admitted he read several of these articles.

Further, Lyons contacted the Law Society about the rule after receiving cash from a client. After reading Rule 3-51.1, Lyons made a conscious decision not to abide by the rule and deposited the money. Approximately two months later, he again accepted additional cash in the amount of $14,000 from his client on the same matter.

The panel found that Lyons was not frank in his dealings with the society in several respects — with regard to the extent of cash received, in his replies to follow up inquiries, in his August 4, 2006 exception report and in the ensuing months of investigation.

Lyons submitted that, while he was prepared to take responsibility for his actions, the Law Society bore some responsibility for the situation.

While the panel accepted Lyons may not have been fully briefed by the Law Society employee who answered his telephone call, it was ultimately his responsibility to inform himself of the Rules. Further, lack of knowledge about the potential consequences of a breach of the rule is not an excuse for its violation. If there was a misunderstanding of the application of the rule, Lyons did not take any steps to clarify his understanding until he learned the society was investigating the matter.

Lyons’ conduct was a marked departure from the conduct the Law Society expects from its members. The panel accepted the respondent’s admission of professional misconduct.

Penalty

Lyons acknowledged without reservation that he had made a mistake and was ashamed of his conduct. He apologized to the Law Society and provided assurances it will be the last time he will be disciplined. The panel accepted that Lyons was genuine in his remorse and truly regretted what appear to be uncharacteristic and unfortunate lapses in judgment.

The panel was satisfied that no further specific deterrence is necessary in this case. But with respect to general deterrence, the panel was of the view that in order to ensure the efficacy and purpose of the “no cash rule,” the Penalty must signal clearly both to Lyons and to the profession that the rule must be complied with, regardless of the inconvenience to the lawyer or the client.

The Penalty should, as a general rule, be a fine with a sufficient deterrent effect that it prevents other lawyers from treating it as an acceptable cost of doing business.

In light of factors discussed above and considering Lyons’ unblemished history and the steps he took to consult the Law Society, the panel agrees that Lyons should be assessed a fine in the lower range of the spectrum.

The panel determined the following Penalty:

1. a fine of $1,500;

2. costs in the amount of $2,700.

Jack Alexander Adelaar

Vancouver, BC

Called to the bar: June 29, 1972

Discipline hearing: April 21 (Facts and Verdict) and December 10, 2008 (Penalty)

Panel: David Renwick, QC, Chair, Carol Hickman and David Mossop, QC

Reports issued: July 2, 2008 (2008 LSBC 18) and January 23, 2009 (2009 LSBC 01)

Counsel: Jaia Rai and Maureen Boyd for the Law Society and Terrence Robertson, QC for Jack Alexander Adelaar

Facts

Jack Alexander Adelaar represented a vendor in a real estate transaction. The vendor had accepted an offer, and the option to purchase was open until midnight on September 30, 2006. Counsel for the purchaser advised Adelaar that he would deliver a certified cheque for $100,000 to be held in trust by Adelaar pending completion of the transaction. However, at 4:40 pm on September 29, Adelaar received a bank draft for $90,200 and $9,800 cash from a representative of the purchaser. The funds had to be in Adelaar’s trust account by midnight on Saturday September 30, a non-banking day. He did not have a safe in his office to store the money over the weekend, and he could not reach counsel for the purchaser. He opted to deposit the cash to his account on September 29, 2006 and was aware when he did so that he would be in breach of Rule 3-51.1.

On October 31, Adelaar advised the Law Society in writing that he had received and deposited the $9,800 in cash.

At the time Adelaar received the cash, the Law Society had issued 12 publications regarding Law Society Rule 3-51.1, the “no cash rule.” Adelaar admitted that he was aware that the Law Society Rules limited the amount of cash a lawyer may receive to no more than $7,500 in respect of any one client matter or transaction, and he knowingly accepted the cash in breach of the rule. However, it was a one-time occurrence, and he had expected to receive funds by way of a certified cheque, not cash.

Verdict

The hearing panel considered a number of mitigating circumstances in reaching their decision. The panel agreed that Adelaar had not expected to receive cash and he had no place to store the money over the weekend. If he had kept the money in an unsecure location he could have been in violation of Chapter 7.1 of the Professional Conduct Handbook, which requires lawyers to store valuables (cash) in a secure place apart from the lawyer’s property. In addition, if he had returned the cash to counsel for the purchaser, he would have exposed that lawyer to a violation of Rule 3-51.1.

The panel also noted that this case illustrates the potential for civil liability issues arising from Rule 3-51.1. Because the option agreement did not stipulate how the $100,000 was to be paid (solicitor trust cheque or certified cheque), if Adelaar rejected the $9,800 cash he might have put his client and himself in a position of civil liability.

Considering these circumstances, the hearing panel found that, while Adelaar breached Rule 3-51.1, the breach did not amount to professional misconduct. The panel noted that this case illustrates some shortcomings in the Rules that the Benchers may wish to address.

Penalty

In their assessment on Penalty the panel considered the unique circumstances of this case as well as Adelaar’s professional conduct record and ordered:

1. a fine of $1,000; and

2. $500 in costs.

Gregory John Lanning

Abbotsford, BC

Called to the Bar: May 15, 1992

Hearing dates: June 11, 12 and 13 (Facts and Verdict) and November 25, 2008 (Penalty)

Panel: William Jackson, Chair, Leon Getz, QC and David Mossop, QC

Report issued: September 29, 2008 (2008 LSBC 31) and January 29, 2009 (2009 LSBC 02)

Counsel: Jean Whittow, QC and Mathew Good for the Law Society and Gregory John Lanning on his own behalf

Facts

Gregory John Lanning represented client LG in a family law matter through a legal aid referral.

LG and NG were married in 1998 and had a daughter in 1999. They separated in 2004 and negotiated a separation agreement in May 2006. In June 2006 issues arose and NG, a self-represented litigant, filed various applications in Provincial Court, including an ex parte restraining order against LG.

Between August and December 2006 Lanning and NG exchanged letters pertaining to unresolved legal matters. In 12 of those letters, Lanning critiqued NG’s correspondence and engaged in name-calling and personal criticism.

Lanning said that his communications were a “brilliant but unorthodox strategy” to “squelch,” “defeat” or “crush” NG in order to advance his client’s interest in securing access, and later, a divorce.

Verdict

A lawyer’s communications must be courteous, fair and respectful. A lawyer is to refrain from personal remarks or references and to maintain objectivity and dignity.

Lanning’s conduct departed from professional standards from the outset. He issued repeated letters that were rude, deliberately provocative and belittling of an opposing party. Even if his purpose was to advance the interests of his client, this does not justify the incivility and discourtesy contained in the letters.

The panel noted that lawyers face many challenges in dealing with unrepresented litigants, particularly in family matters. Parties can easily descend into name calling and uncivil language. The panel urged lawyers to rise above this behaviour.

Lanning’s correspondence falls markedly below the standards expected of members of the Law Society and amounts to professional misconduct.

Penalty

The panel considered the nature and gravity of the conduct, the previous character of the respondent, including details of prior discipline, and the impact upon the victim, and ordered that Lanning:

1. be reprimanded;

2. pay a fine in the amount of $2,500;

3. pay costs in the amount of $6,600;

4. pay the fine and costs by June 30, 2009.

 

John Christopher Karlsson

Youbou, BC

Called to the bar: May 23, 2003

Discipline hearing: January 22, 2009

Panel: James Vilvang, QC, Chair, Robert Brun, QC and Peter Lloyd

Report issued: February 3, 2009 (2009 LSBC 03)

Counsel: Maureen Boyd for the Law Society and Jerome Ziskrout for John Christopher Karlsson

Facts

In 2000, 2001 and 2002, John Christopher Karlsson made three separate applications to the Law Society — two for temporary articles and one for enrolment in the admission program.

In 1991 Karlsson was charged with impaired driving and possession of a prohibited weapon. He was acquitted of impaired driving and pleaded guilty to the possession charge. In all three applications, Karlsson answered “no” to the question of whether he had ever been charged with a crime, offence or delinquency. Further, he solemnly declared in each application that the information he provided was true, accurate and complete.

Admission and penalty

Karlsson admitted he lied in applications made to the Law Society in 2000, 2001 and 2002 and this conduct constitutes conduct unbecoming a lawyer.

Pursuant to Law Society Rule 4-22, the hearing panel accepted Karlsson’s admission and ordered:

1. a six-week suspension; and

2. costs of $2,500.

In their assessment, the hearing panel noted that dishonesty is one of the most serious forms of conduct unbecoming or professional misconduct. The legal profession could not function if judges, other lawyers and members of the public could not rely on the honesty of lawyers, the panel said.

Barry Promislow

Vancouver, BC

Called to the Bar: July 7, 1958

Discipline hearing: January 22 (Facts and Verdict) and December 2, 2008 (Penalty)

Panel: Richard Stewart, QC, Chair, Kathryn Berge, QC and Leon Getz, QC

Reports issued: March 10, 2008 (2008 LSBC 08) and February 5, 2009 (2009 LSBC 04)

Counsel: Eric Wredenhagen for the Law Society and Barry Promislow on his own behalf

Facts

In October 2006, Barry Promislow was retained by clients RP, EG and GD who had initiated litigation involving the Strata Property Act and terminated the engagement of their then counsel, MF. In representing his clients, Promislow reviewed MF’s accounts in early December 2006. The Registrar ordered that the fees be reduced, which amounted to a judgment for $3,675.36 payable by MF’s firm to the clients.

On December 28, 2006, Promislow received a cheque for $3,675.36 from MF’s firm. The accompanying letter contained the trust condition that payment was provided on Promislow’s undertaking to execute, file and deliver to MF an Acknowledgement of Payment, or return the cheque to MF unprocessed. Promislow deposited the cheque into his trust account but did not comply with all the terms of the undertaking. After an unsuccessful exchange of letters and emails between MF and Promislow, MF filed a complaint with the Law Society.

Promislow responded to the Law Society on January 30, 2007 and, as of that date, he had not disbursed the funds to his clients. The funds were subsequently disbursed.

Verdict

At the time of MF’s complaint, Promislow had been practising law for close to 50 years. The panel noted that, as a senior lawyer, Promislow would be well aware of undertakings and their importance.

Between 1985 and 1999, Promislow was the subject of one citation and six Conduct Reviews. Promislow’s conduct difficulties have centred around breaches of undertakings and discourteous conduct. The panel treated this discipline record as “an aggravating factor of some significance” and noted that his behaviour in this case, as in the past, had been “deliberately contentious and uncivil.”

At the hearing, Promislow essentially conceded that he had been uncivil in this case as well as in the past. While it was noted that he had made similar representations in earlier discipline proceedings, his acknowledgement of his discourtesy was a factor considered by the panel in imposing a fine rather than a period of suspension.

The panel concluded that by deliberately ignoring the trust condition, Promislow had committed professional misconduct.

Penalty

The Law Society was seeking a fine of $7,500; however, the panel concluded that the appropriate sanction in the circumstances was a fine of $10,000, which was consistent with the precedents that the panel examined.

The panel ordered that Promislow:

1. pay a fine of $10,000;

2. pay $3,500 in costs;

3. complete, to the satisfaction of the Practice Standards Committee, the online “Communications Toolkit” course developed by the Law Society; and

4. if the course is not completed by May 7, 2009, be suspended from that date until the course is so completed.

 

Trevors Bjurman

North Vancouver, BC

Called to the Bar: May 14, 1976

Discipline hearing: November 20, 2008

Panel: Leon Getz, QC, Chair, Haydn Acheson and David Mossop, QC

Report issued: February 5, 2009 (2009 LSBC 05)

Counsel: Jaia Rai for the Law Society and Trevors Bjurman on his own behalf

Facts

On July 5, 2007 a citation was issued against Trevors Bjurman outlining three allegations of professional misconduct. The first and second allegations related to unauthorized disclosure of confidential client information without the client’s consent, and the third concerned making a knowingly unfounded application to a judge to order the surrender of a party’s passport. Bjurman admitted professional misconduct in connection with the first and third allegations and the Law Society elected not to proceed on the second allegation.

Disclosing client information without the client’s consent

In August 2003, Bjurman was retained to represent property owner JP on a counterclaim filed by his tenants. The amount of the counterclaim exceeded the net equity in JP’s property. In adjourning the trial of the counterclaim to January 2004, the judge made an Order respecting JP’s property and the disposition of proceeds if the property was sold.

In July 2004, Bjurman was advised that JP was proceeding with the sale of his property and the funds would not be paid into Bjurman’s trust account. This was in violation of the Order. Bjurman also became aware that no Certificate of Pending Litigation had been registered against the Property.

Bjurman submitted to the Land Title Office a caveat, dated August 11, 2004, for registration against JP’s property. The caveat contained confidential information relating to JP, but his consent to disclosure of this information was not obtained. Bjurman stated that he filed the caveat to prevent JP from breaching the Order and being found in contempt, but acknowledged that it could also be perceived he was acting to protect his claim for legal fees.

JP terminated Bjurman’s retainer on August 26, 2004.

Seeking an unsubstantiated order for the surrender of a passport

At a court hearing on October 4, 2004 in which Bjurman and his co-counsel applied to withdraw as counsel of record, Bjurman sought an order that JP surrender his passport on the basis that he was a potential flight risk. Bjurman did not, however, have any expectation that JP would leave the jurisdiction.

Admission and penalty

Bjurman admitted that, in submitting the caveat for registration, he disclosed confidential information without consent and that suggesting an order for JP to surrender his passport, when he did not personally believe at the time that JP was a flight risk was, in each case, unprofessional conduct.

Pursuant to Law Society Rule 4-22, the hearing panel accepted Bjurman’s admissions and ordered that he pay:

1. a fine of $7,500; and

2. $4,500 in costs.

 

John Owen Richardson

Vancouver, BC

Called to the Bar: May 15, 1972

Bencher review: October 17, 2008

Benchers: Glen Ridgway, QC, Chair, Joost Blom, QC, Kathryn Berge, QC, Leon Getz, QC, William Jackson, Barbara Levesque and Dr. Maelor Vallance

Report issued: February 11, 2009 (2009 LSBC 07)

Counsel: Maureen Boyd for the Law Society and Terrence Robertson, QC for John Owen Richardson

Background

In the decision of the hearing panel (reported in the March 2008 Benchers’ Bulletin), John Owen Richardson was found guilty of professional misconduct for failing to honour the terms of an undertaking from opposing counsel in a matrimonial matter on behalf of their clients. The hearing panel ordered that Richardson pay a fine in the amount of $2,500 and pay hearing panel costs in the amount of $4,500.

On review, Richardson was seeking a reconsideration of some of the Facts found by the hearing panel, as well as its finding of professional misconduct. He did not seek a reconsideration of the Penalty imposed by the hearing panel, and no submissions were made on this subject. Richardson was adamant that in over 30 years of practising law, he had never breached any undertakings and that, in this case, opposing counsel had imposed an improper undertaking. It was suggested by Richardson that the hearing panel found that every breach of an undertaking constituted professional misconduct; the review panel disagrees that this can be concluded from that panel’s decision.

Decision

The review panel stated that acceptance of Richardson’s argument would mean that he was free to decide whether the undertaking was lawful by virtue of his own interpretation of his client’s contractual rights. It was noted that Richardson did not attempt to resolve the issue regarding the trust funds or propose an amendment to the undertaking. The fact that a consequence of Richardson’s breach of the trust condition was that he was able to pay his own account due from his client adds to the seriousness of the misconduct as it adds an element of conflict of interest.

The review panel confirmed that the hearing panel’s decision was correct in fact and in law and ordered Richardson to pay:

1. a fine in the amount of $2,500;

2. hearing costs in the amount of $4,500; and

3. hearing review costs in an amount to be determined.