Discipline digest

Please find summaries with respect to:

Pamela Suzanne Boles
Hugh Braker, QC
Sheldon Goldberg
Vance King Goulding
Brian Peter Grant Kaminski
Jonathan Lewis Oldroyd
Marcus O’Sullivan

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


 

Pamela Suzanne Boles

Vancouver, BC

Called to the bar: November 17, 1989

Discipline hearing: November 29, 2006 and August 21, 2007

Panel: Kathryn Berge, QC, Chair, Karl Warner, QC and Brian Wallace, QC

Reports issued: May 29 (2007 LSBC 27) and October 1, 2007 (2007 LSBC 43)

Counsel: Jaia Rai for the Law Society and Jerome Ziskrout for Pamela Boles

Facts

Pamela Boles represented the plaintiff in a claim for injuries sustained in a motor vehicle accident. In the course of the case she obtained a chambers order. The order contained a term that had not been granted by the judge. When opposing counsel asked Boles how she obtained the additional term, Boles advised him that she had not requested the order but “the court gave it anyway.”

Opposing counsel complained about Boles’ conduct in January 2005. The Law Society sent a letter to Boles in February 2005, enclosing a copy of the letter from opposing counsel. Boles did not respond and failed to respond to subsequent letters sent February 23, March 10 and March 29, 2005. In addition, Boles did not respond directly to an April 5, 2005 phone message from the Law Society. On May 30, 2005 the Law Society advised Boles that the matter had now been referred to the Discipline Committee. Boles sent a letter on June 2, 2005 in response to the May 30 letter but did not provide a full substantive response to the complaint until the eve of the hearing in November 2006.

Boles admitted she filed a court order containing a term that had not been granted by the court. She explained that she had a busy chambers practice with multiple orders being entered at any given time. She said she relied on her experienced staff and on court registry staff to ensure the accuracy of orders.

She also admitted she misled opposing counsel when she told him the court had granted the additional term. She said that when she made the statement, she did not believe the issue was important, she did not have her file in front of her and assumed the order had been checked by her staff and court registry staff and was accurate.

In addition, Boles admitted she was wrong not to have made a full and substantive reply to the Law Society.

Verdict

The panel concluded Boles’ conduct regarding the court order and her statement to opposing counsel was negligent but did not amount to professional misconduct or incompetence within the meaning of the Legal Profession Act. The evidence did not establish on a balance of probabilities that Boles entered the wrongly worded order or misled counsel intentionally.

The panel found that Boles’ conduct in failing to respond to the Law Society constituted professional misconduct.

The panel noted that Boles has a discipline history reflecting poor document and file management and a cavalier, defensive, and self-serving attitude to both timeliness and care in communications with lawyers, the courts and the Law Society. They panel said that ensuring that members respond promptly and fully to the Law Society is fundamental to the self-governance of the legal profession.

Boles admitted professional misconduct in failing to respond to the Law Society. The panel noted that Boles has taken some concrete steps toward rectifying the practice and personal patterns that contributed to this citation.

Penalty

The panel ordered that Boles:

1. be reprimanded;

2. pay a fine in the sum of $17,500; and

3. pay costs of the hearing in the sum of $17,000.

 

Hugh Braker, QC

Port Alberni, BC

Called to the bar: May 10, 1984

Discipline hearing: December 6, 2006

Penalty hearing: July 6, 2007

Panel: William Jackson, Chair, Bruce LeRose, QC and David Renwick, QC

Reports issued: January 4, 2007 (2007 LSBC 01) and September 19, 2007 (2007 LSBC 42)

Counsel: Maureen Boyd for the Law Society, Hugh Braker, QC appearing on his own behalf at the discipline hearing and M. Louise Mandell, QC for Braker at the penalty hearing.

Facts

JC and JC, Jr. hired Hugh Braker, QC to represent them in their personal injury claims. In November 2005, the clients became dissatisfied with Braker’s services and retained new counsel, Lawyer B.

On November 16 and 18, 2005, Lawyer B advised Braker by fax that he had been consulted by the clients and requested Braker’s confirmation of the status of their claims. Lawyer B also inquired whether the claims had been dismissed for want of prosecution and, if so, what remedial steps Braker’s firm was taking. By a letter to Braker dated November 30, 2005, Lawyer B confirmed his engagement by the clients, and requested Braker to forward his client file as soon as possible.

Braker did not reply to any of Lawyer B’s letters and did not forward the client file to him.

On February 7, 2006 JC and JC, Jr. filed a complaint with the Law Society about Braker’s services. In a February 13 telephone conversation with a Law Society staff lawyer, Braker denied having received Lawyer B’s November 30, 2006 letter. By letters dated February 14, March 7 and March 21, 2006 the Law Society requested Braker’s response to the complaint, but did not receive a reply.

On April 7, 2006 Braker advised the Law Society by telephone that he was scheduled for urgent surgery on April 17, with a four-week recovery period. The Law Society extended time for Braker’s response to the clients’ complaint to May 29, 2006. On May 31, Braker wrote to the Law Society, advising that he had returned to work full time and that he would respond to the complaint by letter during the following week. Braker did not do so.

On June 13, June 27 and July 12, 2006 the Law Society wrote to Braker, repeating the request for his response to the clients’ complaint originally set out in the society’s letter dated February 14, 2006. Braker did not reply.

On October 16, 2006 the Law Society issued a citation against Braker, alleging that he had failed to respond to the society’s letters regarding the clients’ complaint, and that he had failed to reply to another lawyer’s correspondence.

Verdict

Braker admitted he had failed to respond to the Law Society’s letters regarding his clients’ complaint, and to another lawyer’s correspondence. Braker also admitted those failures amounted to professional misconduct. The panel accepted Braker’s admissions.

Penalty

Braker submitted that he has a long history of contribution to the public and to the Law Society, and that his admitted misconduct was out of character and caused by depression.

The panel noted one of the counts in the citation addressed a failure to respond that occurred just a few days after a conduct review addressing Braker’s failure to respond to counsel in a litigation matter. The panel also noted that previous conduct reviews and a previous discipline hearing had imposed remedial conditions on Braker, without apparent effect.

The panel stressed that the purpose of the penalty in professional discipline is not to punish offenders, but rather to protect the public, maintain high professional standards and preserve public confidence in the legal profession. In determining the appropriate penalty in this case, the panel reviewed a number of factors set out in Law Society of BC v. Ogilvie, [1999] LSBC 17, stating that the duty to reply to Law Society communications is at the heart of the society’s regulation of the practice of law.

The panel ordered that Braker:

1. be suspended for one month, commencing November 1, 2007;

2. provide a substantive response to the Law Society’s letter dated February 14, 2006, on or before October 1, 2007;

3. provide within 14 days of the penalty hearing a written undertaking to the Discipline Committee that he will respond in writing, within 14 days, to communication received from the Professional Regulation Department, if such communication requires a response; and

4. pay costs of $5,550.

 

Sheldon Goldberg

Vancouver, BC

Called to the bar: January 3, 1973

Discipline hearing: April 10, 11, 12, May 23, July 13, August 31 and September 12, 2006

Penalty hearing: May 18, 2007

Hearing panel: Glen Ridgway, QC, Chair, Leon Getz, QC and Gavin Hume, QC

Decision on penalty: majority decision: Leon Getz, QC and Gavin Hume, QC; minority decision: Glen Ridgway, QC

Reports issued: facts and verdict January 10, 2007 (2007 LSBC 03), penalty September 7, 2007 (2007 LSBC 40)

Counsel: Herman Van Ommen and Judy Walker for the Law Society; Sheldon Goldberg appearing on his own behalf

Facts

Professional misconduct

Sheldon Goldberg represented four men on four separate criminal appeals that were heard together. The common ground of appeal was an allegation of inadequate representation at trial by JB, the lawyer who had represented all four accused.

The Court of Appeal dismissed all four appeals and, in its written reasons, was highly critical of Goldberg’s conduct and competence. The court said Goldberg’s affidavits were “unworthy of any lawyer” and that his factums and written submissions were “rambling, repetitive and disorganized” and “among the poorest examples presented to this court in recent memory.”

The court also said Goldberg used his right of audience to make “seriously damaging, but completely unfounded” allegations of misconduct, including drug and alcohol abuse, against JB.

A Law Society hearing panel reviewed extensive materials concerning the allegations made by Goldberg against JB, including: alcohol and drug abuse and psychological problems; that the illness of JB’s parents affected his conduct; statements characterizing JB as a “rogue”; statements characterizing JB as dishonest to the courts and to his clients; statements dealing with JB’s personal life that were completely irrelevant to the appeals; and that JB failed to order preliminary hearing transcripts.

The panel did not find any proper evidence to support any of Goldberg’s assertions. The panel further noted that Goldberg should be familiar with appeals based on the ineffectiveness of counsel at trial, as he had previously been involved in at least two cases that raised the same argument.

Competence

The panel found Goldberg failed to demonstrate adequate knowledge of the substantive law, practice and procedures to effectively represent his clients, contrary to Chapter 3, Rule 1 of the Professional Conduct Handbook. The panel reviewed several competency issues noted by Court of Appeal, such as affidavits that contained hearsay, lay opinions, irrelevant evidence, and speculation, insinuation and rumour; as well as disorganized factums that lacked proper legal support for the arguments advanced.

The panel found that the affidavits drawn by Goldberg demonstrated a complete lack of knowledge of the law of evidence. The panel further found that Goldberg’s written material demonstrated a serious lack of knowledge and skill and the factums did not meet an appropriate standard. The panel concluded that Goldberg did not competently carry out his duties as counsel and determined that he was incompetent in the performance of his duties undertaken in the capacity of a lawyer.

Verdict

The panel found Goldberg guilty of professional misconduct in making unfounded, but serious, allegations about the conduct of JB. They further concluded that he incompetently carried out the duties he undertook in the appeals.

Penalty

A majority of the hearing panel ordered that Goldberg:

1. be suspended from the practice of law for a period of 90 days, starting January 1, 2008;

2. submit any written material relating to an argument based on the ineffective assistance of counsel to a practice supervisor for review before filing; and

3. pay the costs this hearing.

The minority called for a suspension of 180 days, not 90 days. The minority agreed with all other aspects of the panel’s penalty decision.

 

Vance King Goulding

Vancouver, BC

Called to the bar: May 20, 1994

Custodian appointed: June 26, 2006

Ceased membership: January 1, 2007

Disbarred: August 31, 2007

Discipline hearing: March 14 and 15, 2007

Penalty hearing: July 26, 2007

Panel: Glen Ridgway, QC, Chair, William Jackson and Bruce LeRose, QC

Reports issued: April 4 (2007 LSBC 16) and August 31, 2007 (2007 LSBC 39)

Counsel: Maureen Boyd for the Law Society; no one appearing on behalf of Vance King Goulding

Facts

In July 2004, HR retained Vance King Goulding to assist her with an application to sponsor her husband’s immigration from Iran to Canada.

Between July and December 2004, HR paid $3,050 to Goulding, $550 of which was to cover filing fees charged by the federal immigration authorities. Goulding never deposited HR’s funds into his trust account, never paid the federal filing fees and never issued a bill to HR, although he did provide her with a receipt on his firm letterhead. The reverse side of two HR cheques payable to Goulding for $1,550 and $1,500 confirmed the cheques had been cashed at a Moneymart outlet.

In January 2005, HR obtained, completed and forwarded the sponsorship documents to Goulding by Express Post. In August 2006 the Express Post packet was found unopened in Goulding’s HR client file, in the course of the custodianship of his practice.

Despite her repeated subsequent attempts, HR’s last communication with Goulding was on December 28, 2004.

Between November 9, 2005 and April 6, 2006, the Law Society attempted to contact Goulding by 11 letters, three emails and numerous telephone messages, with little success. By an email dated March 2, 2006, Goulding advised that he would contact the Society the following week to schedule a conduct review. He did not do so. By another email dated March 6, 2006, Goulding requested adjournment of a practice review set for March 8. After Goulding failed to contact the Law Society to reschedule, the society sent him a letter dated March 13, 2006 to confirm rescheduling of the practice review to March 22, 2006 at Goulding’s office. Goulding did not attend at his office on March 22 for the practice review.

By a citation issued on June 28, 2006, the Law Society charged Goulding with six counts of professional misconduct.

The first three counts concerned Goulding’s failure to respond to the Law Society over a five-month period regarding a complaint by Goulding’s client, HR, the scheduling of a conduct review, and the conduct of a practice review.

Counts 4 to 6 in the citation charged Goulding with failure to serve his client in a conscientious, diligent and efficient manner, misappropriation of client funds, and failure to handle client funds in the manner required by the Law Society Rules.

Verdict

No one appeared on behalf of Goulding at the facts and verdict hearing, despite service of the citation, notice of the hearing and all other disclosure.

The panel found that Goulding committed professional misconduct under all six counts of the citation. The panel applied the reasoning set out in Law Society of BC v. Harder, 2005 LSBC 48:

Knowing misappropriation consists simply of a lawyer taking a client’s money entrusted to him, knowing that it is the client’s money and knowing that the client has not authorized the taking.

Penalty

Goulding did not appear at the penalty hearing. The panel concluded Goulding had been properly served with notice and expressed its disappointment that he chose not to participate. As a result, no evidence was presented regarding any exceptional circumstances that might warrant a penalty other than disbarment.

The panel concluded that disbarment is the appropriate penalty to protect the public in cases of misappropriation, even if the possibility of recurrence is remote. The panel cited general deterrence and the need to protect the public’s confidence in the integrity of the profession as reasons for its decision.

The panel ordered that Goulding:

1. be disbarred; and

2. pay costs in the amount of $25,516.58.

Trust Protection Coverage

In every profession, there are occasionally members who are dishonest. Although not all professions or industries protect victims of their dishonest members, the legal profession in BC has, since 1949, provided financial protection to members of the public whose money has been stolen by their lawyer. If a claim is made against a lawyer relating to the theft of money or other property, Trust Protection Coverage (TPC) is available under Part B of the lawyer’s insurance policy to reimburse the claimant, on the lawyer’s behalf, for the amount of the loss. Based on the circumstances described in this decision, a TPC claim was made against Vance King Goulding and the amount of $3,050 was paid to the claimant. Goulding is obliged to reimburse the Law Society in full for the amount paid under TPC. For more information on TPC, including what losses are eligible for payment, see the Insurance section of the Law Society’s website at lawsociety.bc.ca.

 

Brian Peter Grant Kaminski

Coquitlam, BC

Called to the bar: May 14, 1993

Discipline hearing: February 9, 2007

Panel: John Hunter, QC, Chair, Gordon Turriff, QC and Thelma O’Grady

Report issued: July 18, 2007 (2007 LSBC 37)

Counsel: Maureen Boyd for the Law Society and Brian Kaminski appearing on his own behalf.

Facts

Brian Kaminski represented the vendors and S, a notary public, represented the purchasers in the 2005 sale of strata lot 2 of a residential duplex. Strata lot 1 was also owned by Kaminski’s clients, and was sold at about the same time.

Kaminski wrote S on March 15, 2005, setting out the usual closing conditions for a property sale and undertaking to provide S with the mortgage payout documents within five business days, and to obtain a discharge of the vendors’ mortgage within a reasonable time. On March 21, Kaminski sent the vendors’ bank the mortgage payout funds along with the discharge.

On June 21, S sent a fax to Kaminski requesting a copy of the registered discharge. S sent follow-up faxes on August 4, 10 and 24, and on December 22, 2005 his assistant telephoned Kaminski’s office to follow up on the discharge, all without response.

On February 6, 2006 S complained to the Law Society that he had not received the mortgage discharge or any related documentation. The Law Society advised Kaminski of the complaint on February 28.

Kaminski then determined the discharge he sent to the vendors’ bank on March 21, 2005 referred to strata lot 1, rather than strata lot 2. On February 28, 2006 Kaminski sent the vendors’ bank the correct discharge. On March 15, 2006 — 12 months to the day after the closing of the sale — Kaminski provided S with a copy of the mortgage discharge.

Admission and penalty

Kaminski admitted he breached the undertakings he gave to S on March 15, 2005, and that his breach constituted professional misconduct. Pursuant to Rule 4-22, the hearing panel accepted Kaminski’s admission and proposed penalty. The panel ordered that he:

1. pay a fine in the amount of $7,500; and

2. pay costs in the amount of $2,000.

 

Jonathan Lewis Oldroyd

Salt Spring Island, BC

Called to the bar: July 10, 1980

Custodian appointed: April 14, 2004

Resigned: April 14, 2004

Disbarred: July 16, 2007

Discipline hearing: October 3 and 4, 2006

Penalty hearing: May 30, 2007

Panel: Glen Ridgway, QC, Chair, Leon Getz, QC and Ronald Tindale

Reports issued: January 17 (2007 LSBC 06) and July 16, 2007 (2007 LSBC 36)

Counsel: Brian McKinley for the Law Society; no one appearing on behalf of Jonathan Lewis Oldroyd

Facts

From early 1984 through early 2004, Jonathan Lewis Oldroyd practised law as a general practitioner from his home on Salt Spring Island. Oldroyd resigned his Law Society membership on April 14, 2004, the same day that he consented to the appointment of a custodian for his practice following an investigation of his books, records and accounts under Rule 4-43. That investigation arose from complaints from charitable organizations that were the residual beneficiaries of three estates being administered by Oldroyd.

A citation issued by the Law Society on October 5, 2005 charged Oldroyd with wrongfully converting trust funds totaling $666,895 from five different clients between 2002 and 2004.

1. TM and JAM

Oldroyd represented TM and JAM in the 2003 purchase of real estate from a company, TL Corp. On February 28, 2003 Oldroyd issued a trust cheque for $179,045.83 to the vendor’s solicitor. As a result of a dispute over the terms of the sale, the cheque was not cashed and Oldroyd retained the funds in his trust account until October 2003, when he used them to purchase a bank draft for $133,762.59, payable to “KC, in trust,” and to fund a wire transfer of $48,717.85 to a Florida bank account in the name of “S Consulting Ltd.”

The bank draft for $133,762.59 was used to pay debts owing by a company, CW Corp — of which Oldroyd and his wife were president and secretary, respectively — under mortgages held by KC.

The panel found no evidence connecting CW Corp, TM or S Consulting Ltd. with the purchase by TM and JAM from TL Corp.

2. The N Estate

Oldroyd was retained by N to obtain the proceeds of two RRSP accounts held in his late wife’s name. In December 2003 and January 2004, two payments totaling $45,283 were deposited into Oldroyd’s pooled trust account, recorded under the name of “Mr. N in trust.” On the same day that the second trust deposit was made, the RRSP proceeds — together with other funds apparently provided by one of Oldroyd’s companies — were wired to a Florida bank account in the name of “S Consulting Ltd.”

The panel found no connection between S Consulting Ltd. and N or the N Estate.

3. HB

Oldroyd acted for B in the sale of her Salt Spring Island property. On October 8, 2003 Oldroyd received a cheque for $70,167.65 from the buyer’s solicitor as the cash to the deal. That day, Oldroyd issued a cheque for $48,000 — drawn against B’s trust funds — to purchase a bank draft payable for that amount to “DL in trust.” Also that day, foreclosure proceedings against a Ucluelet property owned by CW Corp were concluded upon payment of the outstanding balance of $48,124, by a bank draft for $48,000 and Oldroyd’s trust cheque for the balance.

In February 2004 Oldroyd used some of B’s remaining trust funds to purchase a second bank draft for $21,131, which was deposited to an unknown account at Bank C.

4. T Estate

Oldroyd was the solicitor and co-executor for the estate of T, who died in 2002. Oldroyd used $200,000 of the T estate funds held in his trust account to make a payment in that amount to the beneficiaries of an entirely different estate.

5. W Estate

Oldroyd was the solicitor for the estate of W, who died in 2002. W left an estate with a probate value of about $300,000, consisting mostly of cash and realizable securities.

In October 2003, Oldroyd used W estate trust funds to make a $70,000 payment to the executor (and one of the beneficiaries) of an unrelated estate, and to pay $100,000 to cover a trust shortage in another unrelated estate.

Lawyer E replaced Oldroyd as solicitor for the W estate in March 2004. Lawyer E received Oldroyd’s files, but did not receive any of the funds purportedly being held in trust by Oldroyd on behalf of the W estate. Oldroyd did not replace the $170,000 he had paid out of the W estate trust funds.

Verdict

In addressing the issue of wrongful conversion, the panel determined that the key questions were whether Oldroyd knew the purposes to which his clients’ funds were to be applied, and whether he knowingly and without mistake applied the money to different purposes. In all five cases brought before it, the panel concluded Oldroyd had wrongfully converted funds held by him in trust for his clients.

The panel found Oldroyd guilty of three counts of professional misconduct, including wrongful conversion of clients’ funds from his pooled trust account, misleading another lawyer with correspondence falsely conveying the impression that certain funds were being held in his trust account, and breaching an undertaking to another lawyer by releasing certain trust funds without that lawyer’s permission.

The panel also found that Oldroyd violated the Law Society Rules by failing to produce his trust accounting records for the years 1995 through 1999 to a designated investigator.

Penalty

The panel noted that Oldroyd’s financial records had been prepared to conceal the misappropriation of client funds, and that Oldroyd had not replaced those funds.

The panel concluded Oldroyd’s conduct clearly justified the penalty of disbarment. The panel also concluded it had no evidence before it to suggest that any other penalty would ensure the public’s protection from future acts of misconduct by Oldroyd.

The panel ordered that Oldroyd:

1. be disbarred; and

2. pay costs in the amount of $124,000.

The panel stressed the appropriateness of having the burden of costs borne by the party at fault rather than the general membership. The panel also stated its willingness to receive a written request for time to pay on behalf of Oldroyd.

Marcus O’Sullivan

Victoria, BC

Called to the bar: February 15, 1991

Discipline hearing: December 13, 2006 and August 28, 2007

Panel: Gavin Hume, QC, Chair, David Renwick, QC and Dirk Sigalet, QC

Reports issued: January 24 (2007 LSBC 08) and October 4, 2007 (2007 LSBC 44)

Counsel: James Doyle for the Law Society and Dean Lawton for Marcus O’Sullivan

Facts

1. W estate

Marcus O’Sullivan was retained in December 2002 by two sisters named as executors in their father’s will. He did little work on the file and failed to reply to two separate requests for information from his clients. The Law Society, acting on a complaint from the clients, asked O’Sullivan for an explanation in January, February and March 2005, but did not receive a response until March when O’Sullivan admitted he had not responded to his clients. Further correspondence from the Law Society went unanswered until September 2005. The following month, O’Sullivan wrote saying he had suffered health problems and that he would provide a response in November.

2. Motor vehicle accident case

FS retained O’Sullivan in July 2002 to represent her in a motor vehicle accident case. O’Sullivan failed to comply with a master’s order for delivery of documents and the case was struck out in December 2002. O’Sullivan did not advise his client of this even though he had been in contact with her.

3. MH estate

O’Sullivan was appointed executor of MH’s will in December 2003. He did little work on the file until May 2005 when one of the beneficiaries asked about its status. In June 2005, 18 months after the death, O’Sullivan applied for probate, but the court registry rejected his application. In response to a Law Society letter, O’Sullivan admitted he had not replied to the beneficiaries. The Law Society contacted him for further details, but received only a voicemail message that he was suffering from health problems.

O’Sullivan subsequently resigned from the profession on December 31, 2006 citing serious health problems including depression and chronic heart disease. The Law Society appointed a custodian of his practice and other lawyers have assumed conduct of his files.

Verdict

The panel concluded that O’Sullivan was guilty of professional misconduct for failing to provide quality service to his clients, failing to respond this clients and failing to respond to the Law Society. O’Sullivan advised the panel that because of his age and health problems he will not practise law again.

Penalty

The panel ordered that O’Sullivan not reapply for membership for six months, not apply for membership in any other law society without informing the Law Society of BC, not allow his name to be used on any law firm’s letterhead and not work for a BC lawyer in any capacity without the Law Society’s consent.

The panel also ordered that O’Sullivan not act as a personal representative or trustee of the estate of a deceased person, as guardian under the Adult Guardianship Act, or as a representative under the Representation Agreement Act.

In considering costs, the panel noted that O’Sullivan admitted his professional misconduct, cooperated with discipline counsel and consented to the appointment of a custodian. They also considered his significant financial and health challenges, noting that O’Sullivan has filed for bankruptcy, and due to his medical condition it appears unlikely that he will obtain employment in the near future. In light of these circumstances, the panel did not order costs.