Summary of decision of the Benchers on review
PAMELA SUZANNE BOLES
Called to the bar: November 17, 1989
Bencher review: September 28 and 29, 2016
Panel: Gregory Petrisor, Chair, Jeff Campbell, QC, Lisa Hamilton, Dean Lawton, QC, Sharon Matthews, QC, Steven McKoen and Mark Rushton
Decisions issued: December 28, 2016 (2016 LSBC 48)
Counsel: Mark Andrews, QC and Gavin Cameron for the Law Society; Richard Gibbs, QC for Pamela Suzanne Boles
Between 2004 and 2008, Pamela Suzanne Boles failed to report to the Law Society in writing four certificates requiring her to pay money issued under the Income Tax Act and other statutes. Under changes to the Law Society Rules made in 2003, such certificates are considered monetary judgments and must be reported to the Law Society within seven days after the date of entry.
The panel at the initial hearing in April 2012 determined Boles had committed professional misconduct (2012 LSBC 21). However, at the time, the hearing panel was not advised of all the elements of an agreement between the parties, particularly that the Law Society would not seek to characterize Boles’ conduct as an intentional breach of the rules, which affected the evidence called in Boles’ defence.
The hearing was re-opened and additional evidence was adduced. The panel found that Boles breached Law Society rules, but did not commit professional misconduct (2016 LSBC 02).
The Discipline Committee sought a review of the hearing panel’s determination.
DECISION OF THE BENCHERS ON REVIEW
The issue on review is whether the hearing panel erred by considering that the new evidence on Boles’ lack of intention or knowledge in not reporting monetary judgements determined that her conduct could not be professional misconduct.
The Law Society asserted that the finding that Boles was not aware of the duty to report does not preclude a finding of professional misconduct and that she was grossly neglectful of her duty to report. Boles argued that gross culpable neglect cannot be made out because changes to the Rules were inadequately publicized and tax certificates were different from a BC Supreme Court monetary judgment that Boles had previously failed to report, resulting in discipline.
The Benchers on review found that a lack of knowledge of a rule cannot preclude a finding of professional misconduct; however, they concluded that the hearing panel did not reduce its consideration solely to the lack of intention and knowledge on Boles’ part. The Benchers determined that Boles’ lack of knowledge did not amount to gross culpable neglect. They also considered the gravity of the conduct, duration of the misconduct, the number of breaches and harm to the public.
The Benchers determined Boles’ conduct did not amount to a marked departure from the conduct expected of lawyers and did not support a finding of professional misconduct.