Complaints, Lawyer Discipline and Public Hearings

 

Citation issued: February 7, 2018

James Leslie Straith

Citations are authorized by the Law Society of BC's Discipline Committee and list allegations against a lawyer that will be considered at a discipline hearing. Please note that allegations in a citation are unproven until a discipline hearing panel has determined their validity.

Nature of conduct to be inquired into:

  1. Commencing in or around October 2011, you agreed to act and took steps on behalf of one or more individuals collectively known as the “Lost Canadians” in matters pertaining to Canadian citizenship law without making reasonable efforts to ascertain the identity of your client or person(s) authorized to instruct you on behalf of your client.

This conduct constitutes professional misconduct, pursuant to section 38(4) of the Legal Profession Act.

2.  On or about November 8, 2011:

a)  you attempted to file an application for judicial review in Federal Court on behalf of PB, when you had not been retained by PB to represent him and you did not have instructions from PB to file any proceedings on his behalf; or

b)  in the alternative, after being informed by PB that he did not wish to be involved in any legal proceedings initiated by the “Lost Canadians” group, you failed to advise your client, DC, not to attempt to file an application for judicial review in Federal Court on behalf of PB.

This conduct constitutes professional misconduct, pursuant to section 38(4) of the Legal Profession Act.

3.  In written communications to the Law Society dated August 2, 2017 and October 17, 2017, in the course of the Law Society’s investigation of a complaint made against you, you provided untruthful responses to the Law Society regarding your role and involvement in an attempt to file an application for judicial review in Federal Court on behalf of PB, by making one or more statements to the following effect:

a)  you did not file or attempt to file any proceedings on behalf of PB;

b)  sometime before November 8, 2011, you personally contacted PB by phone, and he told you that he did not wish any proceedings to be filed on his behalf; and

c)  you have never gone to the Federal Court Registry attempting to file anything on behalf of PB.

This conduct constitutes professional misconduct, pursuant to section 38(4) of the Legal Profession Act.

4.  Between approximately October 2011 and October 2013, you acted in a conflict of interest by acting for JS in a Petition filed in February 2012 and heard in July 2013 (the “Petition”) in which JS was seeking a declaration of citizenship, while at the same time providing legal advice to and taking instructions from DC regarding the broader legal or policy issues raised by the Petition, by doing one or more of the following:

a)  accepting a joint retainer to act for both JS and DC without complying with Chapter 6, Rule 4 of the Professional Conduct Handbook then in force and rule 3.4-5 of the Code of Professional Conduct for British Columbia (the “Code”);

b)  during and after the hearing of JS’s Petition in July 2013, continuing to act for both JS and DC once an actual or potential conflict arose, contrary to rule 3.4-1 of the Code;

c)  in the alternative to (b), failing to obtain the express consent of JS and DC to continue to act for both of them, contrary to rule 3.4-2 of the Code; and

e)  after JS terminated your retainer, continuing to offer advice to DC in relation to matters where his interests conflicted with those of your former client, JS, including your recommendation in an email to DC on October 16, 2013 that he adopt a position contrary to the interests of JS.

This conduct constitutes professional misconduct, pursuant to section 38(4) of the Legal Profession Act.

5.  In 2012 and 2013, you failed to comply with Part 3, Division 7 of the Law Society Rules regarding your receipt and withdrawal of funds received from or on behalf of DC in relation to the “Lost Canadians” matter. In particular:

a)  you deposited funds received from your client, DC, directly into your general account rather than into your trust account, when no monies were owed to you, contrary to Rule 3-51 [now Rule 3-58], on one or both of the following occasions:

i.  $3,000.00 deposited on July 29, 2013; and

ii.  $3,000.00 deposited on October 20, 2013,

b)  you withdrew funds from trust and deposited them into your general account without first signing and delivering a bill to your client, contrary to one or both of Rules 3-56 and 3-57 [now Rules 3-64 and 3-65] and section 69 of the Legal Profession Act, on one or more of the following occasions:

i.  $6,339.20 paid from trust on March 1, 2012;

ii.  $3,660.80 paid from trust on April 26, 2012;

iii.  $1,500.00 paid from trust on May 29, 2012;

iv.  $2,903.20 paid from trust on June 14, 2012;

v.  $4,026.40 paid from trust on August 14, 2012;

vi.  $2,153.98 paid from trust on April 16, 2013;

vii.  $5,112.50 paid from trust on September 3, 2013; and

viii.  $758.48 paid from trust on August 17, 2014.

This conduct constitutes professional misconduct or a breach of the Act or rules, pursuant to s. 38(4) of the Legal Profession Act.

6.  In 2012 and 2013, you failed to maintain accounting and billing records for services provided to DC in relation to the “Lost Canadians” matter, as required by Part 3, Division 7 of the Law Society Rules, by one or more of the following:

a)  not retaining signed copies of all bills, contrary to Rule 3-62 [now Rule 3-71];

b)  not retaining copies of any receipts issued to persons providing retainer funds on behalf of DC, contrary to Rules 3-62 and 3-63 [now Rules 3-71 and 3-72];

c)  transferring funds from trust purportedly in payment of fees and disbursements owed to you in an amount greater than the total amount of all bills recorded in your ledger, contrary to Rules 3-59 and 3-62 [now Rules 3-67 and 3-71]; and

d)  not recording in your trust accounting records retainer funds in the amount of $3,000 that you received and deposited directly into your general account in October 2013, contrary to Rules 3-59 and 3-62 [now Rules 3-67 and 3-71].

This conduct constitutes professional misconduct or a breach of the Act or rules, pursuant to s. 38(4) of the Legal Profession Act.

7.  You failed to account to DC for all funds you received in trust on his behalf in relation to your retainer to assist DC with matters pertaining to the “Lost Canadians” group, contrary to one or more of Rule 3-48 of the Law Society Rules [now Rule 3-54] and rules 3.5-3 and 3.5-6 of the Code of Professional Conduct for British Columbia (the “Code”). In particular:

a)  between May 30, 2013 and September 6, 2012 you failed to promptly notify your client DC of your receipt of 15 separate payments (in various amounts, totaling $16,454.56) received by you as donations from “Lost Canadians” supporters to fund your retainer, contrary to the requirements of Rule 3.5-3 of the Code;

b)  on or about December 4, 2013, you provided an ostensible accounting to DC in relation to the funds received by you in trust in the “Lost Canadians” matter containing the following errors or omissions:

i.  $2,153.98 transferred from trust on April 16, 2013 was shown as paid “on account of fees and disbursements Lost Canadians December 3, 2012”, although there was no unpaid bill issued or outstanding as of December 2012;

ii.  a $3,000 payment received from DC on or about July 29, 2013 was not disclosed or credited to your client;

iii.  a donation of $500 received from a “Lost Canadians” supporter on or about September 6, 2013 was not disclosed or credited to your client;

iv.  $5,112.50 transferred from trust on September 3, 2013 was shown as paid “on account of fees and disbursements AR of Lost Canadians”, although there was no unpaid bill or receivable at that time;

v.  a $3,000 payment received from DC on or about October 20, 2013 was not disclosed or credited to your client; and

vi.  the ledger concludes with a residual trust balance of $258.48 due to your client, for which you have never accounted to your client,

c)  in or about August 2014 you discovered some or all of the errors and omissions in your trust accounting, as described in subparagraph (b), and made adjustments to your trust accounting records, but you took no steps to disclose these errors or adjustments to DC or to provide him with a correct accounting;

d)  in or about August 2014 you purported to record an invoice for disbursements charged to this client matter in order to retrospectively account for a portion of the unaccounted funds recorded in your trust records, but failed to disclose this transaction or deliver a copy of the invoice to DC;

e)  the total of all funds received by you in trust in relation to your retainer to assist DC with matters pertaining to the “Lost Canadians” group between October 2011 and October 2013 was $32,454.56, while the total of all bills ostensibly issued by you in relation to this retainer, including the undisclosed disbursement invoice recorded in August 2014, was only $24,412.77; and

f)  you have never accounted to DC for the difference of $8,041.79, which you have nevertheless retained for your own benefit.

This conduct constitutes professional misconduct or a breach of the Act or rules, pursuant to s. 38(4) of the Legal Profession Act.

8.  On or about March 2015, you commenced a civil action against DC to collect on a bill which was never finalized, signed and delivered to DC, contrary to section 69(5) of the Legal Profession Act. Further, or in the alternative, your calculation of the amount you claimed to be due and owing from DC in that action failed to account for or credit to DC the following amounts, which you knew or ought to have known were received by you in trust on his behalf, and applied by you to your own benefit:

a)  payment of $3,000 received from DC on or about July 29, 2013;

b)  $500 donation received from a “Lost Canadians” supporter on or about September 6, 2013; and

c)  your residual trust balance of $258.48, transferred to your general account on or about August 17, 2014.

This conduct constitutes professional misconduct or a breach of the Act or rules, pursuant to s. 38(4) of the Legal Profession Act.