Complaints, Lawyer Discipline and Public Hearings

 

Citation issued: March 18, 2019  Citation amended October 16, 2019

Sandra Helen Mary Smaill, QC

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.  Between approximately January 2016 and April 2018, you failed to maintain accounting records in compliance with the provisions of Part 3 Division 7 of the Law Society Rules (the “Rules”), and in particular you did one or more of the following:

(a)  failed to record all funds received and disbursed in connection with your law practice by maintaining the records required under Part 3 Division 7 of the Rules, contrary to Rule 3-67(2) of the Rules;

(b)  failed to maintain accounting records, including supporting documents, in a permanent, printed, or electronic form, contrary to Rule 3-67(3) of the Rules;

(c)  failed to record transactions in accounting records in chronological order and in an easily traceable form, contrary to Rule 3-67(5) of the Rules;

(d)  failed to retain all supporting documents for your trust accounts at [financial institution 1] and [financial institution 2], including statements, cancelled cheques and deposit slips, contrary to Rule 3-67(6) of the Rules;

(e)  failed to maintain a trust book of entry or data source showing all trust transactions, contrary to Rule 3-68(a) of the Rules;

(f)  failed to maintain a trust ledger or other suitable system, showing separately for each client on whose behalf trust funds were received, all trust funds received and disbursed, and the unexpended balance, contrary to Rule 3-68(b) of the Rules;

(g)  failed to maintain records showing each transfer of funds between clients’ trust ledgers, containing an explanation of the purpose for which each transfer was made, and containing your written approval of the transfer, contrary to Rule 3-68(c) of the Rules;

(h)  failed to maintain monthly trust reconciliations required under Rule 3-73 and any documents prepared in support of the reconciliations, contrary to Rule 3-68(d) of the Rules;

(i)  failed to maintain a book of original entry or data source for your general account, contrary to Rule 3-69(1)(a) of the Rules;

(j)  failed to maintain accounts receivable listings for each client, contrary to Rule 3-69(1)(b) of the Rules;

(k)  failed to keep file copies of all bills delivered to clients as set out in Rule 3-71(1) of the Rules;

(l)  failed to record each trust transaction promptly or within seven days after a trust transaction, and failed to record each general transaction promptly or within 30 days after a general transaction, contrary to Rule 3-72 of the Rules;

(m)  failed to record in your general account records all funds received by you expressly on account of fees earned and billed or disbursements made by the day the funds are received, contrary to Rule 3-72(2)(a) of the Rules;

(n)  failed to prepare monthly trust reconciliations for your trust account(s) within 30 days of the effective date of the reconciliations or at all, contrary to Rule 3-73 of the Rules; and

(o)  failed to properly retain accounting records, as set out in Rule 3-75 of the Rules.

This conduct constitutes professional misconduct, a breach of the Act or rules, or incompetent performance of duties undertaken in the capacity of a lawyer, pursuant to section 38(4) of the Legal Profession Act.

2.  Between approximately May 17, 2017 and August 31, 2017, you misappropriated some or all of $1,014.18 in client trust funds, or you improperly took some or all of $1,014.18 in client trust funds contrary to Rule 3-64 of the Law Society Rules, by withdrawing funds held on behalf of clients in one or more of the 22 instances particularized in Schedule “A”, when you knew or ought to have known that you were not entitled to the funds.

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

3.  Between approximately March 22, 2017 and March 15, 2018, you misappropriated some or all of $5,386.06 from your pooled trust account, or you improperly withdrew some or all of $5,386.06 from your pooled trust account contrary to Rule 3-64 of the Law Society Rules, by making one or more of the six withdrawals particularized in Schedule “B”, when you knew or ought to have known that the withdrawals were not properly required for payment to or on behalf of a client.

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

4.  Between approximately January 6, 2016 and September 29, 2017, in one or both of the two instances particularized in Schedule “C”, you received some or all of $1,168.00 in client trust funds, and you did one or both of the following:

(a)  failed to deposit the funds into your pooled trust account, contrary to Rule 3-58 of the Law Society Rules; and

(b)  deposited the funds into your general account without first preparing and delivering a bill to your clients, contrary to s. 69 of the Legal Profession Act.

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

5.  Between approximately January 2016 and March 2018, you misappropriated some or all of $3,341.00 in client trust funds, or you improperly took some or all of $3,341.00 in client trust funds contrary to Rule 3-64(3)(b) of the Law Society Rules, by withdrawing funds in some or all of the 11 instances particularized in Schedule “D”, when there were insufficient funds on deposit to the credit of the clients.

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

6.  You collected Goods and Services Tax (“GST”) from your clients, but between approximately October 2015 and January 2018, you failed to remit GST funds due to the federal government in a timely way, contrary to rule 7.1-2 of the Code of Professional Conduct for British Columbia.

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

7.  Between approximately January 2016 and March 2018, you failed to remit employee payroll source deductions to the federal government, contrary to rule 7.1-2 of the Code of Professional Conduct for British Columbia.

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

8.  In relation to Law Society of British Columbia complaint file [number], you failed to provide a full and substantive response, promptly or at all, to the following communications from the Law Society, contrary to one or more of Rules 3-5(7) and 3-5(11) of the Law Society Rules and rule 7.1-1 of the Code of Professional Conduct for British Columbia:

(a)  voicemail messages dated July 24, 2018, July 25, 2018, August 3, 2018, and August 9, 2018; and

(b)  letters dated August 9, 2018, September 18, 2018, and December 6, 2018.

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