Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination

Gerhardus Albertus Pyper

Surrey, BC

Called to the bar: December 9, 2002

Discipline hearing: December 4, 2017

Panel: Dean Lawton, QC, Chair, Haydn Acheson and Richard Lindsay, QC

Decision issued: March 15, 2018 (2018 LSBC 10)

Counsel: Carolyn Gulabsingh for the Law Society; Gerhardus Pyper on his own behalf

FACTS

Gerhardus Pyper was retained by a client to represent him on an impaired driving criminal charge and to bring a civil action against the client’ s physician seeking damages for alleged professional negligence. Both cases involved a question of the effect of a prescribed drug.

Pyper employed two associate lawyers in his law practice. One of the associate lawyers obtained instructions from the client to engage a pharmacologist as an expert witness for the criminal and civil proceedings. The associate lawyer contacted the expert by email to confirm the engagement.

The expert offered opinion evidence in both the criminal and civil proceedings. The criminal trial took place in January 2013, and the civil action trial took place in April 2013. The client was convicted following the criminal trial. Following the civil trial, judgment was reserved for approximately one year, and the client’ s action was dismissed with costs.

In February 2013, the expert sent a bill in the amount of $7,748 for his work on the criminal trial. Pyper’ s associate lawyer wrote back enclosing partial payment of $5,600 toward the bill and stating that the client required a breakdown of the charges prior to paying the balance.

In May 2013, the expert sent another bill in the amount of $5,998 for his work on the civil trial. In his cover letter, he stated he put in many more hours than the bill reflected and proposed an alternate form of payment— a research donation of $5,500 to the University of British Columbia. He offered to speak with Pyper about payment of the bill.

The expert wrote to Pyper three times, in June, July and September 2013, to follow up on the outstanding balance from the February bill and the May bill. The expert complained to the Law Society in October 2013. The expert wrote to Pyper again in December 2013 offering to discuss his outstanding bills and informed him that, though he had made a complaint to the Law Society, he preferred to deal with Pyper directly on the bills. There is no evidence Pyper responded to any of those four letters.

The Law Society contacted Pyper three times, in February, March and April 2014, to request a written response to the complaint. In the April 2014 letter, the Law Society warned that, if he did not respond, the matter would be referred to the Discipline Committee for failure to respond to Law Society correspondence.

Pyper responded to the Law Society’ s letter in April 2014. He stated that his client was extremely upset about the expert’ s testimony and that he did not have authority to pay the expert until the decision was rendered in the civil trial. He said he intended to contact the expert again and apologize for the situation. Pyper did not write to the expert until June 2014. In the letter, he stated his client was unhappy about the expert’ s testimony and he had instructions from the client to wait until the decision of the court before further instructions on payments to the expert.

The expert was called as a witness at the disciplinary hearing. He said that at no time did Pyper convey to him that the client would pay his accounts directly, nor did Pyper communicate that there was a problem with his report or testimony at the trials. He said he received no payment for his invoices and the unpaid amounts totaled $8,192.

Pyper said he did not retain the expert himself, but his associate did so. He stated he would have paid the expert’ s account regardless of the results of the civil trial; however, he said that the Law Society had full control over his trust account and his general account since May 2014. He was suspended from practice in June 2014, and his practice was placed into custodianship. As a result, he had not paid the expert’ s invoices.

DETERMINATION

In the absence of evidence on the status of Pyper’ s general and trust accounts, the panel found that, on a balance of probabilities, his failure to pay the expert’ s bills did not constitute professional misconduct. It dismissed the allegation of professional misconduct for his failure to pay the bills, in the first part of the citation.

The panel found that Pyper’ s failure to respond to the expert’ s letters, in the second part of the citation, demonstrated a marked departure from the conduct the Law Society expects of lawyers and constituted professional misconduct.

2018 LSBC 10 Decision on Facts and Determination