Complaints, Lawyer Discipline and Public Hearings

Summary of Decision of the Hearing Panel

Brian Peter Grant Kaminski

Burnaby, BC

Called to the bar: May 14, 1993

Discipline hearing: September 12, 2017

Panel: Elizabeth Rowbotham, Chair, Carolynn Ryan and Donald Silversides, QC

Decision issued: May 1, 2018 (2018 LSBC 14)

Counsel: Alison Kirby for the Law Society; Robin McFee, QC and Jessie Miekle-Kahs for Brian Peter Grant Kaminski

FACTS

Between November 2012 and June 2014, Brian Peter Grant Kaminski received a total of approximately $33,000 from nine clients. He misappropriated those funds by depositing them into his personal law corporation’s general account when they should have been deposited into either the general account or the trust account of the law firm where he practised, and he failed to account to the firm for those funds. He also misrepresented to the firm the amounts billed to, and received from, four of those clients.

ADMISSION AND DETERMINATION

Kaminski made a conditional admission of professional misconduct and proposed a disciplinary action of a three-month suspension. The Discipline Committee accepted the admission and proposed action and directed discipline counsel to recommend them to the hearing panel for acceptance.

The hearing panel considered that diverting funds from a lawyer’s partners and misappropriating client retainer funds is serious misconduct and is a breach of trust to a person or party to whom a duty of utmost honesty and loyalty is owed. The panel found that Kaminski’s conduct was a marked departure from the standard that the Law Society expects of lawyers and constituted professional misconduct.

DISCIPLINARY ACTION

Majority decision (Rowbotham, Ryan)

The majority considered that, because Kaminski had not practised law since he gave an undertaking in 2014 not to practise law, a suspension of three months would result in an effective suspension of approximately four years. It took into account Kaminski’s professional conduct record, including a conduct review and a prior admission of a disciplinary violation, which resulted in a fine. The panel also considered Kaminski’s admission that he gained an advantage by diverting funds to his personal use, although the panel noted that he had compensated his former partners for the money he misappropriated.

The majority accepted the proposed disciplinary action and ordered that Kaminski:

  • be suspended for three months; and
  • pay costs of $2,551.

Dissenting decision (Silversides)

The minority agreed with the facts and evidence set out in the majority decision, but noted that, although Kaminski admitted to the misconduct, he only stopped when he was found out by other lawyers in his firm. Considering that misappropriating funds from clients or partners betrays the fundamental trust and honesty underlying the legal profession, the minority concluded that a three-month suspension is inadequate and rejected the proposed disciplinary action.

2018 LSBC 14 Decision of the Hearing Panel