Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts, Determination and Disciplinary Action and the Decision of the Review Board

KEVIN ALEXANDER MCLEAN

Vancouver, BC

Called to the bar: August 27, 2010

Not in good standing: January 1, 2015

Ceased membership: April 10, 2015

Disbarred: June 29, 2015

Discipline hearing: July 29 and September 24, 2014 and March 6 and June 5, 2015

Panel: Elizabeth J. Rowbotham, Chair, Paula Cayley and Carol Hickman, QC

Decisions issued: January 12 (2015 LSBC 01) and November 3, 2015 (2015 LSBC 47)

Preliminary question: June 2, 2014 (oral reasons: June 2, 2014; decision issued: September 3, 2014; 2014 LSBC 38)

Panel: Martin Finch, QC, Chair, Ralston Alexander, QC and Woody Hayes

Review on jurisdiction (written submissions): August 28, 2015

Decision issued: January 27, 2016 (2016 LSBC 04)

Review board: Lee Ongman, Chair, Satwinder Bains, Dean Lawton, John Lane, Graeme Roberts, John Waddell, QC and Sandra Weafer

Counsel: Alison Kirby for the Law Society; Kevin Alexander McLean appearing on his own behalf with respect to preliminary question; otherwise, no one appearing on behalf of McLean

FACTS

A citation was issued against Kevin Alexander McLean alleging that he failed to respond promptly to communications from a client’ s previous counsel.

Before the hearing began, McLean applied to have Law Society counsel removed. A hearing panel found that it had no jurisdiction to remove counsel and refused to make the order. As a result of its review, the panel decided to recuse itself as it had received prejudicial information.

The hearing was reconvened with a new panel. The panel found that:

  • On July 2, 2012, McLean was retained to act on behalf of a client in connection with a motor vehicle accident claim. At that time, the client was represented by another lawyer.
  • On August 8, 2012, the client’ s former lawyer sent a letter to McLean accompanied by correspondence, medical documents and a record of disbursements. The letter imposed undertakings on McLean, including paying the previous lawyer for disbursements and services rendered, and filing a Notice of Change of Solicitor.
  • Between August 8 and December 10, 2012, the previous lawyer sent four letters and made three telephone calls to McLean. McLean did not respond.
  • McLean made his first response on February 17, 2013, after the previous lawyer filed a complaint with the Law Society. This was approximately six months after the initial letter sent to McLean in August 2012.

DETERMINATION

Chapter 11, Rule 6 of the Professional Conduct Handbook then in force states that “ a lawyer must reply reasonably promptly to any communication from another lawyer that requires a response.” (This obligation is continued in rule 7.2-5 of the current Code of Professional Conduct for British Columbia.)

The transfer of a client’ s file and a letter of undertaking from one lawyer to another are significant matters and must be dealt with in a timely fashion. McLean did not provide a response to the previous lawyer for approximately six months and only responded after the previous lawyer had complained to the Law Society.

The panel concluded that McLean was in breach of the Professional Conduct Handbook then in force, and that his conduct constituted professional misconduct.

On February 10, 2015, McLean delivered a notice of review of the facts and determination decision, stating that he did so pursuant to section 47 of the Legal Profession Act and Law Society Rules 5-13 and 5-15. Before the review board, the Law Society submitted that there was no jurisdiction for a section 47 review of the facts and determination decision at this stage of the proceedings.

The review board found that McLean was not entitled to a section 47 review of the facts and determination decision prior to issuance of both the decision on disciplinary action. The review board quashed the notice of review and ordered McLean to pay costs of $1,300.

DISCIPLINARY ACTION

McLean did not attend the hearing on disciplinary action on March 6, 2015. The hearing was adjourned to give Law Society counsel time to consider whether to make submissions on ungovernability.

On April 10, 2015, McLean ceased to be a member of the Law Society. The hearing panel retained the jurisdiction to discipline a former member for misconduct that occurred when the person was a member of the Law Society, pursuant to sections 1 and 38 of the Legal Profession Act.

When the hearing reconvened on June 5, 2015, Law Society counsel did not make submissions based on ungovernability. The hearing proceeded on the basis of the panel’ s finding of professional misconduct.

The panel ordered that McLean pay:

  1. a fine of $10,000; and
  2. costs of $15,912.50.

On June 29, 2015, a separate discipline hearing panel, ruling on a matter pertaining to an unrelated citation, ordered that McLean be disbarred on the basis of ungovernability.

2015 LSBC 01 Decision on Facts and Determination

2015 LSBC 47 Decision on Disciplinary Action

2016 LSBC 04 Decision of Review Board on Jurisdiction to Review

2014 LSBC 38 Decision on Application of the Respondent for Disqualification of Discipline Counsel