Complaints, Lawyer Discipline and Public Hearings

Summary of 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: September 23, 2014 (facts and determination)

Panel: A. Cameron Ward, Chair, Anna Fung, QC and Robert Smith

Decision issued: December 16, 2014 (2014 LSBC 63)

Counsel: Alison Kirby for the Law Society; no one appearing on behalf of Kevin Alexander McLean

Review date: September 16, 2015

Review board: Tony Wilson, Chair, Don Amos, Lynal Doerksen, John Hogg, QC, Patrick Kelly, Dean Lawton and Donald Silversides, QC

Decision issued: March 15, 2016 (2016 LSBC 10)

Counsel: Leonard Doust, QC for the Law Society; no one appearing on behalf of Kevin Alexander McLean

FACTS

A citation was issued against Kevin Alexander McLean alleging that he failed to pay four invoices in a timely manner and failed to respond to communications from the vendor regarding payment of those invoices.

McLean hired a company to provide reporting services to him. The company delivered to McLean four invoices for its services between June and August 2013. Between September and October 2013, the company emailed McLean five times to request payment for the invoices. The company made a complaint to the Law Society at the end of October 2013.

When the Law Society wrote to McLean about the complaint in November 2013, he sent an email to the company saying he would only pay one of the invoices and his clients would pay the other three. The company emailed McLean two weeks later to follow up and request payment.

By December 30, 2013, six months after the first invoice was issued, McLean had paid all four outstanding invoices.

DETERMINATION

McLean provided no explanation for his failure to pay his practice debts promptly and respond to the company, other than expressing he was very busy. There is no evidence that he was in financial difficulty, that he had not received the invoices or correspondence, or that he was unaware of his obligations to pay the debts.

The panel considered previous similar decisions, but determined that those cases involved conduct that was much more egregious than Mclean’ s. While lawyers have the duty to answer with reasonable promptness, the panel also stated that the Law Society does not require a standard of perfection of lawyers in their obligations to respond. McLean responded to the company with delays of 17 and 20 days. The hearing panel found that that did not constitute a marked (or pronounced, glaring or blatant) departure from the standard expected of lawyers.

The panel found McLean’ s conduct did not constitute professional misconduct and dismissed the citation. The Law Society applied for a review of the decision of the hearing panel.

DECISION OF THE REVIEW BOARD

The Law Society submitted that the panel committed several errors in its determination, including failing to consider McLean’ s conduct as a whole, mischaracterizing a “ marked departure” from the conduct expected of lawyers, requiring the conduct to be as egregious in nature as in previous decisions involving unpaid practice debts, and attaching weight to unproven and irrelevant findings of fact.

McLean did not attend the review board hearing. He submitted an application for an order that the Law Society produce all complaints made since its inception that involve the subject matter of this review. He also requested to review these materials as fresh evidence, to adjourn the hearing until 14 days after he receives the information to provide submissions, and special costs in his favour.

The review board dismissed the application. Complaints are confidential. McLean did not meet the test for introduction of fresh evidence, and the fresh evidence was irrelevant. Finally, it is impractical and nearly impossible to require the Law Society to search its records for all complaints involving this subject matter since its incorporation in 1884.

The review board examined all instances and circumstances of McLean’ s delay in responding to the company to determine whether it constituted professional misconduct. His auto-responses, repeated requests for copies of invoices previously sent, repeated failure to respond and his delay in dealing with the company only after the Law Society had become involved demonstrated that his communications were inadequate.

The review board emphasized that this was not a case where a lawyer had simply not paid an account within 20 days. If that were professional misconduct, the Law Society’ s discipline process could be used as a collection agency for creditors. In the present case, the company complained to the Law Society as a last resort to deal with a lawyer who engaged in a pattern, over four to six months, of not paying his accounts and not providing substantive responses regarding the overdue accounts.

The review board did not accept hearing panel’ s interpretation of the “ marked departure” test, which it said created a higher standard than previously applied in Law Society discipline cases.

McLean submitted that there was no precedent for finding of professional misconduct in the circumstances of this matter and that was fatal to this case. The review board rejected his argument, citing that it would be impossible to find first-time professional misconduct in any circumstance if that argument applied. McLean alleged that the Law Society’ s proceedings against him resulted from malice. The review board found no evidence for his claim.

The review board quashed the decision of the hearing panel and found that McLean had committed professional misconduct. The review board referred the matter back to the hearing panel for disciplinary action.

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.

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.

2016 LSBC 10 Decision of the Review Board

2014 LSBC 63 Decision on Facts and Determination - Court of Appeal pending