Complaints, Lawyer Discipline and Public Hearings

Summary of Decision of the Hearing Panel

Barclay Wayne Johnson

Victoria, BC

Called to the bar: October 1, 2005

Written materials: November 28, 2018

Panel: Jeffrey Campbell, QC, chair; Gillian Dougans; Mark Rushton

Decision issued: February 8, 2019 (2019 LSBC 04)

Counsel: Mandana Namazi for the Law Society; Peter Firestone for Barclay Wayne Johnson

AGREED FACTS

Barclay Wayne Johnson was retained to represent a client who was facing imminent eviction from her apartment as her landlord had obtained an order for possession. The client provided Barclay with a cash retainer of $1,500. Johnson did not issue a receipt and did not deposit the funds into his trust account. He believed he had completed enough work to be entitled to the funds, but he had not yet rendered an account. Johnson subsequently filed a petition for judicial review on behalf of his client and filed a requisition seeking an interim stay of the order for possession. He asked the client for a further $1,000 retainer, which the client provided in cash. Johnson did not deposit the funds into his trust account, again believing he had completed enough work to be entitled to the funds. He did not render an account.

The judicial review was successful and Johnson’ s client was awarded costs of $4,500. Johnson believed the costs award should go toward legal fees as the value of the work done by his office was greater than the funds provided by the client. The client believed the costs award should go to her. Johnson prepared an account that, when reduced by the $2,500 received from the client, left an outstanding amount of approximately $4,600. He offered to reduce his account by approximately $600, leaving $500 of the costs award to go to the client. Johnson and his client did not come to an agreement.

When Johnson received the cost award of $4,500 from opposing counsel, he did not deposit it into his trust account but rather cashed the cheque and used it for his own expenses.

In another matter regarding a second client, Johnson made two withdrawals from his trust account. Johnson was entitled to the funds. He withdrew the funds by transferring $3,500 from his trust account to his general account by way of a branch-to-branch transfer, and he withdrew $1,000 from the trust account in cash.

ADMISSION AND DETERMINATION

With regard to the first client, Johnson admitted that his handling of the cash payments and costs award was contrary to Law Society Rules and that his conduct constitutes professional misconduct. With regard to the second client, Johnson admitted that he breached Law Society accounting rules with regard to how the funds were withdrawn and recorded.

Johnson and the Law Society agreed on a proposed penalty of $2,000.

The hearing panel accepted Johnson’ s admission of professional misconduct with regard to the first client. The panel found that the transactions with respect to the second client’ s funds involved a breach of Law Society Rules, but did not constitute professional misconduct.

The panel considered the proposed penalty to be at the low end of the range of disciplinary action for misconduct related to clients’ funds but took into consideration Johnson’ s limited financial circumstances, his voluntary self-reporting, and his admission to the misconduct and agreement to the penalty.

DISCIPLINARY ACTION

The panel ordered that Johnson pay a fine of $2,000.

2019 LSBC 04 Decision of the Hearing Panel