Complaints, Lawyer Discipline and Public Hearings

Summary of the Decision of the Hearing Panel

Thomas Paul Harding

Surrey, BC

Called to the bar: August 31, 1990

Discipline hearing: November 26, 2015

Panel: Thomas Fellhauer, Chair, David Layton and Linda Michaluk

Decision issued: February 23, 2016 (2016 LSBC 09)

Counsel: Alison L. Kirby for the Law Society; Gerald A. Cuttler for Thomas Paul Harding

FACTS

In July 2011, Thomas Paul Harding was retained to act for a wife in family law proceedings. A series of his actions resulted in the failure to provide his client with an acceptable quality of service.

On November 16, 2011, Harding, his client, his client’ s husband and the opposing counsel attended a judicial case conference before a judge. The husband proposed that he receive weekday access to their child every morning. Harding’ s client objected, and no agreement was reached. The judge made an interim order that allowed the husband access three weekday mornings before school.

Harding and the opposing counsel began working on finalizing the final consent order but their discussions did not include the subject of weekday morning access to the couple’ s child. Opposing counsel prepared a draft final order that gave the husband weekday morning access five days a week and sent it to Harding for his comments. Harding failed to provide his client with the draft final order and consented to it when he ought to have known his client did not agree to its term regarding child access.

Harding also failed to pass on a letter from opposing counsel warning his client that she was expected to comply with the final order, and he did not respond to his client’ s email asking whether he had heard from opposing counsel about varying the final order. For almost six months, Harding did not admit to his client that he made a mistake when he accepted the draft final order, and he failed to recommend that his client obtain independent legal advice in that regard. He again failed to recommend that she seek independent legal advice in respect of the costs ordered against her in November 2012. Harding stated in an email to his client that the cause of the problem was that opposing counsel had fraudulently altered the term of order after he agreed to it. When his client asked why she should pay court costs for putting the order back the way it should have been, he said he was not responsible for the “ fraud” committed against her.

When he wrote to his client about closing the file in July 2013, he failed to remind her that the costs order made against her was still outstanding. He also failed to inform his client in a timely manner about the costs negotiations he engaged in on her behalf with opposing counsel.

Harding did not provide his client with reasonable notice when he withdrew as her lawyer. He could not withdraw prior to the costs hearing because he had not served his client with a notice of intention to withdraw. His only option was to apply to obtain the court’ s permission to withdraw, but he did not do so.

Harding’ s client complained to the Law Society and wrote to Harding asking for a refund of all fees, disbursements and compensation for the costs assessed against her. Harding responded that he could not deal with her because she had an outstanding complaint against him with the Law Society. Harding was reminded by the Law Society that he had agreed in an earlier email to pay the costs order made against his client. Harding wrote the wife a cheque on November 20, 2014 for $3,275, the amount of costs opposing counsel had offered to settle for and not the actual amount his client had to pay.

ADMISSION AND DISCIPLINARY ACTION

Harding admitted professional misconduct in four respects: failure to provide his client with an acceptable quality of service; two instances of failure to recommend his client obtain independent legal advice; and failure to provide his client with reasonable notice of withdrawal.

Harding proposed the disciplinary action of a fine of $15,000 and costs of $2,125. The Discipline Committee accepted Harding’ s admission and proposed disciplinary action and instructed counsel to recommend them to the hearing panel.

The panel noted that Harding’ s misconduct was serious, multi-faceted and continued over a lengthy period of time. Harding’ s initial error in not properly reading the final order or informing his client of its contents demonstrated a markedly deficient quality of service. His reaction upon learning that his client did not agree to the term compounded the seriousness of this initial error.

He did not admit his mistake for almost six months. He failed to advise his client to seek independent legal advice, denying her the ability to obtain an unbiased opinion as to who was at fault and should bear the responsibility for paying the costs order.

Harding’ s baseless allegations that opposing had committed fraud downplayed his own responsibility for the client’ s predicament and made it less likely that his client would take action contrary to his interests, such as discharging him, reporting him to the Law Society or seeking compensation by threatening or commencing civil proceedings. The allegations were linked to Harding’ s failure to recommend independent legal advice.

Harding did not pay the costs order until the Law Society reminded him of his initial promise to do so. He did not pay the full amount owed and insisted on withholding $75 on the ground that she rejected his initial advice to accept the offer to settle.

The panel considered Harding’ s professional conduct record, which contains two conduct reviews and four findings of misconduct. Harding’ s actions in this case bear similarity to previous incidents of incivility directed at lawyers, failure to provide an acceptable quality of service and failure to recommend independent legal advice.

In addition, the panel considered the significant impact on Harding’ s client, the advantage gained by Harding, the number of times the conduct occurred, and the range of penalties imposed in similar cases.

The panel concluded that the proposed disciplinary action was on the low end of the appropriate range in all the circumstances. However, recognizing that the role of the hearing panel in cases where an admission was made by the respondent and accepted by the Discipline Committee was to ensure that the proposed action fell within the appropriate range, the panel accepted Harding’ s proposal of disciplinary action and ordered that he pay:

  1. a fine of $15,000; and
  2. costs of $2,125.

 

2016 LSBC 09 Decision of the Hearing Panel