Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination


Mark William Sager

West Vancouver, BC

Called to the bar: March 15, 1991

Discipline hearing: March 19 and 20 and April 24, 2019

Panel: Nancy Merrill, QC (chair); Donald Amos; David Layton, QC

Decision issued: July 3, 2019 (2019 LSBC 22)

Counsel: Kieron Grady for the Law Society; Henry Wood, QC, for Mark William Sager

FACTS

Mark William Sager acted for an elderly client, JB, whom he had known since childhood, when Sager’s mother and JB had been close friends. Sager and his sister viewed JB as their aunt.

In late 2012 JB fell in her home, where she had lived alone since separating from her husband many years before. She spent time in the hospital, and subsequently moved to a care centre and then an independent living facility.

JB contacted Sager in June 2013, and in September of that year she granted Sager power of attorney. At about that time, JB’s estranged husband retained counsel to commence divorce proceedings and JB retained Sager to act as counsel in the matter. Sager negotiated an agreement according to which JB bought out her husband’s interest in their house for one-half of its appraised value at the time.

Sager supervised and assisted in preparing the house for sale, and assisted JB in locating and moving into the independent living facility in January 2014. Sager also arranged for care providers for JB. Sager kept JB’s nephew generally apprised of the assistance he was providing to JB. The nephew had taken on some responsibility for looking after other aspects of JB’s affairs.

Sager’s firm had prepared a will for JB in 2003, according to which JB’s sister and the sister’s two children would each receive one-third of the estate. In 2013 JB told Sager she wanted to make a new will. Sager told a junior associate at his firm that, because JB wanted to name him as a beneficiary, Sager was in a conflict, and the associate agreed to handle the matter. The associate prepared the new will for JB, which listed five people as beneficiaries, including Sager and his sister.

A provision of the Code of Professional Conduct for British Columbia, which had been in effect for about a year at the time, stipulates that “a lawyer must not prepare or cause to be prepared an instrument giving the lawyer ... a gift or benefit from the client, including a testamentary gift.”

JB’s house sold in June 2014 for approximately $250,000 more than the appraised value. In July 2014 JB gave Sager a gift of $75,000. At the same time, she gave a slightly larger gift to her nephew.

A provision of the BC Code, which at the time had been in effect for about 18 months, provides that a lawyer must not accept a gift that is more than nominal from a client unless the client has received independent legal advice.

In December 2015 JB gave Sager and her nephew each a further gift of $25,000.

JB died in January 2016. Sager received $96,000 as a beneficiary under the will, commensurate with his 24 per cent share of the residue of the estate.

DETERMINATION

The panel found that Sager breached the BC Code when he caused his associate to prepare a will for JB under which he was a beneficiary. The panel determined that the breach constitutes professional misconduct.

The panel also found that when Sager received the gift of $75,000 in July 2014 he was in a solicitor-client relationship with JB, that JB did not receive independent legal advice, and that accepting the gift breached the BC Code. The panel concluded that the breach constitutes professional misconduct.

The panel found that, when Sager received the gift of $25,000 from JB in December 2015, he was not in a solicitor-client relationship with JB, and that receiving the gift therefore did not breach the BC Code and did not constitute professional misconduct.

2019 LSBC 22 Decision on Facts and Determination