Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination


Donald Roy McLeod

Victoria, BC

Called to the bar: July 10, 1981

Discipline hearing: June 17 and 18, 2019

Panel: Craig Ferris, QC, chair; Darlene Hammell; John Waddell, QC

Decision issued: September 6, 2019 (2019 LSBC 33)

Counsel: Robin McFee, QC, for the Law Society; Trudi Brown, QC, for Donald Roy McLeod

FACTS

Donald Roy McLeod was retained by two siblings to pursue committeeship in relation to their mother. The clients’ mother retained another lawyer in an attempt to obtain the return of personal property removed from her home by her daughter.

McLeod filed a petition in the Supreme Court of BC seeking directions to proceed with a committeeship application. When the other lawyer discovered he had done so, she advised that she would accept service of the petition and supporting materials on behalf of the mother. McLeod refused to recognize the other lawyer as counsel for his clients’ mother because he believed the mother lacked the capacity to retain counsel.

When two attempts to serve the mother failed, McLeod applied for substituted service. As a consequence, the mother was served by posting a copy of the petition and supporting materials on the front door of her apartment. The lawyer representing the mother saw the materials the following day, but there was no evidence that she was provided with the requisition setting the date for the hearing of the petition.

Neither the clients’ mother nor her legal counsel was present at the hearing of the petition. At the hearing the court ordered that McLeod’s two clients be appointed committee of the person and estate of the mother. The other lawyer subsequently filed a notice of application seeking a stay of the committeeship order and the court stayed the order. McLeod filed a notice of application to have the stay order set aside. The court set aside the stay order.

DETERMINATION

The panel found that the lawyer representing the mother of McLeod’s clients informed herself of her obligations, carried them out and determined that her client had the legal capacity to instruct her about legal issues pertaining to the appointment of a committee. It found that it was not for McLeod to reject the lawyer’s determination.

The panel concluded that McLeod obtained the committeeship order without providing notice of the application hearing to the mother’s counsel, when he knew or ought to have known that the mother was represented by counsel who intended to participate in the application. It also found that McLeod failed to conduct himself in a manner characterized by courtesy and good faith in his dealings with the other lawyer, which fell markedly below the standard expected of lawyers. The panel concluded that this conduct constituted professional misconduct.

However, the panel found that there was no direct evidence that McLeod’s conduct was a deliberate attempt to circumvent JS’s counsel and dismissed an allegation that his conduct constituted sharp practice.

2019 LSBC 33 Decision on Facts and Determination - Appeal filed in Court of Appeal