Complaints, Lawyer Discipline and Public Hearings

Summary of Disciplinary Action Decision

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: May 26 and December 7, 2015

Panel: Pinder K. Cheema, QC, Chair, Dennis Day and Brian Wallace, QC (facts and determination); Pinder K. Cheema, QC, Chair (disciplinary action and costs)

Decisions issued: August 24, 2015 (2015 LSBC 39) and February 12, 2016 (2016 LSBC 06)

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

 

FACTS

A citation was issued against Kevin Alexander McLean on October 7, 2014 concerning ten allegations arising from three matters:

  • McLean's representation of two tenants in a dispute with a landlord regarding a bill of costs;
  • a defamation action commenced by McLean against the landlord; an
  • McLean's conduct in relation to the Law Society.

When the hearing panel convened on May 26, 2015 numerous attempts had been made to deliver to McLean the citation, a Notice of Hearing and a Notice to Admit. McLean had not responded to any of the Law Society's correspondence nor had he filed any material. He had been advised that the hearing may proceed in his absence. The panel determined that McLean had been served in accordance with the Law Society Rules. Section 42(2) of the Legal Profession Act permits a panel to proceed if it is satisfied that the respondent has been duly served.

At the time of the hearing McLean was a former member of the Law Society.

Pursuant to then Rule 4-20.1(7), McLean was deemed, for the purposes of the hearing, to have admitted the truth of the facts described in the Notice to Admit. However the Law Society still had to prove to the satisfaction of the panel that the alleged conduct amounted to professional misconduct.

DETERMINATION

The hearing panel found that McLean committed professional misconduct with respect to the ten allegations, except for portions of two of them.

The bill of costs

1) In the course of representing the two clients, McLean:

  • sent correspondence to the clients' landlord on five occasions saying that, if the landlord did not pay the bill of costs, McLean would execute against his assets;
  • unilaterally set a date for assessment of the bill of costs when McLean knew the landlord was not available; and
  • advised the landlord that his cheque had bounced and that McLean would execute against the landlord's assets, when he knew or ought to have known the cheque had not bounced.

2) McLean failed to respond to communications from the landlord regarding scheduling a mutually convenient date for an appointment to tax the clients' bill of costs.

3) McLean told a master of the Supreme Court of BC at the assessment hearing of the bill of costs that he had not responded to the landlord's scheduling requests because the landlord was represented by counsel, when McLean knew or ought to have known that this was untrue.

The defamation action

4) McLean commenced a defamation suit against the landlord and, representing himself, failed to respond to multiple communications from opposing counsel.

5) In the course of representing himself in the defamation action, McLean:

  • unilaterally filed a notice of trial for two days without confirming opposing counsel's availability after failing to respond to opposing counsel's requests to set a mutually convenient trial date;
  • entered a settlement agreement and said he would file a notice of discontinuance by a specified date, but failed to do so;
  • filed the notice of discontinuance only after opposing counsel said he considered McLean to have repudiated the settlement and withdrew his consent for McLean to file the notice of discontinuance;
  • failed to attend a Supreme Court hearing; and
  • failed to attend a scheduled examination for discovery.

6) In the course of representing himself in the defamation action, McLean failed to attend Supreme Court hearings and comply with the directions of the court by:

  • failing to comply with directions to file a doctor's letter relating to his missed appearances;
  • failing to attend a scheduled hearing that was peremptory on him; and
  • failing to comply with a direction to provide information to support his email to the Supreme Court trial coordinator that he had a scheduling conflict.

Conduct in relation to the Law Society

7) McLean told the Supreme Court he would be unable to attend a hearing because he was "currently in trial on the Island," when he knew this was not true or he had created the conflict after the hearing had been scheduled.

8) McLean failed to notify the Law Society that he had failed to satisfy monetary judgments against him and to explain how he proposed to satisfy the judgments.

9) McLean offered to settle the defamation case against the landlord if the landlord withdrew his complaint to the Law Society.

10) McLean failed to reply to communications from the Law Society regarding the complaint made against him by the landlord.

DISCIPLINARY ACTION

McLean did not attend the disciplinary action hearing, nor did anyone appear on his behalf. He did not file materials or respond to the Notice of Hearing. The panel determined that McLean had been served with notice of the hearing date in accordance with the Rules.

The Law Society sought a finding of ungovernability against McLean and submitted that, if such a finding is made, disbarment is the appropriate disciplinary action.

On June 29, 2015, a separate discipline hearing panel, ruling on a matter pertaining to an unrelated citation, had ordered that McLean be disbarred on the basis of ungovernability. A review of that decision is pending.

The panel considered McLean's professional conduct record, and found him to be ungovernable for the following reasons:

  • consistent and repetitive failure to respond to the Law Society's inquiries;
  • neglect of duties with respect to trust account reporting and records;
  • misleading behaviour directed to a client or the Law Society;
  • failure or refusal to attend at discipline hearings convened to consider the offending behaviours;
  • history of allegations of professional misconduct over time, in different circumstances;
  • breaches of undertaking without apparent regard for the consequences;
  • engaging in practice while under suspension;
  • the number of citations and conduct reviews McLean has acquired.

The panel ordered that McLean:

  1. be disbarred; and
  2. pay costs of $12,165.78.

2015 LSBC 39 Decision on Facts and Determination

2016 LSBC 06 Decision on Disciplinary Action and Costs - s. 47 review pending