Complaints, Lawyer Discipline and Public Hearings

Summary of Decision of the Hearing Panel


James Leslie Straith

Nanaimo, BC

Called to the bar: August 1, 1985

Panel: Jennifer Chow, QC (Chair), Bruce LeRose, QC and Lance Ollenberger

Decision issued: February 18, 2020 (2020 LSBC 11)

Counsel: Jaia Rai for the Law Society; James Leslie Straith appearing on his own behalf

FACTS

The matter arises from James Leslie Straith’s representation of a group of individuals (“Lost Canadians”) who believe they have been unfairly excluded from Canadian citizenship. The citation included a range of allegations, such as failing to identify the proper client, acting while in a conflict of interest, failing to follow proper billing and trust accounting rules and failing to keep proper records.

Straith was introduced to the leader of “Lost Canadians,” who had been involved in political action and lobby efforts on behalf of the group. Straith accepted a $10,000 retainer to provide legal services to the group, particularly to file judicial review cases against the federal government.

Only one judicial review was filed on behalf of one of the members of the group during Straith’s retainer. The group member terminated Straith’s retainer before the member’s judicial review case was resolved. Straith had no discussions with the group’s leader or the group member to ensure the parties knew who the client was, who was authorized to instruct him or what would happen if he received conflicting instructions from them. While the group leader was the primary contact, the group member was the one and only applicant in the judicial review proceeding filed.

The group member and the group leader had conflicting interests – the group member wanted her Canadian citizenship while the group leader sought a precedent that would benefit the larger Lost Canadians group. Straith failed to address that conflict. The group member was seeking to obtain citizenship by way of relief under section 5(4) of the Citizenship Act, which was rejected. Straith did not advise her of the implications of him acting on her behalf while also taking instructions to benefit the group at large. He failed to appreciate that both the group leader and the group member were entitled to undivided loyalty from their lawyer.

The group member’s judicial review application proceeded to a hearing. The judge indicated that the court may be favourably inclined to grant judgment in favour of the group member, but she might want to consider whether to adjourn the matter and convert the proceeding to an action for the entire group. The group member agreed to the adjournment, although she knew that she could obtain judgment in her favour that day, because she wanted to do what was in the best interests of the entire group. The judge made an order directing an adjournment to allow Straith to prepare and launch a broader proceeding.

After the hearing, additional work on the judicial review continued to convert it to an action to benefit the larger group. Straith did not advise the group leader and the group member to obtain independent legal advice before continuing to represent both of them. The group member decided to change counsel and terminated the retainer. Straith had no further communications with her but continued to communicate with the group leader. He did not file a notice of change of lawyer with the court and remained as counsel of record for a time. Rather than advise the court he was no longer acting for the group member, he sought instructions from the group leader in regard to the member’s judicial review case.

Straith received a letter from the group member’s new lawyer asking for her file. Straith discussed this with the group leader in emails, claiming that his previous work for her was intellectual property of the group. He advised the group leader to send the new lawyer an email telling him that he did not represent the leader or the group. His advice conflicted with the group member’s interests in her judicial review case and was inconsistent with his representation of her as his client.

After Straith stopped acting as counsel for the group member, he emailed a draft bill to the group leader. They disagreed as to whether they reached an agreement to settle the amount. Straith admits that he knew the group leader was disputing the draft bill. The bill was never signed nor recorded in his accounting records. Prior to this, four statements of account were addressed to “Lost Canadians,” but the group leader never received them.

Over the course of his retainer, Straith breached trust accounting rules. He did not properly account for additional funds received from the group leader and donations received from various supporters. He did not keep time records, daily time entries, signed copies of the 2012 accounts, with one exception, or hard copies of receipts for funds received from supporters of the group. Some receipts were available on his accounting program, but they were not sent to the group leader or donors as required.

Straith deposited payments from the group leader into his general account rather than into his trust account. The funds should have been treated as trust funds at the time of receipt because no outstanding accounts existed. On eight occasions, he withdrew money from trust when he did not first deliver a bill to the client. Straith failed to notify the group leader about all the funds he received in trust, as well as 15 separate contributions totalling $16,454.56 to legal costs.

The total amount of funds received by Straith from the group leader, group member and other supporters of the group was $32,454.56. The total amount of bills issued by Straith was $24,412.77. The difference between the amount he received and the amount he billed was $8,041.79 in overpayment.

The accounting provided to the group leader contained various errors and omissions. Straith did not disclose to the group leader the errors he discovered and the adjustments he made to his trust accounting records. He never accounted to him for the $8,041.79 difference between the total funds received and the total bills issued.

Straith commenced a civil action against the group leader to collect on a bill that was never finalized, signed and delivered. The calculation of the amount that Straith claimed to be due did not credit the group leader with amounts he should have known were received by him in trust.

ADMISSION AND DETERMINATION

The panel accepted Straith’s admission that his conduct constituted professional misconduct.

DISCIPLINARY ACTION

Straith and Law Society counsel jointly submitted that the disciplinary action should be a two-month suspension and payment of costs.

The panel considered the serious nature and gravity of the misconduct and the need for general deterrence. The panel agreed with the proposed sanction and ordered that Straith:

  1. be suspended for two months, and
  2. pay costs of $ $22,523.79.

2020 LSBC 11 Decision of the Hearing Panel