Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination

Thomas Paul Harding

Called to the bar: August 31, 1990

Hearing dates: September 1 and 2, 2020

Hearing panel: Michael F. Welsh, QC, Chair, Carol Gibson and Ardith Walkem, QC (did not participate in the completion of the panel’ s written reasons)

Decision issued: January 12, 2021 (2021 LSBC 02)

Counsel: J. Kenneth McEwan, QC for the Law Society; William G. MacLeod, QC for Thomas Paul Harding

FACTS

Thomas Paul Harding acted as counsel for a plaintiff in a personal injury action. The defendant was insured by ICBC and represented by legal counsel. In the course of settlement discussions, Harding sent opposing counsel a draft bill of costs that claimed a total of $25,533.09, including tariff items and disbursements. The claim was settled by telephone between the two lawyers, and they agreed on the amount of settlement for damages and Part 7 claims for Harding’ s client along with disbursements of approximately $7,900. Later that day, Harding emailed opposing counsel and confirmed the action had been settled “ for $190,000 NEW MONEY plus costs.” Harding testified that opposing counsel said ICBC would only seek minor adjustments on costs.

Opposing counsel confirmed the settlement funds had been requisitioned and were in the process of being paid to Harding’ s firm in trust. He also noted that they were working out the numbers for Harding’ s bill of costs.

Harding’ s client executed a full and final release of all claims with Harding as the witness, which confirmed the settlement amount of $190,000, noting “ costs and disbursements to be assessed/agreed.”

Over the course of several months via email correspondence between opposing counsel, the ICBC adjuster and Harding, opposing counsel made several offers to settle costs and disbursements, with sums ranging from $15,000 to $21,907.50.

In emails to the adjuster, Harding claimed opposing counsel previously agreed to pay his bill of costs as presented and that he broke his word. He said opposing counsel is “ walking into a buzz saw” and “ breach of his promise is a pretty serious matter.” He said he will do his best to make the registrar enforce it. Opposing counsel emailed and said at no time did he agree to pay the costs as presented. Harding emailed back to opposing counsel and the adjuster “ [Opposing counsel’ s] ‘ clear recollection’ is the reason my firm will not deal with [him] by telephone, or in person except in a courtroom with the [Digital Audio Recording System] running.”

Harding’ s client accepted the offer of settlement of costs for $21,907.50, and Harding advised the adjuster and opposing counsel.

DETERMINATION

While the panel accepted Harding’ s submission that he honestly believed an understanding had been reached on costs with opposing counsel on October 26, 2018, Harding also knew that it was not a legally enforceable agreement. The panel found his conduct toward another lawyer was discourteous and uncivil and he was not acting in good faith in his dealings with opposing counsel and the adjuster.

The panel determined Harding’ s conduct constitutes professional misconduct.

2021 LSBC 02 Decision on Facts and Determination