Complaints, Lawyer Discipline and Public Hearings

Summary of Decision of the Review Board

Donald Franklin Gurney

Called to the Bar: May 15, 1968

Retired membership: January 1, 2018

Hearing date: October 14, 2020

Review board: Jamie Maclaren, QC, Chair, Catherine Chow, Lindsay R. LeBlanc, Paul Ruffell and Heidi Zetzsche

Decision issued: November 19, 2020 (2020 LSBC 56)

Counsel: J. Kenneth McEwan, QC and Kyle Thompson for the Law Society; Donald Franklin Gurney appearing on his own behalf

BACKGROUND

A hearing panel issued an interim order regarding non-disclosure of various documents provided to the Law Society during its investigation, pending the final facts and determination decision. The panel later rendered its facts and determination decision (2017 LSBC 15) and concluded that Donald Franklin Gurney had committed professional misconduct by allowing his trust account to receive and disburse almost $26 million on behalf of a client without providing substantial legal services. Gurney was ordered to be suspended for six months, pay $25,845 as disgorgement of the legal fees that he had received, and comply with certain trust accounting conditions upon his return to practice (2017 LSBC 32). Gurney filed an application for a review of the findings of facts and determination and disciplinary action, and the Law Society subsequently applied for an order that a review be dismissed on the basis that no steps had been taken to proceed with the review for more than six months. The Law Society’ s application to dismiss the review was granted (2019 LSBC 23).

In early 2020, the Law Society received media inquiries regarding information pertaining to this matter and it was discovered that the interim order on non-disclosure was not addressed by the hearing panel in its decision. In order to vary the interim order, the Law Society applied for a review of the decision to set aside the hearing panel order and replace it with a new order that encompasses all submissions and exhibits in this matter. The Law Society produced the proposed redactions to the interim exhibits.

DECISION OF THE REVIEW BOARD

The review board considered a previous similar case where the panel determined that there may be legitimate reasons to restrict public access to exhibits filed at a hearing, such as protecting solicitor-client privilege and confidentiality. The Law Society and Gurney developed a consent order, which the review board adopted.

The review board ordered that:

  • section 1 of the hearing panel order of January 20, 2017 be set aside;
  • client names, identifying information and any other confidential or privileged information contained in the interim exhibits be redacted as in the redacted exhibits;
  • client names, identifying information and any other confidential privileged information contained in the transcripts to these proceedings be redacted; and
  • if any person other than a party seeks to obtain copies of any exhibits or transcripts to these proceedings, the redacted exhibits and transcripts to these proceedings shall be disclosed to that person.

 

2020 LSBC 56 Decision of the Review Board