Complaints, Lawyer Discipline and Public Hearings

Summary of decision on disciplinary action

Sandra Helen Mary Smaill, QC

Kimberley, BC

Called to the bar: January 15, 1979

Suspended: March 21, 2018

Custodian appointed: April 30, 2018

Ceased membership for non-payment of fees: January 1, 2019

Hearing date: December 18, 2020

Panel: Michael F. Welsh, QC (chair), Thelma Siglos and Sandra E. Weafer

Decision issued: February 4, 2021 (2021 LSBC 06)

Counsel: Michael D. Shirreff for the Law Society; Sandra Helen Mary Smaill, QC appearing on her own behalf

BACKGROUND

On March 3, 2020, this hearing panel determined that Sandra Helen Mary Smaill, QC committed eight instances of professional misconduct. The misconduct included multiple instances of misappropriation, as well as failure to maintain accounting records, failure to remit GST and employee payroll deductions to the Canada Revenue Agency, and failure to respond to the Law Society. (2020 LSBC 14)

DISCIPLINARY ACTION

The Law Society submitted and the panel accepted that, even though Smaill no longer practises law and is a former lawyer, protection of the public requires an order of disbarment in light of her “ numerous and serious instances of misconduct, combined with her refusal to participate in the regulatory process.” In particular:

  • the sheer number of findings of professional misconduct;
  • many involved misappropriation or mishandling of client trust funds and government remittances;
  • they were compounded by the shambles in Smaill’ s financial recordkeeping; and
  • Smaill’ s lack of acknowledgment of that misconduct or any effort by her to remediate her clients or the CRA, or to cooperate with the Law Society investigation in any meaningful way.

The panel also considered Smaill’ s disciplinary record, which included two conduct reviews for breach of undertaking, failure to provide prompt service to a client, inadequate quality of service, failure to properly supervise her assistant and failure to properly respond to another lawyer to whom a client transferred from her.

While she had not participated in the facts and determination portion of this matter, Smaill did for the hearing on disciplinary action. She advised that she recognized that some of the matters for which she was cited, such as her failure to make government remittances, could constitute professional misconduct and, as a result, she did not dispute the citation. She said, however, that she disagreed with other of the cited matters. She gave several explanations, which included problems with staff and her own difficult financial situation. Small’ s proposed disciplinary action was that she enter into an order that she never re-apply to be a practising lawyer.

The panel stated it could not reopen its findings on facts and determination based on those submissions. It also found that the explanations given by Smaill were “ woefully insufficient” to meet the specifics of the evidence, particularly documentary evidence that supported those findings. The only mitigating factor that might apply was the extreme financial hardship in which Smaill found herself; however, as noted in previous cases, misappropriation in particular cannot be excused by financial distress.

The panel concluded that public confidence in the legal profession and its integrity led to a conclusion that disbarment is the only proper disciplinary action, and ordered that Smaill:

  1. be disbarred; and
  2. pay costs of $10,289.04.

 

2020 LSBC 14 Decision on Facts and Determination

2021 LSBC 06 Decision on Disciplinary Action