Complaints, Lawyer Discipline and Public Hearings

Summary of Decision of the Hearing Panel on Facts and Determination

Rosario Cateno Di Bella

Victoria, BC

Called to the bar: September 10, 1980

Suspended: February 19, 2021

Custodian appointed: April 30, 2021

Hearing date: May 10, 2021

Panel: Steven McKoen, QC (chair), Catherine W. Chow and Laura Nashman

Decision issued: June 17, 2021 (2021 LSBC 27)

Counsel: Barbara Lohmann for the Law Society; Richard Margetts, QC for Rosario Cateno Di Bella

FACTS

Rosario Cateno Di Bella practised as a sole practitioner in Victoria. His practice was primarily in the area of wills, estates and trusts.

A client retained Di Bella to represent her to assist with the estate of her late father, including to obtain a grant of probate. The client and her spouse were co-executors of the estate, and the client and her brother were the beneficiaries. The client’s spouse retained another lawyer to represent him in respect of the deceased’s estate.

Over the course of three years, Di Bella exhibited a pattern of unresponsiveness. Although he corresponded with the client and opposing counsel, he took no material steps to resolve the estate.

As a result of Di Bella’s inaction, the opposing lawyer filed a citation with the Supreme Court to require Di Bella’s client to apply for a grant of probate and set out a 14-day response deadline. Di Bella did not follow up as promised during phone conversations with the other lawyer and did not respond to multiple written correspondences over the course of six months.

The opposing lawyer then filed a notice of civil claim, and it was served on Di Bella’s client. Di Bella took no steps following receipt of the notice of claim from his client and did not respond to her email. Di Bella eventually corresponded with the opposing lawyer to twice adjourn the court application, explaining he had not received instructions despite the fact that his client had asked him for updates. He then failed to respond to a number of the opposing lawyer’s voicemails. When the opposing lawyer sent him a copy of the filed requisition adjourning the matter to a later date, Di Bella advised that his client and her brother accepted settlement of the estate, whereby the plaintiff would receive $2,000 in costs to be paid from the estate.

The Supreme Court granted an order that the client should file for an estate grant by a certain date. Di Bella received a copy of the order but did not send a copy to his client. He also did not proceed with an application for probate of the estate as required by the order. He continued his pattern of not responding to the client’s or the opposing lawyer’s communications for nearly a year. Di Bella specifically advised his client that he had ordered the wills search, which was mandatory for the grant of probate, but he never ordered a wills search.

Nearly three years after the client first retained Di Bella, she sent messages to him advising that it had been over a month since he called and he had not delivered on what he promised, that her spouse would be 80 years old soon and she wanted to resolve the matter before he endured more health problems, that it had been more than four years since her father passed away and probate was not even started, that she was extremely upset and disappointed, and that she would wait one more week for his call, failing which she would seek other counsel. Di Bella did not respond to these messages.

Because Di Bella had not filed an application for grant of probate, opposing counsel filed a notice of application with the Supreme Court to compel Di Bella to file for probate. He did not respond to the notice.

Di Bella and his client spoke on the phone and Di Bella confirmed their conversation in an email, stating that the client retained new counsel, Di Bella would prepare an account for payment and, once payment was received, Di Bella would prepare the file for delivery to the new lawyer. The new lawyer emailed Di Bella multiple times, but Di Bella did not respond to any of the communications. Di Bella did not provide the new lawyer with the original notice of renunciation, did not provide an account and did not prepare the file for delivery.

On February 19, 2021 Di Bella was suspended for failure to provide sufficient records for a compliance audit, and at the time of this hearing, his practice was under custodianship.

DETERMINATION

The panel found Di Bella’s lack of communication, his failure to meet the deadline set out in the court order, his failure to answer reasonable requests by the client and respond to her communications, his failure to order a wills search and his misrepresentation that he did so, his lack of response to opposing counsel and his failure to facilitate the transfer of the client’s matter to a successor lawyer constituted professional misconduct.

The Law Society submitted that Di Bella needed to have written instructions with respect to the $2,000 settlement. The panel found that Di Bella believed he had authority to enter into the settlement and, while it might have attracted personal liability for him as an agent acting without proper authority, it did not meet the threshold for professional misconduct.

2021 LSBC 27 Decision on Facts and Determination