Complaints, Lawyer Discipline and Public Hearings

Decision on Facts and Determination and Disciplinary Action

MAUREEN JOYCE WESLEY

Burnaby, BC

Called to the bar: July 13, 1982

Discipline hearing: October 28, 2014, July 9, 2015 and January 14, 2016

Panel: Herman Van Ommen, QC, Chair, Woody Hayes and Bruce LeRose, QC

Decisions issued: February 17, 2015 (2015 LSBC 05) and February 17, 2016 (2016 LSBC 07)

Counsel: Carolyn Gulabsingh for the Law Society; Maureen Joyce Wesley, on her own behalf (facts and determination) and Henry C. Wood, QC (disciplinary action and costs)

FACTS

Maureen Joyce Wesley attended a judicial case conference with her client on October 20, 2011. The client and her husband entered into an interim consent order regarding child support, access and custody. Wesley accepted the responsibility for preparing the interim order. In November 2011, her client had complied with the order, and her husband paid child support as required by the order.

In January 2013, the husband stopped making child support payments. Wesley’ s client contacted the Family Maintenance Enforcement Program for assistance to compel her husband to make child support payments. The program advised her that the order had not yet been entered. Wesley had not explained to her client that the child support term of the order could not be enforced because it was not entered. She did not advise her client of the risks of not entering the order or the reasons why she had not yet entered the order.

Wesley testified that the husband’ s counsel did not agree with the form of order she had prepared. Wesley did not believe the entry of the order was pressing as her client’ s husband was paying child support at the time.

The husband refused to resume payments unless Wesley’ s client consented to a divorce. However, her client would not consent to the divorce until she was paid the child support payments she was owed. Wesley and the other counsel were not able to resolve this impasse, and the husband fired his counsel in February 2013.

The husband retained new counsel, and Wesley said she attempted to have counsel sign the order. He declined as his client now preferred to attempt to settle the whole matter instead of resolving issues with the interim order. Wesley agreed with that approach and began to work on a tentative form of final order.

Wesley attempted to locate the husband’ s previous counsel and was finally able to make contact in April 2013. Prior counsel insisted on signing her own form of order, and only when that form of order was rejected by the registry did she ultimately agree to sign the order prepared by Wesley. It was entered on June 25, 2013.

DETERMINATION

Wesley failed for a period of approximately 20 months to take the steps required to have the order entered. When the other counsel did not agree with her form of order, she took no steps to resolve the issue. She did not advise her client of the risks she would face because the order was not entered, nor did she advise her of the costs and steps involved in having a registrar settle the form of order.

When she learned from new counsel that the husband was resiling from his agreement to pay child support, she again failed to take steps to have the order settled and failed to advise her client of the risks. Instead of settling the terms of the order in January 2013, Wesley took months to locate prior counsel and then further months to debate over the form of the order. The order was not entered until June 25, 2013.

Her error allowed her client’ s husband to be able to refuse to pay child support and demand her client’ s consent to a divorce, which could both have been avoided if the order was filed. The impasse should never have occurred.

The panel concluded that Wesley’ s conduct was a culpable neglect of her duties and amounted to professional misconduct.

DISCIPLINARY ACTION

The Law Society sought a fine of $3,000 and costs of $6,456.25. Wesley pointed to her difficult financial situation and suggested that the total financial penalty, including costs, should be $5,000.

The panel considered whether to require Wesley to satisfy a board of examiners that she is competent to practise law, and asked the parties to make submissions in this regard. The Law Society submitted that the misconduct included a competency component and that such an order would both aid in the rehabilitation of Wesley and protection of the public. Counsel for Wesley asserted that this order would be inappropriate, as the misconduct only pertained to one client and one order. He submitted that there must be evidence of incompetence, meaning a pattern of conduct that fails to meet standards, rather than one instance. He noted that Wesley has been practising for more than 33 years without relevant discipline. The panel found insufficient evidence to make the order.

The panel considered the gravity of Wesley’ s conduct, her experience, her professional conduct record and the impact on the victim. Although Wesley’ s actions concerned only one order, there were different points in time at which she failed to advise her client adequately of the risks.

The panel ordered that Wesley pay:

  1. a fine of $3,000; and
  2. costs of $6,876.25.

 

2016 LSBC 07 Decision on Disciplinary Action and Costs

2015 LSBC 05 Decision on Facts and Determination