Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination

Gregory Louis Samuels

Vancouver, BC

Called to the bar: May 20, 1994

Discipline hearing: October 5 and 6, 2016

Panel: Herman Van Ommen, QC, Chair, Carol Gibson and Peter Warner, QC

Decision issued: January 16, 2017 (2017 LSBC 01)

Counsel: Alison Kirby for the Law Society; Robin N. McFee, QC and Jessie I. Meikle-Kahs for Gregory Louis Samuels

FACTS

In March 2006 a woman was injured while walking on a road in Point Roberts, Washington State, and was transported to BC for medical treatment, where the Ministry of Health incurred costs of $15,303.30 treating her. The woman retained Gregory Louis Samuels to represent her.

The ministry wrote the woman saying it would attempt to collect the costs of her hospital and medical care from the responsible party. Samuels responded on his client’ s behalf saying he would protect the ministry’ s account for those expenses from the proceeds of any settlement or judgment obtained on the client’ s behalf, on the condition that the ministry pay Samuels’ s fees on any sums collected and remitted, and that the ministry waive its right to subrogation if any settlement obtained is for less than the full value of the claim.

The ministry responded, saying it would pay up to 33 1/3 per cent of the amount recovered for legal fees, but it was not willing to waive its claim in the event that the client receives a reduced settlement.

Samuels did not respond, but in October 2008, he wrote the ministry asking for the true costs of his client’ s medical treatments, and saying that his office agrees to protect the ministry’ s subrogated interests.

That same month, an associate in Samuels’ s office wrote the ministry, again referring to the ministry’ s subrogated interest. The ministry responded, saying the total amount owed to it was $15,303.30. The letter also stated that, while the ministry agreed to the 33 1/3 per cent recovery fee, it expected to receive the remainder of that total amount.

By June 2010 the associate had negotiated a settlement of US$95,000 with US insurers. He wrote to the ministry saying the claim had been settled and he would forward payment. A final account dated June 29, 2010 and signed by Samuels showed a payment to “ MSP Third Party Liability” of $10,202.20, which was the amount left after taking 33 1/3 per cent from the total Ministry of Health claim of $15,303.20.

On July 30, 2010, Samuels’ s US dollar trust account received the settlement proceeds of US$95,000. On the same day, Samuels withdrew $36,169.01 for his fees and disbursements, transferring that amount to his US dollar general account.

In addition, US$10,988.91, which was the US dollar amount of two Canadian accounts owing, including the Ministry of Health, was also transferred from Samuels’ s US dollar trust account to his US dollar general account.

Although funds to pay the Ministry of Health were transferred from his US dollar trust account to his US dollar general account, Samuels did not pay those funds to the Ministry of Health.

On August 8, 2010 Samuels signed a cheque in the amount of $11,128.68 drawn on his Canadian dollar general account payable to the Ministry of Finance. However, Samuels testified that, sometime between signing the cheque and November 22, 2010, he made the decision not to pay those funds to the Ministry of Health. It was his view that his client had not been made whole and that the Ministry of Health was not entitled to the funds, based on Washington State law concerning insurance recoveries.

Samuels testified that he advised his associate of the decision and believed that the associate would tell the Ministry of Health that Samuels would not to pay any part of the subrogated claim. The associate testified he did not recall such a discussion.

On November 22, 2010, a cheque for $926.48 was issued and sent to the Ministry of Health in respect of an unrelated claim for a different client. The $10,202.20 remaining from the August 8, 2010 cheque for $11,128.68 was not dealt with.

The sum of US$9,690.05 remained in Samuels’ s US dollar general account until July 13, 2015, when $10,202.20 was put into his Canadian dollar trust account. Subsequent to the discipline hearing in October 2016, Samuels deposited $2,164.24 to make up the different exchange rate applicable at the time of transfer in 2015.

On October 4, 2013 and November 7, 2013 the Ministry of Health wrote to Samuels’ s associate seeking payment of its subrogated claim. A ministry lawyer subsequently contacted Samuels, and the two corresponded by email and telephone.

In February 2015 the Ministry of Health complained to the Law Society.

In July 2015 Samuels commenced declaratory proceedings in a Washington State court in his client’ s the name, asserting that the Ministry of Health was not entitled to the funds withheld from her settlement. He did not advise his client of this. Samuels waived any limitation defence she might have under Washington law without advising her of his intention to do so or being instructed to do so.

Samuels advised his client on March 2, 2016 that $10,202.20 withheld from her settlement proceeds had not been paid to the ministry as shown in her statement of account. She was also advised a declaratory action had been commenced. She was not told that the funds withheld had not been held in trust from 2010 to 2015 or that any limitation defence in respect of the declaratory action had been waived.

DETERMINATION

The panel found that Samuels had committed professional misconduct with respect to four of the six allegations in the citation, including:

  • improperly withdrawing, or authorizing the withdrawal of, US$9,690.05 from his trust account;
  • failing to forward the sum of $10,202.20 to the Ministry of Health;
  • misrepresenting to the client that a portion of the settlement proceeds would be paid to the Ministry of Health and failing to correct that misrepresentation when he decided not to pay; and

commencing an action in the Superior Court of Washington State in the name of his client without her instructions.

2017 LSBC 01 Decision on Facts and Determination