Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination

KENNETH JOSEPH SPEARS

Vancouver, BC

Called to the bar: September 25, 1987

Non-practising membership: January 1, 2015

Discipline hearings: April 24-28 and June 22-23, 2017

Panel: Bruce A. LeRose, QC, Chair, Mark Rushton and Michelle Stanford

Decision issued: August 4, 2017 (2017 LSBC 29)

Counsel: Alison Kirby for the Law Society; Kenneth Joseph Spears appearing on his own behalf

FACTS

In 2004, Kenneth Joseph Spears gave an undertaking to the Law Society not to take on any new files other than Department of Justice or Government of Canada files. That practice restriction was never lifted.

Spears practised as a sole practitioner between 2006 and 2009. In 2006, he also began operating a consultancy business out of the same office premises as his law firm.

Throughout this time, he was retained by two clients to help with the zoning and subdivision of a residential property and the potential purchase of property. He did not inform them he was under a practice restriction to render legal services only to the Department of Justice or the Government of Canada. He did not inform the architect, the zoning consultant or the City of Burnaby staff that he was not acting in any legal capacity. He identified himself as the principal of his law firm and as a barrister and solicitor in his emails. He expected a fee for his services.

Spears assisted the same clients with their damage claim against the City of Burnaby when their property flooded. He reviewed and made notes on a draft notice of claim and reviewed and discussed the without prejudice letters. He expected a fee for his services.

Between 2006 and 2009, Spears sought five separate loans totalling $69,000 from the same clients and prepared paper work for the loans. His clients were not represented by a lawyer in connection with the loans. Spears did not advise them to get independent legal advice.

When one of the clients died, the other client commenced an action against Spears to recover the amounts owed to them. The parties reached a settlement to which Spears agreed to pay $72,000 plus interest by way of instalments and provided an executed consent order as security. He failed to make the first payment. His former client filed the consent order with the Supreme Court. Spears did not immediately notify the Law Society in writing of the circumstances of the judgment and his proposal for satisfying the judgement.

Spears made an application to have the hearing adjourned so he could retain counsel. The Law Society was not advised of this application to adjourn until moments prior to the commencement of the hearing. The panel dismissed the application as Spears had made no effort to contact counsel until the morning of the hearing, despite being advised well in advance.

DETERMINATION

The hearing panel found that Spears was indeed practising law in his work for his clients and that he made no effort to advise his clients that he was not doing work for them as a lawyer. It determined that, by borrowing money from his clients and breaching his undertaking to the Law Society, Spears committed professional misconduct.

The panel further found that Spears was a non-practising member and did not operate a trust account at the time of the consent order. His conduct in failing to notify the Law Society of the judgment granted against him amounted to a technical breach of the Rules but was not professional misconduct.

ADMISSION

On September 28, 2017, the citation was resolved under Rule 4-29 when the Discipline Committee accepted Spears’ conditional admission of professional misconduct, as found by the hearing panel, and permitted him to resign from membership in the Law Society. Spears acknowledged that he must not practise law and provided an undertaking not to apply for reinstatement for a period of seven years.

2017 LSBC 29 Decision on Facts and Determination