Summary of Disciplinary Action Decision
Donald Franklin Gurney
West Vancouver, BC
Called to the bar: May 15, 1968
Discipline hearing: July 11, 2017
Panel: Philip Riddell, Chair, and Gillian Dougans
Decision issued: September 1, 2017 (2017 LSBC 32)
Counsel: J. Kenneth McEwan, QC and Trevor Bant for the Law Society; Paul E. Jaffe for Donald Franklin Gurney
FACTS AND DETERMINATION
A hearing panel found that Donald Franklin Gurney used his trust account to receive and disburse a total of $25,845,489.87 on behalf of a corporate client without making reasonable inquiries about the circumstances and without providing any substantial legal services. The panel determined that Gurney committed professional misconduct in respect to four transactions involving his trust account. (2017 LSBC 15)
DISCIPLINARY ACTION
Gurney submitted that the imposition of conditions of practice to prevent reoccurrence of the misconduct would be sufficient discipline. The hearing panel found that his misconduct was a serious breach of his fundamental obligations as a lawyer to act as the gatekeeper of his trust account. In all the circumstances, the panel found that a suspension of six months was appropriate.
The Law Society submitted that Gurney should be ordered to disgorge his earnings resulting from his misconduct. He had charged one-tenth of one per cent of the amount he wrongly received and disbursed. Although there is no specific power to order disgorgement under the Legal Profession Act, the panel found that it had the authority to do so under section 38(7), which permits a panel to make “ any other orders and declarations and impose any conditions it considers appropriate.” The panel found disgorgement appropriate in this case so that the respondent did not profit as a result of his misconduct.
The panel ordered that Gurney:
- be suspended from the practice of law for six months and, following Gurney’ s suspension:
- he must report to the senior forensic accountant of the Trust Regulation Department within five business days after becoming aware of any trust transaction involving a remitter, remitting institution, beneficiary or receiving financial institution not located in Canada; and
- on request by the Law Society, he must immediately produce and permit the Law Society to copy all files, vouchers, records, accounts, books and any other evidence and must provide any explanations required by the person requesting on behalf of the Law Society for the purpose of reviewing Gurney’ s trust transactions; and
- pay to the Law Society $25,845, representing the disgorgement of the “ fee” paid as a result of his professional misconduct.
2017 LSBC 32 Decision on Disciplinary Action