Complaints, Lawyer Discipline and Public Hearings

Summary of Decision of the Hearing Panel

Ian Frank McTavish

Salmon Arm, BC

Called to the bar: June 26, 1974

Discipline hearing: October 6, 2017

Panel: Joost Blom, QC, Chair, June Preston and Sarah Westwood

Decision issued: January 17, 2018 (2018 LSBC 02)

Counsel: Carolyn Gulabsingh for the Law Society; William B. Smart, QC for Ian Frank McTavish

AGREED FACTS

A client engaged Ian Frank McTavish in May 2011 to settle the estate of his late mother.

The client and his brother were co-executors of the will.   In May 2012 the client’ s brother offered to renounce his status as co-executor and release all claims to the estate, in exchange for a payout of $60,000 before the granting of probate.

Although his client instructed McTavish to accept the offer in early June, he did not inform the client of the brother’ s consent to the agreement until September 2012.

On September 6, 2012, the brother’ s lawyer sent the signed renunciation to McTavish, and on September 19 McTavish forwarded $60,000 to the brother’ s lawyer, with a release executed by his client.

In December 2012, McTavish’ s assistant told him she could not find the renunciation signed by the client’ s brother.

Between March 2013 and January 2014, McTavish wrote the brother’ s lawyer on several occasions, asking for another signed renunciation, unaware that the lawyer had passed away in November 2013. Between August 2013 and January 2014 he took no other steps or actions to advance the estate matter.

On March 19, 2014, McTavish received a newly signed renunciation and release form from the firm where the brother’ s lawyer had worked.

On April 15, 2014, McTavish learned that probate could not proceed by way of desk order and he chose to speak to the matter in court. McTavish told the Law Society that, when he attended court on May 29, 2014, he was told more documents needed to be filed and that he communicated that information to his client. However McTavish did not send a reporting letter to the client regarding the court appearance, and he had no notes of the court appearance or records of communication conveying the information to his client.

On February 4, 2015, McTavish told his client he would send the file to another lawyer to complete the “ final application.” On August 29, 2015, the client filed a complaint with the Law Society. On January 21, 2016, the court granted probate of the will.

ADMISSION AND DETERMINATION

McTavish admitted that he failed to take appropriate steps to probate the client’ s late mother’ s will or administer her estate, failed to keep the client reasonably informed about the matter, failed to respond to communications from the client between March and September 2015, and failed to provide the client with complete and accurate relevant information about the status of the application for probate and the status of administration of the estate. McTavish also admitted that this conduct constitutes professional misconduct.

The panel found that McTavish had failed to provide the quality of service expected of a competent lawyer, and that the conduct constitutes professional misconduct. The panel approved McTavish’ s conditional admission of professional misconduct and proposed disciplinary action, both of which had been accepted by the Discipline Committee.

DISCIPLINARY ACTION

The panel ordered that McTavish pay:

  • a fine of $6,000; and
  • costs of $1,288.05.

2018 LSBC 02 Decision of the Hearing Panel