[30] Mr. Lessing represented himself in a family law proceeding commenced by his spouse (the “Plaintiff”) that involved claims for spousal support, child support and a division of assets (the “Matrimonial Proceedings”).
[31] At a judicial case conference in the Matrimonial Proceedings, Mr. Lessing consented to an order being pronounced by Madam Justice Smith (the “First Order”) and he approved the First Order as to form. The First Order contained an order that Mr. Lessing provide to counsel for the Plaintiff by August 29, 2008 the incorporation documents for a corporation (“A Ltd.”)
[32] Mr. Lessing did not provide the incorporation documents for A Ltd. to counsel for the Plaintiff by August 29, 2008. Despite receiving letters from counsel for the Plaintiff dated September 10, September 11 and October 8, 2008 and February 11 and March 27, 2009 requesting production of them, he still did not produce them.
[33] In April, 2009, Mr. Lessing was served with a notice of motion for an order requiring him to provide a list of documents and to produce copies of documents specified in the notice of motion. On April 14, 2009, Master Scarth made an order (the “Second Order”) that Mr. Lessing produce a list of documents on or before May 7, 2009 and that Mr. Lessing, on or before May 7, 2009, produce and deliver to the solicitor for the Plaintiff certain documents and information described in the Second Order.
[34] Mr. Lessing did not provide a list of documents or produce and deliver to the solicitor for the Plaintiff any of the documents described in the Second Order by May 7, 2009.
[35] On May 11, 2009, counsel for the Plaintiff wrote and faxed a letter to Mr. Lessing that confirmed the list of documents and the documents that Mr. Lessing was ordered to produce by the Second Order had not been received by May 7, 2009 and stated that, if the list of documents and the required documents were not received by the close of business on May 11, 2009, counsel for the Plaintiff would be bringing an application for an order that Mr. Lessing was in contempt of Court.
[36] Mr. Lessing did not provide the list of documents or any of the documents specified in the Second Order by the close of business on May 11, 2009.
[37] At a hearing held on May 7, 2009, which was not attended by Mr. Lessing or his counsel, Master Tokarek made an order (the “Third Order”) that, on or before May 27, 2009, Mr. Lessing produce and deliver to counsel for the Plaintiff the documents and information described in the Third Order.
[38] On or about May 20, 2009, Mr. Lessing received a copy of the Third Order.
[39] Mr. Lessing did not produce any of the documents described in the Third Order by May 27, 2009.
[40] On May 20, 2009, Mr. Lessing was served with a notice of motion for an order that he be found in contempt of court for failing to comply with the First Order and the Second Order. On or about May 28, 2009, Mr. Lessing was informed that his failure to comply with the Third Order would be brought to the attention of the court at the hearing of the notice of motion for a declaration that Mr. Lessing was in contempt of court.
[41] On June 4, 2009, at a hearing that was not attended by Mr. Lessing or his counsel, Mr. Justice Davies found Mr. Lessing in contempt of court for failing to comply with the First Order, the Second Order and the Third Order (the “Fourth Order”). Mr. Lessing was given until June 18, 2009 to cure his contempt.
[42] On June 4, 2009, Mr. Lessing received a copy of the Fourth Order.
[43] On June 9, 2009, Mr. Lessing produced the incorporation documents for A Ltd. as required by the First Order.
[44] On June 18, 2009, Mr. Lessing produced copies of those documents in his possession that he had been ordered to produce by the Second Order and the Third Order.
[45] Counsel for Mr. Lessing and the Law Society have informed the Panel in a joint submission that they intend, at the resumption of the hearing, to introduce evidence that Mr. Lessing did deliver the list of documents on June 18, 2009.
[46] The relevant provisions of the Rules of the Law Society are the following:
3-44(1) A lawyer against whom a monetary judgment is entered and who does not satisfy the judgment within 7 days after the date of entry must immediately notify the Executive Director in writing of
(a) the circumstances of the judgment, including whether the judgment creditor is a client or former client of the lawyer, and
(b) his or her proposal for satisfying the judgment.
(2) Monetary judgments referred to in subrule (1) include
(a) an order nisi of foreclosure,
(b) any certificate, final order or other requirement under a statute that requires payment of money to any party, and
(c) a garnishment order under the Income Tax Act (Canada) if a lawyer is the tax debtor.
(3) Subrule (1) applies whether or not any party has commenced an appeal from the judgment.
(4) If a lawyer fails to deliver a proposal under subrule (1)(b) that is adequate in the discretion of the Executive Director, the Executive Director may refer the matter to the Discipline Committee or the Chair of the Discipline Committee.
[47] The relevant provisions of the Legal Profession Act are the following:
38(4) After a hearing, a panel must do one of the following:
(a) dismiss the citation;
(b) determine that the respondent has committed one or more of the following:
(i) professional misconduct;
(ii) conduct unbecoming a lawyer;
(iii) a breach of this Act or the rules;
(iv) incompetent performance of duties undertaken in the capacity of a lawyer;
(v) if the respondent is not a member, conduct that would, if the respondent were a member, constitute professional misconduct, conduct unbecoming a lawyer, or a breach of this Act or the rules;
(c) make any other disposition of the citation that it considers proper.
[48] We find that each of the First to Eighth Judgments were monetary judgments within the meaning of Rule 3-44(2), that each of those judgments had been entered, that the Respondent did not satisfy any of the judgments within seven days after the date of entry and that the Respondent did not notify the Executive Director as required by Rule 3-44(1) regarding any of the judgments.
[49] We are satisfied on the basis of the facts set out in the First Agreed Statement of Facts that the Law Society has discharged its onus of proving on a balance of probabilities the allegations set out in the First Citation.
[50] We find that the failure of the Respondent to notify the Executive Director of each of the judgments was a breach of the Rules. The issue is whether the failure to notify the Executive Director of any of the judgments constituted professional misconduct, which is more serious.
[51] Counsel for the Respondent submits that all of the failures amounted to no more than a breach of the Rules and did not constitute professional misconduct.
[52] Counsel for the Law Society submits that although it is open to make a determination of professional misconduct, the Panel should determine that all of the failures to notify the Executive Director were breaches of the Rules. She submits that, although there are aggravating factors, such as the length of time over which the breaches occurred (five years), the number of breaches (eight) and the Respondent’s failure to report the last two monetary judgments when he knew he had an obligation to do so, all of which could justify a determination of professional misconduct, the Law Society is seeking only an adverse determination of a breach of the Rules because:
(a) the First Citation is framed as a single allegation;
(b) all judgment creditors have now been paid and therefore no harm has occurred; and,
(c) a majority of the failures to notify the Executive Director may be more appropriately classified as being caused by the Respondent paying little attention to the administrative side of his practice.
[53] Professional conduct is not defined in the Legal Profession Act or the Rules of the Law Society. The currently accepted test for whether conduct constitutes professional misconduct was established by a hearing panel in Law Society of BC v. Martin, 2005 LSBC 16 where the panel stated the following at paragraph [171]:
The test that this Panel finds is appropriate is whether the facts as made out disclose a marked departure from that conduct the Law Society expects of its members; if so, it is professional misconduct.
[54] The Panel adopts that statement as the appropriate test for determining what constitutes professional misconduct.
[55] While every member of the Law Society should be familiar with the rules of the Law Society and know what they are and is deemed to know of those rules whether in fact they do, we recognize that the rules are lengthy and complex and that some lawyers are, in fact, not aware of certain rules until they are drawn to their attention, particularly rules that rarely affect those lawyers’ day to day practice.
[56] We accept that the Respondent was not aware of Rule 3-44 until he was informed of it by the Law Society on August 19, 2009.
[57] Rule 3-44 does not apply to the day to day practice of lawyers, and few lawyers will have unsatisfied judgments entered against them. Since we have accepted that the Respondent was not, in fact, aware of the existence of Rule 3-44 until he received the Law Society’s August 19, 2009 letter and that no member of the public has been harmed because the judgments have been paid, we find that the failure of the Respondent to notify the Executive Director of the First Judgment, Second Judgment, Third Judgment, Fourth Judgment, Fifth Judgment and Sixth Judgment was not a marked departure from that conduct the Law Society expects of its members and therefore did not constitute professional misconduct.
[58] By December 7, 2010, the date of entry of the Seventh Judgment, the Respondent was clearly aware of the provisions of Rule 3-44 and his obligations under that rule. Just six weeks earlier, the Respondent had written to the Law Society acknowledging that he was aware of Rule 3-44 and confirming that he would comply with that rule. He also knew that he was still under an active investigation for his breach of Rule 3-44 in respect of the earlier judgments.
[59] The Respondent’s explanation for not notifying the Executive Director of the Seventh Judgment and the Eighth Judgment was that he intended to set both orders aside. Rule 3-44(3) makes it clear that the duty to notify the Executive Director applies whether or not any party has commenced an appeal from the judgment. We find that, at the time the Seventh Judgment and Eighth Judgment were entered, the Respondent was aware of Rule 3-44(3). His explanation for not notifying the Executive Director of these judgments is not credible, and we do not accept it.
[60] Although Rule 3-44 does not apply to most lawyers’ day to day practice, and most lawyers do not have unsatisfied monetary judgments against them, it is still a very important rule and an essential component in the financial requirements set out in Part 3, Division 6 of the Rules of the Law Society, which are necessary to fulfill the Law Society’s mandate under Section 3 of the Legal Profession Act. The fact that a lawyer has not paid debts when due does not necessarily mean that the lawyer cannot properly perform his or her duties or that such failure poses a risk to the public, but it might. Often, unsatisfied monetary judgments are a sign of more severe underlying problems that will pose a danger to the public. In order to protect the public, the Law Society must be made aware of any unsatisfied monetary judgment and be provided with information about it and the lawyer’s proposed course of action for dealing with it.
[61] We find that the Respondent was aware at the time the Seventh Judgment and Eighth Judgment were entered that he had an obligation to notify the Executive Director of them if he was unable to satisfy them within seven days and that his failure to do so constitutes a blatant disregard of his professional obligations.
[62] Even though the Seventh Judgment and Eighth Judgment were satisfied in less than a year and no substantial harm was caused to the judgment creditor, we find that the Respondent’s failure to notify the Executive Director of these judgments constituted a marked departure from the conduct the Law Society expects of its members.
[63] We have determined that, by failing to notify the Executive Director of the First to Sixth Judgments, the Respondent committed breaches of the Rules of the Law Society.
[64] We have determined that by failing to notify the Executive Director of the Seventh and Eighth Judgments, the Respondent committed professional misconduct.
[65] In the Second Agreed Statement of Facts the Respondent admitted that his conduct was contrary to the best interest of the legal profession and constituted conduct unbecoming a lawyer.
[66] The relevant provisions of the Legal Profession Act are the following:
1(1) In this Act:
“conduct unbecoming a lawyer” includes a matter, conduct or thing that is considered, in the judgment of the benchers or a panel,
(a) to be contrary to the best interest of the public or of the legal profession, or
(b) to harm the standing of the legal profession;
38(4), the text of which is quoted above in paragraph [47].
[67] The distinction between conduct unbecoming a lawyer and professional misconduct was considered by the Benchers in a review of the decision by the hearing panel in Law Society of BC v. Watt, [2001] LSBC 16, in which the Benchers stated in paragraph [5]:
We adopt, as a useful working distinction, that professional misconduct refers to conduct occurring in the course of a lawyer’s practice while conduct unbecoming refers to conduct in the lawyer’s private life.
[68] We adopt this statement as an accurate description of the distinction between conduct unbecoming a lawyer and professional misconduct.
[69] The Benchers, in a review of a decision of the hearing panel in Law Society of BC v. Berge, 2007 LSBC 07, stated the following test for what constitutes conduct unbecoming a lawyer at paragraph [38]:
The Benchers find that lawyers in their private lives must live up to a high standard of conduct. A lawyer does not get to leave his or her status as a lawyer at the office door when he or she leaves at the end of the day. The imposition of this high standard of social responsibility, with the consequent intrusion into the lawyer’s private life, is the price that lawyers pay for the privilege of membership in a self-governing profession. Conduct unbecoming not only includes the obvious examples of criminal conduct and dishonesty, but it also includes “any act of any member that will seriously compromise the body of the profession in the public estimation.” See Hands v. Law Society of Upper Canada (1889), 16 OR 625.
[70] The Law Society submits that the failure of the Respondent to comply with the three court orders does not constitute professional misconduct because the orders were made in the Matrimonial Proceedings, in which the Respondent was a party.
[71] The Law Society also submits that the breach of the three court orders for which Mr. Justice Davies found him to be in contempt of court constitutes conduct unbecoming a lawyer.
[72] The Respondent, through his counsel, agreed with the submissions made by the Law Society.
[73] We are satisfied on the basis of the facts set out in the Second Agreed Statement of Facts that the Law Society has discharged its onus of proving on a balance of probabilities the allegations set out in the Second Citation.
[74] We have determined that by breaching the First Order, the Second Order and the Third Order, the Respondent was in contempt of court and that, by doing so, he committed conduct unbecoming a lawyer.