[22] Each of the three “categories” of professional misconduct identified in paragraphs (b), (c) and (d) of the citation and acknowledged by the Respondent relates to his failure to perform the Underlying Obligations. Each of them involves repetitive and sustained breaches of his promises. See Decision on Facts, paragraph [7] sub-paras. 19 through 36. It is clear that in assuming the Underlying Obligations the Respondent was acting as a member of the legal profession, albeit in relation to his personal conduct.
[23] The Law Society argues that the breaches were serious in themselves. That is because the giving and fulfillment of undertakings are a cornerstone of the legal profession. Moreover, as the Law Society’s counsel put it, breach of an undertaking to the Law Society “strikes at [the] heart of the ability of the Law Society to regulate the profession.” Counsel for the Respondent conceded that breaches of undertaking are serious, and he was right to do so. The courts and hearing panels of the Law Society have repeatedly stressed the importance of meticulous compliance with undertakings, and hearing panels have marked their view of the seriousness of a failure to do so by the severity of the sanctions they have imposed – commonly, if not invariably, a suspension from practice for some period.
[24] The appropriateness of an “unconditional” suspension or a fine, or both, depends, among other things, on such factors as what the Respondent did or failed to do; his reasons for doing or not doing them; the purpose of suspending him in the circumstances; and our assessment of the prospect that any of these sanctions will achieve its purpose.
[25] In September 2005 a Practice Review report apparently recommended that the Respondent attend either the Lawyers’ Assistance Program (“LAP”) or Interlock for assistance in dealing with “the stresses in his life”. Although these were not particularized, we infer that among them were issues related to alcoholism. It seems that the Respondent did indeed attend LAP several times, but did not find it helpful. In November 2007, however, he completed a ten day rehabilitation program and in August 2008 a five-day follow-up program. See generally Decision on Facts, paragraph [7] sub-paras. 3 through 6. As we understand it, these attendances were entirely voluntary.
[26] On December 8, 2008 the Respondent self-reported to the Law Society that he had been arrested on November 30, 2008 and faced various charges under the Criminal Code, to one of which he subsequently pleaded guilty and, among other things, was prohibited for one year from operating a motor vehicle. See generally Decision on Facts, paragraph [7] sub-paras. 7 through 11.
[27] Over a period of days beginning on December 8, 2008, the day he self-reported, the Respondent almost immediately entered into the various agreements that together embody the Underlying Obligations: Decision on Facts, paragraph [7] sub-paras. 7 through 13. So far as the evidence goes, he was not ordered by anyone to enter into these agreements. It seems that he may have done so at the suggestion of Mr. Derek La Croix, QC, the Executive Director of LAP.
[28] The Respondent testified that, at the time he assumed the Underlying Obligations, he was unfamiliar with the various programs to which they related; did not understand what they entailed; and did not have any advice. He said that he agreed to them because he was concerned that, if he did not do so, the Law Society might suspend him, thus impairing his ability to meet his financial obligations and that he might lose custody of his son – something that had apparently been threatened by his former wife.
[29] Initially, the Respondent complied with the Underlying Obligations. In the months after August 2009, however, and in particular from about March 2010, he began to default in various respects. The details of these defaults are set out in the Decision on Facts at paragraph [7] sub-paras. 17 through 36, and it is not necessary to repeat them here.
[30] The Respondent attributes his decision to cease attending meetings of AA as required by the Underlying Obligations to his conviction that the program rests on a religious foundation requiring him to “submit to a higher power”. He explained that he is an atheist and does not believe in a higher power. We note that certain addiction specialists whose reports are in evidence do not share his view. Despite this, we do not for a moment doubt that the Respondent’s belief about the nature of AA, whether or not well-founded, is entirely genuine. We note, however, that in his oral evidence on February 20, 2012 the Respondent testified that he had recently been attending AA meetings, though not within the framework of the Underlying Obligations. We say more about this below.
[31] The Respondent explains some of his other defaults – for example, his failure to provide urine verification of his abstinence from alcohol when this was demanded and to attend the required weekly number of mutual support meetings – on a variety of grounds, among them the financial burden that compliance entailed, particularly in view of his various financial obligations to his former wife and the fact that he was the sole support of his second wife and minor child, and to the logistical difficulties of getting to the prescribed locations at prescribed times, particularly when he had obligations to clients for attendances in court, given that for at least part of the period involved he was subject to a driving ban.
[32] As explanations, we readily accept all of this. What we find difficult to accept, however, is that any of it provides a justification or excuse for the Respondent’s defaults. The appropriate response to all of these difficulties and inconveniences was not to simply ignore the Underlying Obligations, but rather to seek to have them modified.
[33] The Respondent did, to be sure, approach the Law Society in February 2010 seeking relief from the requirement to undergo random urine and breath tests on the ground that they imposed an extremely burdensome financial obligation – though we note that this was more than a year after he assumed the Underlying Obligations and some eight months after the pattern of defaults began. The request was apparently referred to the Practice Standards Committee, which in March 2010 wrote advising that it had rejected the request and was referring some of his other defaults to the Discipline Committee. We note, as well, that at this time he did not raise his concerns about the requirement to attend meetings of AA. It was not until September 30, 2010 when, apparently in response to a letter from the Law Society that is not in evidence, the Respondent confirmed the reasons for his unhappiness with the requirements that he had agreed to, including his unwillingness to attend AA meetings, to provide the breath and urine tests as and when required or to attend LAP meeting as agreed.
[34] The proper professional response to the rejection of his attempts to secure a modification of his undertakings was not, as he did, to repudiate them entirely as emotionally, physically or financially inconvenient. It was, rather, to accept that they continued to be binding on him and to comply with them, meticulously and carefully. That is what the giving of an undertaking requires.
[35] In all of the circumstances we have been unable to persuade ourselves that the Respondent’s repeated and considered breaches of undertaking should be considered less serious than they appear to be on their face. The question before us in this respect is, therefore: what is the appropriate sanction for repetitive and seemingly deliberate breaches of undertaking simpliciter? That, as we have tried to explain, is not the same as the question as to the appropriate regulatory response, if any, to his seeming failure to acknowledge and secure appropriate treatment for his substance abuse. The fact that the Underlying Obligations may have arisen out of concerns related to the Respondent’s problems with alcohol does not create an analytical connection between that precipitating cause and the subsequent breaches of undertaking. In any event, there is not a scintilla of evidence that the Respondent’s failure to perform his Underlying Obligations was in any respect attributable to alcoholism.
[36] One of the requirements of the Underlying Obligations was that the Respondent “remain abstinent” from alcohol. The evidence indicates that he did not do so and that he did in fact consume liquor, albeit perhaps only occasionally, on special occasions and in relatively small amounts. In the present context it is not so much the fact that he did not comply that is important, but the explanation that he offered for this. In his oral testimony the Respondent sought to contend that all that he had undertaken to do was be abstemious, not abstinent, i.e. that he had not promised to cease and desist from all consumption of alcohol but only that he would consume alcohol on rare occasions, and then only in moderation. In our view that understanding of the meaning of “abstinent” is simply unsustainable as a matter of language. The Respondent is no fool. That he would advance such a contention is suggestive – we put it no higher than this – of a somewhat nonchalant approach to the performance of the obligations that he undertook. It is a suggestion that derives some support from the fact that while these proceedings were still in progress, he failed to honour certain undertakings that he had given in the IPA. See above, paragraph [5].
[37] Law Society of BC v. Goddard, 2006 LSBC 12, was also a breach of undertaking case. The single Bencher panel drew a distinction between:
[8] … those lawyers who professionally misconduct themselves because they are careless by reason of incompetence, laziness or they are just cavalier about the requirements of practice. The other category of cases where misconduct occurs is when a lawyer becomes overwhelmed with personal circumstances beyond his or her control, which then leads to a breach of his or her professional responsibilities. …
The panel considered that the facts in that case fell within the second of these categories. It continued:
[10] Balanced against the need to consider the Respondent’s personal circumstances is … the need to show the public that there are consequences when a lawyer breaches his or her responsibility.
[11] The Law Society of BC has recently taken a much sterner approach to breaches of undertaking … It must be clear to the Law Society’s members that if they breach their undertakings, there will be serious consequences. …
In that case the panel imposed a two-month suspension. In other cases, also involving breaches of undertaking, lengthier suspensions have been imposed.
[38] The consequences for the Respondent of a suspension, however short, are extremely serious. He is a husband and a father of two relatively young children. One of them is the child of a previous marriage that ended in divorce. He has financial obligations both to the child and his former wife. He is also, of course, responsible for the maintenance and support of his present family. His present wife works at home raising their child. He has had a history of financial difficulties, including a period of personal bankruptcy from which he has been discharged but which impairs his ability to obtain credit. For the greater part of his professional life he has been a sole practitioner doing criminal defence work. His practice income is relatively precarious, not least because he is not permitted to maintain a trust account and so cannot accept retainers from clients accused of crime. In effect he must extend them credit.
[39] A suspension, thus, is no small matter for the Respondent. It is also no small matter, however, that his breaches of undertaking have over several years been persistent, repetitive and knowing and that, as some of the matters to which we have referred above indicate, he appears not yet to fully accept the importance, to himself, to the Law Society and to others, of honouring his promises. In our view a sharp reminder of this seems necessary. We are not persuaded, however, that this can only be achieved by suspending him from practice.
[40] We think the objective would be equally well served by fining the Respondent for his breaches of undertaking and we think that, in all of the circumstances, a fine of $6,500 will achieve the desired objective. We so order.
[41] In coming to this conclusion we have not given any special or discrete consideration to the implications of the Respondent’s admission of conduct unbecoming a lawyer. It does not add anything to a consideration of the overall seriousness of his misconduct, considered on a global basis.
[42] As we have indicated, the Law Society has asked us to make an order pursuant to section 38(5)(c) of the Act requiring the Respondent to enter into a monitoring agreement with a physician acceptable to the Law Society and on terms satisfactory to the Society including requirements for:
i) regular random blood and urine testing, for a period of two years;
ii) attendance at LAP meetings and confirmation to the Law Society of such attendance;
iii) attendance at AA and/or similar meetings and confirmation to the Law Society of such attendance,
iv) and a requirement that the Respondent comply with the terms of the monitoring agreement,
and a provision that no variation of any provision of the monitoring agreement should be made except with the approval of the Discipline Committee.
[43] Section 38(5)(c) allows us to make such an order or something like it. Similar orders have been made in other cases – see, for example, Law Society of BC v. Short, 2009 LSBC 12.
[44] The following seem to be the facts that are relevant to whether an order along the lines proposed by the Law Society should be made with a view to addressing the Respondent’s underlying medical issues:
(a) He has acknowledged in the Agreed Statement of Facts that “he has encountered problems with alcohol abuse.” Decision on Facts, paragraph [7] sub 2.
(b) In October/November 2007 and again in August 2008 he voluntarily undertook alcohol rehabilitation programs. Decision on Facts, paragraph [7] sub-paras. 4 and 5.
(c) Between January 2009 and December 2011 two medical practitioners qualified to opine on addiction and the diagnostic criteria for alcohol dependence, expressed the opinion that the Respondent met those criteria. A third practitioner, a psychiatrist, expressed the opinion in a report dated September 6, 2011, that the Respondent met the diagnostic criteria for alcohol abuse. Each of these specialists recommended, in one form or another and with variations that for the moment are immaterial, that the Respondent continue with the activities that he had agreed to in the Underlying Obligations. Two of them emphasized the need for “complete abstinence”.
(d) One of the medical practitioners referred to above, Dr. Ray Baker, noted in his report in January 2009 that certain laboratory test results “suggest excessive alcohol consumption.” A second, Dr. Donald Hedges, referred in December 2011, to laboratory results that, in his opinion, “strongly suggest very significant and recent alcohol–induced liver toxicity.”
(e) On February 3, 2012 Dr. Hedges advised the Law Society that, at a meeting on February 1, 2012, the Respondent reported “abstinence from alcohol and compliance with the other terms of his Monitoring Agreement.” In an email to the Law Society on February 10, 2012 the Respondent’s counsel advised that had been told by his client that: (i) he would be contacting LAP with a view to arranging to attend meetings of the Personal Accountability Group (“PAG”), and (ii) he attended AA meetings in the period following the original hearing on Facts and Determination in December 2011 but not through LAP. In his testimony before us on February 20, 2012 the Respondent confirmed his attendance at AA and his abstinence. As to the former, while there is no detail in evidence, there is no evidence to the contrary; nor is there any evidence, one way or the other, about his attendance at PAG meetings under the auspices of LAP.
(f) On February 15, 2012 Dr. Hedges reported to the Law Society on the results of a random urine drug screen completed on February 9, 2012, in accordance, as we understand it, with the requirements of the IPA. Commenting on one of the results, Dr. Hedges observed that, although not conclusive, it “strongly suggests” the recent use of alcohol despite the Respondent’s commitment to complete abstinence.
(g) In January 2012, as he had agreed in the IPA (above, paragraph [4]), the Respondent underwent a further independent medical examination, this time with Dr. Clifford Chan-Yan. Dr. Chan-Yan was asked specifically to opine whether certain laboratory tests and other examinations performed by him, “indicate it is more likely than not that Mr. Markovitz has recently, or is, consuming alcohol heavily?” He was provided with copies of the reports of the three medical specialists referred to in paragraph [44](c) above. In his report dated February 15, 2012, Dr. Chan-Yan noted that he had been told by the Respondent that “he quit drinking hard liquor … but continues to consume an occasional glass of wine only on festive or special occasions.” This is consistent with other evidence before us. Dr. Chan-Yan concluded:
In my professional opinion, the liver enzyme abnormalities are suggestive of and compatible with recent and ongoing heavy consumption of alcohol but alone, are not diagnostic. Physical examination and other tests do not provide additional evidence to suspect ongoing heavy alcohol consumption. The recent liver ultrasound reveals impressive clearing of fatty liver which would be surprising and unlikely if heavy alcohol consumption was ongoing. Therefore, although it is possible, I cannot conclude that it is more likely than not that Mr. Markovitz has recently, or is, consuming alcohol heavily.
(h) Subsequent to Dr. Chan-Yan’s report, Dr. Hedges reported that he was “in complete agreement with” the former’s observations and conclusions but cautioned that “keeping in mind the diagnosis of (untreated) alcohol dependence and in the absence of convincing evidence of an alternative cause” for the indicia noted by Dr. Chan-Yan, “it remains my opinion that the most likely explanation … remains alcohol-related liver toxicity, probably from relatively recent significant alcohol consumption.” In our view the medical opinions provide only limited and somewhat qualified and inconclusive evidence to support the order sought by the Law Society.
(i) The Respondent testified before us that:
i. he is not dependent on alcohol;
ii. he has been abstinent or, more accurately in view of his evidence about recent occasional drinking, abstemious, for the past several years; and
iii. he has participated in an on-line course involving, as we understand it, personal goal setting.
[45] What are we to make of all this? In particular, does it cumulatively suggest grounds for making the order sought by the Law Society and requiring the Respondent to submit to a monitoring agreement of the sort proposed?
[46] Counsel for the Law Society referred us to a number of previously decided cases in which issues of this kind have been considered. We have not, with respect, found them especially helpful, either because they differ significantly on the facts or because they fail, in our respectful view, to recognize appropriately the difference between imposing a sanction and prescribing a treatment regimen.
[47] In some of them – for example, Law Society of BC v. Gellert, 2005 LSBC 15, Law Society of BC v. Morrow, [1995] LSDD No. 253 and Law Society of BC v. Dobbin, [2002] LSBC 16 – there was a finding that the member’s professional misconduct was attributable to an underlying medical condition such as depression, in Gellert and Dobbin, and alcoholism in Morrow. This also seems to have been the case in Law Society of BC v. Barton, 2004 LSBC 20. In some of these, moreover – and others, the member had agreed to submit to treatment regimens of one sort or another.
[48] In the case of Mr. Markovitz, however, there is simply no demonstrable connection between his professional misconduct and alcoholism. The unbecoming conduct to which he has admitted in response to the first allegation in the citation was, of course, directly related to his consumption of alcohol, but that was some four years ago.
[49] The Respondent denies that he currently has any problems with alcohol consumption, though we understand that denial is one of the symptoms of an untreated alcoholic. He denies that, except on a few specified and relatively special occasions, he has consumed any alcohol for the last few years. We acknowledge that there is a debate among certain highly regarded and qualified medical doctors as to whether the latter denial is sustainable or at least convincing and that they, and other qualified people, have recommended that Mr. Markovitz undergo a course of treatment for his past (and possibly present) problems with alcohol.
[50] The medical specialists have done what they are expected to do – give their best advice as to what the Respondent should do. None of them, we note, has said, either expressly or by implication, that unless he follows their recommendations the Respondent constitutes a present, a foreseeable or even a remote, risk of harm to clients, the public or the legal profession. Cf. Law Society of BC v. Watt, [2001] LSBC 16 at paragraph [24].
[51] In our respectful opinion no grounds have been shown to exist that would justify the making of an order imposing a monitoring agreement upon the Respondent, with all or any of the conditions proposed by the Law Society. We decline to make any such order.
[52] The Law Society has sought an award of costs in its favour in the amount of $7,000, including fees and disbursements. This represents approximately 33 per cent of the costs actually incurred – a ratio consistent with the usual method employed in these cases. See Law Society of BC v. McRoberts, 2011 LSBC 4, at paragraph [43]. We have been referred in this connection to the decision in Law Society of BC v. Racette, 2006 LSBC 29 in which, at paragraph [13], the panel set out certain factors to be taken into account in determining the reasonableness of an award of costs.
[53] What distinguishes this case from others in which the subject of costs has been considered is that here, although the Law Society has been successful in the sense that it has persuaded us that the Respondent’s misconduct deserves sanction, it has been unsuccessful in the sense that we have declined to make substantially any of the orders that the Society has sought. In our view this must also be taken into consideration. In the result, while the Law Society is entitled to some indemnification on account of its costs, we do not think that the amount claimed is reasonable in the circumstances. Our order, therefore, is that the Respondent pay the Law Society $3,500 by way of indemnification for its costs.
[54] In all of the circumstances we consider that the Respondent should be given time to pay both the fine and the costs awarded. He must pay the costs of $3,500 at the rate of $700 per month commencing on August 1, 2012; and the fine of $6,500 at the rate of $650 per month commencing on December 1, 2012.