Discipline digest

Please find summaries with respect to:

For the full text of discipline decisions, visit the Hearings reports section of the Law Society website.


RICHARD DONALD PAYNE

Port Coquitlam, BC
Called to the bar: May 11, 1982
Discipline hearing: November 10, 2010
Panel: David Mossop, QC (single Bencher panel)
Report issued: December 16, 2010 (2010 LSBC 28)
Counsel: Stephen B. Jackson for the Law Society and R. Keith Oliver for Richard Donald Payne

Facts

Between March 25 and May 21, 2010 the Law Society phoned Richard Donald Payne twice and sent three letters requesting a written response to a complaint made by a former client. Payne was advised of the deadlines for response; however, the Law Society did not receive a substantive written response to the complaint until August 2010.

Admission and disciplinary action

Payne admitted, and the panel agreed, that his failure to respond to Law Society communications in a timely manner was professional misconduct.

The panel considered Payne’s professional conduct record in determining penalty. He had a prior citation for failure to respond to the Law Society in 1995, which he admitted to in 1997.

The panel determined that there were some circumstances that could be viewed as mitigating. Payne’s admission in this case reduced the amount of time required to prepare and conduct the hearing. Also, aside from the issue of timeliness, his written response regarding the client complaint was deemed adequate for the purposes of the Law Society’s investigation.

Payne also submitted as a mitigating factor the unfortunate death of his father. The Law Society noted, however, that in his 1995 citation for failure to respond, the death of his mother was offered as a mitigating factor.

The panel decided that the most important factors in this case were the need for specific and general deterrence and to ensure the public’s confidence in the integrity of the legal profession.

The panel ordered Payne to pay:

1. a $4,000 fine; and

2. $1,000 in costs.


GEORGE COUTLEE

Kamloops, BC
Called to the bar: January 10, 1978
Discipline hearing: October 5, 2010
Panel: Bruce LeRose, QC, Chair, Ralston S. Alexander, QC and Leon Getz, QC
Report issued: December 16, 2010 (2010 LSBC 27)
Counsel: Maureen Boyd for the Law Society and George Coutlee on his own behalf 

Facts

In July 2006, George Coutlee was retained by a brother and sister to provide legal services with respect to the will and estate of a deceased relative. There was a dispute among the beneficiaries as to the proper administration of the estate and the validity of the will.

Representing these clients in a wills and estates matter, however, was contrary to an order made by a disciplinary hearing panel on January 13, 1997, under which Coutlee was suspended from the practice of law in all fields except for criminal defence and personal injury claims.

When the clients first met with Coutlee, they did not have any money to pay legal fees. Coutlee stated that he did not require payment of a retainer, and this was a factor in the clients’ decision to retain him.

In December 2006, at the request of one of the clients, Coutlee prepared a contingency fee agreement made as of September 1, 2006. While one of the clients signed the agreement, the other client refused.

In January 2007, the clients advised Coutlee that they no longer required his help and asked him to forward their file to a new lawyer. Coutlee initially refused to provide his personal notes and memoranda on the basis that this material belonged to him and he had not been paid for it.

One of these former clients subsequently made a complaint about Coutlee to the Law Society.

Admission and disciplinary action

Coutlee admitted that, in 2006 and 2007, he provided legal services in a wills and estates matter and that he knew that he was precluded from practising in such matters by the practice restriction imposed upon him by the 1997 hearing panel. He admitted that his conduct constituted professional misconduct.

In determining the appropriate disciplinary action, the panel took Coutlee’s admission into consideration along with a number of other key factors.

The panel noted the continuing nature of the misconduct over a period of approximately five months, but weighed this against the fact that this matter was the only evidence of a breach of the 1997 order.

Coutlee’s professional conduct record was reviewed by the panel. In addition to the hearing from which the practice restriction was ordered, there were several other unrelated incidents of misconduct. The earlier discipline outcomes indicated to the panel that the more benign penalties imposed were not sufficient to effect a modification of his behaviour.

It was the view of the panel that, given the significant unpleasantness for Coutlee that accompanied this disciplinary process, there was no likelihood of a recurrence of the offending behaviour.

Regarding the nature and gravity of the conduct, the panel found that the blatant disregard of a restriction on practice imposed by a hearing panel must be regarded as misconduct of a most serious nature. The panel agreed that Coutlee deserved some credit for his cooperation and that a more extensive suspension would have been imposed in the absence of this mitigating factor.

The panel decided it was necessary to communicate a condemnation of Coutlee’s behaviour for the benefit of other lawyers who might consider restrictions on practice areas to be more in the nature of guidelines than of prohibitions. It is imperative that the public interest is protected whenever restrictions on practice are imposed, and the panel wanted to ensure lawyers are clear that breaches of those prohibitions will be treated seriously.

The panel ordered that Coutlee:

1. be suspended from practice for one month; and

2. pay $5,000 in costs.


CLAYTON BRUCE WILLIAMS

Kelowna, BC
Called to the bar: May 20, 1994 
Discipline hearing: November 8, 2010
Panel: Gavin Hume, QC, Chair, Haydn Acheson and Thelma O’Grady
Report issued: December 22, 2010 (2010 LSBC 31)
Counsel: Maureen Boyd for the Law Society and Henry Wood, QC for Clayton Bruce Williams

Facts

Clayton Bruce Williams represented a client in legal matters arising from the expansion of some commercial property. He took instructions from a principal of the client. The principal resided in Halifax.

On September 4, 2009, the principal instructed Williams to immediately file a claim of builders lien on the property. Due to the differences in time zones between Halifax and Kelowna, there was some time pressure to complete the filing. Williams registered a lien against title to the property that day.

On September 9, 2009, the principal instructed Williams to remove the lien immediately. On the morning of September 10, he advised the principal that he would email a form of release that the principal would need to sign and return. He also told the principal that he would file an electronic release of the lien on the principal’s agreement to send the original to him.

Later that day, Williams received an emailed copy of the release of lien, which was signed by the principal, but his signature was not properly executed and witnessed. Due to the sense of urgency, he applied his electronic signature to the release of lien form and submitted it electronically to the Land Title Office, even though he knew that the release did not satisfy the requirements of the Land Title Act.

On October 20, 2009, Williams wrote to the Law Society and self-reported his conduct.

Admission and penalty

Williams admitted that he applied his electronic signature to an electronic document for filing in the Land Title Office when he knew a true copy of the document had not been properly executed and witnessed in accordance with the Land Title Act. He further admitted that his conduct constituted professional misconduct.

The panel stated that the electronic submission of improperly executed documents must be viewed as serious. As officers under the Land Title Act, lawyers play a key role in ensuring the integrity of transfer documents and safeguarding the system from fraud. Williams made a bad decision on the basis of expediency and client pressures.

Williams is also an example, however, of how a lawyer can exercise integrity and professionalism to take ownership of a mistake. His candid acceptance of responsibility, his self-reporting and his acceptance of the consequences to his professional reputation demonstrated a high level of integrity.

The panel concluded that Williams was guilty of professional misconduct and ordered that he:

1. be reprimanded; and

2 pay $2,000 in costs.


SANJEEV SANJ RAI

Surrey, BC
Called to the bar: May 23, 2001
Discipline hearing: November 24, 2010
Panel: David Mossop, QC (single Bencher panel)
Oral decision issued: November 24, 2010
Report issued: January 19, 2011 (2011 LSBC 02)
Counsel: Jaia Rai (no relation to the respondent) for the Law Society and William S. Clark and Scott Marcinkow for Sanjeev Sanj Rai

Facts

From February 2004 to February 2005, Sanjeev Sanj Rai represented multiple parties in 12 real estate transactions involving mortgage financing, which were referred to him by the same realtor. All of the properties were condominiums. The transactions were fraudulent and part of a sophisticated scheme designed by the realtor to obtain mortgage proceeds under false pretences.

The realtor referred each of the transactions to Rai after the respective contracts of purchase and sale and addenda, where applicable, had already been purportedly executed by the parties. At the realtor’s direction, Rai did not take instructions from his purchaser clients to perform any strata specific searches.

In four of these transactions, Rai did not prepare all of the relevant documentation, meet with all of the clients, or oversee all of the closings, because he was out of the country for three weeks. Instead, he improperly delegated various duties to his staff who worked on these transactions unsupervised for the most part.

Overall, Rai failed to make any inquiries to assess the bona fides of the transactions or his purchaser clients, who were not at arm’s length from the realtor. He failed to recognize the fraudulent nature of the scheme and the many red flags raised by the characteristics of the transactions.

In addition, he failed to disclose material facts to his lender clients, and failed to provide adequate legal advice to, and protect the interests of, his purchaser and lender clients. He also abdicated his professional responsibility by improperly delegating tasks to support staff and representing various parties while in a conflict of interest.

Admission and disciplinary action

Rai admitted that his conduct in each of the allegations constituted professional misconduct. With respect to the mortgage fraud allegation, he admitted that he ought to have known the scheme was fraudulent. He did not admit to knowing at the time that the transactions were fraudulent, and the Law Society accepted that this admission was consistent with the evidence.

Lawyers have an obligation to the public to be vigilant. The misconduct in this case was extremely serious, notwithstanding that Rai did not knowingly facilitate mortgage fraud.

In determining the appropriate penalty, the panel took mitigating factors into consideration.

The fraudulent mortgage transactions occurred in a rising real estate market and at a time when there was minimal, if any, publicity or information about fraudsters targeting lawyers to facilitate mortgage fraud.

Rai had a professional conduct record and was subject to practice supervision by another lawyer from December 2004 to July 2006 and practice reviews by the Law Society from November 2004 to May 2007. This period of supervision was overlapping with the transactions that occurred between February 2004 and February 2005.

The panel recognized that Rai’s misconduct stemmed from his inexperience in the area of real estate law. His actions were not motivated by personal gain and did not result in any financial benefit beyond the modest fees billed for the work performed. It also appeared that the lenders who may have suffered a loss as a result of Rai’s conduct have recovered their losses.

In this case, an oral decision was given before the written reasons to enable the suspension to begin shortly after the hearing.

The panel ordered that Rai:

1. be suspended for three months; and

2. pay $11,500 in costs.


RANDALL KEITH McROBERTS

Invermere, BC
Called to the bar: September 16, 1974
Discipline hearings: November 20, 2009 and February 1, 2010 (facts and verdict) and November 1, 2010 (penalty)
Panel: Richard Stewart, QC, Chair, Kathryn Berge, QC and David Mossop, QC
Reports issued: July 27, 2010 (2010 LSBC 17) and February 14, 2011 (2011 LSBC 04)
Counsel: Maureen Boyd for the Law Society and Henry Wood, QC for Randall Keith McRoberts

Facts

In 1994, Randall Keith McRoberts began representing a non-profit service club on a pro bono basis.

The club was given ownership of real property on the condition that it be used for a golf course or some other community purpose. McRoberts represented the club in pursuing an easement from an adjacent property for the purpose of drawing water from a nearby lake.

In August 1995, McRoberts sent a form of easement in favour of his client to the owners of the adjacent property, who were unrepresented by counsel. He requested the return of both executed documents on his undertaking not to use the document or register same unless the golf course development was actually going to proceed and he had the written permission of the owners to register the easement.

In June 1996, McRoberts breached his undertaking when he registered the easement in the Land Title Office without obtaining the written permission of the owners. His explanation for the breach was that he did not remember that he had given the undertaking.

Verdict

McRoberts admitted that he breached the undertaking; however, he did not admit to professional misconduct. The hearing panel considered the proper interpretation of the “marked departure test” for professional misconduct in the context of a lawyer forgetting about an undertaking, and whether, in this case, the exception for honest mistake applied.

The panel found that McRoberts’ conduct was of a serious nature that went to the heart of his obligations as a lawyer. These circumstances were clearly a marked departure from the standard expected of a lawyer, and there was no evidence that would support a defence of innocent mistake.  The panel determined that McRoberts had committed professional misconduct.

Penalty

The panel considered a number of factors in determining penalty. The subject matter was a community project, and legal services had been provided on a pro bono basis. McRoberts had registered the easement because his client had indicated that it was permissible to do so, and he did not remember that he had given the undertaking. He admitted to the panel that he had made a mistake.

McRoberts has a conduct record, but no misconduct dealing with undertakings. Numerous letters of support were submitted by his fellow lawyers stating that he had given many undertakings and fulfilled all of them.

This breach occurred over 14 years ago and the original complaint was made in 2004. Counsel for McRoberts submitted that the panel should look at the lower penalties imposed at that point in time. The panel agreed in these circumstances, but was not prepared to accept this as a general proposition.

The panel ordered McRoberts to pay:

1. a $1,000 fine; and

2. $2,000 in costs.


BRADLEY DARRYL TAK

Port Moody, BC
Called to the bar: February 15, 1991
Discipline hearings: December 6, 2010 and January 27, 2011
Panel: Joost Blom, QC, Chair, David Mossop, QC and Kenneth Walker
Reports issued: January 6, 2011 (2011 LSBC 01) and February 17, 2011 (2011 LSBC 05)
Counsel: Maureen Boyd for the Law Society and Bradley Darryl Tak on his own behalf (facts and determination); Maureen Boyd for the Law Society and Gordon Kehler for Bradley Darryl Tak (disciplinary action)

Facts

Between May and July 2010, Bradley Darryl Tak failed to respond to numerous requests for information from the Law Society regarding a client complaint. He also did not reply promptly to a subsequent letter from the Law Society requesting a meeting to obtain explanations about certain files, records, accounts and other evidence.

Since the facts and determination phase of this proceeding, Tak was suspended from practice on December 7, 2010 for failure to file his trust report for 2009. That suspension came to an end on January 5, 2011 when he filed the report.

In the meantime, he ceased membership in the Law Society on January 1, 2011 for non-payment of fees. Pursuant to Law Society requirements, his practice was put into the hands of a locum. Tak intends to apply for reinstatement.

Determination

The panel found that Tak had committed professional misconduct by failing to comply with requests for information made by the Law Society in its regulatory capacity. Failure to respond is serious because of the vital public interest in maintaining the Law Society’s ability to investigate complaints promptly and effectively.

Tak’s misconduct was aggravated by the fact that, within the last year and a half, he had already been disciplined twice for failing to respond to the Law Society. He was under a 45-day suspension during many of the events in this case.

Tak’s counsel submitted that his misconduct was not chronic, but situational, resulting from an accumulation of pressures in his personal life. The panel noted indications that he was taking steps to deal with his financial and organizational problems and the emotional difficulties that seemed to underlie them.

Two letters from lawyers who had knowledge of Tak’s practice described him as a competent and hard-working lawyer. It was in his favour that he practised for about 17 years without any problems relating to his professional conduct. But that has to be considered against the string of largely interrelated disciplinary proceedings since July 2009.

Disciplinary action

Since Tak’s pattern of misconduct persisted after a 45-day suspension was ordered for previous failures to respond, the panel determined that the disciplinary measure in this case must be a substantially longer suspension.

The panel ordered that Tak:

1. be suspended for four months; and

2. pay $2,500 in costs.


DOUGLAS WARREN WELDER

Kelowna, BC
Called to the bar: May 12, 1981
Discipline hearing: March 3 and 4, 2010
Panel: Leon Getz, QC, Chair, Robert Brun, QC and Alan M. Ross
Bencher review: December 8, 2010
Benchers: David M. Renwick, QC (Chair), Haydn Acheson, Rita Andreone, Patricia Bond, David Crossin, QC, David Mossop, QC, Thelma O’Grady and Gregory Petrisor
Oral decision issued: March 4, 2010
Reports issued: March 24, 2010 (2010 LSBC 05) and February 18, 2011 (2011 LSBC 06)
Counsel: Maureen Boyd on behalf of the Law Society and Douglas Warren Welder on his own behalf (facts and verdict); Thomas R. Manson, QC on behalf of the Law Society and Douglas Warren Welder on his own behalf (review)

Facts

On May 1, 2007 the Law Society began investigating a complaint about the alleged participation of Douglas Warren Welder in a fraudulent Ponzi scheme. Two days later, a class proceeding was commenced against Welder and another lawyer, alleging fraud, breach of trust and breach of fiduciary duty.

The Law Society sought confirmation of all trust and general accounts to which Welder was signatory during the period of investigation from April 2004 to November 2007. During the field investigation, Welder provided the Law Society with limited access to two trust accounts and one general account. The Law Society had reason to believe that he had other bank accounts for his law practice. Welder advised that he was not prepared to grant access to any other bank accounts.

The Law Society made further requests for information from Welder; some of those requests were answered and some were not. As a result, the Law Society issued a citation with a three-part allegation against Welder for:

(a) not responding to the Law Society’s December 8, 2008 letter requesting details of any bank accounts which hold or held trust or general funds for the period of investigation and not providing an explanation for continuing to deny the Law Society access to the records for those accounts;

(b) not providing access to all trust and general bank account records; and

(c) failure to respond to questions in the Law Society’s letter of April 17, 2009.

Determination

Welder argued that the Law Society was seeking access to his private bank accounts. Throughout the investigation and audit, the Law Society was only interested in the banking records that pertained to his law practice. He also argued that, since he told the Law Society about his three bank accounts, there was nothing further he could tell them. This argument ignores his responsibility to respond to the Law Society’s letters and to cooperate with the investigation.

Welder testified that during the relevant period he operated a total of three bank accounts relating to his practice. It was only during the course of the hearing that Welder provided this confirmatory evidence about his bank accounts, despite being given several opportunities to provide that information in writing to the Law Society.

The panel found that, if no other bank accounts existed, there was no evidence that Welder failed to provide details of the other accounts. The panel dismissed allegations (a) and (b) and found that Welder had committed professional misconduct in allegation (c).

The Discipline Committee initiated a Bencher review of the dismissal of allegation (a).

Bencher review

The Benchers determined that the hearing panel asked itself the wrong question or embarked upon the wrong inquiry. In allegation (a), Welder was cited for not responding to a number of letters; he was not cited for failure to provide details about non-existent bank accounts.

There is an obligation on lawyers to reply promptly to any communication from the Law Society. During an investigation or audit, a lawyer may be asked oral questions by Law Society staff. Later, the staff may ask the same or similar questions for clarification or to have a written record of the lawyer’s answer. A lawyer who feels that the questions are repetitive or unnecessary, however, cannot ignore the questions as Welder did.

The Benchers concluded that allegation (a) was proven and amounted to professional misconduct. The matter was referred back to the hearing panel to consider submissions on the appropriate disciplinary action for allegations (a) and (c).


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