Please find summaries with respect to:
For the full text of discipline decisions, visit the Regulation & Insurance / Regulatory Hearings section of the Law Society website.
Called to the bar: February 15, 1991
Discipline hearing: March 23, 2010
Panel: Leon Getz, QC, Chair, Patricia Bond and Robert Brun, QC
Report issued: March 31, 2010 (2010 LSBC 06)
Counsel: Maureen Boyd for the Law Society and Richard Fernyhough for Kheng-Lee Ooi
In September 1996, Kheng-Lee Ooi represented a client in the purchase of a property. In July 2007, the client was in arrears of $61,155 on mortgage payments, owed $16,668 in unpaid property taxes and $21,000 in credit card debt.
At her client’s request, Ooi contacted the bank to obtain the amount required to reinstate her client’s accounts in good standing and avoid foreclosure on the mortgages. As her client did not qualify for a loan from a trust company, a loan from a private investor was necessary to pay the bank.
In August 2007, Ooi advised her client about a company offering a $150,000 loan, with a $10,000 administration fee and 10% interest per annum. Ooi prepared the loan documents in English even though her client could only speak Mandarin. The client believed that the term of the loan was for one year.
Ooi did not disclose to her client that the principal of the company loaning the funds was Ooi’s husband. She failed to explain the principle of undivided loyalty and the effect of joint representation. Ooi also failed to obtain the informed consent of each client for continued representation or recommend that her client obtain independent legal advice.
Through August and September 2007, the loan funds were used to pay the client’s debts. On November 30, 2007, the full amount of the loan was due and payable, under the written terms of the promissory note. The client did not repay any part of the principal of the loan.
Ooi’s husband commenced an action against her client in December 2007. She subsequently referred her husband to another lawyer and a Notice of Change of Solicitor was filed in the action. Ooi faxed documentation containing confidential information about her client to her husband’s new lawyer.
On May 6, 2008, Ooi, her husband and a company employee went to her client’s home to serve her with a Writ of Summons and other legal documents. When no one answered, they entered the home through the garage. A confrontation ensued with the client who then learned about the source of the loan.
On June 10, 2008, the client hired a lawyer who made a complaint about Ooi to the Law Society.
Admission and penalty
Ooi admitted that her clients’ interests in the loan transaction were adverse to each other and her own interests and that her conduct in acting in a conflict of interest without the required disclosures and consents constituted professional misconduct. She also admitted that disclosing confidential information concerning the business affairs of her former client and entering the former client’s residence without invitation constituted conduct unbecoming a lawyer.
The panel accepted her admissions and proposed penalty. The panel ordered that Ooi:
1. be suspended for six weeks; and
2. pay $2,500 in costs.
David William Blinkhorn
Called to the bar: May 19, 1989
Ceased membership: January 1, 2007
Disbarred: April 21, 2010
Hearing dates: May 12, 2009 and April 12, 2010
Panel: Leon Getz, QC, Chair, Haydn Acheson and Herman Van Ommen
Reports issued: August 12, 2009 (2009 LSBC 24) and April 21, 2010 (2010 LSBC 08)
Counsel: Jaia Rai for the Law Society; no one on behalf of David William Blinkhorn (facts and verdict) and David William Blinkhorn on his own behalf (penalty)
In two agreed statements of fact, David William Blinkhorn admitted that he:
- misappropriated trust funds;
- breached undertakings to hold funds in trust;
- misled a client on the status of her case;
- misled the Law Society by stating that he had paid the account of another lawyer when he had not done so; and
- breached a variety of Law Society rules relating to trust accounting records.
Between 1999 and 2006, Blinkhorn stole and lied repeatedly and did not keep any records of any kind. In giving evidence at his penalty hearing, he said that he did not know whether the misappropriated sums in the agreed statements of fact were accurate because the only records he had were retrospective reconstructions.
At the hearing, Blinkhorn candidly said several times that he was not currently capable of practising law. The central theme of his representations, both as a witness and as counsel on his own behalf, was that his conduct was the product of acute depression and melancholy that had caused him to make “very bad decisions.” His explanations, however, amounted largely to a self-diagnosis, and he did not provide an independent professional opinion as evidence to support that he was under treatment.
Blinkhorn has not practised as a lawyer since May 2006 when he was suspended for failure to file a completed Trust Report for the period ending November 30, 2005.
Blinkhorn admitted that his conduct constituted professional misconduct. The panel found that the conduct showed “a marked departure from the standard of conduct the Law Society expects of its members” and accepted the admission. The panel further found that he breached the Law Society Rules in failing to keep proper trust accounting records.
The panel determined that Blinkhorn’s explanations for his conduct did not meet the test of being compelling evidence of extraordinary mitigating circumstances sufficient to satisfy the panel that the protection of the public interest and reputation of the profession do not require disbarment. He admitted that he knew what he was doing when he did it and that he knew that it was wrong. The panel concluded that, by any objective measure, his conduct was disgraceful and dishonourable.
The panel ordered that Blinkhorn:
1. be disbarred; and
2. pay $37,000 in costs.
Trust protection coverage
In every profession, there are occasionally members who are dishonest. Although not all professions or industries protect victims of their dishonest members, the legal profession in BC has, since 1949, provided financial protection to members of the public whose money has been stolen by their lawyer. If a claim is made against a lawyer relating to the theft of money or other property, Trust Protection Coverage (TPC) is available under Part B of the lawyer’s insurance policy to reimburse the claimant, on the lawyer’s behalf, for the amount of the loss.
Based on the circumstances described in paragraph  (13) of Law Society of BC v. Blinkhorn, 2009 LSBC 24, a TPC claim was made against David William Blinkhorn and the amount of $11,235 paid. Blinkhorn is obliged to reimburse the Law Society in full for the amount paid under TPC.
For more information on TPC, including what losses are eligible for payment, see Regulation & Insurance / Trust Protection Coverage on the Law Society’s website at lawsociety.bc.ca.
Henry Alexander (Sandy) McCandless
Called to the bar: May 17, 1971
Ceased membership: January 25, 2008
Disbarred: April 30, 2010
Discipline hearings: November 16 to 19, 2009 and January 14, 2010 (facts and verdict); April 21, 2010 (penalty)
Panel: Bruce LeRose, QC, Chair, Haydn Acheson and William Jackson, QC
Reports issued: February 1 (2010 LSBC 03) and April 30, 2010 (2010 LSBC 09)
Counsel: Jaia Rai for the Law Society; H.A. (Sandy) McCandless on his own behalf (facts and verdict) and no one on behalf of H.A. (Sandy) McCandless (penalty)
From November 2005 to July 2007, Henry Alexander (Sandy) McCandless was involved in an investment scheme. He represented a client who participated in the scheme and engaged in conduct intended to give shareholders the impression that their investment was secure and continuing to generate earnings.
After being specifically advised that two government securities regulators were investigating the investment as a fraudulent scheme, McCandless failed to warn investors of the risk. He allowed his position as a lawyer to give credibility to the suspect scheme.
He further facilitated the continuation of the scheme by investing his own money while in a clear conflict of interest. He also accepted funds into his trust account in circumstances that required him to decline to accept or return such funds.
McCandless, and the investors who relied on his status as a lawyer, lost thousands of dollars.
McCandless firmly held the position that the scheme was not fraudulent until well after being confronted with the investigation of the Law Society. He failed to adhere to warnings that the investment scheme may be fraudulent and continued to believe in the legitimacy of the scheme in circumstances that any prudent lawyer would not.
The panel found McCandless guilty of professional misconduct for engaging in conduct that gave shareholders the impression that their investments were secure, for placing himself in a conflict of interest, for acting in a manner that had the potential of perpetuating a fraud and for not giving full and proper legal advice.
McCandless did not appear at the scheduled penalty hearing; however, the panel decided to proceed in his absence.
The proven misconduct in this case was extremely serious, exposed the public to considerable harm, and tainted the reputation of the legal profession. In order to maintain the public’s confidence in the legal profession, a significant disciplinary response was warranted.
The panel found that McCandless had an almost “blind faith” in the investment scheme and its principals at the expense of his client and members of the public without even an acknowledgment that he should have known better.
His professional conduct record revealed an inability to learn from Law Society intervention and prior discipline. There were five incidents of discipline from 1979 to 2005, which demonstrated a pattern of misconduct resulting from his lack of objectivity and professional judgment and his failure to recognize classic conflicts of interest.
In determining costs, the panel considered the seriousness of McCandless’ misconduct, the indication that he was in dire financial straits, his ability to generate income and his right to have his case heard.
The panel ordered that McCandless:
1. be disbarred; and
2. pay costs of $47,000.
Called to the bar: May 19, 2000
Discipline hearing: March 31, 2009
Panel: David Renwick, QC, Chair, Rita Andreone and Peter Lloyd
Report issued: May 6, 2010 (2010 LSBC 10)
Counsel: Maureen Boyd for the Law Society and James Hu on his own behalf
In April 2008, a Law Society compliance audit revealed that James Hu, a sole practitioner, had not maintained books and records in compliance with the Rules. The auditor returned to Hu’s practice on June 25 and 26, 2008 to further discuss the deficiencies and prepare a final report.
On June 28, 2008, two days after the auditor’s visit, Hu completed his 2008 Trust Report. He certified that all of the information was true and accurate, when he knew that the answers to several questions were not true.
A follow-up compliance audit in October 2008 determined that Hu’s books and records were still not being maintained in substantial compliance with the Rules. He was advised to expect a compliance audit in one year’s time and that he was required to provide monthly summaries and trust reconciliations in the interim.
In December 2008, the Law Society asked Hu to explain why his 2008 Trust Report contained untrue answers. His reply letter acknowledged the inaccuracies and explained that he was trying to correct the deficiencies. In May 2009 the Law Society sought an explanation from him regarding untrue answers in his 2007 Trust Report. He replied that he had difficulties with his accounting software and it was his intention to bring himself into compliance with the requirements.
The panel found Hu’s conduct to be serious as it involved “truthfulness.” The panel also took into consideration that Hu’s inaccurate answers did not provide him with any monetary benefit; he had no professional conduct record; he was cooperative and made progress in achieving compliance; and his conduct fell short of deliberate conduct intending to deceive.
Admission and penalty
Hu admitted that he gave untrue answers to several questions in his 2007 and 2008 Trust Reports and that his conduct constituted professional misconduct. The panel accepted his admission and ordered that he pay:
1. a $7,500 fine; and
2. $2,000 in costs.
Robert John Cuddeford
Maple Ridge, BC
Called to the bar: May 4, 2001
Discipline hearing: May 5, 2010
Panel: Kenneth Walker (single Bencher panel)
Report issued: May 11, 2010 (2010 LSBC 11)
Counsel: Eric Wredenhagen for the Law Society and Robert Cuddeford on his own behalf
In October, November and December 2009, Robert John Cuddeford received letters and telephone messages from the Law Society regarding a complaint about him. He chose not to reply because he was concerned his written response might be used by the complainant in an action in the courts.
Cuddeford was not aware that the Legal Profession Act makes communications with the Law Society concerning an investigation of a complaint inadmissible in court proceedings, except with the consent of the lawyer. The panel noted that his decision not to respond was misguided and that he ought to have retained counsel to assist him with this issue, as suggested in the Law Society’s letters.
At the hearing, Cuddeford explained that the complainant was difficult and had a history of complaining about him. The panel found that an aggravating factor was that he had been slow to reply to communications from the Law Society in the past on a related complaint from this complainant. His failure to provide a timely response interfered with the statutory obligation of the Law Society to investigate complaints.
The panel urged Cuddeford to take advantage of the Law Society’s online Communications Toolkit training module.
Admission and penalty
Cuddeford admitted that his failure to respond to Law Society communications constitutes professional misconduct. The panel accepted his admission and ordered that he:
1. pay a $2,000 fine;
2. pay $1,000 in costs; and
3. respond to the Law Society’s October 2009 letter.
Bradley Darryl Tak
Port Moody, BC
Called to the bar: February 15, 1991
Discipline hearings: January 27 (facts and verdict) and April 8, 2010 (penalty)
Panel: David Renwick, QC, Chair, Leon Getz, QC and Thelma O’Grady
Reports issued: April 7 (2010 LSBC 07) and May 14, 2010 (2010 LSBC 13)
Counsel: Eric Wredenhagen for the Law Society and Bradley Darryl Tak on his own behalf
In September 2008, Bradley Darryl Tak accepted a $2,000 cash retainer from a client. He subsequently failed to respond to his client’s repeated telephone calls and messages. As a result, the client could not determine what, if any, steps Tak had taken on his behalf.
Upon receipt of the client’s complaint, the Law Society was also unsuccessful in reaching Tak by phone and email. A personally delivered letter finally prompted a response that he would reply to the Law Society on or before November 13, 2009. The Law Society received a letter from him on December 14, 2009. He admitted that he had met with the client and received a retainer in cash; however, he failed to fully provide the information requested.
At the time of the hearing, the panel did not know if the retainer was used since no statement of account was provided, nor did they know if it was retained or forwarded to the new lawyer. Following the hearing, Tak did provide the Law Society with a copy of his trust ledgers and records relating to receipt and deposit of the client’s cash retainer.
Tak did not present any evidence that would excuse his conduct. The panel found that his failure to substantively respond to repeated requests from the Law Society amounted to professional misconduct.
The panel stated that this type of misconduct goes to the heart of the Law Society’s ability to govern the profession. Their concern was amplified by the fact that Tak had been found guilty of professional misconduct in July 2009, less than a year earlier, for similar conduct in another matter.
The panel ordered that Tak:
1. be suspended for 45 days; and
2. pay costs of $2,500.
Douglas Edward Arthur LeBeau
Called to the bar: May 3, 2004
Discipline hearing: May 6, 2010
Panel: Gavin Hume, QC (single-Bencher panel)
Report issued: May 14, 2010 (2010 LSBC 12)
Counsel: Maureen Boyd for the Law Society and Michael A. LeBeau on behalf of Douglas Edward Arthur LeBeau
In 2009, Douglas Edward Arthur LeBeau was retained by a bank to prepare and register mortgages on certain properties. The Law Society received complaints from two representatives of this bank alleging that, despite several attempts, they were unable to contact him to obtain final reports in these matters.
LeBeau also failed to respond to letters and telephone messages from the Law Society with regards to these complaints. He was personally served on March 24, 2010 with affidavits and a cover letter, advising that failure to respond to Law Society communications was a serious matter and could constitute professional misconduct.
Immediately before the discipline hearing, LeBeau resigned as a member of the Law Society and indicated that he had no intention of returning to the practice of law.
The panel determined that LeBeau’s failure to respond to Law Society communications was professional misconduct
The panel decided that a fine was unnecessary given LeBeau’s resignation. Counsel for LeBeau indicated that he had taken responsibility for LeBeau’s files and was responding to the concerns of the complainants. The panel, therefore, found it unnecessary to order that LeBeau do so. The panel ordered that LeBeau:
1. be reprimanded; and
2. pay $1,500 in costs.
Called to the bar: May 21, 2003
Discipline hearing: March 25, 2010
Panel: Gavin Hume, QC, Chair, Bruce LeRose, QC and Thelma O’Grady
Report issued: May 18, 2010 (2010 LSBC 14)
Counsel: Eric Wredenhagen for the Law Society and Richard Fernyhough for Fiesal Ebrahim
In April 2008, Fiesal Ebrahim, a sole practitioner, acted for two clients with respect to their purchase of three residential strata lots that were being developed. The clients purchased one of these lots as an investment property, which they were planning to “flip.” When the developer went into receivership, the clients decided to assign their right to purchase this investment property lot to a third party, a person who was well known to them.
The third party was unrepresented and, between June and October 2008, paid deposits totalling $280,500 to Ebrahim’s trust account. Two days before the scheduled closing in November 2008, the receiver granted the clients an extension of the completion date for all three lots on the condition that the deposit on each lot would be increased.
The clients instructed Ebrahim to take the additional deposit for their two lots out of the funds in the trust account. At that time, his clients did not have funds in trust. On advice from one of his clients, he believed that the third party was agreeable to his funds being used in this manner. The third party, however, was unaware that his trust funds were being paid out to the receiver to the credit of Ebrahim’s clients.
Ebrahim failed to advise the third party, an unrepresented person, that he was not protecting his interests in the transaction. He also committed a breach of trust by improperly applying trust funds provided to him by the third party for the benefit of his clients’ purchase of the two lots in which the third party had no interest.
The panel found no evidence that Ebrahim acted with dishonest intent with respect to the trust funds, nor any suggestion that he benefited or stood to benefit personally from any of the breaches that occurred. The panel took into consideration that he had only practised law for five years and had no prior discipline record. When he realized his mistakes, he took immediate steps to rectify them and reported himself to the Law Society. He has since taken a conflicts course and the Sole Practitioner course, upgraded his software, and arranged for a senior practitioner to mentor him.
Admission and penalty
Ebrahim admitted that his conduct amounted to professional misconduct. The panel accepted his admission and ordered that he pay:
1. a $3,000 fine; and
2. $1,500 in costs.
Called to the bar: August 1, 1985
Discipline hearing: May 18, 2010
Panel: Bruce LeRose, QC, Chair, Joost Blom, QC and David Crossin, QC
Report issued: May 26, 2010 (2010 LSBC 15)
Counsel: Maureen Boyd for the Law Society and Marianne Walters on her own behalf
In March 2008, Marianne Walters was retained to commence Supreme Court proceedings for divorce, division of assets and debts, child support, and primary or shared residence of a child on behalf of her client, the husband. The client’s wife was the registered owner of real property, and Walters filed a certificate of pending litigation (CPL) against this property.
On April 23, 2009, the wife’s lawyer requested a payout statement to discharge the CPL for the purpose of refinancing the property. Walters proposed to release the CPL on the conditions that the wife consent to reducing child support payments and sign a passport application for the child.
Following a conversation with opposing counsel, Walters believed it was agreed that she would not release the CPL until she received the completed passport application for the child and the Consent Order had been entered.
Walters received a Consent Order to reduce child support payments and a signed passport application for the child on May 7, 2009, subject to a trust condition. A covering letter from opposing counsel set out that the documents were forwarded on her undertaking that she would forthwith release the CPL that was registered by her client in the Land Title Office.
The refinancing of the property did not proceed, and the client’s wife entered into a contract to sell the property, with a completion date of July 15, 2009. Although Walters knew that the refinancing was not proceeding, she was not aware of the pending sale prior to June 12, 2009, when she obtained a release of the CPL.
Walters breached the undertaking when she submitted the Consent Order for filing without having taken any steps to release the CPL. She did not submit for registration a discharge of the CPL until mid-June 2009.
The panel found that the breach of undertaking in this case was a clear, marked departure from conduct the Law Society expects of lawyers and that Walters was culpable. A breach of undertaking is a serious form of misconduct. In this case, there are some mitigating factors.
Walters had previously discussed the terms on which the documents would be sent, and had expected the terms would be different than the terms set out in the letter dated May 7, 2009. She did rectify the breach and comply with the terms of the undertaking when she submitted the discharge of the CPL for filing on June 12, 2009. No harm resulted from the breach.
An aggravating factor, however, is Walter’s professional conduct record, which consists of two conduct reviews in 2002 and 2005, and one citation that resulted in a finding of professional misconduct.
Admission and penalty
Walters admitted that on May 7, 2009 she received an executed Consent Order and a passport application sent to her on an undertaking that she forthwith release a Certificate of Pending Litigation. She further admitted that she breached the undertaking when she used the Consent Order for the benefit of her client but did not take any steps to release the CPL until June 12, 2009.
The panel accepted Walters’ admission that her conduct constituted professional misconduct and ordered that she pay:
1. a fine of $3,500; and
2. $1,500 in costs.