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For the full text of discipline decisions, visit the Hearings reports section of the Law Society website.
Called to the bar: May 17, 1991
Discipline hearing: March 2, 2011
Panel: David Renwick, QC, Chair, Leon Getz, QC and Kenneth Walker
Report issued: April 15, 2011 (2011 LSBC 12)
Counsel: Maureen Boyd and Carolyn Gulabsingh for the Law Society and Leonard Doust, QC for Mark Ronald Epstein
In November 2006, Mark Ronald Epstein was retained by a California resident who was the executrix of her deceased partner’s estate. The client believed that her partner’s principal asset was an interest as one of three tenants in common in valuable property in Whistler. There had been a disagreement with the two co-owners, and she wished to transfer her partner’s interest in the property to his estate.
During the initial conversation, Epstein did an online title search and advised the client that the deceased partner was registered as an owner of the property. He failed to notice, however, that the search revealed that the title had been cancelled in July 2006.
In January 2007, Epstein sent a formal retainer letter to his client. The letter was signed and returned with a $1,000 retainer.
In February 2007, Epstein did another online search and, once again, failed to notice that the title had been cancelled and ownership of the property had been transferred to the other two co-owners. He did not do a proper or complete property search.
In March 2007 Epstein notified his client that he was in the process of filing a Caveat on the property. He did not, however, file the Caveat or take any other steps to probate the estate. He did not think there was any urgency in proceeding with the probate of the estate or the filing of a Caveat because he did not know of the transfer of title in 2006.
The client contacted Epstein in June 2007, after numerous attempts, and was informed that a title search had been conducted and that a Caveat was being placed on the property.
In September 2007, the client consulted another lawyer. She learned that the property had been sold pursuant to an Order of the Supreme Court and that title to the property had been transferred in July 2006. The Court then ordered payment to the client of $43,200 that had been paid into Court. She paid additional legal fees to resolve matters related to the estate’s interest in the property and the proceeds from its sale.
Epstein subsequently left the client a voicemail message apologizing for his delay and his oversight in not reading the title search properly. He also refunded the $1,000 retainer.
Admission and disciplinary action
The panel noted that Epstein was the subject of conduct reviews in October 2000 and September 2006 related to inattentiveness and lack of care in performing fairly basic procedures. Also in 2006, there was evidence of disorganization in the conduct of his practice which resulted in a practice review and some detailed recommendations.
In this case, Epstein’s misconduct consisted of failing to perform accurately the fairly elementary task of reading carefully the results of a title search, failing in a timely way to advance his client’s objectives and carry out her instructions, and failing to respond in a timely way to his client’s enquiries. Although, to his credit, he apologized to his client and refunded her retainer, the panel was concerned about a recurring pattern of carelessness and inattention that has continued despite prior remedial and disciplinary intervention by the Law Society.
Epstein admitted that he did not serve his client in a conscientious, diligent and efficient manner so as to provide a quality of service at least equal to that which would be expected of a competent lawyer. He admitted that his conduct constituted professional misconduct.
The panel accepted his admission and ordered that he pay:
1. a $4,500 fine; and
2. $2,000 in costs.
Discipline hearings: July 24 and 25, 2007, 11 days between September 8 and November 13, 2008 and December 5, 2009
Panel: Gordon Turriff, QC, Chair, (concurring decision) David Renwick, QC and Warren Wilson, QC
Bencher review: Oral decision - September 1, 2010 (supplemental notice of review) and October 18 and 19, 2010
Benchers: Bruce LeRose, QC, Chair, Haydn Acheson, Leon Getz, QC, Peter Lloyd, Thelma O’Grady, Lee Ongman, Greg Petrisor, Alan Ross (Supplemental Notice of Review); Bruce LeRose, QC, Chair, Haydn Acheson, Leon Getz, QC, Peter Lloyd, Thelma O’Grady, Lee Ongman, Gregory Petrisor (review)
Reports issued: November 5, 2007 (2007 LSBC 49), September 9, 2009 (2009 LSBC 26), January 5, 2010 (2010 LSBC 01), September 24, 2010 (2010 LSBC 22) and March 11, 2011 (2011 LSBC 10)
Counsel: Maureen Baird, David Lunny and J. Chong for the Law Society, Gary Nelson for Lawyer 11 and Jonathan Penner and Jennifer Stewart for the Attorney General (Charter application); Maureen Baird, David Lunny and Nicole Ladner for the Law Society and David Mulroney and Christopher Siver for Lawyer 11 (facts and verdict); Maureen Baird, David Lunny and Nicole Ladner for the Law Society and David Mulroney for Lawyer 11 (penalty); Dennis Murray, QC for the Law Society and David Mulroney for Lawyer 11 (supplemental notice of review); Dennis Murray, QC and Fiona McQueen for the Law Society and David Mulroney for Lawyer 11 (review)
During the course of criminal proceedings against his father, Lawyer 11 assisted his father’s defence team in bringing on an application for government funding. The Supreme Court of BC judgment contained remarks that raised concerns about the conduct of Lawyer 11.
The Law Society’s investigation resulted in a citation asserting the following:
Allegation 1 alleged a scheme or design to mislead the Supreme Court of BC with respect to a loan allegedly made to Lawyer 11’s father’s company.
Allegation 2 alleged that Lawyer 11 participated in a scheme or design either: (a) to mislead the Court, or alternatively, (b) to mislead a financial institution.
Allegation 3 alleged that, by conducting himself in the manner set out in allegations 1 and 2, which was dishonourable or questionable conduct, Lawyer 11 had cast doubts on his professional integrity and/or competence or reflected adversely on the integrity of the legal profession or the administration of justice.
Decision of the hearing panel
In July 2007, Lawyer 11 sought rulings that he not be compelled to give evidence in proceedings and that the evidence given at the application for government funding hearing was not admissible. The panel dismissed his application in respect of these constitutional issues.
During the course of the hearing, Lawyer 11’s counsel brought a no-evidence motion regarding each allegation of the citation. On September 12, 2008, the panel allowed Lawyer 11’s application with respect to allegation 2(b) of the citation but dismissed the balance of his application.
The panel found that:
- no professional misconduct was proven in allegation 1;
- Lawyer 11 had sworn an affidavit that was filed with the court in the application for government funding proceedings that was false, or at least, misleading;
- Lawyer 11 had a duty to ensure that the court was not misled by anything he said as a lawyer or as a witness, and he was reckless in the drafting of his affidavit;
- there was no evidence that he provided misleading information to the court in concert with any other person and was not proven to have participated in a scheme;
- using the analogy of a lesser included offence, providing misleading information to the court, even if not part of a scheme, still constituted professional misconduct; and
- allegation 3 of the citation was dismissed because allegations 1, 2(a) and 2(b) were not proven.
On December 5, 2009, the panel issued its penalty decision. Lawyer 11 was suspended from the practice of law for one month and ordered to pay costs of $2,520.60.
On February 10, 2010, counsel for Lawyer 11 sought a review of the panel’s decision.
On February 19, 2010, the Law Society issued a notice seeking a review of the panel’s decision to dismiss allegation 3. The Law Society issued a supplemental notice of review on May 11, 2010 in respect of the panel’s dismissal of allegation 1. The review panel dismissed the Law Society’s supplemental notice of review because it was issued outside of the 30-day period allowed under section 47 of the Legal Profession Act.
Decision of the Benchers on review
The issue to be decided by the Benchers was, in light of the panel’s determination that allegation 2(a) was not proven, could the panel’s conclusion that Lawyer 11’s reckless drafting of a misleading affidavit, although not consistent with the allegations in the citation, nonetheless support a finding of professional misconduct?
Any finding of professional misconduct must be based, not only on the evidence presented, but also on the allegations as framed in the citation. In the Benchers’ view, the allegations in the citation could not reasonably be interpreted to embrace the reckless drafting of an affidavit. Lawyer 11 admitted that his affidavit was badly drafted and could mislead. An inquiry into an allegation of reckless drafting is quite different in nature from an inquiry into participation in a scheme designed to mislead.
The Benchers determined that none of the citation, the evidence called or the submissions to the panel squarely addressed the issue of reckless drafting. Lawyer 11 did not have a reasonable opportunity to address that issue before the panel gave its decision on facts and verdict. The Benchers took no position as to whether the affidavit was recklessly drafted, since that question was not properly before the hearing panel or the Benchers.
The Benchers ordered that the finding of professional misconduct made by the panel be set aside and that the citation be dismissed in its entirety. The Benchers concluded that the amounts billed by Lawyer 11’s counsel were reasonable and ordered that the Law Society pay $61,523.97 in costs to Lawyer 11.
Lawyer 11 sought special costs. The Benchers found no evidence of improper motive or behaviour by the Law Society that would justify an order that it should pay special costs.
Under Law Society Rule 4-38.1(2), if all counts of a citation are dismissed, the hearing report summary must not identify the respondent without the respondent’s consent.
Discipline hearings: September 24, 2010, December 15, 2010 and January 10, 2011
Panel: E. David Crossin, QC (single-Bencher panel)
Report issued: March 16, 2011 (2011 LSBC 11)
Counsel: Maureen Boyd for the Law Society and David Taylor for Lawyer 12
A hearing panel previously found that Lawyer 12 had committed professional misconduct for failing to properly maintain the books and records at his law practice in accordance with the Law Society Rules. Lawyer 12 was ordered to retain and instruct a qualified accountant to prepare semi-annual reports that addressed the compliance requirements of the Rules.
Prior to the formal issuance of the hearing panel’s decision, Lawyer 12 contacted a certified general accountant to get a head start on complying with the order. Lawyer 12 advised the accounting firm that a trusted accountant who was familiar with his law practice would provide clarification as to what was required for the first report, due on March 31, 2010.
By January 2010, the certified general accountant still had not received the critical information that defined what the Law Society required. When Lawyer 12 became aware of this, he asked his legal assistant to forward a copy of the terms of the Law Society’s order to the certified general accountant. Months later he learned that his instruction was not carried out.
The certified general accountant proceeded to seek information from Lawyer 12’s accountant and staff for the purpose of preparing the semi-annual report. In mid-March 2010, Lawyer 12 became concerned that the information being requested by the certified general accountant did not appear to be related to Law Society issues. However, upon receiving advice from his accountant, Lawyer 12 was satisfied that the certified general accountant was preparing the report in accordance with the Law Society’s requirements.
Lawyer 12 provided the certified general accountant’s written report to the Law Society on March 31, 2010. The report consisted of financial statements for the law practice, but did not include any information relating to whether the books and records of the law practice were maintained in compliance with the Law Society Rules.
On April 1, 2010, the accountant finally requested a copy of the penalty decision from the Law Society which included the report requirements. In May 2010, Lawyer 12 requested that the March 31, 2010 review be waived due to financial hardship that was created by wasting funds on the initial effort of the accounting firm. He suggested that the trust compliance audit conducted in February 2010 ought to have given the Law Society the comfort it required. This request was denied.
The complete report was prepared by the certified general accountant and submitted to the Law Society in July 2010.
The panel noted that Lawyer 12 began the process of complying with the hearing panel’s order prior to the penalty hearing that ultimately imposed the obligations. Although he had retained a qualified accountant, the report did not address the requirements of the rules as ordered. It was apparent that there was a failure to communicate effectively with the accounting firm concerning the nature of the report.
The issue before the panel was whether this failure amounted to professional misconduct. There was no doubt that Lawyer 12 failed to be effectual and could have taken different steps. The panel was not persuaded that, based on the evidence, his conduct amounted to a marked departure from the conduct the Law Society expects of lawyers. Further, the panel was not persuaded that the conduct demonstrated gross culpable neglect of his duties as a lawyer.
The citation was dismissed. Under Law Society Rule 4-38.1(2), if all counts of a citation are dismissed, the hearing report summary must not identify the respondent without the respondent’s consent.