Discipline digest

Please find summaries with respect to:

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

EDWARD EARLE BOWES 

Vancouver, BC
Called to the bar: May 14, 1976
Discipline hearing: March 23, 2011
Panel: David Renwick, QC, Chair, David Crossin, QC and Gregory Petrisor
Report issued: June 6, 2011 (2011 LSBC 15)
Counsel: Lindsay MacDonald, QC for the Law Society and Henry Wood, QC for Edward Earle Bowes 

Facts

Edward Earle Bowes acted on a part-time basis as in-house corporate counsel for a group of companies. A dispute between the majority shareholder and the minority shareholder in those companies led to an oppression proceeding commenced by the minority shareholder in the Supreme Court of BC against the corporations and the majority shareholder.

Bowes entered an initial appearance to the action on behalf of “all corporate respondents” in the oppression action. The minority shareholder’s counsel served a notice of motion seeking a declaration that Bowes be disqualified and cease to be solicitor of record for the corporate respondents.

Although Bowes denied that he was in a conflict of interest, he agreed to withdraw. He provided the undertaking that “neither I nor anyone in my firm will act on behalf of any of the parties in this proceeding.” However, Bowes continued to provide legal services and advice related to the litigation to the corporate defendants and the majority shareholder, including preparing affidavits and engaging in discussions regarding settlement proposals.

Admission and disciplinary action

In Bowes’ mind at the time, there was a difference between simply acting for the majority shareholder and the corporations, and acting “in the proceeding” as counsel. The panel found that such a misunderstanding was troubling, given that, clearly, the motion that was filed and the undertaking were intended to avoid Bowes acting in a conflict of interest situation. By continuing to act, even if not as counsel of record, and even if “behind the scenes” in essence, Bowes illustrated a profound lack of appreciation of the basis upon which the undertaking was sought, and of the gravity of adhering to his undertaking.

Of further concern to the panel was the fact that the breach of undertaking was an ongoing breach that occurred over a period of time, rather than a single isolated error in judgment.

Upon reflection, Bowes admitted that he breached his undertaking and that his actions constituted professional misconduct.

The panel accepted Bowes’ admission and ordered that he pay:

1.  a $3,000 fine; and

2.  $1,500 in costs.

LEONARD THOMAS DENOVAN HILL

Delta, BC
Called to the bar: July 13, 1982
Hearing dates: January 20 and June 2, 2011
Reports issued: March 3 (2011 LSBC 08) and June 29, 2011 (2011 LSBC 16)
Oral reasons: June 2, 2011
Panel: Bruce LeRose, QC, Chair, Leon Getz, QC and Benjimen Meisner
Counsel: Maureen Boyd for the Law Society and Leonard Thomas Denovan Hill appearing on his own behalf

Facts

In March 2009, Leonard Thomas Denovan Hill commenced a builder’s lien claim on behalf of a client.

Opposing counsel advised Hill in July 2009 that a cheque would be delivered to him on undertakings.

On October 19, 2009, Hill received a trust cheque for $11,500 and a cover letter that explained that it was being sent on his undertaking not to release any part of those funds from trust until he had filed the discharges of the claim of lien, the certificate of pending litigation and the consent dismissal order, and forwarded copies to opposing counsel.

On October 22, Hill deposited the cheque into his trust account. The next day he withdrew $840 to pay his account and paid the balance of $10,660 to his client, without complying with any of the conditions in the letter of undertaking.

On January 15, 2010, opposing counsel enquired on three occasions whether Hill still held the funds in trust. On January 18, Hill responded that the funds had been disbursed and the related documents were all ready to be filed.

Opposing counsel reported the matter to the Law Society.

Determination

Hill admitted that the cheque and the undertaking letter were received in his office and that he disbursed the funds on October 23, 2009 when none of the terms of the undertaking imposed upon him had been fulfilled. His agreement to these facts seemed to make the conclusion inescapable that he committed a breach of his undertaking, however, he denied this.

Hill said that when he disbursed the funds he was unaware of the undertaking letter as it had been misplaced. His contention was that he could not be found to have committed a breach of an undertaking of which he was unaware.

In the panel’s view, Hill’s contention that he was unaware of the existence of the undertaking or that its terms were unfulfilled, seemed implausible. He had been advised by opposing counsel in advance that a cheque would be delivered to him on undertakings. In giving evidence before the panel, Hill agreed that it is quite common in builder’s lien practice for documents or funds to be exchanged on undertakings, and he testified that he had an active practice in this field. Yet, he paid the funds out within a day of receiving them, and did so without making any enquiries as to the terms upon which they had been delivered to him.

The panel concluded that Hill’s conduct constituted professional misconduct. It was irrelevant to that question whether Hill committed his admitted breach of undertaking intentionally or, as he claimed, unintentionally because he was unaware of it.

Disciplinary action

The panel considered two aggravating factors. First, Hill was somewhat evasive in responding to enquiries from the other lawyer about the status of matters. Second, Hill had committed another breach of undertaking in 2007 and was fined $2,500 for professional misconduct.

The panel determined there was a need for a sharper reminder to Hill about the importance of meticulous compliance with undertakings. Reliance on undertakings is fundamental to the practice of law and it follows that serious and diligent efforts to meet all undertakings are an essential ingredient in maintaining credibility and the public’s trust in lawyers.

The panel ordered that Hill:

1.  be suspended from the practice of law for one month; and

2.  pay $4,000 in costs.

ELIZABETH DARLENE BRYSON 

Vancouver, BC
Called to the bar: August 31, 1990 
Discipline hearing: June 23, 2011
Panel: Joost Blom, QC, Chair, Satwinder Bains and Gregory Petrisor
Report issued: July 25, 2011 (2011 LSBC 19)
Counsel: Carolyn Gulabsingh and Jaia Rai for the Law Society and Alistair Wade for Elizabeth Darlene Bryson 

Facts

In January 2011, the Law Society sent a letter to Elizabeth Darlene Bryson requesting a response to specific questions concerning its investigation of a complaint from one of her clients. Further requests were forwarded to Bryson via email, mail and phone, which included a deadline of March 8 to reply, otherwise disciplinary action would be considered for failure to respond to the Law Society’s correspondence.

On March 17 Bryson contacted the Law Society and advised that she was working on a reply. On June 22, the day before the present discipline hearing, Bryson provided her written response to the questions initially asked by the Law Society.

Admission and disciplinary action

Bryson admitted that she failed to provide a substantive response promptly to communications from the Law Society and did not dispute the Law Society’s submission that her conduct constituted professional misconduct.

The panel considered a number of factors. Bryson did not have a disciplinary record, and her misconduct did not appear to have given her any benefit. She acknowledged her misconduct. During her practice as a lawyer, she had contributed significantly to the legal profession and the public as a volunteer.

The panel also took into account that Bryson eventually provided a response to the request for information originally made by the Law Society. As this was done at the last possible moment, it was impossible to determine prior to the hearing if her response was satisfactory. The panel advised Bryson that she may be required to provide the Law Society with a more substantive response if deemed necessary.

The panel accepted Bryson’s admission and ordered that she:

1.  pay a $1,000 fine;

2.  provide a substantive response within 30 days of a request from the Law Society for further information arising from her June 22 response; and

3.  pay $1,500 in costs.

David William Blinkhorn – addendum

The following is an addendum to the discipline digest summary in the Summer 2010 Benchers’ Bulletin and the addendum in the Fall 2010 Benchers’ Bulletin.

Background

David William Blinkhorn admitted, and the panel found, that he had committed professional misconduct. The panel further found that he breached the Law Society Rules in failing to keep proper trust accounting records.

The panel ordered that Blinkhorn be disbarred and pay $37,000 in costs.

Trust protection coverage

The BC legal profession provides financial protection to members of the public whose money has been stolen by a lawyer. If a claim is made against a lawyer relating to the theft of money or other property, Trust Protection Coverage 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 [3](12) of Law Society of BC v. Blinkhorn, 2009 LSBC 24, a Trust Protection Coverage claim was made against David William Blinkhorn and the amount of $16,561 paid. This is in addition to the claims previously reported in the Summer and Fall 2010 digests. Blinkhorn is obliged to reimburse the Law Society in full for the amounts paid under Trust Protection Coverage.

For more information on Trust Protection Coverage, including what losses are eligible for payment, see Lawyers > Insurance on the Law Society’s website at lawsociety.bc.ca. 


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