Please find summaries with respect to:
- Christopher John Van Twest
- Donald Douglas McLellan
- Douglas Warren Welder
- Gerhard Ernst Schauble
- Allan Edward Lester
- Lawyer 13
- Deepak Azad Chodha
For the full text of discipline decisions, visit the Hearings reports section of the Law Society website.
Called to the bar: September 14, 1976
Discipline hearing: December 21, 2010
Panel: Majority decision: Glen Ridgway, QC, Chair and Alan M. Ross; Minority decision: Kenneth Walker
Reports issued: March 10, 2011 (2011 LSBC 09) and July 26, 2011 (2011 LSBC 20)
Counsel: Maureen Boyd for the Law Society and Ian Aikenhead, QC for Christopher John Van Twest
In March 2008, Christopher John Van Twest represented two clients in the purchase of property. He had acted for these clients in other legal matters since the late 1970s.
The clients gave Van Twest a $102,000 cheque plus $9,000 in cash for the purchase of the property. The funds were deposited to a trust account; however, Van Twest did not provide a receipt to the clients for the cash received. The funds were subsequently used to complete the purchase.
Following a compliance audit of Van Twest’s practice in October 2008, the Law Society sent a letter to Van Twest on February 9, 2009 regarding the receipt of cash and the failure to maintain a cash receipt book. Van Twest replied on March 20 indicating that he had been under the impression that the limit for cash transactions was $10,000. He also advised that he would maintain a cash receipt book in future.
On March 27, one week after his letter, Van Twest completed his trust report for 2008 and represented to the Law Society that his practice had not received cash in excess of $7,500, and that his practice maintained a cash receipt book. He also referred to his March 20 letter, which contained the correct information, in the trust report.
The Law Society issued a citation asserting that Van Twest:
- breached the “no cash” rule (allegation 1);
- provided an incorrect answer on his trust report regarding receipt of cash of $7,500 or more (allegation 2(a)); and
- provided an incorrect answer on his trust report about maintaining a cash receipt book (allegation 2(b)).
The panel accepted Van Twest’s admission that his acceptance of cash in excess of $7,500 constituted a breach of the rules. The panel considered the fact that the clients had been known to him for a long time and there was no suggestion of criminal activity on the part of the clients.
Van Twest also admitted the underlying facts in allegation 2(a) and (b); however he submitted that his conduct constituted a simple negligent, non-culpable mistake and was, at worst, a breach of the rules.
The panel found that, although the importance of the trust report made the error significant, the gravity was outweighed by the other factors and did not constitute professional misconduct. However, there was disagreement among the panel about whether this error constituted a breach of the rules.
Majority (Ridgway, Ross)
The majority found that Van Twest’s incorrect answers to questions on the Trust Report were not culpable mistakes; however, his error was not insignificant, and it followed that his conduct constituted a breach of the rules.
The minority disagreed that the incorrect answers on the trust report constituted a breach of the rules. Although Van Twest had answered the questions and momentarily erred, he had included the letter that contained the accurate information with the trust report. The minority stated that there was no harm caused to the Law Society or the public by the inconsistency of information in the trust report.
The minority viewed the improperly answered questions as minor mistakes and not a breach of the rules and, therefore, would dismiss allegations 2(a) and (b).
Van Twest admitted, and the panel agreed, that he had accepted a cash deposit of $7,500 or more, which constituted a breach of the rules. The panel further found that Van Twest answered two questions incorrectly on his trust report, and the majority concluded that this conduct constituted a breach of the rules.
The panel ordered that Van Twest pay:
1. a $2,000 fine; and
2. $1,000 in costs.
New Westminster, BC
Called to the bar: May 17, 1971
Discipline hearing: June 9, 2011
Panel: Kenneth Walker, Chair, Benjimen Meisner and Gordon Turriff, QC
Report issued: August 23, 2011 (2011 LSBC 23)
Counsel: Carolyn Gulabsingh and Maureen Boyd for the Law Society and Richard Fernyhough for Donald Douglas McLellan
Donald Douglas McLellan was retained to probate an estate in 2000. The estate was efficiently probated and distributed by 2002. During this time, the executrix came to believe that the son (and financial advisor) of the deceased had dissipated the assets of the estate. In particular, she was concerned that the son had sold and purchased stocks without authorization for the purpose of generating commission income. She believed the loss was substantial and instructed McLellan to recover these funds.
McLellan investigated and determined the amount of the loss to be about $20,000. He filed a claim against the son and his employer investment house in 2002 and renewed the claim in 2003. There were problems locating the defendant son for purposes of service of the claim. When he was eventually found, he notionally responded by filing an Appearance in October 2003.
The client inquired several times about the progress of the case. McLellan failed to respond to his client and failed to advise her that he believed there was no practical reason to pursue the claim or incur further costs.
In 2009, the client complained to the Law Society.
Admission and disciplinary action
McLellan admitted that between 2005 and 2009 he failed to respond to his client’s numerous inquiries and that he failed to serve his client in a conscientious, diligent and efficient manner as expected of a competent lawyer. He admitted that his conduct constituted professional misconduct.
The panel noted that, while the client showed loyalty to McLellan as her lawyer, McLellan failed to reciprocate with the loyalty and service that he owed her.
The panel considered a number of factors in determining disciplinary action. McLellan had been a lawyer for 40 years. He had been disciplined before for two breaches of undertaking (one conduct review and one proven citation) and for acting in a conflict of interest (conduct review).
During the period of time he failed to contact his client, McLellan was suffering from difficult personal circumstances and dealing with staffing problems in his office.
There was no personal gain from McLellan’s conduct and, in fact, it appeared to the panel that he was trying to save his client from paying more fees.
McLellan was apologetic and remorseful. Since this complaint, he reviewed his files to ensure all were current and no similar non-responsive correspondence existed in his files. He also took counselling sessions to address personal issues and restricted his practice to areas within his experience.
The panel accepted his admission and ordered that he pay:
1. a $5,000 fine; and
2. $3,000 in costs.
Disciplinary action hearing: By written submission
Panel: Leon Getz, QC, Chair, Robert Brun, QC and Alan Ross
Report issued: August 30, 2011 (2011 LSBC 25)
Counsel: Maureen Boyd for the Law Society and Douglas Warren Welder on his own behalf
In the decision of the hearing panel and the Benchers on review (facts and verdict: 2010 LSBC 05; Bencher review: 2011 LSBC 06; discipline digest: Spring 2011 Benchers’ Bulletin), Douglas Warren Welder was found to have committed professional misconduct for: 1) failing to respond to questions from the Law Society, and 2) not responding to a Law Society request for details of trust and general accounts.
The Benchers referred the second matter back to the hearing panel to consider submissions on proposed disciplinary action from the Law Society and Welder. Welder provided his written submissions well after the date directed by the panel.
Welder contended that his conduct was serious and that, because he saw this incident as a “one-off” event, there was no need for any “remediation.” The panel concluded that Welder did not acknowledge his own misconduct and noted that earlier attempts at remediation had been unsuccessful and there were no mitigating circumstances. This was but the latest in a continuing pattern of misconduct.
Welder submitted that the Law Society’s proposed disciplinary action of a suspension would be very severe given the fact that he was a sole practitioner. The panel noted that Welder had been suspended twice in the past and that it was completely within his power to have cooperated with the Law Society’s audit and investigation.
The panel found that Welder’s grave conduct, both during the audit and the later investigation, demonstrated a deliberate and prolonged failure or refusal to cooperate with the Law Society’s investigators. The Law Society was forced to expend significant resources pursuing an investigation instead of completing an audit that should have been straightforward.
The panel ordered that Welder:
1. be suspended for 45 days; and
2. pay $3,000 in costs.
Called to the bar: July 21, 1989 (BC); June 19, 1981 (Alberta)
Retired membership: April 2011
Discipline hearing: June 27, 2011
Panel: David Renwick, QC, Chair, Nancy Merrill and David Mossop, QC
Report issued: September 7, 2011 (2011 LSBC 27)
Counsel: Gerald Cuttler for the Law Society and Gerhard Ernst Schauble appearing on his own behalf
In 2005, Gerhard Ernst Schauble jointly represented two clients (Client E and Client K) in the sale of their jointly owned real property. Schauble did not advise each client that no information received from one of them as part of the joint representation could be treated as confidential as between them. Also, he purported to assist them as a mediator to resolve a conflict that had arisen between them without obtaining the informed consent of Client K.
In agreeing to act as a mediator for the clients in their dispute over the division of sale proceeds, Schauble made it difficult to determine whether he was acting as a lawyer or a mediator. He failed to make adequate inquiry to determine whether the dispute was a family law mediation. He knew that he had previously acted for both clients and that they were cohabiting at the time of the sale. He initially received instructions that there would be an equal division of the proceeds of sale, but division of the proceeds became an issue from his first meeting with the clients.
Schauble preferred the interests of Client E over Client K by entering into an agreement with him to reduce the fees payable by him pursuant to a Retainer Agreement for Negotiation of Property Dispute. He agreed to keep the terms of his fee agreement with Client E confidential, contrary to his obligation to disclose all material information to Client K.
When the sale completed on September 30, 2005, Schauble received the sale proceeds of $451,390.31 in trust. He failed to provide an accurate account in writing to Client K of the disbursement of those funds to her.
Client K made a complaint about Schauble to the Law Society in July 2006. In October 2006, an appointment to review Schauble’s account was filed on her behalf.
In November 2009 Schauble sent a without prejudice letter to Client K advising her that a clerical error was made in calculating her account and refund to her the sum of $15,380.67. In June 2010, he further reduced his fees to $2,500 plus HST. The assessment of his account was discontinued and he reimbursed the client a further sum of $8,866.49.
Admission and disciplinary action
Schauble conditionally admitted, and the panel accepted, that his conduct constituted professional misconducted.
The panel determined that the mitigating factor in this case was that Schauble repaid money to his client.
The panel also noted that Schauble was previously cited for knowingly or intentionally misappropriating funds. In October 2009, a panel ordered that he be suspended for three months and pay costs in the amount of $32,000.
In keeping with the principles of progressive discipline, the panel ordered that Schauble:
1. be suspended for four months, to be served at such time as he becomes a practising lawyer; and
2. pay $10,000 in costs.
Called to the bar: July 12, 1983
Discipline hearing: July 28, 2011
Panel: Joost Blom, QC, Chair, Patricia Bond and Peter Lloyd
Report issued: September 14, 2011 (2011 LSBC 28)
Counsel: Carolyn Gulabsingh for the Law Society and no one appearing on behalf of Allan Edward Lester
Operating a trust account while insolvent
Allan Edward Lester made an assignment in bankruptcy in December 2008 and advised the Law Society by letter in April 2009. Law Society Rule 3-45 sets out the financial responsibilities of an insolvent lawyer. In this case, there was evidence of more than 200 transactions in Lester’s pooled trust accounts between May 2009 and September 2010. All of the transactions were effected during his insolvency without the approval of the Law Society and without a second signatory, in contravention of the rule.
The Law Society communicated extensively with Lester concerning his obligations, including a direct discussion upon completion of an October 2010 compliance audit summary report. Lester acknowledged in correspondence with the Law Society that he operated a trust account while insolvent and he continued to do so after being specifically informed that it was in contravention of Law Society rules.
Operating a trust account while suspended
Lester was administratively suspended from practice for failure to file a trust report for the period ending December 31, 2009. He was served with notice of the suspension on June 1, 2010.
On June 8, 2010, Lester was advised by the Law Society that he could not practise law while suspended and was precluded from dealing with any trust funds. He was reinstated to membership on September 13, 2010.
While suspended from practice, Lester personally signed trust cheques on five occasions. He admitted to the Law Society that he signed trust cheques while he was not a practising lawyer, and the evidence showed that he was at all relevant times aware of the Law Society rules.
At the time of the hearing, Lester was suspended from practice for failing to file a trust report. On the morning of the hearing, he left a message that he was ill and would not be in attendance and requested a copy of the panel’s decision.
The panel determined that a finding of professional misconduct was warranted because Lester’s breaches of the rules continued over an extended period of time during which he was repeatedly reminded of the rules.
The panel ordered that Lester:
1. be reprimanded;
2. comply with Law Society Rules 3-45(4) and 3-56(2)(c);
3. provide monthly to the Law Society certain accounting records; and
4. pay $1,500 in costs.
Discipline hearing: July 21, 2011
Panel: Leon Getz, QC, Chair, Peter Lloyd and Lee Ongman
Report issued: September 21, 2011 (2011 LSBC 30)
Counsel: Maureen Boyd for the Law Society and Henry Wood, QC for Lawyer 13
In January 2010, Lawyer 13 was retained by a client in a family law proceeding against her husband. In a letter to the husband’s lawyer, dated February 8, Lawyer 13 used the words “odalisque” and “courtesan” to refer to a woman who was alleged to be living in an adulterous relationship with his client’s husband. “Odalisque” and “courtesan” are archaic terms that suggest scandalous or morally reprehensible conduct. Both the husband and his lawyer were offended by this characterization. They viewed this as unnecessarily inflammatory and demanded an immediate apology.
When no apology was received, the husband and his lawyer complained to the Law Society on February 16.
On February 23, Lawyer 13 wrote to the husband’s lawyer. He did not apologize; rather, he sought to justify his choice of words and repeated the “insult.” On May 12 Lawyer 13 emailed an apology to the Law Society and stated that his words were not intended to be rude or harsh.
The panel had to determine whether Lawyer 13’s choice of words constituted gross culpable neglect of his duties as a lawyer and a marked departure from conduct the Law Society expects of its members.
The panel considered two possibilities. One was that Lawyer 13 used “odalisque” and “courtesan” with the intention of abusing, insulting and degrading the husband and his lawyer. If that was how the evidence must be understood, it would have been a proper and defensible basis to find that he was guilty of professional misconduct.
The other possibility was that he had no such intention. Lawyer 13 told the panel that he had a long-standing interest in words and language. When composing his February 8 letter to the husband’s lawyer, he used an online thesaurus to search for words that were more original and interesting than “mistress.” He assumed that, since “odalisque” and “courtesan” were identified as synonyms for “mistress,” the three words were perfectly exchangeable.
The panel commented that a lawyer, more than anyone, should be aware of the importance of using words carefully, alive to their nuances. Whether Lawyer 13’s failure to do so was the product of naïveté, stupidity or lack of care, it was at least unintelligent and certainly inexcusable. In one sense it might be considered incompetent even if not, perhaps, a form of incompetence that warrants discipline. However, a finding of professional misconduct would be an exercise in prissy censoriousness, and the panel did not believe that the disciplinary powers of the Law Society were conferred upon it for that purpose.
The panel decided that Lawyer 13’s conduct did not constitute professional misconduct.
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,
Called to the bar: February 20, 1998
Discipline hearing: May 12, 2011
Panel: Carol Hickman, QC, Chair, David Mossop, QC and Gregory Petrisor
Report issued: September 23, 2011 (2011 LSBC 31)
Counsel: Jean Whittow, QC for the Law Society and Henry Wood, QC for Deepak Azad Chodha
Deepak Azad Chodha represented the sellers in a residential real estate transaction in which the purchasers were taking title to the property subject to a builders lien.
On July 14, the purchaser’s lawyer delivered the closing proceeds on Chodha’s undertaking to pay sufficient funds to obtain a discharge of the lien, to file the discharge at the land title office and to provide her with a filed copy within 60 days of the completion date.
On September 16, the purchaser’s lawyer phoned and told Chodha that the lien had not been resolved; Chodha abruptly ended that call. Between September 18 and 29, the lawyer phoned and faxed Chodha numerous times to explain that he was in breach of his undertaking.
On October 1, the purchaser’s lawyer reported Chodha’s breach of undertaking to the Law Society.
On October 19, the purchaser’s lawyer wrote again to Chodha regarding the undertaking. The next day, another lawyer with Chodha’s firm responded and said that the discharge would be filed in the “next day or two.” There were several more communications between the two parties before, on November 10, the purchaser’s lawyer finally received confirmation that the pending discharge had been finalized.
Admission and disciplinary action
Although the panel recognized that Chodha and another lawyer in his firm did, eventually, discharge the builders lien, there was a period of approximately two months during which the breach was outstanding.
Chodha had been the subject of a conduct review arising from the failure to comply with an undertaking in 2008. The panel noted the relatively close proximity in time between that conduct review and this case as an important aggravating factor and determined that any penalty imposed must be meaningful. It must be obvious to the public that undertakings are properly regarded and breaches of undertakings are appropriately dealt with.
While it seemed apparent to the panel that Chodha felt the undertaking imposed upon him was unreasonable and unnecessary in some respects, he accepted the undertaking and failed to comply with it. The panel saw no suggestion of Chodha being unable to fulfill the undertaking by reason of any incapacity and, accordingly, his conduct was culpable in the circumstances.
Chodha admitted that his conduct constituted professional misconduct. The panel accepted his admission and ordered that he pay:
1. a $5,000 fine; and
2. $2,500 in costs.