Please find summaries with respect to:
- Gregory Charles Cranston
- Lawyer 12
- Gerardus Martin Maria Laarakker
- Gary Russell Vlug
- Robert Douglas Cole Malcolm
- Brian John Kirkhope
- Paul Cameron Wilson
- Andrew James Liggett
For the full text of discipline decisions, visit the Hearings reports section of the Law Society website.
Called to the bar: July 13, 1977
Discipline hearing: April 19, 20 and 21, 2011
Panel: David Renwick, QC, Chair, Haydn Acheson and Patricia Bond
Report issued: August 24, 2011 (2011 LSBC 24)
Counsel: Jaia Rai for the Law Society and David Sutherland and Dana Kripp for Gregory Charles Cranston
Between January 2007 and February 2009, defence counsel Gregory Charles Cranston missed numerous court appearances on 17 separate occasions and made misrepresentations to the court in five instances.
Ten of the allegations in the citation related to missed appearances involving fix-date appearances, pre-trial conferences or trial confirmation dates or failure to make arrangements to have an agent attend. These allegations did not involve any missed trial dates.
Another three allegations related to Cranston representing to the court that he had filed Notices of Appeal when he had not.
Four allegations were not pursued by the Law Society.
The allegations arose as a result of one of Cranston’s misrepresentations to the court. The Chief Judge made a formal complaint to the Law Society.
Admission and disciplinary action
Cranston admitted to the allegations that he failed to attend the fix-date appearances and that he made misrepresentations to the court. He admitted that his conduct constituted incompetent performance of duties undertaken in his capacity as a lawyer, but he was not prepared to admit that his conduct amounted to professional misconduct.
Cranston attributed his problems to extensive health issues, which resulted in fatigue and faulty memory, calendar conflicts and reliance on support staff to make arrangements for agency appearances and to file documents. The panel recognized that medical issues and treatments had a significant effect on Cranston’s general health; however, he failed to realize the effect that his medical condition had on his professional obligations, both to his clients and to the courts.
Cranston also failed to have a proper diary system in place, moderate his workload or hire additional help to properly run his busy practice.
In the panel’s view, the evidence did not support a finding that the misrepresentations made to the court were deliberate or that there was any intention to mislead. In each instance, the Notices of Appeal had been signed prior to Cranston’s appearance in court, and he was under the mistaken honest belief that they had actually been filed in the court registry.
Cranston relied on his staff and expected that the Notices of Appeal had been filed as he had instructed. However, he failed to determine the true state of affairs before making his representations and was negligent in carrying out his responsibilities as a lawyer.
The panel noted that Cranston had a professional conduct record that included a conduct review as well as a finding of professional misconduct for affixing his signature as a witness on a Bill of Sale that had not been signed in his presence.
The panel heard from witnesses and reviewed a number of reference letters attesting to the respect that Cranston had earned.
Cranston cooperated with the Law Society during the investigation and made admissions that shortened the hearing significantly.
The panel agreed that the discipline violations committed by Cranston were serious and significant in number and length of time in which they occurred. However, none of the violations involved dishonesty or intentional misconduct. None of the missed appearances were for a trial, but were part of the process leading up to the actual trial date.
After carefully reviewing the circumstances surrounding each of the allegations as well as Cranston’s extensive medical history, the panel found that Cranston incompetently performed his duties as a lawyer over the course of two years by missing numerous court appearances and making several misrepresentations to the court.
The panel ordered that Cranston:
1. pay a fine of $10,000;
2. pay $10,000 in costs;
3. continue receiving medical care;
4. submit to a practice review and follow any recommendations;
5. obtain a medical, psychological or psychiatric assessment, or counselling and follow any recommendations; and
6. practise in a setting approved by the Law Society, including supervision by a lawyer.
Bencher review: October 6, 2011
Benchers: Majority decision: Gregory Petrisor, Alan Ross, Catherine Sas, QC and Kenneth Walker; Concurring decision: Leon Getz, QC; Minority decision: Bruce LeRose, QC, Chair, and Benjimen Meisner
Report issued: December 12, 2011 (2011 LSBC 35)
Counsel: Jaia Rai for the Law Society and David Taylor for Lawyer 12
The Law Society issued a citation to Lawyer 12 for failing to comply with a 2009 hearing panel order to provide a written report prepared by a qualified accountant stating whether the books and records of his practice were maintained in compliance with Law Society rules.
Lawyer 12 failed to communicate directly with the certified general accountant he retained concerning the nature of the report, which resulted in a report being submitted to the Law Society that did not address the requirements of the rules as ordered.
In the decision of the single-Bencher hearing panel (facts and verdict: 2011 LSBC 11; Discipline Digest: 2011 No. 2 Summer), it was found that Lawyer 12’s conduct was not a marked departure from the conduct expected by the Law Society of its members. Further, the single-Bencher panel was not persuaded that Lawyer 12’s conduct demonstrated gross culpable neglect of his duties as a lawyer and concluded that his conduct did not amount to professional misconduct.
The Law Society sought a review of that decision to determine whether the single-Bencher panel correctly applied the law to the facts when it decided to dismiss the citation.
Majority (Petrisor, Ross, Sas and Walker)
The majority upheld the dismissal of the citation by the single-Bencher panel.
The majority did not agree with the Law Society’s position that it was not reasonable for Lawyer 12 to rely on his bookkeeper to perform the task entrusted to him of advising the certified general accountant what the 2009 order required. In the majority’s view, the single-Bencher panel reached the correct conclusion.
In its reasons, the majority disapproved Re: Lawyer 10, (2010 LSBC 02), which found that it is not professional misconduct if the “conduct falls below the norm in a marked way if that occurs because of: a) events beyond one’s control; or b) an innocent mistake.” The majority preferred to consider the conduct as a whole. If the conduct arose because of: a) events beyond one’s control; or b) an innocent mistake, then the conduct cannot be considered conduct that falls below the norm in a marked way.
The concurring panel member agreed with the majority’s conclusion that the single-Bencher panel was correct in dismissing the citation and with its reasons for reaching that conclusion, but did not agree that it was either necessary or appropriate to express any view about whether Re Lawyer 10 was correctly decided.
Minority (LeRose and Meisner)
The minority found that Lawyer 12 had once again engaged in professional misconduct and should be dealt with accordingly.
Given the long history of Lawyer 12’s transgressions in complying with the trust accounting rules, the minority determined it was not reasonable for Lawyer 12 to rely on his bookkeeper and staff. The minority determined that Lawyer 12’s transgression in this case was more than a mere oversight or innocent mistake, but rather a continued pattern of ignoring his responsibilities in this regard.
The minority also concluded that none of the uncontested facts that transpired from the time of the 2009 order to the non-compliance in March 2010 should relieve Lawyer 12 from his duty and obligation to comply strictly with the order of the hearing panel.
Called to the bar: November 14, 1997
Discipline hearings: July 14 and December 1, 2011
Panel: Leon Getz, QC, Chair, Nancy Merrill and Alan M. Ross
Reports issued: September 21, 2011 (2011 LSBC 29) and January 10, 2012 (2012 LSBC 02)
Counsel: Carolyn Gulabsingh for the Law Society and Gerardus Martin Maria Laarakker appearing on his own behalf
In November 2009, Gerardus Martin Maria Laarakker was retained by a client regarding a demand letter that she had received from an out-of-province lawyer. The demand letter sought payment of $521.97 as damages related to the client’s teenage daughter, who had been caught shoplifting at a retail outlet. The demand letter stated that the retailer had a right to claim damages against the parent of a young person who had been caught shoplifting on the basis that the parent had failed to provide reasonable supervision.
The demand letter threatened that if the client did not pay the settlement amount, a civil suit may be filed against the client seeking an amount greater than the settlement amount.
After consulting with his client, Laarakker sent a letter to the out-of-province lawyer that contained discourteous and personal remarks.
Laarakker also posted a comment on an internet blog in response to two postings made by an individual who had received a similar demand letter. His blog posting contained discourteous and personal remarks about the out-of-province lawyer.
The out-of-province lawyer made a complaint to the Law Society about Laarakker’s letter and blog posting.
Laarakker claimed that his letter to the out-of-province lawyer and his blog posting were justified because the actions of the other lawyer were blameworthy.
He felt a connection to his client, and he was personally offended by the steps that were being taken by the opposing lawyer. While these facts do not justify his actions, the panel acknowledged that they do speak to the reason that he took the steps that he did.
Laarakker submitted to the panel that he believed that he was allowed to do what he did in the face of a “rogue lawyer.” He conceded that, if the out-of-province lawyer was found to have conducted himself professionally and ethically according to Law Society standards, then his actions in denouncing the other lawyer were wrong and he would apologize.
The panel found that Laarakker had committed professional misconduct by making discourteous remarks about another lawyer on an internet blog and in a letter directed to the other lawyer.
Laarakker’s professional conduct record was not an aggravating or mitigating factor. Further, Laarakker removed the blog posting as soon as he was asked to do so by the Law Society, and he issued a form of apology to the other lawyer.
The panel stated that, although incivility is not the most serious form of misconduct, it does reflect poorly on the legal profession.
The panel ordered that Laarakker pay:
1. a $1,500 fine; and
2. $3,000 in costs.
Called to the bar: August 28, 1992
Discipline hearings: April 13 and 14, 2010, June 14 and 15 and December 15, 2011
Panel: Gavin Hume, QC, Chair, Bruce LeRose, QC and Thelma O’Grady
Reports issued: July 22, 2010 (2010 LSBC 16), August 31, 2011 (2011 LSBC 26) and January 18, 2012 (2012 LSBC 03)
Counsel: Eric Wredenhagen (facts and determination) and Maureen Boyd (application to adduce rebuttal evidence and disciplinary action) for the Law Society and Gary Russell Vlug appearing on his own behalf
In May 2006, Gary Russell Vlug, represented four clients in a personal injury claim. Vlug settled the claims with ICBC without a trial.
On January 12, 2008, his clients signed a release provided by ICBC for payment of $32,000. Vlug forwarded the executed release to the ICBC adjuster with a letter requesting reimbursement for disbursements.
On January 24, Vlug received a letter from ICBC that indicated that the settlement of $32,000 and reimbursement of $2,316 were enclosed. The cheque, however, was in the amount of $45,264. There were no details showing a breakdown of how the amount was calculated.
Vlug deposited the cheque into his trust account and credited a quarter of the total ($11,316) to each of his clients in trust. He met with the clients on January 30 and issued invoices to each client to show the amount of $8,000 deposited into trust for each of them and not $11,316.
In July 2008, the Law Society conducted a compliance audit of Vlug’s law practice. The auditor discovered that the amount received from ICBC differed from the amount reported and disbursed to the clients.
These excess funds were recorded in Vlug’s accounting records as being held in trust for his clients. Vlug’s handwritten notes of his discussion with his clients on January 30 indicated that the funds were to be kept until an apparent limitation date expired.
In November 2008, Vlug finally contacted the ICBC adjuster to request a breakdown of the payout and to inquire if there was an error. The adjuster mistakenly confirmed that the cheque for $45,264 was the correct amount without referring to the original file.
In December 2008, Vlug paid out the balance of the funds to the clients, less his fees.
At the conclusion of the April 2010 hearing, the Law Society applied for leave to call rebuttal evidence from the ICBC adjuster. The hearing reconvened in June 2011.
Vlug submitted that the excess funds were a payment for bad faith on the part of ICBC. The panel did not accept that evidence as no reference was made to bad faith in any of his correspondence with ICBC or with the Law Society.
The panel considered a number of other factors in this case.
Vlug’s clients knew of the excess funds held in his trust account, though, contrary to Law Society rules, it did not appear that that information had been accounted for in writing to the clients. The panel noted that the only logical reason for not dispersing all the funds was that Vlug thought an error had been made by ICBC.
Vlug had no communication with the ICBC adjuster regarding the excess funds until after the Law Society commenced its investigation. The extra payment remained in his trust account until ICBC mistakenly confirmed that they had forwarded the correct amount.
In the panel’s view, Vlug should have immediately communicated with ICBC about what was obviously a mistake with the payment. His failure to do so cast doubt on his competence and also reflects adversely on the integrity of the legal profession.
The panel concluded that Vlug committed professional misconduct as this was a marked departure from the conduct expected of a lawyer in such circumstances.
Vlug’s professional conduct record disclosed three conduct reviews in 2005, 2010 and 2011, which the Law Society submitted demonstrates a continuous pattern of bad judgment as well as poor communication. The panel agreed that the most important factor in determining the appropriate disciplinary action was the need for specific deterrence. It was decided that the negative financial impact caused by Vlug’s bad judgment would serve as the appropriate and necessary deterrent.
The panel ordered that Vlug pay:
1. a $5,000 fine; and
2. $10,500 in costs.
Called to the bar: May 15, 1968
Retired membership: July 1, 2011; ceased membership: January 1, 2012
Discipline hearing: November 4, 2011
Panel: Joost Blom, QC, Chair, Don Amos and Alan M. Ross
Report issued: January 18, 2012 (2012 LSBC 04)
Counsel: Carolyn Gulabsingh for the Law Society and Robert Douglas Cole Malcolm appearing on his own behalf
Robert Douglas Cole Malcolm made a complaint to the Law Society about a lawyer who acted for beneficiaries of a client who was suing Malcolm. During the course of investigating the complaint, the Law Society required Malcolm to answer questions about his dealings with the client and the related financial transactions.
The Law Society wrote Malcolm in December 2009 and August 2010. He replied to each letter with only partial responses.
Malcolm invited the Law Society’s representative to meet with him in January 2011. The Law Society obtained various documents from him.
After reviewing the documents, the Law Society sent another letter to Malcolm in May 2011 asking more detailed questions. Malcolm’s email reply indicated that he needed time to respond. When the Law Society gave him a deadline, Malcolm replied that he did not have the resources to comply and stated that he was prepared to meet with the Law Society’s representative again.
The Law Society reminded Malcolm that the answers to their inquiries were required in writing and that any failure to respond to questions and requests from the Law Society may be referred for disciplinary action.
No written response was received.
Malcolm’s position was that he did not have the financial resources available to respond to the Law Society’s inquiries. He said that he had done what he was financially and physically able to do, given that the information necessary to answer the inquiries was contained in numerous boxes of client files in his home.
Malcolm appeared to be of the view that it was the Law Society’s responsibility to review the boxes of documents and determine the answers to the questions.
The panel found that Malcolm’s claim of impecuniosity was not believable. Several of his statements about his financial situation seemed implausibly exaggerated. He did not introduce any information or evidence regarding his financial or health status to support his position.
He admitted that the documents containing most of the relevant information were in his possession. The Law Society’s correspondence made it clear that he, not the Law Society, was responsible for sorting through the documents to obtain the information. He therefore did not provide a reasonable excuse for his failure to respond to the Law Society’s inquiries.
The panel found that Malcolm’s actions in failing to respond to the inquiries of the Law Society constituted professional misconduct.
The Law Society submitted that it was an aggravating factor that Malcolm still had not provided a substantive response.
The panel ordered that Malcolm:
1. pay a $2,000 fine;
2. pay $2,000 in costs; and
3. provide complete answers to the Law Society’s requests for information.
Called to the bar: August 31, 1990
Discipline hearing: October 25, 2011
Panel: Leon Getz, QC, Chair, Gregory Petrisor and Alan M. Ross
Oral reasons: October 25, 2011
Report issued: January 31, 2012 (2012 LSBC 05)
Counsel: Jaia Rai for the Law Society and Henry Wood, QC for Brian John Kirkhope
Brian John Kirkhope was retained by a client in a matrimonial dispute against his wife. The primary asset in the dispute was the family home.
On May 5, 2005, Kirkhope and counsel for his client’s wife appeared in court and consented to an order restraining both parties from alienating title to any family asset until further order of the court. Kirkhope drafted the restraining order, which was executed by all parties.
In February 2006, Kirkhope’s client indicated he did not have funds to pay for his legal services. At Kirkhope’s suggestion, the client executed a $20,000 mortgage in favour of Kirkhope’s law firm to secure legal fees. The law firm mortgage was registered by Kirkhope against the undivided one-half interest of the ex-husband in the family home.
In August 2006, Kirkhope ceased representing his client and, as of that date, the family law action was outstanding, the law firm mortgage was on title to the family home, and legal fees were owed by the client to Kirkhope.
Kirkhope’s former client retained another lawyer to represent him in the family law action.
In March 2007, Kirkhope was apprised that the wife of his former client was seeking a division of assets, including a 100 per cent reapportionment of the family home. The family home was subsequently listed for sale in October 2007; however, when it did not sell, the mortgagor commenced foreclosure proceedings.
At a November 2009 court hearing, counsel for the wife took the position that the law firm mortgage was invalid and should be declared null and void. Kirkhope advised the court that he had forgotten about the restraining order when the law firm mortgage was registered. He stated that, upon realizing in March 2007 that the law firm mortgage had been filed in violation of the restraining order, he prepared a discharge of that mortgage and sent that discharge to the husband’s new lawyer. The court ultimately declared and ordered the law firm mortgage null and void.
Admission and disciplinary action
Kirkhope admitted that he caused and permitted the execution and registration of the law firm mortgage for purposes of securing his legal fees when he ought to have known that the registration of the mortgage was in violation of the restraining order. He further admitted that his conduct constituted professional misconduct.
The panel noted that Kirkhope was an experienced family law lawyer, and a restraining order was not unusual in this practice area. Kirkhope said that he forgot about that order, despite the fact that he consented to it, drafted it and filed it. Forgetting about the order in these circumstances, and permitting the execution and registration of the law firm mortgage in breach of the order, was a marked departure from what the Law Society expects of its members.
Further, after taking steps to partially rectify the potential problem, Kirkhope continued to attempt to enforce the law firm mortgage as against his former client’s interest in the family home, despite his knowledge that the mortgage was in breach of the restraining order. Those acts were deliberate.
Kirkhope has a professional conduct record for dishonourable conduct in accepting and making use of a tape recording made by another matrimonial client of privileged telephone conversations between the client’s wife and her counsel. The panel considered that, although this prior offence may not be directly related, it was a close cousin of the current offence.
The panel accepted Kirkhope’s admission and ordered that he pay:
1. a $4,500 fine; and
2. $3,000 in costs.
Called to the bar: July 12, 1983
Discipline hearing: September 27, 2011
Panel: Thelma O’Grady, Chair, Leon Getz, QC and Gregory Petrisor
Report issued: February 02, 2012 (2012 LSBC 06)
Oral Reasons: September 27, 2011
Counsel: Jaia Rai for the Law Society and Robin McFee, QC for Paul Cameron Wilson
Although Paul Cameron Wilson practised as a solicitor in the field of environmental and energy law, he agreed to meet with a client on short notice to take instructions for a will, prior to the client undergoing surgery.
The will was prepared by another lawyer in Wilson’s firm, and the client executed the will prior to the surgery. The will appointed Wilson as executor and trustee, and appointed the lawyer who prepared the will as alternate executor.
Following the client’s surgery, Wilson provided non-legal services to the client, including assisting her with errands and arranging for transportation to and from medical appointments. When a medical assessment concluded that the client was not capable of living independently or handling her own affairs, Wilson filed a petition in the Supreme Court of BC and was appointed committee of the person and estate of the client. He engaged the services of a 24-hour home care agency and arranged for payment of the client’s bills and expenses.
The client passed away on October 8, 2003. For six years afterward, Wilson did not make an application for the grant of probate, nor did he renounce his executorship. As a result, the client’s estate was not probated. Wilson continued arranging for payments to be made for the upkeep and securing of the client’s home and property.
During this six-year period, Wilson also did not file tax returns for the client’s estate, even though he knew the estate was earning income.
Between 2003 and 2008, a friend of the client communicated with Wilson on a number of occasions regarding the status of the application for the grant of probate. Despite these communications, Wilson did not advise the friend that she was a beneficiary under the will.
On November 7, 2008, the friend emailed Wilson to further express her concerns regarding his failure to dispose of the client’s estate and the deplorable condition of the client’s residence.
In December 2008, the friend made a complaint to the Law Society alleging delay and inactivity by Wilson concerning the application for the grant of probate and failure to respond to her inquiries.
Wilson had made some attempts to determine the requirements to make the application for grant of probate in 2003, and later in 2008 and 2009, but he did not follow through with those attempts. He did not take any effective steps to advance the matter until November 2009 when he retained a lawyer practising in the area of wills and estates with another firm.
On the advice of his lawyer, Wilson renounced his executorship on March 11, 2010. He continued working with the chartered accountant he had retained to finalize the outstanding tax returns, and those were filed on March 31, 2010 for the years 2005 through 2009.
On June 21, 2010, the court appointed a trust company for the client’s estate, and accordingly, Wilson’s powers and obligations as committee ceased.
Admission and disciplinary action
Wilson admitted early in the Law Society’s investigation that the complaint was valid and that he had not obtained probate of the will. He admitted that he had engaged in conduct unbecoming a lawyer. The panel acknowledged that Wilson had taken steps to redress the wrong.
The panel accepted Wilson’s admission and ordered that he pay:
1. a $4,500 fine; and
2. $3,000 in costs.
Port Coquitlam, BC
Called to the bar: May 17, 1991
Discipline hearings: May 11 and November 24, 2011
Panel: Gavin Hume, QC, Chair, Nancy Merrill and Thelma O’Grady
Reports issued: August 11, 2011 (2011 LSBC 22) and February 7, 2012 (2012 LSBC 07)
Counsel: Jaia Rai for the Law Society and David Taylor for Andrew James Liggett
Andrew James Liggett received a letter from the Law Society, dated July 19, 2010, to notify him that the date for the hearing of a previous citation was to be mutually agreed upon and proposed that the hearing be held on September 24, 2010.
At that time, Liggett was committed to attend the second day of a two-day family law trial on September 24. He knew the proposed citation hearing date would be scheduled in the absence of any response from him; however, he took no action.
On August 6, Liggett was served with a letter from the Law Society to confirm that the hearing would proceed on September 24.
In a letter dated August 10, Liggett sought an adjournment of the citation hearing on the grounds that he had a trial on September 24. The Law Society opposed the application, for lack of substantiating documentation.
On September 2, the Chambers Bencher considering the adjournment requested a copy of the Notice of Trial from the court action and Liggett’s alternative dates in September.
On September 7, prior to providing the information requested, Liggett attended a pre-trial conference in the family law matter, at which time the September 24 trial date was cancelled.
The Law Society followed up with Liggett concerning the information the Chambers Bencher had requested. Liggett finally and hurriedly responded to the request by faxing a copy of the Trial Notice printed on July 27, 2010 with a separate letter setting out an alternate date. He did not disclose the fact that the September 24 trial date had been cancelled, nor did he advance any other grounds for an adjournment. The Law Society learned of the adjournment directly from the Provincial Court registry.
Liggett testified that, during the summer of 2010, he was very busy with his sole practice and personal commitments. He also felt that, due to his schedule in the time-frame leading up to September 24, he did not have the time to properly prepare for the citation hearing. He determined he did not need to advance any grounds other than the position that he was committed to a trial appearance on the hearing date.
The panel found Liggett had committed professional misconduct when he sent a Notice of Trial to the Law Society and, either knowingly or recklessly, misrepresented that he continued to be unavailable for a discipline hearing.
The panel considered Liggett’s professional conduct record. Liggett’s record, for the most part, involved his systemic failure to maintain his books and records in accordance with Law Society rules and failure to produce records in the course of an investigation. In the panel’s view, there existed a clear pattern of Liggett overextending himself in his workload, number of offices, and his law practice management skills.
Over a number of years, the Law Society has made recommendations and directions aimed at assisting Liggett to manage his finances and his workload, and to maintain his books and records in accordance with the rules.
The panel concluded that a suspension was required to impress upon the profession and the public that a lawyer’s obligations to their self-governing body, especially in the context of discipline proceedings, must be approached with the utmost integrity and good faith. Conduct falling below such a standard will result in serious consequences.
The panel ordered that Liggett:
1. be suspended for one month; and
2. pay $6,000 in costs.