Below are summaries with respect to:
- John Skapski
- Glenn John Niemela
- Roger Roy Plested
- Rico Rey Hipolito
- Wallace Moon Wong
- John Lyndon Decore
- Douglas Warren Welder
- David William Blinkhorn – addendum
For the full text of discipline decisions, visit the Hearings reports section of the Law Society website.
Called to the bar: September 10, 1981
Discipline hearing: September 14, 2011
Panel: David Renwick, QC, Chair, Rita Andreone and Jan Lindsay, QC
Oral reasons: September 14, 2011
Report issued: February 16, 2012 (2012 LSBC 08)
Counsel: Carolyn Gulabsingh for the Law Society and Richard Fernyhough for John Skapski
John Skapski acted for a client who was the owner of a commercial fishing licence. Such licences are vessel-based, and the client had agreed to “lease” the licence to two people for the 2001 season. The Department of Fisheries and Oceans does not permit temporary transfers of vessel-based licences; therefore, a complex scheme of transfers and agreements was entered into. Skapski’s client transferred the fishing licence to the other parties and received one of the shares of title to their vessel.
The fishing licence was never intended to be owned by the other parties, nor was the share in their vessel intended to be owned by the client. As security for the return of the respective licence and vessel, transfer back documents were executed. These documents were not dated or filed, but instead were held in trust by Skapski.
In 2004, one of the other parties declared bankruptcy and did not list the fishing licence as an asset in the bankruptcy. In 2009 the vessel was seized along with the licence. Skapski advised the bailiffs that his client continued to own the licence. Skapski located a replacement vessel for the licence and then dated and filed with the Department of Fisheries and Oceans the transfer of the licence, which had been executed (but not dated) in 2001.
Skapski said that this complicated series of transactions was the only way to effect a lease of a commercial fishing licence that he was aware of at the time. He had not considered and did not appreciate that he was in breach of the Professional Conduct Handbook.
Admission and disciplinary action
Skapski admitted that his conduct in dating and affixing his signature in 2009, to a document solemnly declared before him in 2001, constituted professional misconduct.
The panel stated that lawyers have a duty to scrupulously adhere to the formalities of swearing affidavits, because to do otherwise would have grave repercussions. Allowing this conduct to go uncensured would harm the standing of the legal profession. Documentary evidence sworn before lawyers would lose its value if scrupulous adherence to rules of swearing such documents was not practised.
In this case, general deterrence is a factor, although specific deterrence is not, as Skapski has already developed a new protocol to deal with this type of scenario that does not offend Law Society rules and does satisfy the Ships Registry.
The panel took into consideration that Skapski had been called to the bar 30 years ago and did not have a professional conduct record. He had corrected his practice and, while the consequences of his conduct are not insignificant in that all documents sworn before lawyers need to be accurate and reliable, no harm resulted from his misconduct in this case.
The panel accepted Skapski’s admission and ordered that he:
1. be reprimanded; and
2. pay $2,000 in costs.
Called to the bar: August 26, 1988
Discipline hearing: January 24, 2012
Panel: Patricia Bond, Chair, Dr. Gail Bellward and William Sundhu
Oral reasons: January 24, 2012
Report issued: February 17, 2012 (2012 LSBC 09)
Counsel: Alison Kirby and Carolyn Gulabsingh for the Law Society and Henry Wood, QC for Glenn John Niemela
A complaint was made against Glenn John Niemela on May 24, 2011. As part of the Law Society’s investigation, a letter was sent to Niemela on July 11, 2011 that required a response. When no response was received, a second letter was sent on August 22. Niemela telephoned the Law Society on August 30 and apologized for the delay; however, he did not formally respond to the complaint. The Law Society followed up again in September. In October, Niemela was cited for failing to respond to the Law Society, contrary to Chapter 13, Rule 3 of the Professional Conduct Handbook.
On January 16, 2012, one week prior to the discipline hearing, Niemela responded in writing to the Law Society’s inquiry.
Admission and disciplinary action
Niemela acknowledged that the appropriate finding in this case is one of professional misconduct and that he had an obligation to respond to the Law Society in a timely manner. He explained that the circumstances of his workload played a major factor in his failure to respond, but did not present those circumstances or any others as an excuse for his behaviour.
In the panel’s view, an aggravating factor was the delay of 24 weeks for Niemela to respond to the Law Society’s initial request.
The panel took into consideration Niemela’s professional conduct record, which reflects a pattern of delay and procrastination. The panel urged Niemela to take the steps necessary to address any underlying issues that have contributed to this citation.
The panel stated that the need for general deterrence commanded a disciplinary action that reflected the seriousness of the offence, particularly in light of Niemela’s disciplinary record. Failure to reflect that seriousness appropriately risks erosion of the public’s confidence in the ability of the Law Society to regulate the conduct of its members.
The panel accepted Niemela’s admission and ordered that he pay:
1. a $5,000 fine; and
2. $2,000 in costs.
Called to the bar: May 15, 1974
Discipline hearing: November 16, 2011
Panel: Thelma O’Grady, Chair, David Crossin, QC and Nancy Merrill
Report issued: February 23, 2012 (2012 LSBC 10)
Counsel: Carolyn Gulabsingh for the Law Society and Roger Roy Plested on his own behalf
In February 2009, Roger Roy Plested acted on behalf of the executor of an estate in the sale of property. The property was subject to encumbrances, including a mortgage and a Strata Property Act lien.
On February 27, Plested sent executed documents for completion of the sale of the property along with a letter imposing undertakings on the lawyer representing the purchaser. He also gave an undertaking that he would provide clear title to the property on receipt of the sale proceeds.
Beginning in May, the purchaser’s lawyer sent several faxes to Plested regarding the discharges of the mortgage and lien. Plested did not respond to these communications.
On July 10, the closing date, the purchaser’s lawyer wrote to Plested imposing trust conditions on which the proceeds of sale would be provided to Plested, including obtaining discharges of a mortgage and a lien in a timely manner and payment of outstanding property taxes.
The transfer of the property occurred on July 10. On July 21, Plested received notification that sale proceeds had been deposited into his trust account. On July 24, Plested notified the purchaser’s lawyer by phone that he had hand-delivered a cheque for payment of the lien.
On September 25 and October 30, the purchaser’s lawyer wrote to Plested to advise that the lien and mortgage still appeared on title and that he had not received confirmation that the mortgage had been discharged. Plested did not reply to these letters.
On November 9, the purchaser’s lawyer wrote to Plested advising that his client was selling the property. The closing date was November 20, 2009 and Plested’s immediate attention to the outstanding undertakings was required. Plested did not reply to this letter.
Between November 20, 2009 and January 6, 2010, Plested attended to the outstanding undertakings, including discharges of the mortgage and lien. However, he did not provide the purchaser’s lawyer with any evidence the mortgage had been paid out or discharged.
The Law Society was appointed as custodian of Plested’s practice by order of the Supreme Court on July 9, 2010.
Admission and disciplinary action
Plested admitted that he breached the trust conditions imposed by the purchaser’s lawyer in failing to obtain the discharges of the mortgage and lien. He also admitted that he failed to respond reasonably promptly or at all to communications from the other lawyer. He agreed that such conduct constituted professional misconduct.
Plested stated that he was diagnosed with a major depressive disorder in April 2009 and prescribed ever-increasing doses of anti-depressant medication.
Plested was referred to the Practice Standards Committee as part of penalty conditions ordered by a hearing panel in 2007. That hearing panel found that Plested repeatedly failed to respond to clients and the Law Society. The committee determined that the state of his practice had worsened, as had his depressive disorder.
Plested is currently on an undertaking not to practise law until his psychiatrist certifies that he is capable of functioning adequately to meet basic competency levels.
Plested advised the panel that he had experienced substantial improvement in his condition. However, he had not yet had the psychiatric assessment completed as he did not feel he was ready to return to the practice of law and also could not afford the cost of the assessment. He stated that he had no income for 2010 and 2011 and no prospects of any income for at least another year.
In making its decision on disciplinary action, the panel considered the seriousness of the offences, including the fact that giving and fulfilling undertakings are the cornerstone of the legal profession and that breach of an undertaking is a very serious matter. The panel also considered Plested’s ongoing medical condition, the fact that he gained no advantage by his conduct, his financial circumstances, his age, and his limited professional prospects.
The panel accepted Plested’s admissions and ordered that he pay a $3,500 fine within 18 months of the order.
Called to bar: May 14, 1993
Suspended from practice: October 28, 2008
Ceased membership: January 1, 2010
Admission accepted by Discipline Committee: April 12, 2012
Counsel: Alison Kirby for the Law Society and Jean Whittow, QC for Rico Rey Hipolito
Rico Rey Hipolito was a sole practitioner and his practice was primarily in the area of immigration law. In his 2006 and 2007 trust reports, he stated that he did not maintain any trust accounts to receive, disburse or hold trust funds.
On October 21, 2008, the Law Society scheduled a compliance audit of Rey Hipolito’s practice; however, he was not present when the auditor arrived. The Law Society notified Rey Hipolito that he was required to produce and permit the copying of his records by October 28. When Rey Hipolito did not comply, he was immediately suspended under Law Society Rule 3-79.1.
Rey Hipolito arranged for another lawyer to manage his practice. On March 5, 2009, the court appointed the Law Society as custodian of his practice.
The Law Society investigated several allegations against Hipolito:
In 2004, Rey Hipolito received a flat fee of $2,700 for an immigration-related sponsorship application and visitor’s visa application for a client and her mother. He failed to ensure the applications were filed with Citizenship and Immigration Canada, and he incorrectly advised his client on the status. In 2007, the client made her own inquiries and found out that Rey Hipolito had not filed the applications. Rey Hipolito did not respond to her emails. He also failed to handle the money received in accordance with trust accounting rules.
In 2006, Rey Hipolito promised to repay a client $6,000 in fees after the client’s judicial review of the dismissal of an application for permanent residency was dismissed. When the funds had still not been received in 2008, the client made a complaint to the Law Society.
In 2008, Rey Hipolito took a flat fee of $2,500 to represent a client who wanted to sponsor her husband for permanent residence. He did not provide the services nor deliver a bill to the client, but rather used those funds for personal purposes. He also misappropriated $1,040 that was given to him in trust to pay Citizenship and Immigration Canada filing fees. Rey Hipolito misled the client as to the status of her application. In January 2009, he responded to the client’s email about the delay in processing the application, but did not disclose that he was suspended. The client made a complaint to the Law Society after Rey Hipolito sent her a bank draft for $1,040 in February 2009.
In 2009, Rey Hipolito gave legal advice and accepted $1,000 payment for his services when he was suspended from practising law. The client later checked “Lawyer Look-Up” on the Law Society’s website and saw that a custodian had been appointed over Rey Hipolito’s practice. She then contacted the custodian for information and assistance. The Law Society contacted Rey Hipolito and he admitted that he had accepted a retainer and confirmed that he knew that he was not allowed to practise.
Admissions and disciplinary action
Rey Hipolito admitted to professional misconduct for:
- failing to serve clients 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 in a similar situation;
- treating flat fee funds from clients as his own when he had not performed the services and had not billed his client;
- failing to repay the $6,000 he agreed to refund to his client;
- failing to file applications and misleading clients as to the status of the applications;
- misappropriating $1,040 paid by a client in trust; and
- not disclosing to clients that he was suspended from the practice of law and not referring those clients to the lawyer who had assumed conduct of his practice.
Under Rule 4-21, the Discipline Committee accepted Rey Hipolito’s admissions on his undertakings:
1. not to apply for reinstatement to the Law Society for a total of eight years ending on June 3, 2017;
2. during that period, not to apply for membership in any other law society without first advising the Law Society of BC; and
3. not to permit his name to appear on the letterhead of any lawyer or law firm or otherwise work in any capacity whatsoever for any other lawyer or law firm in BC without the prior written consent of the Law Society.
Called to the bar: September 13, 1983
Discipline hearing: February 6, 2012
Panel: Thelma O’Grady, Chair, Glenys Blackadder and John M. Hogg, QC
Oral reasons: February 6, 2012
Report issued: May 4, 2012 (2012 LSBC 15)
Counsel: Carolyn Gulabsingh for the Law Society and Henry Wood, QC for Wallace Moon Wong
Wallace Moon Wong acted for a client in divorce proceedings. Wong had to prepare an affidavit and financial statement, a sworn document to be completed by each party in a divorce action. Wong’s client was out of the country at the time, and he instructed his associate to prepare what he called a “take-out affidavit.”
Before the financial statement was prepared, and on the instructions of Wong, the associate sent the client the document with the jurat blank. Once the financial statement was completed, the associate administered the oath over the phone. The client then sent the signature page back to Wong’s associate where the jurat was completed with the date of swearing being the day the associate administered the oath over the phone. The “sworn” or signature page was then inserted into the completed financial statement.
The facts in the financial statement were correct, but the jurat and body of the financial statement were done separately. Most importantly, the client was never physically present before the lawyer to allow the lawyer to see the client personally sign and to be able to properly satisfy the requirements of swearing an affidavit.
There had been other occasions when Wong took this approach to affidavits. This was corroborated by the fact that he had a special name for the procedure, “take-out affidavit.”
The Professional Conduct Handbook specifically states that a lawyer must not swear an affidavit or take a solemn declaration unless the deponent “is physically present before the lawyer.” Wong stated in a letter that he was not aware of this requirement and that he considered it proper for the associate to complete the jurat of an affidavit when the well-known deponent had not signed the affidavit in her actual physical presence, but had sworn it was true over the phone.
Admission and disciplinary action
Wong admitted that his conduct constituted professional misconduct.
The panel found Wong’s conduct serious and a clear breach of his professional responsibility. On the other hand, the panel took into consideration that lengthy discipline proceedings were not required since Wong admitted the facts at an early date.
Although Wong’s conduct had occurred before, it was not prevalent. The facts and figures set out in the financial statement in this case were apparently accurate in every respect, even though the client’s oath was taken in a wholly inappropriate manner.
The panel also took into consideration Wong’s age and his professional conduct record, which included one conduct review for an unrelated issue. Wong gained nothing from his “take-out affidavit” procedure, and no harm was suffered by any person as a result of his actions.
The panel accepted Wong’s admission and ordered that he pay:
1. a $3,500 fine; and
2. $3,000 in costs.
Called to the bar: August 28, 1992
Suspended: April 8, 2010; ceased membership: January 1, 2012
Discipline hearing: March 23, 2012
Panel: Gregory Petrisor, Chair, Linda Michaluk and Dale Sanderson, QC
Oral reasons: March 23, 2012
Report issued: May 17, 2012 (2012 LSBC 17)
Counsel: Alison Kirby for the Law Society and John Lyndon Decore on his own behalf
John Lyndon Decore failed to complete and certify completion of his 2009 continuing professional development requirements. As a result, the Law Society suspended him on April 8, 2010.
On April 8, 2010, the Law Society sent a letter to Decore advising him of the suspension. He wrote to the Law Society in December 2010 using a different return address than the one on record with the Law Society.
Between December 2010 and August 2011, the Law Society sent several letters to Decore at one or both addresses. The letters initially requested a reply regarding his 2009 and 2010 continuing professional development requirements and also asked if he had engaged in the practice of law since his suspension. He was later notified, in writing, that the matter had been referred for possible disciplinary action. Decore did not respond to any of this correspondence.
On January 1, 2012, Decore ceased being a member of the Law Society for non-payment of his annual fees.
Admission and disciplinary action
At the hearing, Decore admitted receiving at least some of the letters the Law Society sent to him. He admitted that he did not respond to that correspondence.
Decore did not challenge the allegation of professional misconduct and gave evidence of his personal circumstances from 2010 through to early 2012. He stated he did not want to make excuses for not responding to the Law Society’s communications.
In light of the repeated attempts by the Law Society to elicit a response from Decore, his prolonged and unexplained failure to respond and his admissions, the panel concluded Decore’s conduct constituted professional misconduct.
While it seemed apparent that Decore was not engaged in the traditional practice of law on behalf of clients, he was nonetheless subject to the normal obligations of all lawyers. The failure to respond to communications from the Law Society could harm the public’s perception of the Law Society’s ability to effectively regulate lawyers.
In the panel’s view, Decore’s failure to respond to Law Society correspondence over an extended period of time, offering no explanation prior to the hearing, and an administrative suspension for failing to complete continuing professional development requirements, were aggravating factors.
The panel considered the fact that Decore acknowledged the misconduct and did not gain any advantage from it as mitigating factors.
The panel accepted Decore’s admission and ordered that he:
1. pay a $2,000 fine;
2. pay $2,500 in costs; and
3. provide a written and substantive response to the Law Society’s letters.
Called to the bar: May 12, 1981
Discipline hearing: April 27, 2012
Panel: Tony Wilson, Chair, William Jackson, QC and David Chiang
Oral reasons: April 27, 2012
Report issued: May 17, 2012 (2012 LSBC 18)
Counsel: Carolyn Gulabsingh for the Law Society and Douglas Warren Welder on his own behalf
In October 2007 and December 2008, the Canada Revenue Agency (CRA) registered two certificates in Federal Court for debts owed by Douglas Warren Welder.
Between February 2009 and April 2010, the Law Society sent numerous letters to Welder inquiring about the amount of taxes owing. He did not reply to any of the correspondence until April 5 and May 31, 2010 when he wrote that he had to obtain the figures from CRA. On June 11, 2010, Welder advised the Law Society of the amount of taxes he owed.
In January 2011, the Law Society notified Welder that his failure to communicate with the Law Society regarding taxes owed to CRA, as well as his failure to comply with the order of a 2007 review panel, would be referred for possible disciplinary action. The Law Society invited Welder to provide a proposal to satisfy the CRA judgments. He did not respond to the Law Society.
In the 2007 review panel decision, Welder was suspended from practice for three months and ordered that, upon his return to practice, he provide the Law Society with monthly proof that he had remitted the social services tax due. After Welder returned to practice, the Law Society wrote to Welder on four occasions requesting proof of payment of the social services tax for the period ending December 31, 2009. On February 5, 2010, Welder provided proof he had paid the social services tax and on April 5, 2010 he finally provided the GST return and proof of payment.
Admission and disciplinary action
The obligation to immediately notify the Law Society of an unsatisfied monetary judgment is part of a lawyer’s professional responsibility.
Welder failed to respond substantively to seven letters from the Law Society between February 2009 and January 2011. His conduct was ongoing, repeated and occurred over a period of approximately 20 months. The panel believed that his actions were obstructionist in nature.
Welder’s conduct was similar concerning his failure to provide a proposal to satisfy the judgments. He had also failed to respond to Law Society inquiries about a proposal to satisfy the CRA judgments. He was offered a final chance to provide a proposal in January 2011 and again failed to do so.
Welder has a professional conduct record that includes five conduct reviews and five prior citations. The pattern of misconduct, particularly when combined with an admission of failure to comply with the provisions of an earlier review panel decision, strike at the ability of the Law Society to perform its core function, which is to regulate lawyers in the public interest.
Welder gained an advantage from the misconduct by failing to prove to the Law Society that his payments to CRA were current. He had the benefit of use of the funds he had collected for taxes but which had not been remitted.
The panel was also troubled with Welder’s comment during the hearing: “I am hopeful that I will change my behaviour,” which is not the same as “I will change my behaviour.”
Welder conditionally admitted that his conduct in respect of both allegations constituted professional misconduct. The panel accepted his admissions and ordered that he:
1. be suspended from practice for three months; and
2. pay $2,500 in costs.
Dissenting opinion (Chiang)
Panel member David Chiang disagreed with the disciplinary action, as it was not within the range for repeated and frequent misconduct. He believed that Welder’s lengthy history of professional misconduct, his lack of contrition, and the number of times the offending conduct occurred should be taken into account. In Chiang’s view, a suspension greater than the range for first instances of failure was warranted.
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 (9) 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 $224,154 paid. This is in addition to the claims previously reported in the Summer 2010, Fall 2010 and Fall 2011 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.