The publication of conduct review summaries is intended to assist lawyers by providing information about ethical and conduct standards.
A conduct review is a confidential meeting between a lawyer against whom a complaint has been made and a conduct review subcommittee, which may also be attended by the complainant at the discretion of the subcommittee. The Discipline Committee may order a conduct review pursuant to Rule 4-4, rather than issue a citation to hold a hearing regarding the lawyer’s conduct, if it considers that a conduct review is a more effective disposition and is in the public interest. The committee takes into account a number of factors, which include:
- the lawyer’s professional conduct record;
- the need for specific or general deterrence;
- the lawyer’s acknowledgement of misconduct and any steps taken to remedy any loss or damage caused by his or her conduct; and
- the likelihood that a conduct review will provide an effective rehabilitation or remedial result.
A conduct review was ordered to address a lawyer’s conduct in accepting cash of $7,500 or more contrary to Law Society Rule 3-51.1. The lawyer, as administrator of an estate, removed $10,000 cash from a safety deposit box and deposited the funds in his firm’s trust account. The “no cash rule” was triggered once his firm received the cash, whether or not he was acting in his capacity as administrator. The subcommittee observed that he could have opened an estate account, deposited the money in that account and then obtained a bank draft payable to the firm.
This conduct review arose from a compliance audit of a lawyer that identified:
1. a failure to report and pay trust administration fees (TAF) for a period of four years,
2. inaccurate trust reports relating to the full and timely payment of TAF, PST, GST and statutory remittances,
3. a failure to review bills prepared by support staff for accuracy and completeness prior to electronically submitting them for payment to the Legal Services Society, and
4. a failure to adequately secure client records while in a space-sharing arrangement with a non-lawyer.
Since the audit, the lawyer purchased an updated computer program to assist him in keeping track of his financial affairs and he now meets regularly with staff to review administrative and financial matters related to his practice. He has also terminated the space-sharing arrangement and keeps the file cabinets located in the hall and reception area locked at all times.
The subcommittee advised that a lawyer could not delegate financial and administrative matters to support staff without proper supervision and must attend to all matters associated with the practice in a diligent, careful and professional manner, regardless of whether they were strictly legal in nature. They also advised that a lawyer must complete trust reports with the utmost integrity and honesty.
This conduct review was ordered to discuss a lawyer’s failure to clearly and regularly communicate with his client about the status of the client’s file and retainer. It was also ordered to discuss the lawyer’s failure to respond in a timely fashion to other lawyers and the Law Society. The lawyer admitted to significant time management challenges. He has now accessed books, online material and software to improve his time management skills. He will work on improving his communication skills so that he communicates with his clients and others in a timely and positive manner.
A conduct review was ordered to address a lawyer’s conduct in jointly representing two spouses in the preparation of their wills and then later acting for the husband against the wife in a matrimonial proceeding. Also, the lawyer deposited a retainer into her general account and failed to account to her client for these trust funds, contrary to the Law Society’s trust accounting rules. The lawyer had no explanation for her failure to deposit the retainer into trust and to account to her client for the funds. She now intends to deposit the money into trust, render an account, remit the requisite GST/HST and report the incident on her annual trust report. The lawyer acknowledged that she did not advise her clients of the principle of undivided loyalty at the time of preparing the wills nor did she seek the wife’s consent to subsequently act for the husband, as required under the conflict of interest provisions in Chapter 6 of the Professional Conduct Handbook. The lawyer was encouraged to address ethical or professional conduct issues that may arise in the future with colleagues, senior lawyers or a Bencher.
A lawyer withdrew as counsel in a contentious matrimonial/custody proceeding 10 days prior to a scheduled trial. The trial was adjourned, creating hardship for the client and inconvenience for the court, the opposing party and opposing counsel, contrary to his obligations under Chapter 10 of the Professional Conduct Handbook. The lawyer withdrew as counsel because his payment had been suspended by the Legal Services Society. The lawyer acknowledged that the suspension of payment was because he abdicated his financial responsibilities to ensure the accuracy of the bills rendered to the Legal Services Society and the payment of his practice debts contrary to Chapter 2, Rule 2 of the Professional Conduct Handbook. The subcommittee encouraged the lawyer to be vigilant in the management of his own financial affairs and to reach out to senior members of the bar and Law Society staff when he needs assistance.
A lawyer’s compliance audit identified inaccurate statements in a trust report, commingling of personal funds in trust accounts and failure to remit taxes, in breach of the Part 3, Division 7 accounting rules. The lawyer presented medical evidence that provided an explanation of the behaviour. The lawyer has taken steps to address all the financial irregularities and paid the required tax penalties. The lawyer intends to hire a bookkeeper to prepare the necessary accounting records on a monthly basis.
This conduct review was ordered to address a lawyer’s conduct in failing to respond to requests from opposing counsel and ignoring the Rules of Court, resulting in costs being awarded against him personally. The lawyer was involved in a lengthy trial and did not have sufficient support for his busy litigation practice. Opposing counsel brought five pre-trial motions relating to various matters. The lawyer believed opposing counsel was being tactical in bringing the motions while he was at trial and did not respond in a timely way. The lawyer now has more support for his litigation practice so that he can comply with his pre-trial obligations, and he intends to withdraw as counsel if his clients fail to comply with their pre-trial obligations. The lawyer was encouraged to seek advice from other counsel if he thinks opposing counsel is acting inappropriately, prior to taking any action on his views.
This conduct review was ordered to discuss a lawyer’s conduct in failing to comply with his undertaking to a judge given in a court proceeding to which he was personally a party. Since the incident, he has received counselling from PPC Canada and the Lawyers Assistance Program, and regularly attends Gamblers Anonymous meetings. The lawyer acknowledged that much of his difficulties stemmed from acting as his own counsel in the court proceeding and his lack of a support network to assist him when facing personal and professional stress.
These conduct reviews were ordered to address the conduct of two lawyers in failing to comply with the Land Title Act and Land Title and Survey Authority of BC requirements regarding the use of digital signatures. After reviewing documents, the lawyers had authorized another person to affix their digital signatures to those documents so that they could be filed electronically. The lawyers were reminded that it was an offence under the Act and a breach of the Juricert (BC’s certifying authority) terms and conditions to do so. This misuse could result in the revocation of their authority to e-file and disciplinary action. The digital signature requirements are designed to prevent fraud and to uphold the integrity of the land title system in British Columbia. Lawyers are reminded to keep their passwords confidential.
This conduct review was ordered to address a lawyer’s conduct in connection with a “pump and dump” scheme, in which the lawyer was alleged to have participated in the issuance of false and misleading press releases and the illegal, unregistered offerings of company shares. The conduct occurred in the lawyer’s first year of practice. The lawyer no longer practises securities law. He acknowledged the importance of keeping separate his business affairs from his legal practice and of seeking practice advice from senior lawyers.
A lawyer failed to keep proper records showing the source and purpose of funds deposited into trust. The lawyer received money in trust under a contract for purchase and sale. He did not properly record the source of or purpose of the funds and mistakenly paid them to the seller though the sale did not complete. An agreement was reached between the seller and buyer with respect to the funds. The lawyer has now improved his trust deposit accounting form and has hired experienced bookkeeping staff to ensure that a similar mistake does not occur again.
This conduct review arose from a lawyer’s failure to properly communicate with his client. The lawyer began an action to collect his unpaid fees, and the client complained of the lawyer’s handling of her family law matter. Much of the lawyer’s difficulties could have been avoided if the lawyer had properly managed his client’s expectations and had responded to her concerns in a more timely, helpful and less adversarial way.
This conduct review was ordered to discuss a lawyer’s conduct in accepting an undertaking when the fulfillment of its terms was not completely within his control. Lawyers are reminded of the importance of understanding the terms of an undertaking before accepting it and, once accepted, the need to fulfill it in a timely way.
This conduct review was ordered because a lawyer used a Law Society letter during a fee review. The letter stated that the Law Society had concluded a complaint made against the lawyer was “not valid or unproven.” Lawyers may not use a complaint lodged by a client with the Law Society against the client in unrelated civil proceedings. Lawyers are also reminded that section 87 of the Legal Profession Act does not permit the use of disciplinary reports without the consent of the Law Society or of a complaint without the consent of the complainant.
This conduct review was ordered to address a lawyer’s conduct in drafting a clause in a client’s will in which she named herself as residual beneficiary, contrary to Chapter 7, Rule 1 of the Professional Conduct Handbook. Regardless of the size of the estate, by inserting such a clause, the lawyer created a conflict between the financial interests of the client and that of the lawyer.
This conduct review was ordered to discuss a lawyer’s conduct in breaching an undertaking given when acting for the executors of a will to hold certain personal items that formed part of the estate. While the lawyer was on holidays, the executors requested the release of the items for sale at an auction house. The items were mistakenly released in breach of the undertaking, but were recovered shortly afterwards. The lawyer now flags and highlights undertakings and ensures that a copy of the undertaking letter is attached to the subject matter of the undertaking.
CR #2012-37 and CR#2012-41
These conduct reviews were ordered to discuss the role of two lawyers in the sale of a half interest in a business by a dishonest seller. Lawyer A, while not directly retained by the seller, assisted Lawyer B in preparing the sale documents. The seller, who was in the business of buying and selling businesses, misrepresented the prior purchase price he had paid for the business. The lawyers included that price in the sale documents. Both lawyers met directly with the buyers in the absence of their counsel. Prior to closing, the lawyers received large cash “gifts” from the seller when they knew that there was little or no basis for such gifts. During the course of subsequent litigation to which both lawyers and the seller were co-defendants, Lawyer A also communicated directly with the seller in the absence of the seller’s counsel. The conduct review subcommittee reminded the lawyers that they should guard themselves against the predatory practices of dishonest clients. The cash should have been reported as revenue for income tax purposes. The lawyers were reminded that Chapter 4, Rule 11 of the Professional Conduct Handbook prohibits lawyers from communicating with a person who is represented by another lawyer without that lawyer’s knowledge and consent. The lawyers were also reminded to maintain clear boundaries with their clients.
This conduct review was ordered to address a lawyer’s conduct in allowing a client to send out copies of a demand letter on the lawyer’s letterhead, apparently signed by the lawyer but actually signed by the client, contrary to Chapter 12, Rules 1 and 2 of the Professional Conduct Handbook . The lawyer immediately ceased that practice once told it was improper.
This conduct review was ordered to discuss a lawyer’s conduct in accepting cash of $7,500 or more contrary to Law Society Rule 3-51.1. The lawyer, in his capacity as executor and trustee of an estate, accepted monthly cash payments from tenants renting an estate property and deposited the money into his trust account. Eventually, the cash received exceeded the $7,500 cash limit. The lawyer then opened an estate account and deposited the funds into the estate account. The “no cash rule” was triggered once the lawyer received an aggregate of more than $7,500 in cash, whether or not he was acting in his capacity as executor. The lawyer did not report the inadvertent breach of the “no cash rule” to the Law Society, as required.
This conduct review arose from a lawyer’s failure to respond promptly to communications from another lawyer. The lawyer’s client was required by court order to provide medical progress reports to the other party in a family law proceeding. The lawyer delayed for one month in forwarding the medical reports, despite numerous letters and phone calls from the opposing counsel.
This conduct review was ordered to discuss a lawyer’s conduct in a share transaction in which he held funds as escrow agent and in which he did not advise unrepresented sellers he was not protecting their interests, contrary to Chapter 4, Rule 1 of the Professional Conduct Handbook; improperly withdrew funds from trust, contrary to Law Society Rule 3-56(1); and failed to properly record the purpose for which he held the trust funds, contrary to Rule 3-60. The lawyer transferred shares to his client by way of a limited power of attorney provided by the sellers, but failed to protect the sellers for the agreed price as he had committed he would. The lawyer did not keep proper track of the various share transfers and payments, resulting in a transfer of shares to the client without a corresponding payment to the seller. The lawyer apologized to the seller and paid the money owed to them. The lawyer agreed to contact the Law Society for information on how to create and properly maintain a valuables registry.
This conduct review was ordered to address a lawyer’s conduct in raising his voice and physically contacting opposing counsel during court. The lawyer admitted his error and regrets his lack of professionalism and decorum. The Professional Conduct Handbook specifies that lawyers must not engage in dishonourable or questionable conduct and their conduct towards other lawyers should be characterized by courtesy and good faith.