Below are summaries with respect to:
- Leonard Thomas Denovan Hill
- Brian Clark Rea
- Paris Ari Hart Simons
- Daniel Markovitz
- David Harvey Stoller
For the full text of discipline decisions, visit the Hearings reports section of the Law Society website.
Bencher review: March 28, 2012
Benchers: Majority decision: Thelma O’Grady, Chair, Rita Andreone, QC, David Crossin, QC, Nancy Merrill, Lee Ongman, David Renwick, QC, Catherine Sas, QC and Barry Zacharias; Minority decision: Vincent Orchard, QC
Report issued: June 1, 2012 (2012 LSBC 20)
Counsel: Maureen Boyd for the Law Society and Leonard Thomas Denovan Hill appearing on his own behalf
The Law Society issued a citation to Leonard Thomas Denovan Hill for disbursing trust funds in breach of the terms of an undertaking.
In the decision of the hearing panel, it was found that Hill had breached the undertaking and the circumstances of the breach amounted to professional misconduct (facts and determination: 2011 LSBC 08, disciplinary action: 2011 LSBC 16 and corrigenda: 2011 LSBC 18; discipline digest: 2011 No. 3 Fall).
Hill sought a review of that decision to determine whether mistakes can be made by a lawyer in complying with undertakings that do not amount to professional misconduct.
Majority (O’Grady, Andreone, Crossin, Merrill, Ongman, Renwick, Sas and Zacharias)
The majority upheld the panel’s decision and concluded that Hill was guilty of professional misconduct. The majority declined to endorse the panel’s finding relating to Hill’s credibility and made no finding that Hill intentionally breached the undertaking.
In Hill’s request for a review, he raised the issue as to whether the panel properly assessed the evidence, including the issue of credibility. The panel had concluded that Hill was not credible in his assertion that he was unaware he was acting in violation of the undertaking. In addition, the panel concluded that, even accepting his evidence, his actions nevertheless amounted to professional misconduct due to his failure to take any steps to ascertain the true state of affairs before releasing the funds.
The majority was concerned that the Law Society’s allegation that Hill intentionally breached the undertaking was not fully brought forward at the disciplinary hearing and, therefore, Hill did not have an informed opportunity to fully answer and defend the allegation. It was clear to the majority that the parties litigated this case on a different basis.
The minority agreed with the conclusion that the panel correctly found Hill’s actions amounted to professional misconduct in breaching an undertaking. However, the minority did not agree with the majority’s comments concerning the factual finding by the panel rejecting Hill’s explanation that he was unaware of the undertaking imposed upon him.
In the minority’s view, it was open to the panel to reject Hill’s testimony that he was unaware of the undertaking. The panel determined that it was unlikely that Hill was unaware of the undertaking, based on his testimony and admission. The minority believed that the panel did not find Hill’s memory and explanation reliable, but they did not find him dishonest.
In conclusion, the minority was not satisfied that the panel’s factual finding rejecting Hill’s explanation that he was unaware of the undertaking was an obvious and overriding error. Having found that Hill was aware of the undertaking, the panel’s conclusion that the applicant knowingly breached the undertaking naturally followed.
Called to the bar: May 15, 1992
Non-practising membership: May 2009 to June 2012
Discipline hearing: April 18, 2012
Panel: Kenneth Walker, Chair, Gavin Hume, QC and Lois Serwa
Oral reasons: April 18, 2012
Report issued: June 27, 2012 (2012 LSBC 22)
Counsel: Leonard Doust, QC and Jaia Rai for the Law Society and Grant Gray for Brian Clark Rea
In December 2008, Brian Clark Rea was arrested for accessing child pornography on a home computer. The Law Society commenced an investigation that was subsequently held in abeyance pending conclusion of the criminal proceedings.
In the meantime, steps were taken to protect the public, and Rea recognized the need for these measures. In May 2009, he became a non-practising lawyer and gave a written undertaking that he would not engage in the practice of law until released from this undertaking.
In April 2010, Rea pleaded guilty to the charge of accessing child pornography and was sentenced to 14 days in jail and placed on a two-year probation order. The conditions of the order required Rea to take a sex offender rehabilitation program and to not attend public places where children under 16 were present or expected to be present. The conditions of that order extend to April 2015.
The Law Society’s investigation continued after Rea’s plea to the criminal charge.
Admission and disciplinary action
The panel accepted Rea’s conditional admission of a disciplinary violation, and found Rea’s use of the internet to view child pornography to be conduct unbecoming a lawyer.
The Professional Conduct Handbook sets out the standard of conduct expected of a lawyer. A lawyer must not, in private life, extra-professional activities or professional practice, engage in dishonourable or questionable conduct that casts doubt on the lawyer’s professional integrity or competence, or reflects adversely on the integrity of the legal profession or the administration of justice.
There were 94 images of child pornography found on Rea’s home computer. While some of the images of abuse were of very young children, Rea was interested in images of teenage boys. The panel also found that Rea viewed the images in his home and that there was no connection between the conduct and his practice of law.
The panel reviewed letters from Rea’s colleagues who stated that, if he was permitted to practise law, they believed he would apply himself diligently to serve his clients in a professional and ethical manner.
A psychiatrist examined Rea and reported that Rea became aware of homosexual interests in his teens but was unable to accept or tolerate such thoughts. Rea attempted suicide following the disclosure of his conduct in viewing child pornography.
The panel found that the psychiatrist expressed two relevant opinions. First, he believed that the ultimate goal of ongoing therapy would be to help Rea to accept his sexual orientation and that there was no evidence to suggest that Rea was at risk to act on his sexual interests with teenage boys. Second, he did not think Rea’s difficulties would interfere with his capacities to practise law and that he was able to control his impulses and conduct.
As the panel had no similar case upon which to base its decision on disciplinary action, the panel referenced several other matters. After considering these cases and the very serious nature of Rea’s conduct, the panel concluded that Rea’s conduct did not warrant disbarment, but rather a lengthy suspension. A suspension of three to four years was called for in the circumstances. Since, as a result of his conduct, Rea had already not practised law for over three years, the panel agreed that an additional six-month suspension was appropriate.
The panel ordered that Rea:
1. be suspended for six months;
2. pay costs of $10,000; and
3. be subject to conditions on his return to practice:
- not to represent any persons under the age of 16;
- not to practise in the area of family law;
- to continue in the care of a psychologist or psychiatrist, adhere to any advice or treatments, and provide progress reports to the Law Society;
- to abide by any orders, directions and recommendations of the Practice Standards Committee.
Called to the bar: November 19, 1999
Discipline hearing: May 17, 2012
Panel: Majority decision: Thelma O’Grady, Chair and Jennifer Reid; Minority decision: Carol Gibson
Report issued: July 3, 2012 (2012 LSBC 23)
Counsel: Carolyn Gulabsingh for the Law Society and Paris Ari Hart Simons appearing on his own behalf
In January 2006, Paris Ari Hart Simons agreed to become counsel of record for a client who was seeking damages for negligent chiropractic treatment. Although Simons did not have any experience with medical negligence claims, he took the case with good intentions of helping the client.
Simons presented the client with a contingency fee agreement, but the client did not sign it. The client was not able to pay for expert reports or other disbursements and did not give any retainer funds to Simons.
Before Simons was retained, the client’s matter had been scheduled for mediation in February 2006 and for trial in March 2006. Counsel for the defendants agreed to postpone the mediation and adjourn the trial after Simons was retained.
Simons familiarized himself with the file and attempted to assemble various expert reports to prove the client’s claim, but otherwise took no action between January 2006 and May 2009. He did not file a Notice of Intention to Proceed.
In February 2007, Simon’s client began expressing her frustration in communicating with him and with the lack of progress in her case. Between February 2007 and December 2009, Simons did not respond substantively or at all to 14 emails from his client or answer requests for information on 20 occasions.
On June 2, 2009, counsel for the defendants sent Simons a letter advising that the defendants would apply to dismiss the client’s claim for want of prosecution. Simons did not provide a copy of this correspondence to his client.
On September 1, the client emailed Simons and copied the Law Society, indicating she was seeking assistance in engaging Simons to communicate with her. The Law Society contacted Simons to encourage him to respond to the client.
Simons and the client exchanged email messages; however, Simons did not follow through with sending documents to the client.
On October 9, Simons received the defendants’ application to dismiss the claim for want of prosecution. Simons wrote to counsel for the defendants advising he intended to defend the application to dismiss. He did not provide copies of the application or his letter to the client.
On January 4, 2010, counsel for the defendants wrote to Simons to confirm the defendants’ application to dismiss would be heard on February 12, 2010. Simons met with his client and still made no mention of the defendants’ application.
On February 11, Simons left a convoluted voicemail message for the client advising that he had reported himself to the professional liability insurer and awaited advice about whether he could continue to act for her.
On February 12, Simons appeared before the court, advising that he had contacted his insurer, wished to be removed from the record and requested an adjournment. The judge made an order dismissing the client’s claim and awarded costs of the proceeding and the application to the defendants.
Admissions and disciplinary action
Simons admitted that his conduct related to quality of service and misleading his client constituted professional misconduct. In particular, he admitted that he failed to:
- keep his client reasonably informed about the status and progress of the court action;
- answer his client’s reasonable requests for information;
- take action as described to the client;
- answer communications that required a response within a reasonable time or do work promptly, or at all;
- disclose all relevant information to the client and thus misled the client.
Misleading a client is serious misconduct. The panel stated that, in this case, the impact on the client was considerable as the court action was dismissed, without notice to her, and she was then without counsel. Simons misled the client about the status of the court action and the quality of service he had provided to her. His failure to take steps to conclude the court action was exacerbated by his failure to communicate effectively with the client.
The panel took into consideration that Simons’ misconduct appeared to have conveyed little or no benefit to him. Simons did not receive any retainer funds from the client and did not invoice her for services provided.
The panel accepted Simons’ admissions and ordered that he be suspended for one month. The majority made no order as to costs on the basis that he had cooperated with the Law Society and admitted his misconduct. His financial situation could not withstand an award of costs on top of a suspension.
The minority concurred with the majority, with the exception of the issue of waiving costs. The minority was concerned that, from the public perspective, waiving costs did not meet the purpose of the discipline proceedings, which are not to punish offenders and exact retribution, but rather to protect the public, maintain high professional standards, and preserve the public confidence in the legal profession.
The minority was mindful of the fact that Simons had little income this year and, therefore, proposed that he pay costs of $1,000.
Called to the bar: May 14, 1993
Discipline hearings: December 20, 2011 and February 20, 2012
Panel: Leon Getz, QC, Chair, Jennifer Chow and Dan Goodleaf
Report issued: March 7 (2012 LSBC 11) and July 11, 2012 (2012 LSBC 25)
Counsel: Thomas Manson, QC for the Law Society and Daniel Le Dressay for Daniel Markovitz
On November 30, 2008, Daniel Markovitz was arrested for impaired driving. At the police station he provided two breath samples but refused to provide a third sample. On April 19, 2010, he pleaded guilty to the charge under the Criminal Code for failing to provide a breath sample.
Markovitz reported his arrest to the Law Society and the proposed charges and immediately entered into a monitored recovery program agreement and a similar undertaking with the Law Society to:
1. remain abstinent from alcohol;
2. attend a minimum of three mutual support meetings per week;
3. join a home group and use a sponsor;
4. enrol in the weekly Professionals Accountability Group at the Lawyers Assistance Program; and
5. provide regular and random urine and/or blood samples for verification of abstinence.
In December 2008, Markovitz began attending mutual support meetings, meeting with an addiction counsellor, and providing urine samples on request. By December 2009, he had ceased attending support meetings and providing urine samples.
On February 1, 2010 Markovitz asked the Practice Standards Committee of the Law Society to remove the requirement for random urine testing due to practical and financial difficulties. His request was refused. By March 2010, Markovitz was failing to provide urine and/or blood verification of abstinence and his addiction counsellor cancelled the monitored recovery agreement.
Markovitz advised the Law Society that he was not attending support groups because they conflicted severely with his work and, in the case of Alcoholics Anonymous, the concept of “higher power” conflicted with his beliefs. He enrolled in the Professionals Accountability Group at the Lawyers Assistance Program. However, his irregular attendance broke the rules, and, in April 2010, he was told he was no longer welcome to attend.
Admissions and disciplinary action
Markovitz admitted that his refusal to provide a breath sample to police amounted to conduct unbecoming a lawyer. He also admitted that his numerous failures to comply with an undertaking and agreements related to the monitoring of his consumption of alcohol and his treatment for alcohol abuse or dependency amounted to professional misconduct.
The Law Society sought an order under section 38(5)(d)(ii) of the Legal Profession Act suspending Markovitz until he satisfied a board of examiners that his competence to practise law was not adversely affected by a physical or mental disability, or dependency on alcohol or drugs. Markovitz was prepared to pay a fine and costs, but resisted any suspension order.
Markovitz testified that, at the time he gave the undertaking, he was unfamiliar with the various alcohol programs but agreed to them because he was concerned that the Law Society might suspend him and that, if that happened, he might lose the custody of his minor child of an earlier marriage. He explained that some of his other defaults were due to the financial burden that compliance entailed and the logistical difficulties of getting to the prescribed locations and times when he had obligations to clients for attendances in court and a driving ban for a period of time.
The panel found it difficult to accept his difficulties as justifications for his defaults. The appropriate response to all of these difficulties and inconveniences was not to simply ignore the undertaking, but rather to seek to have it modified. While Markovitz did approach the Law Society seeking relief from the requirement to undergo random urine tests, the panel noted that he did not raise his concerns about the requirement to attend support meetings.
Markovitz sought to contend that all that he had undertaken to do was be abstemious, not abstinent, and that he had not promised to cease and desist from all consumption of alcohol but only that he would consume alcohol on rare occasions, and then only in moderation. The panel believed that this indicated a somewhat nonchalant approach to his undertaking to remain abstinent from alcohol.
Two medical practitioners reported that Markovitz met the criteria for alcohol abuse and emphasized the need for complete abstinence. Prior to the February hearing, Markovitz underwent a medical examination and a random urine test. In the panel’s view, the results from these more recent tests provided limited and somewhat qualified and inconclusive evidence.
The medical specialists did not imply that, unless Markovitz followed their recommendations, he constituted a present, foreseeable or even remote risk of harm to clients, the public or the legal profession. The panel determined that there was no demonstrable connection between his professional misconduct and alcoholism and therefore declined to make the proposed suspension order.
Markovitz denied that he currently has any problems with alcohol consumption, though the panel understood that denial is one of the symptoms of an untreated alcoholic. The panel found no evidence that his undertaking defaults were attributable to alcoholism.
The panel stated that Markovitz’s breaches of undertaking over several years have been persistent, repetitive and knowing and that he appeared not yet to fully accept the importance, to himself, to the Law Society and to others, of honouring his promises.
The panel accepted Markovitz’s admissions and ordered that he pay:
1. a $6,500 fine; and
2. $3,500 in costs.
West Vancouver, BC
Called to the bar: January 13, 1981
Discipline hearing: June 13, 2012
Panel: Thelma O’Grady, Chair, John Lane and Sandra Weafer
Report issued: July 20, 2012 (2012 LSBC 26)
Counsel: Carolyn Gulabsingh for the Law Society and Henry Wood, QC for David Harvey Stoller
In a real estate transaction in which David Harvey Stoller acted for the owners of two properties, he inadvertently registered a mortgage against the wrong property. As a result, the vendor’s property was subject to a mortgage at the time of the sale. Stoller gave his undertaking to discharge the mortgage in a letter to the purchaser’s lawyer dated August 26, 2009.
Beginning in November 2009, the purchaser’s lawyer made numerous inquiries of Stoller’s office seeking the discharge pursuant to the undertaking. By March 22, 2010 the purchaser’s lawyer still had not received the discharge. As a result, he filed a complaint with the Law Society.
The mortgage was ultimately discharged on November 23, 2010.
Admission and disciplinary action
Stoller admitted that he breached his undertaking and that this conduct constituted professional misconduct.
The panel noted that Stoller had no conduct history of breaches of undertaking. However, his prior conduct record sets out two earlier matters relating to delay and procrastination, as well as failing to document files appropriately. Stoller’s breach of undertaking in this case was not the result of dishonesty or failure to understand his obligations. The panel found that his conduct in this matter, like the earlier matters, demonstrated an underlying element of delay and procrastination.
The panel accepted Stoller’s admission that his failure to discharge the mortgage for almost 15 months constituted professional misconduct, and ordered that he pay:
1. a $3,000 fine;
2. $3,100 in costs; and
3. $224 in disbursements.