Conduct reviews

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, including:

  • 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.

Breach of undertaking

A lawyer breached an undertaking given in a real estate matter by releasing holdback funds. The lawyer failed to personally review the file and instead relied on her paralegal assistant, who misunderstood the terms of the undertaking and had not been involved in the file when the undertaking was given. The lawyer has reorganized her practice and has ­allocated a portion of each work week to the administration of her ­practice. (CR#2012-61)

A lawyer breached an undertaking given in a real property transaction and a related litigation matter and did not take immediate steps to rectify the breach when he became aware that he could no longer comply with the undertaking. His client gave him contrary instructions post closing, and the lawyer mistakenly believed that his client’s instructions were paramount to the undertaking. A conduct review subcommittee discussed the Professional Conduct Handbook requirement that a lawyer fulfill all undertakings. The subcommittee discussed the large array of resources available to help resolve ethical issues, including the Benchers and Law Society practice and ethics advisors who can provide immediate and helpful assistance. The lawyer stated that, in the future, he would get his client’s written instructions concerning money that is the subject of an undertaking and his client’s written approval of any payments to be withheld from the client. (CR#2012-65)

Breach of trust accounting rules

A lawyer withdrew trust funds prior to delivering a bill, failed to report trust shortages, failed to perform monthly trust reconciliations in a timely way, failed to record cash receipts in cash receipt book and failed to maintain proper records. The errors were numerous but not substantively serious. The lawyer cooperated with the Law Society and had improved his accounting practices by the time of the follow-up audit. A conduct review subcommittee recommended that he develop a succession plan, review the Trust Accounting Handbook with his bookkeeper and hire an accountant to do informal audits on an annual basis to check for general compliance. (CR #2012-48)

A lawyer failed to keep proper trust account records, signed blank trust cheques, did not record trust transactions within seven days, made payments from trust when records were not current and did not maintain trust and general account records on site. The lawyer’s conduct in failing to comply with a court order requiring him to hold funds in trust pending agreement between the parties was also addressed. On a post-audit review, the lawyer had made progress in dealing with some of the accounting issues. Should the lawyer be subject to further disciplinary action, the conduct review subcommittee wanted to record its view that the lawyer failed to take personal responsibility for the issues and did not appear to appreciate the seriousness of his breaches of the accounting rules or the court order. (CR #2012–50)

A lawyer withdrew trust funds that were impressed with a specific purpose contrary to Rule 3-57(7). The court had ordered the funds to be used to pay down a joint family debt. Opposing counsel agreed to the funds being paid to the lawyer on the understanding that the funds were to be used as ordered. Instead, the lawyer used some of the funds to pay his legal fees and paid out the balance to his client. A conduct review subcommittee advised the lawyer that his conduct was inappropriate in that he had acted contrary to his obligation as an officer of the court to ensure the terms of an order were fulfilled and contrary to his agreement with opposing counsel. The subcommittee also pointed out that opposing counsel’s client was harmed by his conduct and that the lawyer’s conduct reflected poorly on the legal profession. (CR #2012-55)

A lawyer billed a client for disbursements that had not been billed or paid by the lawyer, failed to properly record cash payments and disbursements and had an aggressive communication style with a client. The lawyer had medical and financial issues that affected her ability to conduct a trial. The lawyer agreed not to take on work that is beyond her capacity. The lawyer currently has a practice supervisor. (CR #2012–57)

A lawyer acted as executor of a simple estate, but had not fully administered the estate after five years. He failed to maintain proper records for the accounting of the estate and inaccurately represented on his trust reports that he had maintained them in accordance with Part 3, Division 7 of the Law Society Rules. He rendered bills with no description of the work, and took funds prior to delivering a bill and without first obtaining the beneficiary’s approval. The lawyer also failed to keep the client informed of the status of the matter and failed to provide an accounting of the estate to the beneficiary. (CR #2012-59)

Breach of no-cash rule

A client deposited $10,000 in cash into a lawyer’s bank account at a bank branch in another province to cover a residential conveyance. The lawyer mistakenly believed that Rule 3-51.1(3.3) only applied when he or his staff actually received cash in his office. The lawyer also failed to record the funds in a cash receipt book contrary to Rule 3-61.1(1) and failed to correctly report the transaction on the firm’s trust report contrary to Rule 3-72(5). A conduct review subcommittee emphasized the importance of self regulation in this area. It suggested that, unless the profession can illustrate its ability to regulate itself in respect of receipt of cash, the ­government may impose its own regulation and thereby limit the ­capacity of lawyers to act independently in their clients’ interests. (CR #2012-63)

Failure to remit GST and PST

A lawyer failed to remit GST and PST and provided inaccurate responses on his trust reports. The lawyer has now hired a full-time financial manager. A conduct review subcommittee recommended that he hire competent accountants and tax professionals and that he contact the Law Society practice advisors if he encounters technical accounting issues in the future. (CR #2012-45)

Taking default without reasonable notice

A lawyer obtained default judgment without giving adequate notice to opposing counsel as required by Chapter 11, Rule 12 and Chapter 1, Rule 4 of the Professional Conduct Handbook. He also paid out trust funds when he knew the other party would likely apply to set aside the default judgment. The lawyer was subject to an imposed undertaking not to take steps to note defendant in default without adequate notice. The lawyer stated he would be more prudent in the future to review and comply with undertakings, would not bow to client pressure and would ensure that he made the appropriate course of action clear to his clients. (CR #2012–44)

Rudeness and incivility

A lawyer contacted a represented opposing party on two occasions and engaged in unprofessional and discourteous communications with ­other lawyers. The lawyer was a former lawyer at the time of the review. A ­conduct review subcommittee reminded him that lawyers must remain civil, courteous and objective, even in the face of frustration and dissatisfaction. (CR #2012-49)

A lawyer engaged in unprofessional and discourteous communications with opposing counsel while acting in a difficult matrimonial matter. The tone of his correspondence ranged from somewhat abrasive to implicitly threatening and was not in accordance with guidelines 1 and 3 of the Best Practice Guidelines for Lawyers Practising Family Law. A conduct review subcommittee reminded the lawyer of the importance of remaining objective and of his professional obligation to do so even while vigorously representing interests of his client. (CR #2012-60)

Failure to respond to another lawyer

A lawyer delayed in responding to communication from another lawyer contrary to Chapter 11, Rule 6 of the Professional Conduct Handbook and left an executed Form A transfer of property with his clients when he knew that the property was under foreclosure, that the financial institution had conduct of sale of the property and that his clients did not have sufficient funds in place to pay out the mortgage. The transfer was filed by the clients and had to be set aside as a fraudulent conveyance/preference. The lawyer acknowledged that the transfer should have remained in his possession. (CR #2012-58)

Failure to report criminal charge

A lawyer failed to report an impaired driving charge to the Law ­Society, failed to disclose an undertaking given as part of a negotiated ­disposition of the criminal charge and made inaccurate statements in an ­affidavit about the Law Society investigation. Lawyers are reminded of their ­obligation to report a criminal charge under Rule 3-90(1) and of the importance of precision and accuracy in the wording of affidavits. (CR #2012-46)

Conduct unbecoming

A lawyer was publicly intoxicated and charged with obstruction of justice and assault of a driver, after a motor vehicle accident in which he was a passenger in another car. This conduct was contrary to Chapter 2, Rule 1 of the Professional Conduct Handbook. Although he reported the criminal charges, he withheld information and delayed responding to the Law Society. The lawyer has undergone counselling and is more aware of the role of a lawyer in the community. (CR #2012-64)

Conflict of interest

A lawyer commenced a relationship with a client’s common law partner. The lawyer failed to provide undivided loyalty to her client, failed to ­disclose all relevant information to her client and engaged in conduct that would adversely affect the integrity of the legal profession. The lawyer withdrew as counsel shortly after the relationship began. The lawyer apologized to the client and acknowledged her misconduct. (CR #2012-51)

A lawyer personally invested, and solicited investment from other people, in a client who was eventually found to be involved in a US Ponzi scheme. Lawyers should avoid mixing an investment sales role with their professional status as a lawyer. Lawyers should also refrain from engaging in conduct, whether in private life, extra-professional activities or professional practice, that casts doubt on the lawyer’s professional integrity or reflects adversely on the integrity of the legal profession. A conduct review subcommittee noted that lawyers are trusted by the public. By soliciting investment, the lawyer attached his credibility to the investment scheme. The subcommittee recommended the lawyer refrain from making investment opportunities available to others when he has not ­independently investigated the veracity of the facts upon which the ­investment was based. The lawyer acknowledged his misconduct and advised that he would be more vigilant with respect to his intake of potential clients in the future. (CR #2012-56)

A lawyer drafted a share purchase agreement on behalf of both a vendor and the purchaser without ensuring each party obtained independent legal advice, contrary to Chapter 6 of the Professional Conduct Handbook and the minutes of the Ethics Committee dated July 4 and December 11, 2008 .(CR #2012-62)

Duty to court

A lawyer made certain representations as to the principal driver and mechanical condition of a personal motor vehicle during a small claims court trial. The court found that the lawyer had wilfully made false representations. Chapter 1, Rule 2 of the Professional Conduct Handbook states that a lawyer must not attempt to deceive the court by offering false evidence or by misstating facts or law. A conduct review subcommittee accepted the lawyer’s acknowledgment of poor judgment in an isolated, personal matter. (CR #2012-47)

Duty to court and other lawyers

A lawyer swore an affidavit that materially misstated the terms of two court orders. In doing so, he cast aspersions on the integrity of opposing counsel without justification. The lawyer also pressed an application to dismiss based on non-compliance with court orders, even after he knew his characterization of the court orders was mistaken. The ­lawyer did not intend to mislead the court, and it was not, in fact, misled. A ­conduct ­review subcommittee reminded the lawyer of his obligation not to ­misstate facts before the court or knowingly assert facts for which there is no reasonable basis. The subcommittee also stressed the importance of finding a balance between vigorously pressing a client’s case and acting with courtesy, civility and good faith towards another lawyer. (CR #2012-53)

Duty to state

A lawyer obtained a publication ban on evidence and then subsequently spoke with reporters about matters covered by the ban. By speaking with reporters, he may have encouraged the publication of information by the media notwithstanding the ban, contrary to Chapter 1, Rule 1(1)of the Professional Conduct Handbook. (CR #2012-66)

A realtor, related to purchasers of real property, forwarded deposit money to a lawyer after the purchase transaction had collapsed. The realtor failed to impose any explicit trust conditions on the money but did forward the funds care of the purchase file. The funds were deposited in the lawyer’s trust account to the credit of the purchase file. Prior correspondence made it arguable that the funds were received as a “stakeholder.” The vendor claimed the deposit monies. The lawyer used the deposit funds to pay his fees then paid the balance to the purchasers. The lawyer facilitated the breach of the realtor’s obligations under the contract of purchase and sale and the Real Estate Services Act, contrary to Chapter 1, Rule 1 of the Professional Conduct Handbook. (CR# 2012-68)

Electronic filing and duty of other lawyers

A lawyer signed his name over the names of US patent agents employed by his firm without their permission and used a patent agent’s digital signature without permission when he had been expressly directed not to do so. The lawyer also failed to ensure that his practice met US patent law requirements. The lawyer candidly recognized the gravity of his mistakes. (CR #2012–52)

Electronic filing

A lawyer allowed his electronic signature to be affixed by his real estate paralegal, contrary to sections 168.3 and 168.9 of the Land Title Act, the Land Title and Survey Authority of BC requirements and his agreement with Juricert. The conduct brought into question the lawyer’s competence and reflected adversely on the integrity of the legal profession under Chapter 2, Rule 1 of the Professional Conduct Handbook. A conduct review subcommittee noted that the requirement was designed to prevent fraud and to uphold the integrity of the land title system in BC. The subcommittee cautioned that a possible consequence of the misuse of electronic signatures is that Juricert could revoke the authority to digitally sign documents. The lawyer has now obtained a new signature and has corrected his practice. (CR# 2012-67)

Failure to supervise employees

A lawyer failed to supervise her employee who was acting unprofessionally toward a client. A conduct review subcommittee advised the lawyer that she had a duty to supervise her staff and ensure that they act professionally and in a manner that does not tarnish the reputation of the legal profession. The lawyer has now implemented a policy that any client complaint is dealt with directly by her and that staff is to avoid substantive conversations or any personal discussions with clients. (CR #2012-54)