Discipline digest

Below are summaries with respect to:

For the full text of discipline decisions, visit the Hearings reports ­section of the Law Society website.


Laird Russell Cruickshank

Vancouver, BC
Called to the bar: May 10, 1983
Discipline hearing: April 19, 2012
Panel: Majority decision: Tony Wilson, Chair, and Adam Eneas; Minority decision: Carol Hickman, QC
Oral Reasons: April 30, 2012
Report issued: August 22, 2012 (2012 LSBC 27)
Counsel: Alison Kirby for the Law Society and Gerald Cuttler for Laird Russell Cruickshank

Facts

Between 2005 and 2008, Laird Russell Cruickshank failed to comply with various accounting rules in multiple instances, breached two undertakings in separate civil litigation matters, failed to enter into written contingent fee agreements with five clients, and failed to remit PST and GST in a timely way. His failures to comply with Law Society rules were uncovered during a compliance audit and a subsequent investigation of his practice.

Cruickshank’s annual trust report for the period ending April 30, 2010 revealed his continued failure to remit PST and GST in a timely way, failure to remit employee source deductions, and failure to comply with various accounting rules in several instances in 2009 and 2010.

At the hearing, Cruickshank’s lawyer submitted that Cruickshank was a poor administrator of the business side of his practice and was taking steps to remedy that. In May 2011, he hired a bookkeeper experienced in law firm accounting practices.

Admission and disciplinary action

Cruickshank admitted to a breach of the Law Society accounting rules and also admitted to professional misconduct. Pursuant to Rule 4-22 and subject to the ruling of the panel, both Cruickshank and the Law Society’s Discipline Committee agreed to a proposed disciplinary action of a one-month suspension and $8,500 in costs. The panel could either accept or reject the proposed disciplinary action but could not modify it.

The panel noted that Cruickshank had a prior discipline history with the Law Society, which included a previous conduct review for breach of undertaking.

Majority (Wilson, Eneas)

In the majority’s view, Cruickshank was profoundly sloppy in his bookkeeping, accounting and law firm management practices. Although the misconduct amounted to numerous breaches over a period of five years, the misconduct was largely caused by Cruickshank paying little or no ­attention to the administrative side of his practice. There was no evidence of any harm to clients, and he did not gain any financial advantage from his conduct.

The majority acknowledged that Cruickshank’s infractions between 2005 and 2010 were due, in part, to the fact that he relied on office managers who were unfamiliar with Law Society trust accounting practices and procedures. However, the majority also recognized that this was not an excuse, as lawyers must ensure their professional staff is qualified and capable of performing the duties and responsibilities expected of members of the Law Society.

In addition to admitting to the rules breach and the incidents of professional misconduct, the majority found that Cruickshank had taken steps to alleviate management and accounting deficiencies in the future. In February 2011, Cruickshank completed the Law Society’s trust accounting course. He hired an experienced bookkeeper who is familiar with trust accounting for lawyers.

The majority accepted Cruickshank’s admission and the proposed disciplinary action and ordered that he:

1. be suspended from the practice of law for one month; and

2. pay $8,500 in costs.

Minority (Hickman)

The minority did not accept the majority’s characterization of Cruickshank’s behaviour as simply “profoundly sloppy,” since the incidents of misconduct occurred over a period of five years and on a repeated basis. As an example, Cruickshank’s failure to prepare monthly trust reconciliations occurred 18 times between 2005 and 2008.

The minority found it even more disturbing that Cruickshank’s behaviour continued throughout 2009 and 2010, despite being made aware of the mistakes he was making by 2008 as part of the compliance audit report process. Further, he did not hire a qualified bookkeeper to address his ­accounting problems until May 2011.

Given the severity and duration of the breaches and misconduct, the minority did not accept that a one-month suspension was “fair and reasonable” or in the public interest. The minority stated that the public must be confident that lawyers will do everything possible to maintain their trust accounts and fulfill their undertakings.

The minority believed that the suspension should be significantly longer than the one month proposed and, accordingly, rejected the Rule 4-22 conditional admission.


Aaron Murray Lessing

Surrey, BC
Called to the bar: May 17, 1991
Discipline hearings: March 29, July 30 and 31, 2012
Panel: David Renwick, QC, Chair, Graeme Roberts and Donald Silversides, QC
Reports issued: May 28 (2012 LSBC 19) and October 1, 2012 (2012 LSBC?29)
Counsel: Alison Kirby for the Law Society and Henry Wood, QC for ­Aaron Murray Lessing

Facts
Failing to notify the Law Society of monetary judgments

Between 2002 and 2011, eight monetary judgments were made against Aaron Murray Lessing.

One of the judgments required him to make monthly instalments to the co-owner of his condominium. When Lessing did not make any payments after the first instalment, the co-owner filed a complaint with the Law Society.

During the Law Society’s investigation, it was discovered that five other judgments had also remained unsatisfied for more than seven days and that Lessing had not notified the Society of the existence of these judgments.

In August 2009, the Law Society wrote to Lessing informing him of his obligations to notify the executive director, pursuant to Rule 3-44. Lessing responded that he was not aware of the rule and that he would comply in future.

Two more judgments were made against Lessing in December 2010 and February 2011. In February and March 2011, counsel for the client involved in litigation with Lessing advised the Law Society of the two judgments and that the amounts that Lessing had been ordered to pay remained unpaid.

The Law Society wrote to Lessing asking whether a judgment had been satisfied and, if not, whether he had notified the executive director. Lessing replied that he did not report these orders because they were made in his absence and he intended to apply to set both orders aside, including the order for costs.

Lessing satisfied these two judgments in July 2011.

Lessing did not satisfy any of the eight monetary judgments within seven days after the date of their entry. He failed to notify the Law Society in writing of the circumstances of the judgments against him and to provide a written proposal for satisfying the judgments, as required by Law Society rules.

Failing to comply with three court orders

Lessing represented himself in matrimonial proceedings in the Supreme Court of BC that involved claims for spousal support, child support and a division of assets.

During the proceedings, Lessing received an order to provide opposing counsel with incorporation documents by August 29, 2008. Lessing did not provide the incorporation documents, despite receiving several letters from opposing counsel.

On April 14, 2009, there was a second order that Lessing provide a list of documents and information to opposing council before May 7, 2009.

A third order was made when Lessing did not provide the list of documents or any of the documents specified in the second order.

On June 4, 2009, at a court hearing that was not attended by Lessing or his counsel, Lessing was found in contempt of court for failing to comply with the three orders. A fourth order was made at this time.

On June 9, 2009, Lessing produced the incorporation documents required in the first order. He subsequently produced the documents that had been ordered to provide in the second and third orders.

Lessing consulted a psychologist for counselling in early 2012. The psychologist advised the panel that, in his diagnosis, Lessing went through a period of clinical depression and showed symptoms of post-traumatic stress disorder, likely triggered by his marital issue. The psychologist ­believed that the chances of Lessing repeating this type of avoidant ­behaviour or getting into a similar state of depression and traumatized paralysis was low.

Determination

The panel determined that, by failing to notify the Law Society of first six monetary judgments, Lessing breached the Law Society rules and that, by failing to notify the Law Society of the last two judgments, he committed professional misconduct. In the panel’s view, Lessing was aware of his obligations under Rule 3-44 when the last two of the unsatisfied monetary judgments were entered, so they warranted more severe disciplinary action.

The panel determined that Lessing committed conduct unbecoming a lawyer by failing to comply with three court orders. Failing to comply with court orders and being found in contempt of court by a judge is very serious conduct that undermines the rule of law; however, the panel considered mitigating circumstances:

1.  The panel found that Lessing made a serious mistake in representing himself in the matrimonial litigation; simultaneously acting as litigant and his own counsel undoubtedly clouded his judgment.

2.  The panel agreed that, except for the incorporation documents that should have been matters of public record, Lessing’s delay in producing the documents required by the court orders was not substantial.

3.  The court permitted Lessing to cure his contempt by producing within 14 days the documents required in the earlier orders, and he did so.

4.  The panel accepted Lessing’s testimony regarding his mental state and his inability to deal with the matrimonial proceedings in which he acted as his own counsel, and accepted the psychologist’s conclusion that Lessing was suffering from clinical depression in 2008 and 2009.

The panel also considered Lessing’s professional conduct record, which included four conduct reviews between 1999 and 2011. None of these conduct reviews involved serious actions, and the conduct was not similar to the conduct in this case.

Disciplinary action

The panel ordered that Lessing pay:

1.  $2,000 fine (first citation);

2.  $12,000 fine (second citation); and

3.  $8,000 in costs

The Discipline Committee has referred the decision on disciplinary action to the Benchers for review on the record, under section 47 of the Legal Profession Act.