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.
Terence La Liberté, QC
The subject of this conduct review summary has consented to publication of his name in a more detailed summary for the purposes of educating and guiding the profession.
The conduct review was held on September 27, 2012 to discuss Terence La Liberté’s conduct during an incident on November 21, 2011. On that day, La Liberté met a female acquaintance for lunch, and over the course of the afternoon he consumed substantial alcohol. When they returned to his car, a dispute arose between them, and she declined to get into the car. He began to drive away with the passenger door open, and she ran alongside screaming for help as her bag was in the trunk of the car. He stopped the car and got out, and they continued the dispute. People began to gather. A man in the crowd said the police had been called, and La Liberté assaulted him and another person. The police arrived and took La Liberté into custody. Because of La Liberté’s prominence, this incident received significant news coverage.
As a result of this incident, La Liberté recognized what he admitted was a problem with alcohol, and he checked into a residential treatment centre. He cooperated with the police investigation, was charged with two counts of assault and was diverted. He apologized to all those involved at the scene, including the police officers.
La Liberté cooperated with the Law Society investigation and acknowledged his misconduct. He has taken significant steps to deal with his alcohol addiction and continues to do so. He has entered into a monitored recovery agreement with the Lawyers Assistance Program (LAP), agreed to random alcohol and drug testing, and is an active participant in LAP. Although he has been a long-term alcoholic, the steps he has taken to deal with his addiction since the incident show a serious, determined and sustained effort to ensure that there will not be a reoccurrence. By his conduct after the incident, he has shown that a citation is not necessary to protect the public interest as he has addressed in a meaningful way the underlying cause of the misconduct.
Breach of trust accounting rules
A lawyer failed to deposit funds in trust, contrary to Rule 3-51(1). Instead the funds were mistakenly deposited by a legal assistant into the general account and subsequently withdrawn to pay expenses. The lawyer was undergoing serious health and personal problems and voluntarily ceased practice. The lawyer made an assignment in bankruptcy, but has subsequently reimbursed the Lawyers Insurance Fund for the amounts paid to the client for the retainer. The lawyer has undertaken not to practise law without first receiving the approval of the Practice Standards Committee. (CR #2012-71)
A lawyer improperly withdrew trust funds prior to delivery of a bill, contrary to Rule 3-57(2), maintained trust balances with inactive balances without making any effort to determine to whom the funds belonged, failed to report trust shortages, contrary to Rules 3-56 and 3-66, failed to maintain his books and records in accordance with Division 7 of Part 3 of the Rules, and failed to prepare monthly trust reconciliations, contrary to Rule 3-65. The lawyer retained a certified general accountant, a bookkeeper and an assistant to assist him with his trust accounting and implemented numerous changes to his practice. The lawyer was encouraged to retain experienced accounting staff. A conduct review subcommittee made it clear to the lawyer that he was personally responsible to ensure his books and records are kept in accordance with the Rules. (CR #2013–04)
A lawyer failed to maintain adequate documentation for payments from trust to a person providing litigation support services, allowed client files to be kept in an unsecured location where others could have gained access to confidential client files and failed to obtain his client’s consent to the disclosure of confidential information to the litigation support person. The lawyer has brought his accounting practices and books into proper order and has taken a course for solo practitioners. (CR #2013-06)
Breach of undertaking
A lawyer breached an undertaking by unilaterally altering a release and disbursing settlement funds to a client prior to returning a release to the opposing party. The lawyer has changed his office practices so that he is more engaged in settlement proceedings, the processing of cheques and the flagging of undertakings. (CR #2013-02)
A lawyer was criminally charged with assault. Alcohol was involved. The lawyer immediately reported the charges to the Law Society. He demonstrated remorse and contacted the Lawyers Assistance Program. A conduct review subcommittee was satisfied that the lawyer knew that his conduct was unprofessional and wrong and that he had a substance abuse problem that could affect his behaviour or judgment in his personal and professional life. (CR#2012-70)
Conflict of interest
A lawyer acted for a client in respect of a loan made to the client by his and his assistant’s family members, contrary to Chapter 7, Rule 1 of the Professional Conduct Handbook [section 3.4 of the new BC Code]. The lawyer has now instituted a policy not to act for family, friends, relatives, associates or contractors of the firm. The lawyer was encouraged to take the Communication Toolkit and Small Firm Practice Course to improve communication with clients and as a refresher on conflicts and trust accounting practices. (CR #2013-08)
Duty to court and client
A lawyer failed to appear at trial with a client and failed to advise the court registry that she was no longer representing the client, which resulted in the client not being advised of a family case conference. The lawyer practises in a high conflict area with difficult clients and must follow the proper procedure to withdraw as counsel of record. (CR #2013-07)
Duty to court and other lawyers
A lawyer in a complex family law matter paid out funds received on the sale of the matrimonial home to settle a claim with a strata corporation. By doing so, he acted in breach of a court order requiring him to hold the funds to the credit of the spouses. The lawyer should have applied to amend the court order or obtained the consent of the opposing party. The lawyer admitted his mistake. (CR #2013-03)
A lawyer swore an affidavit in support of a garnishing order that the amounts claimed were justly due and owing when he knew that a portion of the amount related to disputed and unquantified special costs. The lawyer mistakenly believed he was entitled to amounts billed to his client without the need for the quantum of special costs to be assessed or agreed to. A conduct review subcommittee recommended that the lawyer consult with other lawyers when acting in a matter outside of his normal practice area. (CR #2012-76)
Duty to withdraw
A lawyer drafted documents to be filed with the securities regulator that contained inaccurate statements, contrary to the lawyer’s obligation of due diligence and contrary to her duty to withdraw when client instructions conflict with professional obligations. The lawyer was referred to the practice standards department and was encouraged to seek advice from a Law Society practice advisor when working in areas outside her experience. She was also encouraged to set clear boundaries when dealing with difficult clients. (CR #2012-69)
Duty of confidentiality
A lawyer provided another lawyer with affidavits and exhibits regarding communications between himself and his client on another matter without first obtaining his client’s consent, contrary to Chapter 5, Rules 1, 4 and 5 of the Professional Conduct Handbook. The lawyer was encouraged to familiarize himself with the client confidentiality rules in the new BC Code. (CR #2013-05)
A lawyer permitted his partner to submit electronic bills to the Legal Services Society using his billing number, contrary to his agreement with LSS. His conduct made it possible for his partner to improperly bill LSS. The lawyer is aware that his conduct enabled funds to be diverted from LSS, which deprived needy people of legal assistance. At the time, the lawyer was isolated from friends, family and peers. He is currently undergoing counselling to deal with personal matters. He now maintains personal control over his professional finances. (CR# 2012-72)
Failure to report judgments, remit source deductions and ensure accuracy of trust reports
A lawyer failed to report several unsatisfied Canada Revenue Agency certificates relating to non-payment of income tax, GST, PST and employee payroll source deductions within seven days of entry of the certificates contrary to Rule 3-44. The lawyer also failed to remit source deductions and filed incorrect trust reports in regard to GST and payroll arrears. At the time of the review, the lawyer had paid or made arrangements to pay all arrears. He planned to take a CLE course on time mastery and practice management and to familiarize himself with the Rules. (CR# 2012-74)
Rudeness and incivility
A lawyer engaged in unprofessional and discourteous communications with her client rather than disengaging and defusing the situation. The lawyer identified other ways of handling a similar situation should it arise. (CR #2012-73)
A lawyer crossed the bounds of professional advocacy when filing in court written submissions that contained unsubstantiated, unprofessional and personalized allegations about opposing counsel. The lawyer only partially acknowledged the misconduct and demonstrated no insight into how such a situation could be prevented or avoided in the future. A conduct review subcommittee explained the concept of progressive discipline and cautioned that a citation may be issued for any further misconduct. (CR #2013-01)
A lawyer placed a stop payment on a trust cheque tendered as part of a mediated settlement contrary to Chapter 11, Rule 8 of the Professional Conduct Handbook. The lawyer then returned the funds to his client without notice to opposing counsel, despite having told counsel that he would hold the funds “for the time being” and having received conflicting advice from senior counsel in his firm. The lawyer wrote a letter of apology to opposing counsel. (CR #2012-75)