Credentials hearings

Law Society Rule 2-69.1 provides for the publication of summaries of credentials hearing panel decisions on applications for enrolment in articles, call and admission and reinstatement.

For the full text of hearing panel decisions, visit the Hearing reports section of the Law Society website.


Michael Grant Gayman

Bencher review: October 10, 2012
Benchers: Art Vertlieb, QC, Chair, Kathryn Berge, QC, David Crossin, QC, Leon Getz, QC, Peter Lloyd, Catherine Sas, QC and Tony Wilson
Report issued: December 13, 2012 (2012 LSBC 30)
Counsel: Henry Wood, QC for the Law Society; Richard Lindsay, QC and Max Hufton for Michael Grant Gayman

Background

In December 2011, a hearing was held to consider the application for reinstatement to the Law Society by Michael Grant Gayman. Gayman was disbarred in 1999 for conduct unbecoming a lawyer. Specifically, while acting as a trustee, he knowingly breached a trust instrument resulting in the loss of approximately $1 million to 20 investors.

In the decision of the hearing panel (application for reinstatement 2012 LSBC 12; Credentials hearing: 2012 No. 2 Summer), it was found that, based upon the exceptional circumstances of the case, Gayman should be reinstated, but only under strict conditions.

The Law Society sought a review of the decision of the hearing panel allowing the reinstatement of Gayman.

Decision

The review panel did not agree with the Law Society’s contention that, in the context of a reinstatement application, a hearing panel must engage in two separate enquiries: first, a determination of whether the requisite requirements of good character, repute and fitness are currently demonstrated; second, an assessment of whether the original misconduct renders it appropriate to deny readmission to “sustain public confidence in the integrity of the profession.”

The review panel was of the view that the decision of the hearing panel was correct. The hearing panel engaged in a thorough and detailed review of the facts, as well as a comprehensive analysis of the relevant jurisprudence. It considered the past behaviour of Gayman and his efforts and achievements towards rehabilitation, and weighed that against the public interest. The hearing panel’s analysis of the facts and their reasoning were sound and the review panel adopted them.

Accordingly, the review panel confirmed the decision of the hearing panel that Gayman be reinstated to membership in the Law Society, subject to the conditions stipulated by the hearing panel.


Andrew Pavey

Called to the bar (Nova Scotia): March 18, 1980
Hearing (application for call and admission): September 10 and 11, 2012
Panel: William S. Maclagan, Chair, Jasmin Z. Ahmad and Lance Ollenberger
Report issued: December 21, 2012 (2012 LSBC 33)
Counsel: Jason Twa for the Law Society; Henry Wood, QC for Andrew Pavey

In 2000, a hearing panel of the Nova Scotia Barristers’ Society found Andrew Pavey guilty of professional misconduct and conduct unbecoming a barrister. The panel concluded that Pavey had assisted a former client with the purchase of crack cocaine, used crack cocaine with the client and had sexual relations with that client. Pavey was suspended from the practice of law in Nova Scotia for 18 months and subjected to conditions for reinstatement.

In 2001, Pavey returned to BC and established a mediation practice. He also formed a family mediation society and recruited a board of directors. Pavey did not disclose his past discipline history in Nova Scotia to the board members. An anonymous email to the board members in 2003 contained a newspaper article outlining his legal situation in Nova Scotia. When this information became public, the non-profit society lost its government funding.

In 2003, Pavey was reinstated to the Nova Scotia Barristers’ Society. He then applied for call and admission on transfer to the Law Society of BC. In July 2005, a BC hearing panel denied his application on the basis that he did not meet the standard for admission.

In 2005, the Supreme Court of BC ordered that Pavey be prohibited from practising law in BC until such time as he became a member in good standing of the Law Society.

Pavey then returned to the practice of law in Nova Scotia as a sole practitioner, primarily doing legal aid work and family law.

In 2010, Pavey again submitted an application to practise law in BC. In light of his past conduct and previous discipline history with the Nova Scotia Barristers’ Society and the Law Society, this matter was referred for a credentials hearing.

The panel considered evidence that Pavey had:

  • overcome addiction and mental health issues;
  • admitted that his conduct was wrong with respect to engaging in the unauthorized practice of law;
  • been candid with colleagues and clients regarding his past conduct and discipline history;
  • practised law in Nova Scotia since 2005 without any reports or complaints of improper conduct;
  • operated his mediation practice in BC without any complaints about his conduct.

The panel also placed significant weight on the evidence given by character witnesses who had worked closely with Pavey since 2005. The witnesses testified that Pavey had been open and candid about his past issues and they had no concerns about his conduct or interactions with clients.

Notwithstanding Pavey’s past conduct, the panel was satisfied that he had rehabilitated himself. The panel found that it was particularly significant that Pavey had practised law in Nova Scotia and conducted a mediation practice in BC without incident or complaint for seven years.

The panel concluded that, as of the date of the hearing, Pavey had met the burden of proving that he was of “good character and repute and fit to become a barrister and a solicitor of the Supreme Court.” The panel ordered that the application for call and admission be granted.


William John Macintosh

Formerly of Surrey, BC
Called to the bar: December 19, 1985
Ceased membership: January 1, 2008
Hearing (application for reinstatement): December 14, 2012
Panel: Phil Riddell, Chair, Stacy Kuiack and Brian J. Wallace, QC
Report issued: January 21, 2013 (2013 LSBC 02)
Counsel: Jean P. Whittow, QC for the Law Society; Henry C. Wood, QC for William John Macintosh

In June 2006 a client of William John Macintosh complained to the Law Society that Macintosh failed to file documents on his behalf in Federal Court for leave and judicial review of a decision of the Minister of Immigration. The leave application was dismissed for want of prosecution. Macintosh misrepresented to the client that he had not received the Federal Court decision dismissing the leave application. He advised his client that an application could be made to the Immigration Minister, but he procrastinated and did not make the application.

Macintosh rendered bills to the complainant totalling $1,925, although he had not completed the work for which he had been retained. The Lawyers Insurance Fund repaid the amount the complainant had paid to Macintosh. Despite difficult financial circumstances, Macintosh has since repaid the Lawyers Insurance Fund.

Macintosh became an inactive member of the Law Society in November 2006, and in 2008 ceased to be a member for failure to pay fees. The panel found that, had Macintosh remained a member, his conduct would have resulted in a citation and a suspension.

At the hearing, Macintosh explained, but did not seek to justify, that his conduct at the time of the complaint resulted from being overwhelmed by anxiety and depression. He was being treated for depression but not for anxiety.

Macintosh’s psychiatrist was of the opinion that Macintosh suffers from chronic, recurring and relapsing general anxiety disorder with concurrent depressive symptoms. The physician concluded that the anxiety disorder has been stabilized by medication and that, if Macintosh maintained his current treatment, there was no reasonable likelihood that he would repeat the problematic behaviours.

In the panel’s view, the material that Macintosh filed with his application for reinstatement demonstrated his ability to perform professionally at a high level of competence and his appreciation of the ethical standards required. His application was accompanied by six thoughtful letters of support from lawyers who knew him and were aware of the circumstances leading up to his leaving the profession.

The panel was satisfied that Macintosh was of good character and repute and that he was fit to practise as a barrister and a solicitor of the Supreme Court, subject to the condition that he:

1.  takes all anxiety-related medication recommended by his physician for at least two years;

2.  directs his physician to advise the Law Society immediately if he is not taking the medication and to deliver annual reports to the Society confirming compliance for two years;

3.  practises only immigration law;

4.  practises under the supervision of a lawyer approved by the Law Society.

Macintosh requested that certain personal and privileged information disclosed at the hearing not be made public. The panel concluded that, beyond the references in the decision, disclosure of that information was not required. The panel summarized some of the sensitive personal information in its decision in order to make its reasoning understandable.


Applicant 4

Hearing (application for enrolment): November 21, 2012
Panel: Herman Van Ommen, Chair, John Ferguson and John Hogg, QC
Report issued: January 23, 2013 (2013 LSBC 03)
Counsel: Henry Wood, QC for the Law Society; Joseph Doyle for Applicant 4

Applicant 4 submitted an application for enrolment in February 2011. He disclosed that, in 2007, he had received a violation ticket for failing to remain at the scene of an accident, which was dismissed, and a charge of impaired driving, which was stayed. He did not provide substantive details of the circumstances surrounding those two charges but advised that he was seeking documents.

The Report to Crown Counsel and the notes of the investigating officer and breathalyzer technician were admitted into evidence at the hearing.

The panel had a number of concerns about Applicant 4:

  • he lied to the police when initially asked about being involved in an accident;
  • he lied to the police when initially asked about drinking and driving;
  • his belligerent behaviour with the police;
  • his letter to the Law Society in which he denied lying to the police about being in an accident or consuming alcohol;
  • his evidence that the other driver was at fault and left the scene of the accident;
  • his statement that “every [breathalyzer] test will be failed,” which he said was meant to convey his confidence that he was not impaired.

The panel found that Applicant 4’s description of the accident was inconsistent with the other evidence from the Report to Crown Counsel. During the hearing, Applicant 4 admitted the truth of the contents of the Report to Crown Counsel and the handwritten notes of the police officer and breathalyzer technician.

In the panel’s view, Applicant 4’s explanations concerning the circumstances of the accident, his confidence that he was not impaired, and his response to the Law Society’s request for further information did not withstand scrutiny. The panel did not believe that he was being truthful.

When considered in light of the good character test, the panel agreed that Applicant 4’s failure to convince them that he was telling the truth was fatal to his application. The onus was on Applicant 4 to prove on a balance of probabilities that he possessed the requisite good character. Other than a letter from a former employer, he provided no character evidence. The panel determined that his oral evidence was seriously at odds with the admitted evidence, and his attempt to explain the inconsistencies did not bear the ring of truth.

For those reasons, the panel rejected Applicant 4’s application for enrolment.

Applicant 4 has applied for a review of the decision under section 47 of the Legal Profession Act.

Pursuant to Rule 2-69.2(2), as the application was rejected, the publication does not identify the applicant.


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