Discipline digest

[Editor's note: This digest has been updated to reflect a subsequent finding in the Vivian Chiang matter.]

Please find summaries with respect to:

Donald Wayne Skogstad
Sheldon Goldberg
Vivian Chiang [originally published as Lawyer 9]
Harold Garrett Power
Bradley Darryl Tak

For the full text of discipline decisions, visit the Regulation & Insurance / Regulatory Hearings section of the Law Society website.


Donald Wayne Skogstad

Nelson, BC

Called to the bar: July 10, 1979

Discipline hearings: October 23 to 26 and November 1 and 2, 2006, December 18 to 21, 2007 and

March 13, 2008 (facts and verdict); May 20, 2009 (penalty)

Panel: Robert McDiarmid, QC, Chair, Thelma O’Grady and Ralston Alexander, QC

Reports issued: October 24 (2006 LSBC 40) and November 9, 2006 (2006 LSBC 43), July 3, 2008

(2008 LSBC 19) and May 22, 2009 (2009 LSBC 16)

Appeal hearing on interlocutory application: May 11, 2007

Appeal decision: June 5, 2007 (Skogstad v. Law Society of BC, 2007 BCCA 310)

Counsel: Jean Whittow, QC and Efrem Swartz for the Law Society and Bryan Baynham, QC and Jay

Havelaar for Donald Wayne Skogstad

Facts

On February 15, 2005 a citation was issued against Donald Wayne Skogstad alleging seven counts of professional misconduct.

The facts giving rise to this citation took place from January 1997 to December 1998 when Skogstad acted for client V, an offshore company that was owned and operated by F, another client. On the instructions of F, Skogstad directed the establishment of offshore company V in the Turks & Caicos Islands with the assistance of a law firm there. The purpose of the business was to identify and participate in high-risk, high-yield investments with the expectation that any returns on the investments would be sheltered from Canadian income tax. F found prospective investors and persuaded them to invest in the company.

V gave instructions, always through F, with respect to the “investments” Skogstad was to make for V. Skogstad permitted his trust account to be used to pool monies for persons who were not his clients for use in various investments. Between January 1997 and April 1999 about $2 million was deposited in Skogstad’s trust account. A significant portion of this money was invested in programs that turned out to be scams.

Skogstad became aware of the potentially fraudulent nature of the programs and advised F of these concerns, but he did not advise individual investors and, in fact, did not know who many of them were.

In his response to the complaint of an individual investor, Skogstad provided false information to the Law Society stating he had no involvement with Investors International, an organization that held seminars promoting the schemes, and that he did not run, manage or have any involvement in any kind of investment pool.

Preliminary matters

At the start of the hearing, counsel for Skogstad moved to have the citation quashed, or alternatively for a stay of proceedings, on the basis of unreasonable delay causing prejudice to him. The panel rejected the motion on the basis that the delay was not unreasonable or inordinate, two years of the delay was caused by the Respondent, the public interest required a hearing on the citation and any unfairness to the Respondent could be overcome.

During the hearing, the counsel for Law Society attempted to question the respondent on matters that were protected by solicitor-client privilege. The panel determined that the questioning could occur, provided that steps were taken to maintain the privilege, by closing the hearing to the public when privileged matters were the subject of testimony, and by anonymizing all client references. The panel’s decision was appealed to the Court of Appeal, which upheld the panel.

Verdict

On the first count of the citation, that Skogstad knowingly assisted his clients in perpetrating a fraudulent investment scheme, the panel found that the evidence did not support an allegation that he assisted V and persons associated with V in the perpetration of an investment scheme that he knew or ought to have known was a deception or betrayal of the public.

On the second count, the panel found that it did not have the authority to find a breach of the Securities Act and therefore dismissed the allegation Skogstad engaged or assisted others to engage in trades in securities.

On the third count, the panel found Skogstad guilty of professional misconduct for failing to advise investors that he was not representing their interests, contrary to Chapter 4, Rule 1 of the Professional Conduct Handbook.

On the fourth count, the panel found that Skogstad did not owe a duty as protector of a trust and, therefore, there was no conflict between the interests of his client and the interests of the beneficiaries of the trust.

On the fifth count, the panel found that, as Skogstad did not act for the Client Investors and was not protecting their interests, the evidence does not support an allegation that Skogstad was in conflict with regard to acting for Client Investors while acting for V.

On the sixth count, the panel found there were many instances where deposits were made to the V trust account without the source of the deposit being known and recorded. Without the ability to verify the expectations of the depositor, it is not possible for the lawyer to know a proposed payment from the trust account meets the requirements for a withdrawal. The panel found repeated violations of Rule 3-60 and as such found Skogstad guilty of professional misconduct.

Finally, the panel dismissed the allegation that Skogstad failed to provide all books and records promptly contrary to Rule 4-43.

Penalty

In reaching its decision on penalty, the panel noted that the most serious allegations against Skogstad were dismissed during the proceedings. The panel also noted that, while Skogstad had committed professional misconduct, he was not a participant in the fraudulent schemes and did not personally profit from the investors’ money. Accordingly, the panel ordered that Skogstad:

1. be suspended for three months; and

2. pay a contribution of $20,000 to the costs of the proceedings (actual costs were approximately $200,000).


Sheldon Goldberg

Vancouver, BC

Called to the Bar: January 3, 1973

Ceased membership: August 1, 2009

Discipline hearing: March 26 and 27, 2008

Panel: Bruce LeRose, QC, Chair, Dirk Sigalet, QC and Peter Warner, QC

Report issued: May 29, 2009 (2009 LSBC 18)

Counsel: Jaia Rai for the Law Society and Sheldon Goldberg on his own behalf

Sheldon Goldberg signed an undertaking to resign his membership in the Law Society effective August 1, 2009. He will not apply to be reinstated for five years, nor will he apply for membership in any other jurisdiction without advising the Law Society. He will not allow his name to appear on the letterhead or work in any capacity for any lawyer or law firm in BC without first obtaining written consent from the Law Society.

As a result of this undertaking, the Discipline Committee has withdrawn the citation and placed it in Goldberg’s personal file, for consideration by the Credentials Committee if he applies for reinstatement.

Facts

On August 14, 2008 a citation was issued against Sheldon Goldberg for failing to attend a fix date appearance in Provincial Court and for failing to respond to communications from the Law Society in the course of its investigation of complaints against him by the Provincial Court judiciary.

Failing to attend a fix date appearance

Goldberg represented the accused in R v. P and appeared at an arraignment hearing on July 17, 2007 at the Vancouver Provincial Courthouse. At that arraignment, the matter was referred to a case manager to fix a three-day trial. Goldberg requested the matter be put over to July 18, where the accused would appear on his own behalf and Goldberg would try to pre-arrange a trial date.

No date was fixed by the July 18 appearance. At that hearing, Crown Counsel advised that Goldberg sent a note requesting the matter be put over to July 20. As a result the matter was adjourned.

When R v. P was called at 2:49 pm on July 20 in courtroom 307, Goldberg was not in attendance. He did not speak to his client to explain his non-attendance, nor did he explain why a trial date had not been set.

Crown Counsel for R v. P saw Goldberg just outside or inside courtroom 307 immediately prior to the case being called. He said that Goldberg attended briefly and advised he could not get a three-day trial until January and so he had not set a trial date. Counsel advised Goldberg to address the matter on the record, but Goldberg said he wanted the matter to go over to July 23 when he could hopefully attend.

Crown Counsel reported his conversation with Goldberg to the presiding judge, who asked where Goldberg went. Counsel reported and a Sheriff confirmed that Goldberg was before a judge in courtroom 303, just down the hall.

The judge stood down R v. P and ordered Goldberg to appear before him when a break occurred. Crown Counsel in courtroom 303 relayed the order to Goldberg. Goldberg responded by saying “No. I am going to Surrey,” ran down the stairs and away from the courthouse.

R v. P was recalled at 3:15 pm, at which time counsel from Courtroom 303 reported on what had transpired. R v. P was stood down and adjourned to July 23, when Goldberg was ordered to appear and explain his failure to comply with the judge’s order.

Goldberg submitted he had a higher purpose in postponing the R v. P matter — that he hoped to convince the judge a two-day trial would be better and therefore achieve an earlier trial date for his client. He added that circumstances beyond his control created a dilemma where the least disrespectful choice was to go to the Surrey courthouse and continue a trial there.

The panel found these excuses to be unacceptable. Goldberg allowed himself to be scheduled to appear in courtrooms on five matters in two separate cities in a single day, and so is the author of his own misfortune.

Failure to respond to communications from the Law Society

On the basis of the allegation outlined above, the Law Society launched an investigation into Goldberg’s conduct. An outside investigator retained by the Law Society made five separate inquiries with Goldberg, to which he did not respond appropriately.

It took Goldberg six weeks to reply to the first of five letters sent to him by the investigator. Instead of providing a candid and complete response to these inquiries, Goldberg responded by accusing the investigator of bias.

Verdict

As an officer of the court, a lawyer has an absolute obligation to attend, whether for trial or adjournment purposes, to serve the client, respect the court and respect the administration of justice. Failure to fulfill that obligation is conduct deserving of sanction.

The panel found that Goldberg’s behaviour collectively trivializes the duty of a lawyer to his client and the courts, and is disrespectful of those who administer the justice system. His behaviour is deliberately disruptive and results in, among other things, dissatisfied clients. Further, his conduct demonstrates gross neglect of his duties as a lawyer and constitutes professional misconduct.

The panel characterized Goldberg’s conduct in responding to the Law Society-appointed investigator as delayed, then clever, selective and incomplete. The panel found that Goldberg’s responses were a breach of the Professional Conduct Handbook and constituted professional misconduct.


Vivian Chiang  [originally published as Lawyer 9]

Discipline hearing: October 7 and 8, 2008

Panel: majority decision: Thelma O’Grady, Chair, and Karl Warner, QC; minority decision: Ralston

Alexander, QC

Report issued: June 17, 2009 (2009 LSBC 19)

Counsel: Maureen Boyd for the Law Society; Vivian Chiang on her own behalf

Facts

Under Law Society Rule 4-38.1(2) if all counts of a citation are dismissed, the hearing report summary must not identify the respondent.

A citation was authorized against Vivian Chiang alleging four counts of professional misconduct. One allegation was withdrawn, and the hearing proceeded on three allegations of acting contrary to the duty of an officer of the court or misleading the court. The Law Society also asked the panel to consider a finding of incompetence. At all times relevant to this citation, Chiang was a part-time, practising member of the Law Society.

Chiang was the majority shareholder in F Inc., which operated a wholesale produce business. After a dispute with several other produce companies regarding a shipment of mangos, a mandatory arbitration hearing was held by the Fruit and Vegetable Dispute Resolution Corporation (DRC) and F Inc. was fined $13,000 US. The company refused to pay the fine and F Inc.’s membership in the DRC was suspended. A notice of suspension was circulated to DRC members, which had an alleged negative impact on the business.

With Chiang serving as counsel, F Inc. commenced proceedings against DRC and other defendants, filing an ex parte application to have the suspension set aside on the basis of wrongful interference with the business of F Inc. The application also sought retraction of the DRC’s notice of suspension and a court order to stop DRC from issuing any further defamatory publications about F Inc.

The ex parte application was heard in Chambers on March 11, 2005 by Judge A. Chiang did not identify herself as a lawyer and instead acted in her capacity as an officer of F Inc.

The judge advised she was unable to grant the relief sought since the defendants were neither present nor had they been served with the Notice of Motion. She then turned the hearing into a Short Leave application. The judge further advised that only one aspect of the application could be considered on short leave, namely the plea for injunctive relief against DRC from making further allegedly defamatory publications; the other two items required a full hearing.

The judge provided a Notice of Short Leave and directed Chiang to serve this Notice along with the Notice of Motion and Affidavit material on counsel for DRC.

The Short Leave Requisition did not specify which parts of the motion were approved for short leave. Further, Chiang did not indicate there were limitations placed upon the application when serving materials on counsel for DRC. As a result, DRC prepared for and responded to all three claims for relief in Chambers before Judge B on March 15. At that hearing, Chiang spoke to all three claims.

On March 16, Judge B dismissed all three applications for relief. Chiang filed a Notice for Leave to Appeal on April 25, shortly after which DRC and another party filed a Notice seeking dismissal of F Inc.’s action in its entirety.

The dismissal motion was scheduled to be heard on June 23, 2005. On June 16, Chiang appeared in Chambers before Judge C without notice to any party and made an application for adjournment or, in the alternative, short leave on a motion to adjourn the hearing. Short leave was granted and the adjournment application was heard on June 17. At that time Chiang advised that, while one of the opposing parties was agreeable to adjournment, the other was not. As a result Judge C adjourned the matter until the next day and in the presence of all counsel, ordered the defendants’ application be heard August 8.

The matter ultimately came before Judge D on August 8 and after a hearing the action was dismissed.

Verdict

Majority (Thelma O’Grady, Chair, and Karl Warner, QC)

The majority was guided in its deliberations by F.H. v. McDougall, 2008 SCC 53. Although not a discipline case, this judgment affirms that the burden rests on the Law Society to prove with evidence that is clear, convincing and cogent the facts necessary to support a finding of professional misconduct or incompetence on a balance of probabilities.

Misleading the court

There was no satisfactory or convincing evidence to suggest Chiang sought an advantage by failing to inform the court she was a member of the Law Society. Nor was there any evidence she could or did receive an advantage by presenting herself as a lay litigant.

All members of the panel were unable to find authority for the proposition that, when a lawyer appears in court on behalf of a company of which the lawyer is a principal, that the lawyer is obliged to advise the court of the fact that he or she is a lawyer and that failure to do so is a lack of candour on the part of the member. Accordingly, there was no finding of professional misconduct for failing to identify as a member of the Law Society.

Chiang should have outlined the relief requested and the limitations of the Short Leave Order granted by Judge A at the outset of the Chambers hearing before Judge B, but did not. Instead, she embarked upon a discussion of the underpinning facts of the case.

The facts were relevant as background for injunctive relief and were therefore properly before the court. However, the majority found that the respondent erred by failing to state outright the limitation of the short leave order. This should have been done at the outset of the hearing.

However, the majority could find no instance in the transcript when the respondent did not respond other than truthfully when asked a question by the court.

When making the application for adjournment, Chiang was not as clear as she should have been with respect to her acceptance of the conditions upon which DRC’s consent would be given for the adjournment. Her lack of clarity can be seen from the transcript, but it does not display an intended desire to mislead. The majority found no professional misconduct.

Incompetence

A finding of incompetence is based on a pattern over a number of cases involving delay, lack of knowledge over wide areas of law, severe problems of substance abuse, emotional or psychiatric difficulty, consistent abusive language or consistent disrespect for the courts.

No such patterns or instances of repetitive behaviour were offered in the evidence presented at the hearing. The majority could only observe that Chiang began a single action, mistakenly conceived from the outset, and jurisdictionally with little or no apparent merit.

While Law Society intervention may be appropriate when a single instance rises to demonstrate a potential lack of judgment, such an intervention is most frequently manifested by way of Conduct Review or through a recommendation to seek the assistance and guidance of senior counsel.

The majority did not find incompetence and trusted that Chiang, by going through this serious process, had been sufficiently admonished to never allow her judgment to be clouded again and that she will never find herself practising in an area of the law so apparently foreign to her.

Minority (Ralston S. Alexander, QC)

The minority also adopted the reasoning in F.H. v. McDougall, supra, finding that the necessary clear, convincing and cogent evidence to support the allegation misleading the court by failing to disclose limitations on the short leave application imposed by Judge A had been adduced by the Law Society in the course of the disciplinary hearing.

There was no debate on the issue of whether or not the court was misled. Even the evidence of Chiang was consistent on the issue of her lack of entitlement to speak to all three paragraphs in her Notice of Motion seeking relief.

A determination of professional misconduct depends on intent. All available evidence pointed overwhelmingly to the fact that Chiang intentionally proceeded to seek relief in respect of a portion of the Notice of Motion for which short leave had not been granted by Judge A.

Chiang’s explanations as to why she proceeded despite the orders of Judge A were not credible. She acted wilfully and knowingly and without regard for her professional responsibilities to the court and the Law Society.

Misleading the court in this manner represented a marked departure from behaviour the Law Society expects of its members. The minority found professional misconduct.

Bencher review

The Discipline Committee has referred this decision under section 48 of the Legal Profession Act for review by the Benchers.


Harold Garrett Power

Vancouver, BC

Called to the Bar: November 19, 1999

Ceased membership: May 19, 2009

Disbarred: July 15, 2009

Discipline hearing: July 15, 2009

Panel: Glen Ridgway, QC, Chair, Leon Getz, QC and Herman Van Ommen

Oral decision on facts and verdict: July 15, 2009

Report issued: July 24, 2009 (2009 LSBC 23)

Counsel: Maureen Boyd for the Law Society and no one on behalf of Harold Garrett Power

Facts

A citation was issued on May 14, 2009 alleging Harold Garrett Power submitted false information on his Application for Enrolment in the Law Society Admission Program.

Power’s legal name at birth was Harold Garrett Power. He was adopted and given the name Gary Joseph McGory; however, his adoptive parents did not change his name legally. Power learned of his true name in his 30s and subsequently used the name Power for some purposes and McGory for other purposes.

In May 1994, Power was arrested in Toronto under the name of Gary Joseph McGory and charged with five counts of obtaining, for consideration, the sexual services of a person under 18 years. He was committed to trial on three of those counts and was acquitted in 1998. At that time, he did not advise the police or Crown Counsel that his legal name was Harold Garrett Power.

In 1997, Power obtained his law degree at the University of Toronto and in 1998, applied to the Law Society of BC’s admission program under the name Harold Garrett Power. On his application for enrolment, Power failed to disclose that he had previously used the name Gary Joseph McGory and that he had been charged in Ontario with criminal offences.

In 2007, Power was charged in BC with sexual exploitation of a minor under s. 153(1)(a) of the Criminal Code. As a result of those charges, the Law Society became aware that Power had previously used the name McGory and had previously been charged with criminal offences.

The Law Society wrote to Power asking to explain his failure to disclose the Ontario criminal charges and his prior use of the name McGory. After several exchanges of emails, Power stated that he had never been charged or convicted, nor had he used any other name.

In giving evidence at his trial in March 2009, Power admitted that he lied on the Law Society application form when he denied using any other name and when he declared he had never been charged or convicted of any offences under the Criminal Code.

Shortly after his conviction on the BC criminal charges, Power wrote to the Law Society to advise that effective immediately he was withdrawing as a member of the Law Society and ceasing the practice of law. On June 5, 2009 Power informed the Law Society that he did not intend to contest the citation and stated that, since he had already resigned from the Law Society, he didn’t see the point of any hearings.

Power did not appear at the scheduled hearing on July 15, 2009; however, the panel decided to proceed in his absence.

Verdict

The panel found that Power knowingly and intentionally failed to disclose information about his past. Power further aggravated the situation by lying to the Law Society on three occasions during its 2008 investigation into the 1994 criminal charges and Power’s previous use of another name. These facts, coupled with his lack of remorse, led the hearing panel to find Power guilty of conduct unbecoming of a lawyer.

Penalty

Although it may appear odd that a panel may suspend or disbar a non-member, the Legal Profession Act requires that it be done if that is the appropriate penalty. The panel decided to impose the penalty that would be appropriate if Power were still a member.

Power lied in order to conceal his true identity, which prevented the Law Society from conducting a background check with respect to character, especially a criminal records check. The panel had no evidence that Power understood and acknowledged his wrongful conduct and, as a result, that he could rehabilitate himself such that there would likely be no reoccurrence of dishonest conduct. Additionally, the aggravating factor of Power lying to the Law Society on three separate occasions about his initial falsehood was significant.

The panel ordered that Power:

1. be disbarred; and

2. pay costs of $5,000.


Bradley Darryl Tak

Port Moody, BC

Called to the Bar: February 15, 1991

Discipline hearing: July 21, 2009

Panel: Bruce LeRose QC, Chair, Dr. Maelor Vallance and Herman Van Ommen

Report issued: September 2, 2009 (2009 LSBC 25)

Counsel: Eric Wredenhagen for the Law Society and Bradley Tak on his own behalf

Facts

On August 19, 2008, the Law Society wrote to Bradley Darryl Tak inquiring about his failure to report certain judgments to the Law Society within seven days of the date of entry of those judgments. It appeared those judgments remained unsatisfied, contrary to Law Society Rule 3-44(1).

Tak left a voicemail message on September 2, 2008 asking for additional time to respond to the letter. The Law Society issued follow-up letters dated September 29, November 3 and December 3. The December 3 letter advised Tak that failure to respond would result in the matter being referred to the Professional Conduct department.

Receiving no response, the file was referred to Professional Conduct in January 2009. An investigator telephoned Tak on January 13, leaving a voicemail message asking him to respond. He did not respond to that voicemail and the investigator wrote to Tak on January 22, requesting a response by no later than February 5.

The investigator left a second voicemail message for Tak on February 6, and also wrote a letter that same day. In that letter, the investigator advised Tak that failure to respond by February 11 would result in the matter being referred to the Discipline Committee with a recommendation that a citation be issued.

Tak responded with a letter dated February 11, however he did not answer the investigator’s questions completely and issues were raised that required follow-up. On February 12, the investigator wrote to Tak asking for clarification of specified matters and answers to additional questions by February 26.

After a further exchange of voicemails, Tak provided a second response on March 5. Again, his response was substantive, but left questions open that required follow-up.

The Law Society investigator wrote to Tak on March 19, asking additional follow-up questions. He did not respond, despite the issuance of a citation. As of the date of the hearing, Tak had still not provided answers to the questions raised by the investigator in the March 19 letter.

Tak admitted that he failed to respond to correspondence from the Law Society. He explained that time pressures brought on by his busy practice and health problems suffered by members of his family were the reasons for his failure. Tak did not suggest that these circumstances excused his conduct.

Verdict

Chapter 13, Rule 3 of the Professional Conduct Handbook obligates lawyers to reply promptly to any communication from the Law Society. A lawyer’s failure to respond impairs the Society’s ability to govern its members effectively. As such, failing to respond is a grave matter.

The panel found Tak guilty of professional misconduct for failing to respond to the Law Society correspondence of March 19, 2009.

Penalty

The Panel ordered that Tak:

1. pay a fine of $2,000 and costs of a further $2,000 within four months of the date of the hearing;

2. provide a substantive response to the March 19, 2009 letter from the Law Society within 21 days of the hearing; and

3. provide a substantive response to any further communications with the Law Society arising out of the March 19, 2009 letter within 21 days of receiving them.