Citation issued: October 7, 2014; amended february 20, 2015

Kevin Alexander McLean 

Citations are authorized by the Law Society of BC's Discipline Committee and list allegations against a lawyer that will be considered at a discipline hearing. Please note that allegations in a citation are unproven until a discipline hearing panel has determined their validity.

Nature of conduct to be inquired into:

 Conduct in relation to Action No. [number] (Bill of Costs)

1. Between January 2012 and June 2012, in the course of representing your clients LD and MW in connection with a bill of costs arising from a judicial review of a decision of Dispute Resolution Officer Bell under the Residential Tenancies Act commenced in the Supreme Court of British Columbia, Vancouver Registry Action No. [number], you engaged in dishonourable or questionable conduct that casts doubt on your professional integrity or competence or reflects adversely on the integrity of the legal profession or the administration of justice, contrary to Chapter 2, Rule 1 of the Professional Conduct Handbook then in force, by doing one or more of the following:

(a) on or about January 18, 2012, January 27, 2012, January 30, 2012, March 19, 2012 and March 20, 2012, you sent correspondence to JK, an unrepresented party, containing words to the effect that you would take execution proceedings against his assets if he did not pay your clients’ bill of costs, when you knew or ought to have known that the bill of costs had not yet been agreed upon or taxed and that you could therefore not yet commence execution proceedings with respect to those costs;

(b) on or about March 21, 2012, you unilaterally set a date for the assessment of your clients’ bill of costs for April 1, 2012 when you knew that JK was not available on that date and he had been communicating with you to set a mutually convenient date;

(c) on or about June 14, 2012, you sent an email to JK in which you stated that his cheque in payment of your clients’ costs had bounced and that you intended to commence execution proceedings against him, when you knew or ought to have known that the cheque had not bounced and that the amounts owed by JK in costs had been paid.

This conduct constitutes professional misconduct or incompetent performance of duties, pursuant to section 38(4) of the Legal Profession Act.

2. Between January 2012 and June 2012, in the course of representing your clients LD and MW in connection with a bill of costs arising from a judicial review of a decision of Dispute Resolution Officer Bell under the Residential Tenancies Act commenced in the Supreme Court of British Columbia, Vancouver Registry Action No. [number], you failed to respond to communications from JK, an opposing party, regarding scheduling a mutually convenient date for an appointment to tax your clients’ bill of costs. In particular, you failed to respond to one or more of his emails dated January 30, 2012 and March 20, 2012.

This conduct constitutes professional misconduct or incompetent performance of duties, pursuant to section 38(4) of the Legal Profession Act.

3. On or about May 28, 2012 in the course of representing your clients LD and MW at an assessment hearing before Master Baker held in connection with a bill of costs arising from a judicial review of a decision of Dispute Resolution Officer Bell under the Residential Tenancies Act commenced in the Supreme Court of British Columbia, Vancouver Registry Action No. [number], you represented to the Court that you had not responded to JK's scheduling requests because he was represented by counsel, when you knew or ought to have known that this representation was not true, contrary to Chapter 8, Rule 1(e) or Chapter 1, Rule 2(3) of the Professional Conduct Handbook then in force.

This conduct constitutes professional misconduct, pursuant to section 38(4) of the Legal Profession Act.

Conduct in relation to Action No. [number] (Defamation Action)

4. In the course of representing yourself in a defamation action against JK commenced in the Supreme Court of British Columbia, Vancouver Registry Action No. [number], you failed to respond promptly to some or all of the following communications from or on behalf of opposing counsel, PS, contrary to Chapter 11, Rule 6 of the Professional Conduct Handbook then in force, or Rule 7.2-5 of the Code of Professional Conduct for British Columbia:

(a) emails dated October 10, 2012 and October 15, 2012 regarding trial scheduling;

(b) letters dated November 27, 2012 and December 12, 2012 and emails dated January 10, 2013 regarding a draft bill of costs;

(c) emails dated January 31, 2013 and February 8, 2013 regarding the filing of a Notice of Discontinuance;

(d) letters or emails dated February 15, 2013, March 6, 2013, April 18, 2013, July 19, 2013 and July 29, 2013 regarding examinations for discovery;

(e) email dated March 27, 2013 regarding the filing of the Notice of Discontinuance after being advised that JK had withdrawn his consent to the filing;

(f) letters dated April 19, 2013, April 23, 2013 and May 13, 2013 regarding an application to set aside the Notice of Discontinuance; and

(g) letter dated July 29, 2013 regarding payment of special costs.

This conduct constitutes professional misconduct, conduct unbecoming a lawyer or incompetent performance of duties, pursuant to section 38(4) of the Legal Profession Act.

5. Between October 2012 and August 2013, in the course of representing yourself in a defamation action against JK commenced in the Supreme Court of British Columbia, Vancouver Registry Action No. [number], you engaged in dishonourable or questionable conduct that casts doubt on your professional integrity or competence or reflects adversely on the integrity of the legal profession or the administration of justice, contrary to Chapter 2, Rule 1 of the Professional Conduct Handbook then in force, or Rule 2.2-1 of the Code of Professional Conduct for British Columbia, by doing one or more of the following:

(a) on or about October 22, 2012, you unilaterally filed a Notice of Trial for two days without confirming opposing counsel’s availability and after you failed to respond to opposing counsel’s request to set a mutually convenient trial date;

(b) in or around November 2012, you failed to file a Notice of Discontinuance within a reasonable time after entering into a settlement agreement which required you to file a Notice of Discontinuance;

(c) on or about January 17, 2013 you told opposing counsel that you would file the Notice of Discontinuance by January 25, 2013 but then failed to do so;

(d) on or about February 8, 2013, you filed a Notice of Discontinuance after opposing counsel advised you that his client’s position was that you had repudiated the settlement agreement and his consent to the filing of a Notice of Discontinuance had been withdrawn;

(e) you failed to inform opposing counsel that you had filed a Notice of Discontinuance on February 8, 2013 after you were aware that the defendants’ consent to that filing had been withdrawn;

(f) on or about July 19, 2013, you failed to attend a scheduled hearing before Madam Justice Baker relating to opposing counsel’s application to set aside the Notice of Discontinuance without notice or justifiable excuse;

(g) on or about August 1, 2013, you failed to attend a scheduled examination for discovery without notice or justifiable excuse;

This conduct constitutes professional misconduct, conduct unbecoming a lawyer or incompetence performance of duties, pursuant to section 38(4) of the Legal Profession Act.

6. Between January 2014 and March 2014, in the course of representing yourself in a defamation action against JK commenced in the Supreme Court of British Columbia, Vancouver Registry Action No. [number], you failed to attend hearings before Mr. Justice Leask and comply with directions made by him, the particulars of which are:

(a) on or about January 10, 2014, you failed to attend a scheduled hearing which you had agreed was peremptory on you, without justifiable excuse;

(b) on or about January 21, 2014, you failed to attend a scheduled hearing which was peremptory on you, without justifiable excuse;

(c) on or about February 14, 2014, you failed to comply with a direction to file doctor’s letters relating to your failure to attend hearings scheduled for January 10, 2014 and January 21, 2014;

(d) on or about February 21, 2014, you failed to attend a scheduled hearing which was peremptory on you, without justifiable excuse;

(e) on or about March 19, 2014, you failed to comply with a direction to provide information in support of your email to the trial coordinator that you had a scheduling conflict on March 21, 2014, including information regarding the case you were involved in, the name of the judge and the courtroom;

(f) on or about March 21, 2014, you failed to attend a scheduled hearing without notice or justifiable excuse.

This conduct constitutes professional misconduct, conduct unbecoming a lawyer or incompetence performance of duties, pursuant to section 38(4) of the Legal Profession Act.

7. On or about March 19, 2014 in the course of representing yourself in a defamation action against JK commenced in the Supreme Court of British Columbia, Vancouver Registry Action No. [number], you sent an email to Sue Smolen, the Manager of Supreme Court Scheduling, in which you represented that you were unable to attend a hearing scheduled for March 21, 2014 at 4:00 pm before Mr. Justice Leask as you were “currently in trial on the Island” and you would “not be able to speak to the matter on Friday due to a scheduling conflict”, when you knew that this representation was not true or, in the alternative, when you had created the scheduling conflict after the March 21, 2014 hearing had been scheduled, contrary to Rule 2.1-2(a) of the Code of Professional Conduct for British Columbia.

This conduct constitutes professional misconduct or conduct unbecoming a lawyer, pursuant to section 38(4) of the Legal Profession Act.

Conduct in relation to Law Society

8. You failed to notify the Executive Director of the Law Society in writing of the circumstances of the following unsatisfied monetary judgments against you and your proposal for satisfying such judgments, contrary to Rule 3-44 of the Law Society Rules:

(a) an Order made July 19, 2013 in British Columbia Supreme Court, Vancouver Registry Action No. [number] for special costs in the amount of $1,800 payable forthwith;

(b) a Certificate of Costs filed May 9, 2014 in British Columbia Supreme Court, Vancouver Registry Action No. [number] in the amount of $27,400.

This conduct constitutes professional misconduct, conduct unbecoming a lawyer, or a breach of the Act or Rules pursuant to s. 38(4) of the Legal Profession Act.

9. In or around August 2012, you attempted to resolve a complaint made by JK to the Law Society on or about June 28, 2012 by offering to settle the defamation action you had commenced against JK in the Supreme Court of British Columbia, Vancouver Registry Action No. S[number], on the condition that, amongst others, he withdraw his complaint, contrary to Chapter 2, Rule 1 or Chapter 13, Rule 3(c) of the Professional Conduct Handbook then in force.

This conduct constitutes professional misconduct, pursuant to s. 38(4) of the Legal Profession Act.

10. You failed to provide a full and substantive response promptly or at all to communications from the Law Society concerning its investigation of Law Society complaint file number C020120458, arising from a complaint made by JK, contrary to Rule 7.1-1 of the Code of Professional Conduct for British Columbia. In particular, you failed to respond to one or more of letters dated June 25, 2014, July 23, 2014 and July 30, 2014.

This conduct constitutes professional misconduct, pursuant to s. 38(4) of the Legal Profession Act.