Discipline digest

Please find summaries with respect to:

Richard Craig Nielsen
Joseph Takayuki Hattori
Mimi Mankiu Luk
Jeremy Stuart Gordon Donaldson
Alan James Short
Douglas Hewson Christie
Michael Lee Seifert

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

Richard Craig Nielsen

Vancouver, BC

Called to the Bar: September 5, 2001

Discipline hearing: December 9, 2008

Panel: Robert Punnett, QC, Chair, David Mossop, QC and Thelma O’Grady

Report issued: March 4, 2009 (2009 LSBC 08)

Counsel: Maureen Boyd for the Law Society and Gerald Cuttler for Richard Neilsen

Facts

A citation was issued April 26, 2007 outlining eight allegations against Richard Craig Nielsen: two allegations of incompetence, two of professional misconduct and four of breach of the accounting rules.

Seven of these allegations pertained to Nielsen’s role in a real estate scheme known as an “Oklahoma flip,” in which mortgage funds were obtained and disbursed under false pretenses. The eighth allegation pertained to Nielsen’s failure to maintain books, records and accounts in accordance with the Law Society Rules.

Between November 2004 and March 2005, Nielsen’s clients, I Ltd. and Q Ltd., bought 13 properties and assigned the contract of purchase and sale to a nominee purchaser at a significantly higher price. The parties received and disbursed mortgage funds in respect of this second contract. Nielsen helped his clients and others obtain and disburse these funds.

Nielsen improperly acted for multiple parties in these transactions. He failed to disclose potential conflict issues and by his conduct preferred the interests of some of his clients (corporate assignors) over others (lender banks and nominee purchasers).

In addition, Nielsen failed to disclose material facts to his lender clients, including the fact that the mortgage funds exceeded the first purchase price and that these excess funds were disbursed to persons unrelated to the transaction.

Nielsen explained that he was duped by his clients, who told him the properties were bought at favourable prices in order to assist new immigrants. He further explained that, in the course of his duties, he raised concerns and sought advice about the transactions and the proper way to document them.

The panel found that, while Nielsen’s actions were not consistent with knowing participation in a fraud, they were consistent with a lack of judgment, skill and diligence.

If Nielsen had complied with the “formalities” of real estate practice and the principles of conflict of interest, it is doubtful that he would have participated in this scheme, or at least that his participation would have been cut short. However, his conduct clearly shows he was oblivious to these requirements, which are fundamental to the practice of law.

Admission and penalty

Nielsen admitted all the underlying facts and each of the allegations, and admitted to an adverse determination in respect of each of them.

The allegations to which Nielsen has admitted are significant and serious. Pursuant to Rule 4-22, the hearing panel accepted Nielsen’s admissions and proposed penalty. The panel ordered that he:

1. be suspended for six months, commencing February 1, 2009;

2. pay costs of $4,500 by February 1, 2010; and

3. remain bound by a previous undertaking to the Discipline Committee not to practise real estate law.

 
Joseph Takayuki Hattori

Kelowna, BC

Called to the Bar: May 20, 1975

Discipline hearing: February 17, 2009

Panel: Joost Blom, QC, Chair, David Mossop, QC and June Preston

Report issued: March 19, 2009 (2009 LSBC 09)

Counsel: Eric Wredenhagen for the Law Society and Jerome Ziskrout for Joseph Hattori

Facts

In November 2004 Joseph Takayuki Hattori received an estate litigation file transferred from another lawyer. Hattori accepted the existing joint retainer to represent a group of three clients who were residual beneficiaries under the contested will of VM, as well as a municipality that was to receive certain real property under the will. Under the retainer, Hattori represented both the residual beneficiaries and the municipality in two separate actions involving the VM estate. One action had been brought by JW and KW, residual beneficiaries under a previous will, naming all beneficiaries of the second will as defendants.

In June 2005 JW and KW applied for an order to sell one of the properties from the VM estate with the proceeds to be held in trust pending the outcome of the litigation. The municipality advised Hattori it was not opposed to the sale, however the residual beneficiaries made their opposition known to him. Hattori responded on behalf of all the clients that the sale was unopposed and indicated that a release of a certificate of pending litigation on the property would be registered. He also executed a consent order to sell the property. The property was listed for sale in August 2005 and sold in October 2005.

The residual beneficiaries terminated their retainer with Hattori on May 5, 2006. Hattori continued to act on behalf of the municipality and on November 1, 2007 presented an offer to settle the action brought by JW and KW. The offer provided for the municipality to receive its bequest and for JW and KW to receive the residue of the estate. Hattori’s former clients, however, were to receive nothing and bear their own costs.

Admission and penalty

Hattori admitted that he acted in a conflict of interest by:

1. failing to explain the principle of undivided loyalty to his clients;

2. failing to secure informed consent on how to proceed in light of the conflict that developed between his two clients; and

3. continuing to act for the municipality, and not for the residual beneficiaries, after it was evident there was a conflict between them.

Hattori further admitted that, by disregarding the residual beneficiaries’ instructions, he failed to provide service in a conscientious, diligent and efficient manner at least equal to what would be expected of a competent lawyer in a similar situation. He admitted that this conduct constitutes professional misconduct.

Once Hattori realized his breach of duty to the beneficiaries he took steps to make amends, including apologizing to his clients and refunding their fees. He undertook to complete the Law Society’s Small Firm Practice Course and to review the Act, Rules and Handbook.

Pursuant to Law Society Rule 4-22, the hearing panel accepted Hattori’s admissions and ordered that he pay:

1. a $3,000 fine; and

2. $1,000 in costs.

The panel emphasized the importance for all lawyers to exercise great caution from the outset in accepting and managing a joint retainer as noted under Chapter 6, Rule 4 of the Professional Conduct Handbook.

 

Mimi Mankiu Luk

Richmond, BC

Called to the bar: August 31, 1990

Ceased membership: June 18, 2008

Admission accepted by Discipline Committee: April 2, 2009

Counsel: Maureen Boyd for the Law Society and Gerald Cuttler for Mimi Luk

Facts

Mimi Mankiu Luk worked for four different firms in Metro Vancouver between August 1990 and October 2000, after which she practised as a sole practitioner. She was suspended from practice in October 2005 and returned on July 27, 2007, practising as Mimi M.K. Luk Law Corporation.

Investigation order

On June 12, 2008 the Chair of the Discipline Committee ordered an investigation of Luk’s books, records and accounts. Law Society staff attended Luk’s office to conduct the investigation on June 17. Luk refused access to her office throughout the day and did not allow copying of any documents. Between the close of business on June 17 and 8:30 the next morning, she loaded 17 boxes of file materials, two computers and two large garbage bags filled with garbage and documentation into her car. She destroyed some draft records and accounts and deleted computer files.

Luk admitted that she removed the material from her office to avoid the Law Society having access to it in the course of its investigation. She admitted that her failure to comply with the order and the untrue and misleading responses she gave to the Law Society about the materials in her car constituted conduct unbecoming.

Conduct related to IG

In September 2001, IG retained Luk to prepare and submit an application to Citizenship and Immigration Canada (CIC). Luk did not submit the application in September or at any time after. However, she sent out a statement of account and deposited a cheque for $2,480, although she was not entitled to those funds. She did not record receipt of these funds in any client trust ledger for IG or in her trust or general account records. In addition, when her client called to follow up on the status of the application, Luk advised him that the application was still in progress. She also provided her client with a false receipt of payment to CIC for the $1,525 “Right of Landing and Application fee” and tried to mislead the Law Society that she had paid this fee, when she had not.

Luk admitted that this misappropriation of funds constituted conduct unbecoming. She admitted her failure to serve her client in a conscientious, diligent and efficient manner at least equal to that which would be expected of a competent lawyer in a similar situation. Further, she admitted that her untrue statements to her client and to the Law Society, made in order to mislead, constituted professional misconduct and conduct unbecoming.

Conduct related to GV and RV

In June 2007, Luk was retained by GV and RV to act for them in the sale of their home and the purchase of a new home. On October 16, Luk prepared and signed a trust cheque in the amount of $36,754 made payable to TA. The clients did not authorize this payment from trust and were unaware of it. In November 2007 Luk negotiated this trust cheque by depositing the funds into an account she held jointly with TA.

Luk admitted that she misappropriated the funds and that this constituted professional misconduct. In July 2008 Luk provided through her counsel $36,754 for the Law Society to hold in trust for the clients, pending proper disbursement by the custodian of her practice.

Misappropriation of funds from HH

In 2005, HH retained Luk in connection with the purchase of two properties. On October 6, 2005, Luk prepared and signed a trust cheque for $81,105 payable to TA. Her client did not authorize payment of these trust funds and was unaware of this transaction. Later that month, Luk deposited the cheque into an account that she held jointly with TA. Luk admitted that this constituted professional misconduct and provided the Law Society with a cheque for $81,105 to hold in trust for HH pending proper disbursement by the custodian of her practice.

Conduct related to AF

AF retained Luk in January 2006 to prepare and submit a sponsorship application for permanent residence for her husband and stepchildren. At this time, Luk was suspended from practising law. She deposited a cheque for $3,000 on February 2, even though she had not performed any services for her client. In September 2006, Luk requested and accepted payment of $1,975 for an immigration process fee. She deposited this cheque to her personal bank account and did not pay the immigration fee. She provided a false receipt for the processing fee to her client. Luk admitted that she took the $3,000 without providing the services, provided a false document for the purposes of misleading her client and failed to complete any services for her client, and that this constituted conduct unbecoming.

Conduct related to JV

JV retained Luk to purchase a property. When the transaction was completed, Luk held $13,862 in trust for her client. After deduction of total fees and disbursement of $10,130, the balance left in trust should have been $3,731. However, on June 12, 2008 Luk prepared and signed a trust cheque made payable to her law corporation for $13,862 and transferred to her general account the $3,731 held in trust for JV. JV did not authorize payment of these trust funds. On June 18, Luk withdrew $63,000 from her general account, which included the $3,731 held in trust for JV. Luk admitted that she misappropriated these funds for her own personal purposes and that this constituted professional misconduct.

Admission and penalty

Luk admitted that her conduct constituted professional misconduct and conduct unbecoming. On June 18, 2008 Luk terminated her Law Society membership and a custodian was appointed to wind up her practice. Under Rule 4-21, the Discipline Committee accepted Luk’s admissions and undertakings:

1. not to apply for reinstatement to the Law Society for a period of 15 years;

2. not to apply for admission to the law society of any other province or territory in Canada without first notifying the Law Society of BC; and

3. not to work for any lawyer or law firm or allow her name to appear on the letterhead of any lawyer or law firm without obtaining the prior written consent of the Law Society.

 
Jeremy Stuart Gordon Donaldson

Victoria, BC

Called to the bar: May 17, 1991

Ceased membership: July 30, 2008

Admission accepted by Discipline Committee: April 2, 2009

Counsel: Eric Wredenhagen for the Law Society and Dennis T.R. Murray, QC for Jeremy Donaldson

Facts

Jeremy Stuart Gordon Donaldson practised with a Victoria law firm from 1991 to 1993 and then as a sole practitioner in the areas of family, real estate, civil litigation, motor vehicle and wills and estates law until July 30, 2008. On that date, one day before a scheduled proceeding to consider whether he should be suspended pending the hearing of a citation, he withdrew from practice. That proceeding arose from a citation alleging, among other things, that Donaldson misappropriated client trust funds and filed misleading statutory declarations with the Law Society.

In June 2003, following a previous citation for failure to remit taxes collected from clients, Donaldson admitted professional misconduct for collecting PST and GST from clients for approximately two years and failing to remit the $26,250 collected. As part of the penalty, the hearing panel ordered that Donaldson deliver quarterly statutory declarations starting with the quarter ending June 30, 2003 setting out the total fees billed and total remittances made for PST and GST.

Late filings and false declarations

Donaldson was frequently late in filing his declarations on GST and PST. In January 2007, a Law Society auditor noted discrepancies in two of Donaldson’s 2006 declarations. Following inquiries by the auditor, Donaldson advised that he had not paid PST from April 2006 onward and that the unpaid amount was between $8,000 and $10,000. He did not hold the PST monies in trust, and he used the money to pay his employees and meet other practice obligations. He admitted that he swore false statutory declarations on PST remitted.

Donaldson has since entered into a payment plan with the Revenue Collection Branch and, except for a minor amount still owing, the amounts due in respect of PST were remitted by December 2008.

Misappropriation of client funds related to billing and misleading the Law Society and clients

On July 3, 2007 an investigation was ordered into Donaldson’s books, records and accounts, which was initially conducted by Law Society staff and subsequently by an external auditor. An investigation was also conducted in which a Law Society investigator interviewed several of Donaldson’s clients identified in the Audit Report.

The Audit Report and Investigation Report found numerous breaches of the trust accounting rules, as well as evidence of misrepresentations made to clients and the Law Society about funds held in trust.

The auditor found Donaldson transferred client funds, usually in the form of a retainer, from trust accounts to his general account before the service had been completed and before the invoice had been delivered to the client. When the invoice was delivered to the client, it misrepresented the status of these funds, referring to them “in trust” when they were not.

Donaldson admitted to “pre-taking” fees prior to completing work in 13 separate client matters. He also admitted in one such case that he withdrew funds from trust where no work was ever done in respect of the funds withdrawn.

Donaldson further admitted that he misled his clients and sought to mislead the Law Society by rendering bills to clients that bore a different date from his file copy.

Misappropriation of trust balances

Donaldson admitted that in September 2003 he cleared six client trust balances totalling $273.63 and transferred the funds to his general account. He advised the Law Society that he will reimburse these clients.

Breach of the Professional Conduct Handbook

Donaldson admitted that he breached Chapter 4, Rule 6 of the Professional Conduct Handbook by assisting his client DL in conduct that he knew was dishonest or fraudulent. Donaldson agreed to pay out DL’s share of a personal injury settlement in cash, helping her to hide the payment and protect the value of an unspecified pension.

Breaches of Law Society Rules

The Audit Report concluded and Donaldson admitted that between 2002 and 2007, he breached the Law Society accounting rules by:

  • failing to carry out his duties and responsibilities under Division 7 (Trust Accounts and Other Client Property);
  • depositing client trust funds directly to his general account;
  • making payments from trust funds even though his trust accounting records were not current;
  • withdrawing or authorizing the withdrawal of trust funds in payment of fees without first preparing a bill for those fees and immediately delivering the bill to the client;
  • not keeping file copies of bills delivered to clients that accurately showed the dates charges were made;
  • not recording each trust or general transaction promptly;
  • following receipt of funds under Rule 3-61(2), not immediately delivering a bill or issuing to the client a receipt containing sufficient particulars to identify the service performed and disbursements incurred;
  • not making the required trust reconciliations within 30 days of the effective date of the reconciliation; and
  • upon discovering trust shortages, not immediately paying into his account enough funds to eliminate the shortage.
Admission and penalty

Donaldson admitted that his conduct constitutes professional misconduct. Under Rule 4-21, the Discipline Committee accepted Donaldson’s admission and undertakings:

1. to resign his membership in the Law Society and not to apply for reinstatement for 10 years starting July 30, 2008, the date he withdrew from practice;

2. not to apply for admission to the law society of any other province or territory in Canada without notifying the Law Society of BC; and

3. not to work for any lawyer or law firm or allow his name to appear on the letterhead of any lawyer or law firm without the consent of the Law Society

 

Alan James Short

Parksville, BC

Called to the bar: September 11, 1978

Discipline hearings: June 9, 2008 and January 30, 2009

Panel: David Renwick, QC, Chair, Meg Shaw, QC and David Mossop, QC

Reports issued: July 9, 2008 (2008 LSBC 20) and April 23, 2009 (2009 LSBC 12)

Counsel: Jaia Rai (facts and verdict) and Maureen Boyd (penalty) for the Law Society and Reginald Harris for Alan James Short

Facts

In the summer of 2006 the Law Society received complaints from a court official and other counsel that Alan James Short was drinking and appearing in court while impaired, contrary to his January 14, 2003 undertaking to the Law Society to abstain from the consumption of alcohol. The Law Society requested and received a report from Short’s physician, which did not note any consumption of alcohol since February 2005. Short failed to respond to the Law Society’s request for an explanation as to why his physician was unaware of his recent drinking.

The Benchers suspended Short on September 12, 2006 to protect the public interest pending the disposition of the citation. Short subsequently admitted that from 2005 to July 2006 he drank on several occasions and appeared in court while impaired.

Verdict

The panel found Short guilty of professional misconduct for breaching his undertaking to the Law Society not to consume alcohol and for appearing in court on more than one occasion while impaired.

Penalty

The panel ordered that Short:

1. be reprimanded;

2. enter into a monitoring agreement with a physician and terms satisfactory to the Law Society for a period of five years ending January 31, 2014, and comply with the terms of that monitoring agreement; and

3. pay costs of $7,000.

 

Douglas Hewson Christie

Victoria, BC

Called to the bar: September 15, 1971

Bencher review: December 11, 2008

Benchers: Glen Ridgway, QC, Chair, Haydn Acheson, Leon Getz, QC, Thelma O’Grady, David Renwick, QC, Meg Shaw, QC, Ronald Tindale and Dr. Maelor Vallance

Reports issued: May 29, 2008 (2008 LSBC 15) and April 30, 2009 (2009 LSBC 13)

Counsel: Jean Whittow, QC and Andrew Buchanan for the Law Society and Douglas Christie on his own behalf

Background

The hearing panel found Douglas Hewson Christie guilty of professional misconduct for causing the preparation and delivery of three documents titled “Subpoena of Documents” purporting to compel the production of documents in a way that was not permitted by BC law. The panel found that Christie knowingly changed Form 21, a subpoena, even though he knew there was no such thing as a “Subpoena for Documents in British Columbia” and had just completed an appropriate Rule 26 application weeks earlier. The panel found that Christie’s zeal in pursuing the case on behalf of his clients caused him to overlook his professional responsibilities. They ordered Christie to pay a $2,500 fine and $20,000 in costs.

On December 5, 2006 the panel orally rejected Christie’s application for a stay of proceedings on the grounds of delay, and followed that decision with written reasons on May 29, 2008. Christie applied for review of the verdict, penalty and delay decisions.

Decision

The Benchers upheld the verdict, penalty and delay decisions. They agreed there was no evidence that Christie suffered prejudice or stigma from an unacceptable delay.

In reviewing the verdict, the Benchers rejected Christie’s contention that the hearing panel was wrong on the law of compelling documents in civil litigation. They also rejected his assertion that he was not involved in the preparation of the subpoenas, noting that he had acknowledged his involvement to the judge at the trial of the civil matter involved and in his July 11, 2005 letter to the Law Society. Considering his experience with civil litigation and his recent Rule 26 application, the Benchers found it implausible that Christie did not know the appropriate procedure for obtaining documents, as he contended. They found that, while Christie was clearly suffering from stress during the time the subpoenas were prepared, this does not explain or excuse his misconduct.

In their review of the penalty, the Benchers considered that this was Christie’s first misconduct in a 30-year career. They also noted that he did not secure any personal gain from his conduct, was under considerable stress at the time and had many testimonials noting his good character and commitment to his clients. They found that the penalty was appropriate to Christie’s serious and deliberate abuse of the rules of court.

The Benchers found no basis for Christie’s assertion that, if he had been told the penalty the Law Society was seeking, he would have agreed to settle the citation, thereby eliminating the need for a hearing and avoiding costs from those proceedings. The Benchers agreed with the panel’s decision on costs but, considering Christie’s financial circumstances, they decided to allow him more time — two years from the date of the review — to pay the $22,500 due from the fine and costs.

 

Michael Lee Seifert

Vancouver, BC

Called to the bar: May 10, 1978

Discipline hearings: February 4 and 19, 2009

Panel: Gavin Hume, QC, Chair, Ralston Alexander, QC and Robert Brun, QC

Report issued: May 25, 2009 (2009 LSBC 17)

Counsel: Maureen Baird and Julien Dawson for the Law Society and David Gruber and Marvin Storrow, QC for Michael Lee Seifert

Facts

This matter came to the Law Society’s attention through a self report from Michael Lee Seifert on December 17, 1999 advising that he had entered into an agreed statement of facts and undertaking with the BC Securities Commission.

Seifert and other lawyers at Maitland & Company performed various services for Arakis Energy Corporation (AEC) between January 1992 and December 1995, including advising on reporting and filing obligations under the Securities Act. In April 1994 AEC issued Anthem International Incorporated one million shares of AEC, but did not publicly disclose that one of the reasons for the issuance was that European financiers would seek to secure financing for AEC. Seifert was aware of the potential financing and did not advise AEC to disclose this. Between April 18, 1995 and July 25, 1995, one year after he became aware of the potential financing, Seifert sold shares of AEC for proceeds of $331,259.60 and USD$366,319.63. In addition, Seifert’s advice to a holding company led to trades that generated proceeds of $295,006. Seifert’s relatives stood to benefit from these proceeds as beneficiaries of the Seifert Trust.

Verdict

The panel found, and Seifert admitted, that he was guilty of professional misconduct for performing legal services for AEC when he and his relatives had financial interests in the company that affected his professional judgment, contrary to Chapter 7, Rule 1 of the Professional Conduct Handbook.

Penalty

The panel underscored the seriousness of Seifert’s misconduct, given the important role the legal profession plays in protecting the integrity of the capital market. The panel noted that this misconduct was the only departure from Seifert’s otherwise unblemished record. However, they also found that given Seifert’s 22-year career in securities law, there could be no leniency for inexperience or lack of familiarity with the Securities Act. While the panel noted Seifert had brought the misconduct to the attention of the Law Society, the facts disclosed would have come to the society’s attention in any event, given their notoriety.

The panel ordered that Seifert:

1. be suspended for two months commencing May 29, 2009; and

2. pay costs of $25,000.