Please find summaries with respect to:
For the full text of discipline decisions, visit the Regulation & Insurance/Regulatory Hearings section of the Law Society website at lawsociety.bc.ca.
Re: A Lawyer
Discipline hearing: November 21, 2007
Panel: Leon Getz, QC, Chair, Russell Tretiak, QC and Dr. Maelor Vallance
Report issued: February 11, 2008 (2008 LSBC 06)
Counsel: Maureen Boyd for the Law Society and Terrence Robertson, QC for the respondent
The respondent, who acted for the defendant in a personal injury action, requested the plaintiff to attend an independent medical examination. The plaintiff’s counsel agreed, provided the respondent undertake to provide her with a copy of the doctor’s report as soon as it was available. The respondent accepted the undertaking.
Shortly after the plaintiff’s examination, the respondent received the doctor’s interim report. Two weeks later, he wrote to plaintiff’s counsel saying he would not receive the doctor’s report until the plaintiff provided updated medical records. When the respondent wrote this letter, he believed the doctor’s interim report had been sent to plaintiff’s counsel. The respondent received the doctor’s final report four months later and forwarded a copy to plaintiff’s counsel.
More than a year later, in preparation for trial, the respondent served the interim report on plaintiff’s counsel, pursuant to the Rules of Court. Until this time, the respondent believed the interim report had been previously sent to the other lawyer.
The respondent told the Law Society that his failure to send the interim report to plaintiff’s counsel was an oversight, and that his letter to plaintiff’s counsel was referring to the examining doctor’s final report as he thought the interim report had already been sent to the other lawyer.
Admission and penalty
The respondent admitted that he had breached an undertaking contrary to Chapter 11, Rule 7 of the Professional Conduct Handbook and that his actions constituted professional misconduct.
Pursuant to Law Society Rule 4-22, the hearing panel accepted the respondent’s admission and his proposed penalty of a $3,000 fine and costs of $3,750.
Application for anonymous publication
The respondent applied for an order that the summary of the hearing panel’s decision that is circulated to the profession not identify him. Law Society rules require that summaries of discipline decisions be circulated to the profession and that those summaries “must identify the respondent.”
Rule 4-38.1(3), however, permits an order for anonymous publication of a decision only if there is no suspension or disbarment (as here) and if publication will cause grievous harm to the lawyer or another individual that outweighs the interest of the public and the Law Society as a disciplinary body in full disclosure.
In Law Society of BC v. Doyle, 2005 LSBC 24, the Benchers concluded that grievous harm must be exceptional, unusual, onerous and injurious to the lawyer or cause catastrophic loss personally and professionally. The harm must involve significantly more than the damage to a lawyer’s reputation or embarrassment that normally flows from a finding of professional misconduct.
The respondent argued publishing his name would have a detrimental effect on his relationship with the insurance company that was his largest client. He said the insurance company had a “zero tolerance policy” regarding professional and personal misconduct on the part of its outside counsel. He also said publication would have a detrimental effect on his ability to attract new clients.
The respondent submitted that his situation was analogous to that described in Re A Lawyer 2005 LSBC 50, where the Benchers allowed anonymous publication. The lawyer in that case admitted to a technical breach of the Law Society’s accounting rules and presented evidence that publication of his name would result in “public scorn” such that his single largest client, which was aware of the circumstances, would be compelled to end their long-standing relationship.
Decision of Leon Getz, QC (minority)
Leon Getz, QC concluded that there was no evidence that publication of the respondent’s name “would give rise to a wave of public sentiment exposing the client to such scorn that it would almost certainly feel impelled to terminate its relationship with [the respondent].”
He also said the request for anonymity invited the Law Society “to acquiesce in concealing from the client something which, on the respondent’s own account of the client’s policy, is of significant interest to it.”
Decision of Russell Tretiak, QC (majority)
Russell Tretiak, QC concluded there was no evidence to contradict the respondent’s testimony that his major client had a zero tolerance policy regarding professional misconduct and that publication of his name could result in loss of the client.
He said the breach of undertaking was inadvertent and that harm to the respondent by publication outweighed the public interest.
Decision of Dr. Maelor Vallance (concurring)
Dr. Maelor Vallance agreed with Tretiak. He added that “the mischief that results from this respondent being cited and publication made exceeds disproportionately the error made by him.”
The Discipline Committee has referred the decision on anonymous publication for review by the Benchers.
Sabrina Ann Sheherazade Ali
Formerly of Vancouver, BC
Called to the Bar: September 4, 1997
Ceased membership: January 1, 2007
Disbarred: December 20, 2007
Discipline hearings: February 20-21 (facts and verdict) and November 20, 2007 (penalty)
Panel: David Renwick, QC, Chair, Robert Punnett and Brian Wallace, QC
Reports issued: April 11 (2007 LSBC 18), June 14 (2007 LSBC 33) and December 20, 2007 (2007 LSBC 57)
Counsel: Maureen Boyd for the Law Society and no-one appearing for Sabrina Ali
Between January 2002 and March 2004 four separate clients gave Sabrina Ann Sheherazade Ali funds, which Ali then transferred from her pooled trust account to her personal or general account. In the case of funds from one additional client, she deposited them directly into her general account. In all cases, she proceeded to use those funds even though she was not entitled to them.
Ali used a personal float trust ledger account between January 2002 and February 2003 and withdrew funds from her pooled trust account for her own use even though the account did not hold sufficient funds.
On several occasions Ali also deposited trust funds to her general account, rather than her trust account.
In addition, she withdrew fees when she had not prepared a bill. And on at least three occasions Ali did not immediately pay sufficient funds into trust to eliminate trust shortages.
In 2002 Accounting Firm A did Ali’s bookkeeping and prepared her Accountant’s Report. Ali did not pay A’s invoices and A subsequently obtained a default judgment. In January 2005 Ali claimed that she was neither aware of the judgment nor of having been served with anything. Ali failed to satisfy the judgment within seven days and did not immediately notify the Executive Director in writing of her proposal to do so. When Ali did not pay the judgment, A complained to the Law Society. Staff wrote to Ali in February and March 2006 regarding the complaint but she did not respond.
In 2003 and 2004 Accountant B prepared Ali’s Accountant’s Reports. B was paid for the 2003 work, but had trouble collecting for 2004. In September 2005 Ali provided B with two cheques to pay B’s invoice. B cashed the first one for just over half of the amount owing, but the second one for the remaining $400 did not clear.
A part-time employee worked for Ali in January and February 2003. In December 2003 Ali told an auditor that she had remitted all payroll withholdings for that year; however, on January 12, 2004 Ali wrote to the Canada Revenue Agency to advise that she had in fact not done so, and she therefore included two post-dated cheques to cover the amount owing.
As of December 2004 Ali had several practice debts totaling $9,790.86, which were many months in arrears.
Ali owed more than $4,000 in unpaid GST remittances as of August 8, 2005.
In 2006 Ali became a non-practising member. She chose not to attend any of the hearings concerning the citations against her and resigned as a member of the Law Society by letter in November 2007, but had in fact ceased to be a member on January 1, 2007 for failing to pay her fees.
The panel took into account the overall series and pattern of transactions when assessing whether Ali misappropriated her clients’ funds. The panel noted a fundamental principle governing the conduct of lawyers is that “trust funds are sacrosanct.” They concluded that Ali deliberately misappropriated funds for personal purposes on six occasions and found it irrelevant that the amounts involved were relatively small. They found her guilty of professional misconduct in relation to the misappropriations.
The panel also found Ali had breached Chapter 2, Rule 2 of the Professional Conduct Handbook by failing to pay several practice debts in a timely fashion and breached Chapter 13, Rule 3 by failing to respond to Law Society correspondence.
The panel further found Ali breached Part 3, Division 7 of the Law Society Rules when she failed to properly maintain her books, records and accounts. She was also found in breach of Rule 3-44 for failing to satisfy the default judgment against her within seven days and failing to notify the Executive Director of her proposal for satisfying the judgment.
In addition, the panel found her failure to pay practice debts and her personal use of funds held for payment of GST, PST and employee income tax exhibited a disregard for her professional obligations and amounted to professional misconduct.
The panel dismissed Ali’s suggestion that her practice was so small and financial dealings with clients so simple that she could keep track of them by memory without written records; thus, the panel found her failure to keep adequate trust records was also professional misconduct.
The panel noted that, in most cases where disbarment is not imposed in relation to misappropriation of trust funds, there are significant mitigating factors. Ali’s evidence by way of letters or statements made to Law Society staff, or through her then counsel, was that her actions were a result of “mistakes.” The panel stated that Ali’s decision not to participate in the hearings meant there was no evidence from which to draw comfort that the conduct would not occur again, making it impossible to assess the possibility of remediation or rehabilitation on the part of Ali. The panel further said that, in cases of misappropriation, disbarment is the appropriate remedy unless there is evidence that it is not required to protect the public. In the absence of such evidence the panel ordered that Ali:
1. be disbarred; and
2. pay costs of $2,500.
Douglas Hewson Christie
Called to the Bar: September 15, 1971
Discipline hearings: December 6, 2006, April 12, June 18-19 (facts and verdict) and December 17, 2007 (penalty)
Panel: Robert McDiarmid, QC, Chair, Gavin Hume, QC and James Vilvang, QC
Reports issued: September 11, 2007 (2007 LSBC 41) and January 15, 2008 (2008 LSBC 01)
Counsel: Jaia Rai for the Law Society and Douglas Hewson Christie appearing on his own behalf
Douglas Hewson Christie acted as counsel for the plaintiffs in R and others v. D, a case involving a challenge to a will and raising allegations of lack of testamentary capacity, undue influence and feloniously causing death. K was a key witness and provided ongoing assistance to Christie in the conduct of the litigation.
In the course of dismissing all of the plaintiffs’ claims, the trial judge commented, “K was so personally involved in this action that he forged a court stamp which he affixed to a form of subpoena for service on an out-of-province witness, thereby hoping to achieve production of documents for use in the trial.” Although not a party to the lawsuit, K married one of the plaintiffs in the course of the proceedings.
K testified at the discipline hearing that Christie had instructed him to prepare a subpoena to get documents, telling him to “check in the library and use the form in the Rules.” K adapted the Form 21 subpoena in the BC Supreme Court Rules to create three documents titled “Subpoena of Documents.” K admitted under cross-examination that he had no training to interpret the Supreme Court Rules. K also testified that Christie was very busy during the fall of 2003 and had no other secretarial support during the time K prepared the three documents.
In June 2006 the Law Society issued a citation charging Christie with three counts of professional misconduct arising from causing the preparation and delivery of three documents titled “Subpoena of Documents,” dated October 1, December 16 and December 18, 2003. Christie acknowledged having signed and authorized K to serve the three documents, but denied having directed their preparation.
The panel rejected Christie’s denial that he had directed or authorized the preparation of the three subpoenas, citing the inconsistency of that denial with statements made by Christie during the trial in R and others v. D and in his correspondence to the Law Society.
The panel stated it is common ground that there is no such thing as a “Subpoena for Documents” in British Columbia. Noting Christie’s extensive litigation experience, the panel observed that in August 2003 — just a few weeks before signing the first “Subpoena for Documents” — he had shown his command of the applicable Supreme Court Rules by making an appropriate application under Rule 26 for an order directing production of documents.
The panel concluded that having directed the documents’ preparation, Christie then signed and gave them up to K for service, seeking to compel the production of documents in a manner he knew was not permitted by BC law.
The panel noted evidence of severe health difficulties suffered both by Christie and his spouse (his secretary of 25 years) throughout 2003, and pointed out that while such factors might be considered in the context of setting an appropriate penalty, they cannot be used to excuse professional misconduct.
The panel ruled that Christie’s actions were dishonourable, were a serious abuse of the BC Supreme Court Rules, and constituted professional misconduct.
The panel accepted that Christie’s professional misconduct arose from stress and excessive zeal to help his client, rather than from desire for personal gain.
The panel noted that, while in many ways Christie’s passion and dedication to his client’s cause embody the best qualities of a barrister, that passion can never be allowed to overcome a barrister’s duty to practise by the rules. The panel stressed that when members of the public receive a document signed by a lawyer, appearing to be a court document and requiring them to do something, they must be able to trust that the document actually has the authority attributed to it. The panel said that such trust is absolutely fundamental to the functioning of the courts, the practice of law, and the maintenance of public confidence in the integrity of the legal profession.
The panel placed significant weight on the many letters submitted on Christie’s behalf, (including 15 letters attesting to his honesty and his contribution to the community), and pointed out that the only incident on Christie’s disciplinary record took place over 30 years ago.
Upon noting its satisfaction with the Law Society’s draft bill of costs for $50,000, the panel said it did not want to impose a “de facto disbarment” by making a cost award beyond Christie’s ability to pay. The panel described Christie’s work as a valuable contribution to our free society, often performed pro bono or for greatly reduced fees, and stated its desire that Christie be able to continue with that work.
The panel ordered that Christie pay a fine of $2,500 by June 17, 2008, and costs of $20,000 by January 15, 2010.
Called to the Bar: January 3, 1973
Bencher review: October 25, 2007
Benchers: Gordon Turriff, QC, Chair, Kathryn Berge, QC, Ken Dobell, Bruce LeRose, QC, Barbara Levesque, Robert Punnett and James Vilvang, QC
Report issued: December 17, 2007
Counsel: Jaia Rai for the Law Society and Sheldon Goldberg appearing on his own behalf
A majority of the hearing panel (facts and verdict 2005 LSBC 10) determined that Sheldon Goldberg was guilty of professional misconduct by improperly withdrawing from a criminal trial and abandoning his client, Mr. T, in mid-trial, contrary to Chapter 10 of the Professional Conduct Handbook, and by being discourteous and disrespectful to the court. The minority concluded that Mr. Goldberg’s conduct was ill-advised and contrary to the provisions of the Handbook, but did not amount to professional misconduct.
Another criminal case (R v. D) was set for trial on the same day that Mr. Goldberg was representing Mr. T. In the other trial, the accused, Ms. D, was representing herself. Mr. Goldberg advised Judge Godfrey, the trial judge in Mr. T’s case, that he had just been retained by Ms. D to represent her and that the trial was scheduled to start immediately in another courtroom. Judge Godfrey granted Mr. Goldberg a brief adjournment in Mr. T’s case so he could request an adjournment in Ms. D’s case.
The judge in the other courtroom was unable to hear the adjournment application so R v. D was returned to Judge Godfrey who then recalled the case. She refused Mr. Goldberg’s application for an adjournment on the grounds that the date was peremptory. She ordered the case be sent to another courtroom for hearing. Without explanation to the court, Mr. Goldberg then left the courtroom and represented Ms. D in her trial in another courtroom, leaving Mr. T. unrepresented. Mr. Goldberg did not inform Mr. T of his intent to represent Ms. D; nor did he seek Mr. T’s instructions to absent himself from Mr. T’s trial.
As a result of his having left Mr. T. to fend for himself, Judge Godfrey banned Mr. Goldberg from appearing again in her courtroom.
The majority of the hearing panel (penalty 2005 LSBC 22) ordered that Mr. Goldberg:
1. be suspended for 30 days commencing December 5, 2005; and
2. pay costs.
Application for fresh evidence
The Benchers dismissed Mr. Goldberg’s application to introduce affidavits from Mr. T and Mr. F, Mr. Goldberg’s assistant. In his affidavit, Mr. T commented on Judge Godfrey’s attitude towards Mr. Goldberg and said that he told Judge Godfrey that he would proceed with the trial without counsel. Mr. F’s affidavit addressed the true effect of Judge Godfrey’s ban. The Benchers found that Mr. T’s affidavit conflicted with Mr. Goldberg’s own evidence at the hearing before the panel and his submissions to the Benchers that he had not obtained Mr. T’s approval to leave him unrepresented. They further found that Mr. F’s evidence about Judge Godfrey’s ban would not have affected the penalty the panel imposed because the panel had considered the ban and its effect.
The Benchers decided that the majority of the panel had not been incorrect in finding that Mr. Goldberg’s conduct was professional misconduct and had not been incorrect in fixing the penalty. The Benchers ordered Mr. Goldberg to pay costs of the review.
John Keith Lowes
Called to the Bar: May 15, 1970
Discipline hearings: February 27 (facts and verdict) and November 15, 2007 (penalty)
Panel: James Vilvang, QC, Chair, June Preston and David Renwick, QC
Reports issued: May 29 (2007 LSBC 28) and December 6, 2007 (2007 LSBC 54)
Counsel: Jaia Rai for the Law Society and Jerome Ziskrout for John Keith Lowes
In his 2005 Trust Report to the Law Society, John Keith Lowes self-reported that he had not paid to the government the provincial sales tax he had collected from clients for his legal services.
In subsequent correspondence with the Law Society, Lowes admitted that he had never registered with the government to remit sales tax, that he had collected sales tax from clients since the early 1990s when the tax was introduced, that he had never remitted the tax he collected, and that he had misled his clients by collecting and not remitting the tax. Lowes estimated he owed more than $175,000 in sales tax.
Lowes admitted his actions constituted professional misconduct.
The hearing panel accepted Lowes’ admissions and found him guilty of professional misconduct.
At the penalty hearing, Lowes presented evidence that he had been an alcoholic from 1981 until his family organized a successful intervention in 1992. At that time he already owed $10,000 in unremitted provincial sales tax, but rather than deal with the debt he continued to keep the tax he collected from clients.
A doctor also provided evidence that it is common for alcoholics, once sober, to fear they will relapse if they do certain things. The panel accepted this as the reason Lowes had not remitted provincial sales tax.
Lowes also told the Law Society that his wife had passed away in 2005 after a lengthy battle with cancer, that he cared for an adult daughter who suffered from depression and that he planned to sell his house to pay his tax debt.
The panel noted Lowes had self-reported his failure to pay tax, had admitted professional misconduct and had taken steps to pay the outstanding taxes. The panel ordered that Lowes pay a fine of $5,000 and costs of $4,885.
Michael Murph Ranspot
West Vancouver, BC
Called to the Bar: August 1, 1985
Discipline hearings: March 6 (facts and verdict) and November 22, 2007 (penalty)
Panel: David Renwick, QC, Chair, Robert Brun, QC and Thelma O’Grady
Reports issued: June 12 (2007 LSBC 32) and December 18, 2007 (2007 LSBC 56)
Counsel: Maureen Boyd for the Law Society and Michael Murph Ranspot appearing on his own behalf at the discipline hearing and Terrence Robertson, QC for Ranspot at the penalty hearing
JO retained Michael Murph Ranspot to administer an estate in August 1990. The Public Guardian and Trustee of BC had possession of the estate and provided Ranspot with the original will in March 1993.
On August 4, 1993 Ranspot submitted an application for Letters of Administration with Will Annexed to the Probate Registry of the BC Supreme Court. It was rejected in part because the affidavit of the administrator did not include the reason for the delay in filing. Ranspot redrafted the application in February 1994, but did not submit it.
On January 14, 1997 the Law Society suspended Ranspot for 18 months commencing February 14, 1997. Before he transferred his files prior to his suspension, Ranspot advised the Law Society on February 13, 1997 that he did not have any wills in his possession. Ranspot did not inform JO or anyone connected with the estate that he would not be practising law for the period of his suspension.
On January 1, 1998 Ranspot ceased to be a member of the Law Society. He applied to be reinstated on October 2, 1998. One of the conditions of his return to practice was a practice supervision agreement, which he entered into on December 15, 2000. It required him to provide a written summary of all his open files. He did not include the estate file in the summary. Ranspot was readmitted to the Law Society on February 1, 2001.
On June 21, 2004 Ranspot provided the Law Society with a progress report with respect to his practice, which did not include the estate file. Days later the Practice Standards Committee accepted the progress report and relieved Ranspot of his practice restriction, which required him to have a practice supervisor.
R, of the Public Guardian and Trustee of BC, contacted Ranspot on June 30, 2004 and requested documents so the estate could be settled. Ranspot acknowledged to R that he had the estate file, but he asserted a solicitor’s lien over it and refused to release it without a payment of $2,000 for fees and disbursements.
On November 23, 2004 a beneficiary of the estate filed a complaint with the Law Society. More than 14 months later Ranspot released the original will to the Office of the Public Guardian and Trustee, which did not advise Ranspot that it had been charging a monthly estate liaison administration fee amounting to $2,700.
On November 22, 2007 Ranspot provided oral evidence to the hearing panel that he had forgotten he had custody of the estate file until he received the phone call from the Office of Public Guardian and Trustee on June 30, 2004.
Ranspot admitted he failed to provide JO with the quality of service at least equal to that which would be expected of a competent lawyer in a similar situation. He further admitted that his failure to do the work in a prompt manner resulted in the diminution of the estate by at least $2,700. Ranspot acknowledged his failure to provide any service to JO from 2001 onwards was contrary to Chapter 3, Rules 3 and 5 of the Professional Conduct Handbook and is professional misconduct.
Ranspot admitted he further committed professional misconduct when he breached the terms of his practice supervision agreement by omitting the estate file from his written summary and his progress report.
The panel accepted Ranspot’s evidence that he had forgotten about the existence of the estate file during the relevant period. The panel was mindful that Ranspot’s 18-month suspension was, in part, as a consequence of problems resulting from alcohol abuse and depression in the mid-1990s and that he had been attempting to rebuild his practice ever since. The panel said it made no sense to conceal the existence of the estate file, which represented legal work Ranspot could have performed for a fee; thus, they concluded Ranspot’s earlier problems in the mid-1990s provided at least a partial explanation as to why he had forgotten the estate file existed.
The Panel said if it had concluded Ranspot had intentionally concealed the existence of the estate file from the Law Society then a suspension would have been appropriate. However, given that it was an unintentional error, the panel ordered that by December 31, 2008 Ranspot must:
1. pay a fine of $5,000; and
2. pay costs of $8,300.
In addition, Ranspot made an unconditional undertaking to reimburse the estate the amount of $2,700.
John Owen Richardson
West Vancouver, BC
Called to the Bar: May 15, 1972
Discipline hearings: January 10 (facts and verdict) and December 17, 2007 (penalty)
Panel: David Zacks, QC, Chair, Thelma O’Grady and David Renwick, QC
Reports issued: March 2, 2007 (2007 LSBC 11) and February 8, 2008 (2008 LSBC 05)
Counsel: Maureen Boyd for the Law Society and Christopher Hinkson, QC, for John Owen Richardson at the discipline hearing and Terrence Robertson, QC for Richardson at the penalty hearing
In June 2003 John Owen Richardson was retained by Mr. A in a matrimonial proceeding against his wife, Mrs. A. She was represented by JC, a lawyer. That same month the matrimonial home was sold. JC held the net proceeds in his trust account. Other family assets included an RRSP in Mr. A’s name that could not be disbursed until he reached age 55.
Between March 1 and April 8, 2005 Richardson and JC exchanged a series of letters, by which JC attempted to secure an agreement for a holdback of funds in trust or a penalty to ensure that his client was paid bi-weekly maintenance. Richardson resisted JC’s attempt and ultimately JC accepted that Mr. A was not prepared to agree to a penalty or holdback.
A separation agreement between Mr. and Mrs. A in full and final satisfaction and discharge of all claims each had against the other was entered into on April 8, 2005.
On April 15, 2005 JC sent a number of documents to Richardson, including a trust cheque payable in trust for $19,480.54 — representing one-half of the net proceeds of the sale of the matrimonial home. JC forwarded the trust funds to Richardson on his undertaking to provide JC with an entered copy of the divorce order, a filed copy of the separation agreement, confirmation of the transfer of the half interest in the RRSP to Mrs. A, and to provide Mr. A’s 24 post-dated cheques for spousal maintenance pursuant to the separation agreement.
On April 21, 2005 Richardson deposited the trust cheque into his trust account. The next day Richardson faxed a letter to JC and said, “I do not accept any of the undertakings you unilaterally imposed upon me.” Further, Richardson wrote, “at one point you attempted to withhold $2,500 of my client’s funds pending his obtaining the divorce order … and I specifically rejected that and your client agreed.” In the letter Richardson went on to say that he would “follow through” with the items requested to be done in JC’s letter but would not withhold the funds.
On April 25, 2005 JC faxed a letter to Richardson saying he did not agree with Richardson’s view and stated that, if Richardson was not prepared to accept the undertaking, then he must return the funds.
Richardson sent a letter to JC on May 9, 2005 advising that he had been sick for seven weeks and that he proposed to release the funds once he had taken all possible steps to satisfy the obligations flowing from the separation agreement, but not “from any alleged improperly imposed undertaking by you.” Richardson further advised that he had sent documents to the Prince George Registry for a desk order divorce and that, in his view, he was now entitled to disburse Mr. A’s half share of the house proceeds.
In a letter dated May 12, 2005 JC told Richardson that he had to comply with the undertaking or return the funds regardless of “whether or not you are happy with the undertaking which I have placed upon you.” That same day Richardson disbursed one-half of the monies held in trust to Mr. A, while retaining the balance for his legal fees.
JC sent letters to Richardson dated July 13 and 15, 2005 asking for the trust funds to be returned to him. On July 18, 2005 JC reported the alleged breach of undertaking to the Law Society. Two days later Richardson wrote to JC stating that on advice from the Law Society he “was in error in not strictly complying with the terms of the undertaking imposed by you ... or in not returning the funds to you if I did not accept those terms.” In the letter Richardson confirmed that three of the four terms of the undertaking had been fulfilled — the exception being the locked-in RRSP funds, which still required Mrs. A to complete her half of a document attached by Richardson with the letter.
At the hearing Richardson gave evidence that he only acknowledged in the July 20, 2005 letter that he breached the undertaking because of the advice he received from the Law Society and that since receiving independent legal advice he now believed he was not in breach of an undertaking.
The hearing panel noted the importance of emphasizing Chapter 11, Rule 10 of the Professional Conduct Handbook when the panel stated:
“A lawyer cannot impose on another lawyer ‘impossible, impractical or manifestly unfair conditions of trust.’ A lawyer who does this may well be cited for professional misconduct. Even so, this does not give the lawyer upon whom the undertaking or trust conditions were imposed the right to ignore or reject the undertaking and to keep the subject matter of it.
“When a lawyer receives property from another person, whether or not that person is a lawyer, on an undertaking or trust condition to use or not to use the property except on certain trust conditions, the lawyer has only two options [emphasis added]. The lawyer may either accept the undertaking on those conditions, or the lawyer may reject the undertaking and return the property. If this were not the case, then, as Mr. Justice McDonald stated in Witten v. Leung  A.J. No. 883 (QB): ‘... the edifice of trust between solicitors, upon which so much of the efficient service to the public depends, will crumble.’”
The panel noted that it was disturbed by the conduct of JC, who was clearly trying to unfairly impose a term in the trust conditions that he knew or ought to have known was not set out in the separation agreement. The panel further stated that, while the conduct of JC may have deserved a citation, his conduct was not the subject of the complaint.
In the opinion of the panel, Richardson’s actions regarding the undertaking were not cavalier, but misguided at best. The panel stated that Richardson should have been aware of Chapter 11, Rule 11 of the Handbook, which states that if a lawyer is unable or unwilling to honour a trust condition, “the subject of the trust condition must be immediately returned to the persons imposing the trust condition” unless the terms can be amended in writing on a mutually agreed basis.
Further, the panel said Richardson’s argument that he never accepted the trust conditions would only have had some validity had he not utilized the funds, because once he disbursed them to his client he was deemed to have accepted the conditions imposed on him. Thus, the panel found Richardson breached his obligations to abide by trust conditions and was guilty of professional misconduct.
The panel noted that, despite practising for more than 35 years, this was Richardson’s first discipline hearing and that there had never in the past been any suggestion that he had previously breached an undertaking.
The panel said they were of the view that in this case there was “no real victim” and no “element of dishonesty.” Therefore the panel determined a fine would be an appropriate penalty and they ordered Richardson to pay by March 31, 2008:
1. a fine of $2,500; and
2. costs of $4,500.
Rodney John Strandberg
Fort St. John, BC
Called to the Bar: June 12, 1987
Discipline hearings: January 22-24 (facts and verdict) and November 30, 2007 (penalty)
Panel: Bruce LeRose, QC, Chair, Gavin Hume, QC and Gerald Lecovin, QC
Reports issued: April 11, 2007 (2007 LSBC 19) and January 28, 2008 (2008 LSBC 04)
Counsel: Gerald Cuttler for the Law Society and Jerome Ziskrout for Rodney John Strandberg
In 2006 the Law Society issued two citations against Rodney John Strandberg, charging him with a total of 11 counts of professional misconduct. The charges included failure to provide clients with competent service, failure to respond to a client’s reasonable request for information, failure to do the work in hand in a prompt manner, misleading other lawyers and the Law Society (by misrepresentation and by forgery) and breach of an undertaking to the Law Society.
After Strandberg admitted nine of the charges, the panel heard evidence and submissions on the two remaining charges — breach of undertaking to the Law Society and misleading another lawyer.
Breach of undertaking to the Law Society
In October 2000 the Law Society conducted a practice review of Strandberg’s legal practice, as ordered by the Practice Standards Committee under Rule 3-13. During that practice review, Strandberg agreed never to take another file in the areas of wills, estates and conveyancing. On March 1, 2001, Strandberg sent a fax to the Law Society, which stated, “I have no difficulty in undertaking not to practise in the areas of wills, estates and conveyancing.”
Late in 2003 Strandberg represented B in negotiating a separation agreement with her husband, and in the sale of their home to a third party. Strandberg witnessed B’s execution of a freehold transfer document, a direction to pay addressed to the purchaser’s lawyer, and the vendor’s statement of adjustments. Strandberg also exchanged letters with the purchaser’s lawyer — forwarding executed copies of transfer documents and receiving cash to close — on the usual undertakings.
Strandberg acknowledged to the hearing panel that he had acted for B in a conveyance, but said he had not been practising law when he did so. Strandberg told the panel that while he charged his client B a fee for negotiating a separation agreement with her husband, he did not charge her a fee in the conveyancing matter. Strandberg testified, “I thought that if I didn’t charge her and didn’t expect to receive anything, it was almost like pro bono except I got money from her on the family side of things, that I wasn’t engaged in the practice of law and that is why I did that.”
Strandberg’s counsel pointed out that the Legal Profession Act excludes from its definition of the “practice of law” “… any of those acts if not performed for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the acts are performed.”
Misleading another lawyer
On October 4, 2004, Strandberg served as duty counsel before the Fort St. John Provincial Court, representing L in a Controlled Drugs and Substances Act sentencing matter. Strandberg discussed plea and sentencing issues with R (representing the provincial Crown) before the hearing. R said he thought a jail sentence of 21 to 30 days was appropriate. Strandberg asked R to consider an intermittent sentence on two grounds: first, because L would be able to retain his employment and, second, because “the federal Crown is only asking for a fine.” R advised Strandberg that on that basis, the provincial Crown would not oppose an intermittent sentence.
Just before the L matter was called, C (acting for the federal Crown) informed R that there had been no agreement — or even discussion — between C and Strandberg regarding the federal Crown’s sentencing position.
On the charge of breach of undertaking, the panel noted B’s evidence that, while she did not have the money to pay Strandberg’s fees before selling her home, she would have the money when the home was sold. The panel determined that Strandberg had done B’s conveyance in his own office — rather than referring the matter to an outside lawyer — to ensure he would retain control of the proceeds of the sale, and would therefore be able to pay his fees for negotiating the separation agreement from those proceeds.
The panel found that Strandberg’s handling of B’s conveyance provided him with a “gain” within the Legal Profession Act’s definition of “practice of law,” breached his undertaking to the Law Society and constituted professional misconduct.
On the charge of misleading another lawyer, the panel concluded that Strandberg was either “reckless” or “wilfully blind” in his conduct, and accordingly found him guilty.
Counsel jointly submitted that the panel should penalize Strandberg in accord with his resignation and undertakings provided to the Law Society in a letter dated November 26, 2007, wherein he resigned as a member and undertook not to apply for reinstatement for a period of at least seven years from the date of the letter. Strandberg further undertook that any such application for reinstatement must be accompanied by a psychiatric report:
confirming the counselling he has taken;
providing an opinion that he is then fit to practise law; and
stating any conditions that should be imposed on his practice if he is readmitted.
The panel accepted the joint submission of counsel and ordered that:
1. Strandberg pay costs of $36,000; and
2. the panel’s decision be published pursuant to Rule 4-38.