Discipline digest

Please find summaries with respect to:

Howard Raymond Berge, QC
Heather Catherine Cunningham
Shane Sidney Dennison
Nicole Hainer
David Donald Hart
Donald Craig King
Lawyer 11
Roger Roy Plested

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

Howard Raymond Berge, QC

Kelowna, BC

Called to the bar: May 12, 1967

Bencher review: October 12, 2006

Report issued: January 17, 2007 (indexed as 2007 LSBC 07)

Howard Berge has abandoned his appeal of his discipline case. In January 2007, the Benchers upheld a hearing panel’s ruling that Berge’s conduct while being investigated by police following a car accident constituted conduct unbecoming a lawyer. The Benchers also upheld the penalty of a reprimand, a one-month suspension and partial costs [see: Law Society of BC v. Berge 2007 LSBC 07]. Berge appealed the ruling to the BC Court of Appeal, but has now abandoned the appeal. Berge ceased practising in June 2006 and is now a retired member of the Law Society.

Heather Catherine Cunningham

Vancouver, BC

Called to the bar: June 1, 2001

Discipline hearing: January 11 and September 14, 2007

Panel: Gordon Turriff, QC, Chair, Gerald Lecovin, QC and Dirk Sigalet, QC

Reports issued: April 10 (2007 LSBC 17) and October 31, 2007 (2007 LSBC 47)

Counsel: Jaia Rai for the Law Society; F.A. Schroeder for Heather Catherine Cunningham

Facts

In 2005, Heather Catherine Cunningham provided services to NI under a Legal Services Society retainer. NI complained about Cunningham’s quality of service and the Legal Services Society (LSS) began investigating.

Between April 2005 and May 2006, Ms. Cunningham failed to respond to several LSS inquiries regarding the service complaint. The LSS complained to the Law Society on December 7, 2005 about Ms. Cunnigham’s failure to respond. Ms. Cunningham then failed to respond to the Law Society’s request to set a date for a conduct review. She ignored repeated communications from both the LSS and the Law Society.

On August 30, 2006 the Law Society cited Ms. Cunningham for failing to respond to a request to set a date for a conduct review and for failing to respond to communications from the LSS and the Society regarding NI’s complaint. Ms. Cunningham admitted that she failed to respond to communications from both.

Verdict

The panel said that in order to avoid a finding of professional misconduct a lawyer must show illness that would render him or her incapable of forming the intention not to respond. They considered several traumatic experiences that affected Ms. Cunningham before and during the period of the LSS and Society requests, but found that these did not demonstrate that she was unable to respond.

They noted that Ms. Cunnigham had sought help for depression and anxiety and her physician’s report indicated that she was being successfully treated. They also noted that she had a conversation with a Bencher that indicated that she realized she had to deal with the correspondence. And she was able to run her practice and handle a small caseload during this period. Considering these circumstances, the panel found Ms. Cunningham guilty of professional misconduct.

Penalty

The panel noted that the Law Society must be able to ensure that lawyers respond promptly to investigations in order to effectively regulate the legal profession.

The panel noted that Ms. Cunningham’s transgression was a first and isolated event. Accordingly, the panel agreed that a suspension would not be appropriate. They ordered a $2,000 fine and costs of $5,000 to be paid within 18 months, noting that due to Ms. Cunningham’s financial circumstances payment of any fine and costs would be a significant deterrent.

Shane Sidney Dennison

Nanaimo, BC

Called to the bar: May 20, 1994

Discipline hearings: January 15 and 16 (facts and verdict) and November 1, 2007 (penalty)

Panel: James Vilvang, QC, Chair, Richard Stewart and Robert Brun, QC

Reports issued: April 23 (2007 LSBC 23) and November 22, 2007 (2007 LSBC 51)

Counsel: Jean Whittow, QC and Paula Ramsay for the Law Society; no one appearing on behalf of Shane Sidney Dennison at either hearing

This digest should be read with the digest of the Donald Craig King discipline and penalty decisions (2007 LSBC 22 and 2007 LSBC 52): see page 30.

Facts

In 1995 the Nanaimo law firm ABC entered a contract with the federal Department of Justice, to provide legal services in litigation and criminal matters. ABC also provided legal services in Courtenay — under the DOJ contract and otherwise — through the work of three local lawyers under an arrangement calling for them to be paid for their work on DOJ matters at one-half of ABC’s hourly billing rate to the DOJ, with ABC retaining the balance.

Following his call to the bar in May 1994, Shane Sidney Dennison joined ABC — first as an employee or contractor and later as a partner. In May 1997 Dennison was approved to perform legal work under the DOJ contract. From about November 2002, Dennison was responsible for administration and management of ABC’s DOJ account, splitting the profit earned on DOJ matters equally with C, a senior partner of ABC.

The ABC partnership dissolved in the fall of 2002, with its principals continuing to work together as an “association” of lawyers called ABC until the summer of 2003, when the new firm of CDE was formed. Dennison continued as a partner of CDE, and the DOJ entered a new contract with CDE on the same terms.

In early 2003, ABC offered P, a junior lawyer in its Nanaimo office, the opportunity to do DOJ work on terms similar to those applicable to the Courtenay lawyers. When P examined the Courtenay lawyers’ time sheets in the course of assessing that offer, he discovered significant irregularities and alterations, many made in handwriting P recognized as Dennison’s.

In June 2004 P confronted Dennison with his discovery, suggesting that the conduct he had uncovered was “effectively fraud.” P later testified that Dennison replied, “You are effectively right.” P then took the information on time sheet irregularities to C, who filed a complaint with the Law Society.

Forensic document examination identified Dennison’s handwriting on many of the altered time sheets and confirmed that the effect of the alterations was to increase the amount of time recorded or to add entries for files that had not been recorded at all on the time sheets as submitted by the Courtenay lawyers.

Forensic accounting investigation determined that as a result of alterations to the Courtenay lawyers’ time sheets between September 1, 2002 and November 30, 2003, ABC and later CDE over-billed the DOJ by $277,000. Dennison received one-half of the profit earned on those billings, according to the testimony of C.

Dennison did not testify and was unrepresented at both the discipline and penalty hearings.

Verdict

The panel found Dennison guilty of professional misconduct. The panel stressed that on the facts of this case, it was not necessary to rely upon Dennison’s failure to provide an explanation. The panel concluded the forensic evidence was “clear and convincing” that Dennison altered the Courtenay lawyers’ time sheets upon which the false accounts to the DOJ were based, that he caused the false accounts to be submitted to the DOJ, and that he profited directly from the result.

Penalty

The panel described the conduct in this as being among the most serious types of breach that can be committed by a lawyer. The panel also stressed this case involved deliberate dishonesty, involving large sums of money over an extended period of time, without evidence of mitigating circumstances.

The panel ordered that Dennison be disbarred and pay costs of $65,868.84.

Nicole Hainer

White Rock, BC

Called to the Bar: May 15, 2002

Discipline hearings: February 6 and September 12, 2007

Panel: Dirk Sigalet, QC, Chair, Leon Getz, QC and Ross Tunnicliffe

Reports issued: March 27 (2007 LSBC 14) and October 31, 2007 (2007 LSBC 48)

Counsel: Maureen Boyd for the Law Society; Michael Ranspot for Nicole Hainer at the discipline hearing (no one appearing on her behalf at the penalty hearing)

Facts

Nicole Hainer practised law as an associate of EC & Associates from her call to the bar until February 2006, a period of almost four years. Hainer misappropriated at least $7,520 — in 10 thefts involving eight different clients — over the last nine months of her employment with the firm. She had no prior discipline history, and no apparent medical or circumstantial explanation for her conduct.

In seven thefts, Hainer sent different versions of a statement of account to the client and to the firm, with a higher fee noted in the client version. Hainer then collected cash paid on the client accounts and remitted funds to the firm on the corresponding firm accounts, pocketing the difference. In some instances, Hainer simply did not account to the firm for cash she received from clients.

In three other thefts, Hainer sent different versions of a retainer letter to the client and to the firm, with a higher fee noted in the client version. Hainer applied the same method for remitting and withholding cash received in these retainer thefts that she used in the account thefts.

Verdict

At the discipline hearing Hainer admitted various acts of misleading the firm, misappropriation of client funds and failure to deposit those funds into a pooled trust account as soon as practicable (in breach of Rule 3-51 of the Law Society Rules). The panel accepted Hainer’s admissions and found that her actions constituted professional misconduct.

Penalty

Hainer did not attend the penalty hearing. Mr. Ranspot appeared as a courtesy to the panel to confirm that he had withdrawn as counsel for Hainer following the discipline hearing, and to advise that he had no instructions to explain her absence at the penalty hearing. The panel found that Hainer had misappropriated trust funds on an almost regular basis, without providing any medical or circumstantial evidence to explain or mitigate her professional misconduct.

The panel ordered that Hainer be disbarred and pay costs of $11,532.

David Donald Hart

Langley, BC

Called to the bar: May 15, 1961

Discipline hearing: November 1, 2007

Panel: Anna Fung, QC, Chair, James Vilvang, QC and Thelma O’Grady

Report issued: November 21, 2007 (2007 LSBC 50)

Counsel: Maureen Boyd for the Law Society; Dennis Quinlan for David Donald Hart

Facts

EN, the defendant in a matrimonial action, retained David Donald Hart in August 2005 to assist her in registering a mortgage on the former home of EN and her husband in priority to a certificate of pending litigation filed by her husband. The proceeds from the mortgage would be used to pay out an existing mortgage and to pay a retainer for legal fees to be held in trust by Hart’s firm.

EN attended Hart’s office on September 28, 2005 to swear to an affidavit Hart had prepared in advance of the meeting. During the meeting, EN advised Hart that the affidavit incorrectly noted the date of separation from her husband and incorrectly noted that the property had been transferred to EN from joint tenancy with her husband, when in fact it was transferred to EN from Ernst & Young on October 2, 1997.

On October 12, 2005 Hart filed the affidavit without the corrections. On October 19, EN reviewed the affidavit with Hart and reminded him of the errors. At the application on October 20, 2005, Hart relied on the affidavit and did not advise the court of these errors. Counsel for the husband advised the court that the property was never registered in joint tenancy. The motion was dismissed on the basis that the case law did not permit the court to grant the right to mortgage the property on an interim basis for the purpose of paying legal fees in a matrimonial action.

Hart admitted that his conduct constituted professional misconduct.

Verdict

The panel found Hart guilty of professional misconduct for failing to ensure the accuracy of the affidavit material provided to the court.

The panel said all lawyers must take great care in preparing affidavit material and making representation to the court to ensure accuracy. They further noted that failure to correct an error, even if the error was unintentional and inconsequential to the outcome of the case, is a serious matter. However, this is not as serious as deliberately attempting to deceive the court.

Penalty

The panel ordered a $2,000 fine and $1,500 in costs, both to be paid within three months. They did not reprimand Hart noting that this would be implicit in imposing the fine.

Donald Craig King

Nanaimo, BC

Called to the bar: May 17, 1996

Discipline hearings: January 15 and 16 (facts and verdict) and November 1, 2007 (penalty)

Panel: James Vilvang, QC, Chair, Richard Stewart and Robert Brun, QC

Reports issued: April 23 (2007 LSBC 22) and November 22, 2007 (2007 LSBC 52)

Counsel: Jean Whittow, QC and Paula Ramsay for the Law Society; no one appearing on behalf of Donald Craig King at either hearing

This digest should be read with the digest of the Shane Sidney Dennison discipline and penalty decisions (2007 LSBC 23 and 2007 LSBC 51): see page 28.

Facts

In 1995 the Nanaimo law firm of ABC entered a contract with the federal Department of Justice, to provide legal services in litigation and criminal matters. ABC also provided legal services in Courtenay — under the DOJ contract and otherwise — through the work of three local lawyers under an arrangement calling for them to be paid for their work on DOJ matters at one-half of ABC’s hourly billing rate to the DOJ, with ABC retaining the balance.

Following his call to the bar in May 1996, Donald Craig King joined ABC as an employee or contractor. In February 1998 King was approved to perform legal work under the DOJ contract.

The ABC partnership dissolved in the fall of 2002, with its principals continuing to work together as an “association” of lawyers called ABC until the summer of 2003, when the new firm of CDE was formed. King continued as an employee of CDE, and the DOJ entered a new contract with CDE on the same terms.

In early 2003, ABC offered P, a junior lawyer in its Nanaimo office, the opportunity to do DOJ work on terms similar to those applicable to the Courtenay lawyers. When P examined the Courtenay lawyers’ time sheets in the course of assessing that offer, he discovered significant irregularities and alterations, many made in handwriting P recognized as King’s. In June 2004, P took his discovery to C, a senior partner of CDE, who filed a complaint with the Law Society.

Forensic document examination identified King’s handwriting on 26 of the altered time sheets and confirmed that the effect of the alterations was to increase the amount of time recorded or to add entries for files that had not been recorded at all on the time sheets as submitted by the Courtenay lawyers.

Forensic accounting investigation determined that as a result of alterations to the Courtenay lawyers’ time sheets between September 1, 2002 and November 30, 2003, ABC and later CDE over-billed the DOJ by $277,000.

King did not testify and was unrepresented at both the discipline and penalty hearings.

The panel determined there was no evidence that King received direct financial benefit from the time sheet alterations, and no evidence indicating King’s motive or purpose for participating in the alteration scheme. “Why Mr. King took part in this fraud is a question that cries out for explanation, yet Mr. King has chosen to remain silent,” the panel said.

Verdict

The panel found King guilty of professional misconduct, concluding the forensic evidence was “clear and convincing” that King knew or ought to have known the altered time sheets were being submitted to the DOJ for wrongful payment.

Penalty

The panel described the conduct in this case as being among the most serious types of breach that can be committed by a lawyer. The panel also stressed this case involved deliberate dishonesty, involving large sums of money over an extended period of time, without evidence of mitigating circumstances.

The panel ordered that King be disbarred and pay costs of $52,879.59.

Lawyer 11

Vancouver, BC

Called to the bar: September 5, 2001

Charter application hearing: July 24 and 25, 2007

Panel: Gordon Turriff, QC, Chair, David Renwick, QC and Warren Wilson, QC

Report issued: November 5, 2007 (2007 LSBC 49)

Counsel: Maureen Baird, David Lunny and J. Chong for the Law Society; Gary Nelson for the respondent; Jonathan Penner and Jennifer Stewart for the Attorney General of BC

Background

A citation was issued against the respondent, alleging that he was a party to arrangements intended to mislead the BC Supreme Court in an application by his father for funding his defence of criminal charges, and intended to mislead the Business Development Bank of Canada about the affairs of a family business.

The respondent invoked sections 11(c), 13 and 7 of the Charter of Rights and Freedoms to challenge the constitutional validity of the Law Society’s plan to introduce as evidence affidavits sworn by the respondent in support of his father’s Court application, and to call him as a witness on the hearing of the citation.

The Charter Issues

The panel considered submissions from counsel for the Law Society and for the respondent on the application of the Charter and specifically with reference to the respondent’s point that the discretion of a hearing panel to admit evidence (see s. 41 of the Legal Profession Act and Rules 5-4 and 5-5(6) of the Law Society Rules) must be “informed or confined” by the Charter.

All counsel conceded that unless a discipline proceeding by the Law Society involves the imposition of “true legal consequences” as that term was used by the Supreme Court of Canada in R. v. Wigglesworth, [1987] 2 S.C.R. 541, neither s. 11 nor s. 13 of the Charter apply. The panel said it must ask itself if any of the consequences that might befall the respondent — if the allegations raised in the citation are proved — are truly penal. “Are they, as Wigglesworth requires us to ask, measures imposed in proceedings for the purpose of redressing a wrong done to society at large or are they measures imposed in proceedings for the maintenance of internal discipline within a limited private sphere of activity?” asked the panel.

The panel concluded the imposition of even the maximum fine of $20,000 allowed by the Legal Profession Act would fall fully within the maintenance of discipline within a limited sphere of activity, and therefore would not be a truly penal consequence.

Similarly, the panel ruled that while disbarment imposes “devastating” consequences, “the power to disbar and disbarment operate as powerful reminders of the capacity of the Law Society to maintain discipline and order for the particular private purposes of the Legal Profession Act” and therefore would not be a true penal consequence.

The panel also rejected the respondent’s argument that a panel’s power to order a lawyer to pay the costs of a disciplinary proceeding was a true penal consequence, concluding that the possibility of a refusal to issue a practising certificate for failure to pay hearing costs levied under Rule 5-9(7) is “an instrument for achieving discipline and order within the Law Society’s private sphere of activity.”

Finally, the panel was not persuaded that the society’s authority to compel the giving of evidence under s. 41 of the Legal Profession Act and Rules 5-4 and 5-5(6) “runs afoul” of the right to silence and the right not to be compelled to incriminate oneself provided by s. 7 of the Charter. The panel ruled that it is not contrary to fundamental justice for the Law Society to require the respondent to testify on the hearing of the citation.

Adopting the language of the Supreme Court of Canada in BC Securities Commission v. Branch, [1995] 2 S.C.R. 3, the panel found that the exercise of the Law Society’s evidentiary authority giving rise to this application was “undertaken by a regulatory agency, legitimately within its powers and jurisdiction and in furtherance of important public purposes that cannot realistically be achieved in a less intrusive manner.”

The respondent Charter application was dismissed. 

Roger Roy Plested

Kamloops, BC

Called to the Bar: May 15, 1974

Discipline hearing: September 28, 2007

Panel: James Vilvang, QC, Chair, Leon Getz, QC and Art Vertlieb, QC

Reports issued: October 11, 2007 (2007 LSBC 45)

Counsel: Maureen Boyd for the Law Society; Jerome Ziskrout for Roger Roy Plested

Facts

In 2006 Roger Roy Plested acted as solicitor for the estate of AW. Plested failed to reply to telephone communications and to letters dated December 27, 2006 and April 12, 2007 from TS, the executor. Plested also failed to reply to Law Society telephone messages left on January 15 and 17, 2007, and to Law Society letters dated January 25, February 20, March 7 and March 14, 2007, all in relation to the Law Society’s investigation of a complaint filed by TS.

In May 2006, Plested acted as solicitor for CFSA in the preparation, execution and registration of a mortgage. Plested failed to respond to CFSA’s faxes dated July 5 and September 27, 2006 and January 4, 2007, all requesting his solicitor’s final report and related mortgage documentation.

In January 2007, CFSA filed a complaint with the Law Society regarding Plested’s conduct. Plested failed to respond to Law Society letters dated February 20, March 15 and April 2, 2007, all relating to investigation of the CFSA complaint.

On May 16, 2007 Plested provided his solicitor’s report and related mortgage documentation, to CFSA’s satisfaction. Plested did not respond to the Law Society’s communications regarding CFSA’s complaint until June 2007, after the Law Society issued a citation.

Verdict

Plested admitted his failure to respond to clients and the Law Society, and that his actions constituted professional misconduct. The panel accepted Plested’s admissions and found him guilty of professional misconduct.

Penalty

The panel said Plested appeared to be “an honest, hard-working practitioner,” who spent a considerable amount of time on pro bono work. The panel noted that while this was laudable, “it does not excuse a failure to respond to communications from the Law Society and to report properly to clients.” The panel added that failure to respond to communications from the Law Society is a serious matter.

The panel referred Plested to the Practice Standards Committee, directing him to abide by that committee’s directions and orders, and to remain under its jurisdiction until released by that committee. The panel also ordered Plested to pay a fine of $1,000 and costs of $1,250 within four months.