Discipline digest

Please find summaries with respect to:

Daniel Glen Addison
Howard Raymond Berge, QC
Stuart Clendening
John Wilson Dobbin
Crawford Grant Edwards
Danine Lorraine Geronazzo
Dale Bruce Harder
Leonard Thomas Denovan Hill
Jeffrey Francis Murray

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

Daniel Glen Addison

Abbotsford, BC

Called to the Bar: May 14, 1993

Discipline hearing: February 21, 2007

Panel: James Vilvang, QC, Chair, Robert McDiarmid, QC and William Sullivan, QC

Report issued: March 2, 2007 (2007 LSBC 12)

Counsel: Jaia Rai for the Law Society and Jerome Ziskrout for Mr. Addison

Facts

Mr. Addison represented the defendant in a motor vehicle matter where there were four independent witnesses to the accident. Two of the witnesses were favourable to the plaintiff and two were favourable to the defendant. Mr. J was the strongest witness for the defence.

Mr. Addison did not enter the names of his defence witnesses on the List of Witnesses, but he did provide that information in a November 14, 2005 letter to counsel for the plaintiff, lawyer A. Mr. J was not included in the list indicated in that letter. When lawyer A contacted Mr. Addison to inquire as to why Mr. J was not on the List of Witnesses, Mr. Addison indicated that this was an oversight by his office, and Mr. J was on the List of Witnesses. Mr. Addison indicated to lawyer A that he wanted Mr. J’s name added to the list of witnesses.

Lawyer A later learned that Mr. J had died in the summer of 2004. On November 29, lawyer A’s co-counsel contacted Mr. Addison to ask if he knew that Mr. J was dead. Mr. Addison indicated that he had found out about two weeks before that Mr. J had died.

In the hearing, Mr. Addison admitted that, at the time of his conversations with lawyer A and her co-counsel, he was aware that Mr. J had died in the summer of 2004 and he had learned of his death in mid-October. He further admitted that this conduct constituted professional misconduct.

Verdict

The hearing panel accepted Mr. Addison’s admission that he misled opposing counsel and found Mr. Addison’s conduct constituted professional misconduct.

Penalty

The hearing panel accepted the joint submission on penalty by Mr. Addison and the Law Society. The panel ordered:

1. a 30-day suspension to commence March 10, 2007; and

2. costs in the amount of $6,369.

In their assessment of the penalty, the panel emphasized an earlier decision (Law Society of BC v. Johnson, August 19, 1992) which noted that:

To lie to a fellow member of the legal profession is a matter of the utmost severity. The profession that we practise in is based upon mutual trust and confidence that what our fellow practitioner tells us can be accepted. It is imperative that lawyers, both in their professional and personal lives, conduct themselves and their dealings with honesty and integrity. If that is not done, the profession will fall into great disrepute and ultimately lose its self-governing capacity.

 

Howard Raymond Berge, QC

Kelowna, BC

Called to the bar: May 12, 1967

Bencher review: October 12, 2006

Benchers: David Zacks, QC, Chair, Gavin Hume, QC, Bruce LeRose, QC, Barbara Levesque, Thelma O’Grady, Dirk Sigalet, QC and Richard Stewart

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

Counsel: Herman Van Ommen for the Law Society and Christopher Hinkson, QC for Mr. Berge

Background

The hearing panel (facts and verdict: 2005 LSBC 28; penalty: 2005 LSBC 53) found that Mr. Berge, after consuming a substantial amount of alcohol, drove a car without due care and attention and caused an accident. The panel also found that following the accident and prior to the arrival of the police, Mr. Berge used mouthwash to mask the smell of alcohol on his breath and that he removed an open can of beer from his car to dispose of it or acted in a manner that made it appear that he intended to dispose of it. The panel concluded Mr. Berge’s actions were a conscious effort to thwart the police, that the combined effect of his actions were tantamount to dishonest conduct and that his actions constituted conduct unbecoming a lawyer.

The panel ordered that Mr. Berge:

1. be reprimanded;

2. be suspended from the practice of law for one month;

3. pay partial costs of the proceedings.

On review, Mr. Berge argued that a finding of conduct unbecoming only applied to cases of deliberate falsehood or a criminal offence. He also argued the penalty was too severe.

Decision

The Benchers agreed with the findings of fact made by the hearing panel. They also concluded that conduct unbecoming not only includes the obvious examples of criminal conduct and dishonesty, but also “any act of any member that will seriously compromise the body of the profession in the public estimation” ( Hands v. Law Society of Upper Canada (1889) 16 O.R. 625). The Benchers upheld the hearing panel’s decision on penalty, recognizing that a period of suspension is one of the most severe penalties that can be imposed on a lawyer. In upholding the suspension, the Benchers said it was their intention to send a clear message to the public that Mr. Berge’s conduct is not to be condoned. The Benchers awarded costs of the review to the Law Society and costs of a previous hearing to determine the scope of the review to Mr. Berge.

Mr. Berge has appealed the review decision to the BC Court of Appeal.

 

Stuart Clendening

Surrey, BC

Called to the bar: May 17, 1971

Discipline hearing: January 16, 2007

Panel: John J.L. Hunter, QC, Chair, David A. Zacks, QC and Ross D. Tunnicliffe

Report issued: February 9, 2007 (indexed as 2007 LSBC 10)

Counsel: Maureen Boyd for the Law Society and Christopher E. Hinkson, QC for Mr. Clendening

Facts

In July 2004, Mr. Clendening was retained to represent JM in the sale of a residential property to JD. A notary public represented the purchaser. Two mortgages were registered against the property. On July 27, 2004 Mr. Clendening confirmed an undertaking to pay out and discharge the first mortgage and to advise the notary of the discharge. On July 27, 2004, the transaction completed and the notary forwarded the sale proceeds to the respondent.

In October 2004 the notary wrote to Mr. Clendening to remind him of his obligation to fulfil the undertaking. On November 22, 2004 Mr. Clendening provided confirmation that the first mortgage had been discharged. The second mortgage was not discharged, and Mr. Clendening did not respond to several communications from the notary on this matter.

On January 10, 2006 the notary complained to the Law Society about Mr. Clendening’s breach of the undertaking to pay out and discharge the second mortgage. On February 22, 2006 Mr. Clendening completed the discharge of the second mortgage.

Verdict

The hearing panel accepted Mr. Clendening’s admission that he breached an undertaking to provide a discharge of mortgage in a timely manner and failed to respond to communications from a notary public. The hearing panel found that Mr. Clendening’s conduct constituted professional misconduct.

Penalty

The hearing panel accepted the joint submission on penalty by Mr. Clendening and the Law Society. The panel ordered Mr. Clendening, by December 31, 2007, to pay:

1. a fine of $7,500; and

2. costs in the amount of $2,500.

In assessing the submission, the hearing panel emphasized, once again, the importance of compliance with undertakings.

 

John Wilson Dobbin

Vancouver, BC

Called to the bar: September 13, 1973

Suspended: June 1, 2006

Ceased membership: January 1, 2007

Discipline hearing: April 5, 27, 2006; November 8, 2006

Panel: Joost Blom, QC, Chair, Kathryn A. Berge, QC and Robert D. Punnett

Reports issued: June 29, 2006 (indexed 2006 LSBC 28) and February 1, 2007 (indexed as 2007 LSBC 09)

Counsel: Brian McKinley for the Law Society and Mr. Dobbin on his own behalf

Facts

A hearing panel on October 16, 2002 suspended Mr. Dobbin for 10 months retroactive from May 28, 2002 and set a number of conditions that Mr. Dobbin had to meet following his reinstatement, including that he continue to see his psychiatrist and provide update reports to the Practice Standards Committee every three months for the first three years of practice. Mr. Dobbin was reinstated to practice on April 7, 2003 under these conditions. The Practice Standards Committee reminded Mr. Dobbin several times that he had not met these conditions.

On May 20, 2005, Mr. Dobbin provided the Law Society with a signed undertaking to provide monthly action plans commencing June 1, 2005. The Law Society warned Mr. Dobbin on June 28, 2005 that he had not provided his monthly action plan for June 1, 2005 and was now in breach of his undertaking. Mr. Dobbin admitted that he failed to provide monthly action plans to the Law Society by June 1, July 1, August 1, September 1 and October 1, 2005.

Verdict

The hearing panel found that Mr. Dobbin failed on five occasions to perform his undertaking to provide monthly action plans to the Practice Standards Committee, and failed to provide update reports on his treatment by a psychiatrist. The panel accepted that Mr. Dobbin’s admission of professional misconduct was justified and found him guilty of professional misconduct.

Penalty

The hearing panel ordered that Mr. Dobbin be suspended for a minimum of one year and until he satisfies a board of examiners that his ability to practise law is not affected by a mental disability. The panel also ordered Mr. Dobbin to pay $6,914 in costs. If he resumes practice, the panel ordered he must only do so as an employee or associate and he must undergo a practice review within three months of resuming practice.

 

Crawford Grant Edwards

North Vancouver, BC

Called to the Bar: May 15, 1972

Suspended: September 16, 2005 pending hearing of citation

Ceased membership: January 1, 2006

Disbarred: January 12, 2007

Discipline hearing: May 9, 10 and 12 and September 20, 2006

Panel: Bruce LeRose, QC, Chair, June Preston and Leon Getz, QC

Reports issued: June 28, 2006 (indexed as 2006 LSBC 27) and January 12, 2007 (indexed as 2007 LSBC 04)

Counsel: Brian McKinley and Jaia Rai for the Law Society and Mr. Edwards on his own behalf

Facts

In November 2004, Mr. Edwards and JB were introduced to an investment scheme by P who claimed to be a representative of the Government of Canada, the Bank of Canada or the Canadian Business Development Bank (Mr. Edwards and JB were not sure which entity he claimed to be affiliated with). P told Mr. Edwards and JB that the organization he represented had set aside $100 million for investment in worthwhile enterprises with socially beneficial objectives. P said the fund was to be administered by a private sector entity that would earn significant fees for its work. In order to qualify for the work, the fund administrator had to have at least $16 million (later reduced to $5.5 million without explanation) deposited in a specific Bank of Montreal account, P said. He suggested Mr. Edwards and JB arrange to deposit the necessary money and become the fund administrator. He also told Mr. Edwards and JB that if they wanted to take advantage of the opportunity, they had to move quickly and that if they contacted any government or bank officials they would lose the deal.

Mr. Edwards and JB made only minimal attempts to confirm the validity of the investment scheme. JB phoned the Bank of Montreal and was told the account was in P’s name but the account number was normally held by the Government of Canada or the Bank of Canada. Mr. Edwards contacted P for information about visas for two Russian businessmen and based on P’s answers concluded P had a high level security clearance and that the scheme must be legitimate.

Soon after, JB began soliciting investors in the US with promises of very high returns in a very short time. Mr. Edwards also told potential investors their money would be safe if deposited in his trust account because it would be covered by the Law Society of BC’s insurance plan and suggested they contact the Law Society for confirmation.

After receiving several calls from potential investors, a Law Society investigator met with Mr. Edwards on March 4, 2005. Mr. Edwards assured him the scheme was completely legitimate but urged the investigator not to contact the Government of Canada as the investment had to be kept secret. Three days later, the Lawyers Insurance Fund advised Mr. Crawford there was no insurance coverage for the investment funds. Over the next two days, the Law Society met with Mr. Edwards and advised him that the investment presented several red flags of fraud and that the Professional Conduct Handbook prohibited lawyers from engaging in any activity that assists a fraudulent scheme.

Mr. Edwards and JB both deposited substantial amounts of their own money in the Bank of Montreal account designated by P. Another investor, KS, also transferred more than $500,000 to Mr. Edwards’ trust account, which Mr. Edwards then forwarded to the Bank of Montreal account. On September 9, 2005 the Law Society authorized a citation against Mr. Edwards for his involvement in the investment scheme. He was suspended on September 16, 2005 until the determination of the citation.

All of the funds in the Bank of Montreal account were withdrawn shortly after deposit, including $290,000 that was paid to an automobile dealer.

Decision

The hearing panel found that the investment scheme was “a scam and fraud” and that Mr. Edwards behaved recklessly and in a manner that was a marked departure from the standard expected of a competent solicitor. The panel noted that the respondent ignored warnings given to him by the Law Society that the investment scheme had all the hallmarks of a scam, and that Mr. Edwards continued to maintain that the scheme was legitimate based on sources no reasonably competent solicitor would have relied upon in the circumstances. The panel found that Mr. Edwards should have known that his involvement in the scheme assisted in dishonest conduct contrary to Chapter 4, Rule 6 of the Professional Conduct Handbook . The hearing panel did not find that Mr. Edwards personally engaged in any fraudulent conduct or was otherwise dishonest.

Penalty

The hearing panel noted Mr. Edwards had been cited in 1994 for failing to meet his financial obligations and for failing to report an unsatisfied judgment. The panel said the facts of that case were “eerily and disturbingly similar” to the present citation. In that case, Mr. Edwards claimed his financial difficulties arose because of a failed investment worth millions of dollars involving a high-ranking Iraqi official linked with Saddam Hussein.

The panel noted that past efforts to rehabilitate Mr. Edwards had been conspicuously unsuccessful and nothing on the record hinted at the possibility that he could be rehabilitated. They concluded that the only appropriate penalty for Mr. Edwards was disbarment. The panel further ordered Mr. Edwards to pay costs in the amount of $35,815.

Danine Lorraine Geronazzo

Victoria, BC

Called to the bar: September 8, 1998

Ceased membership: January 1, 2005

Bencher review: June 26, 2006

Benchers: Gordon Turriff, QC, Chair, Ronald Tindale, Robert Punnett, Michael Falkins, Thelma O’Grady, David Renwick, QC and Ken Dobell

Report issued: December 13, 2006 (indexed as 2006 LSBC 50)

Counsel: Gerald Cuttler for the Law Society and Ms. Geronazzo on her own behalf

Background

In the decision of the hearing panel (facts and verdict: 2004 LSBC 26, penalty 2005 LSBC 12), Danine Lorraine Geronazzo was found guilty of professional misconduct for attempting to mislead her employers and the Law Society about work she had performed on various client files.

The hearing panel ordered that Ms. Geronazzo be suspended until she had entered into a practice supervision agreement for a period of two years and had certified that, for the two-year period of the supervision, she would practise only as an employee, associate or partner with two or more members of the Law Society who were not related to her. The hearing panel also ordered that she pay $29,283 in costs.

On review, the Law Society argued the hearing panel erred in the decision on penalty by not considering whether Ms. Geronazzo was suitable to practise law and whether she should be disbarred. The Law Society also argued that a practice supervision agreement was inappropriate because Ms. Geronazzo had been working under the supervision of established and respected law firms at the time of her offences. In addition, the Society contended the penalty decision fettered the discretion of the Credentials Committee because it would allow Ms. Geronazzo, who had voluntarily given up her membership in the Law Society, to return to practice once she had satisfied the conditions imposed, without having to prove her character and fitness on reinstatement.

Decision

The Benchers accepted that there are degrees of misleading conduct and that while Ms. Geronazzo’s actions were serious, they were of a lesser degree. They also agreed that Ms. Geronazzo should not be practising at present, but that the Law Society failed to establish that she would not at some future time be able to return to practice. Consequently, the Benchers concluded that disbarment was not appropriate in this instance. They also found that a practice supervision agreement would provide a safeguard for the public.

However, the Benchers concluded that the hearing panel’s penalty of a suspension until a practice supervision agreement was in place was not an effective punishment for the proved misconduct because Ms. Geronazzo could have satisfied the condition immediately and avoided punishment altogether. Accordingly, the Benchers ordered a six-month suspension effective immediately. The Benchers also concluded that the conditions imposed by the hearing panel would not fetter the Credentials Committee’s discretion because Ms. Geronazzo would have to prove her fitness on a reinstatement application, if she made one.

Accordingly, the Benchers ordered:

1. a six-month suspension;

2. that if Ms. Geronazzo was reinstated, she would, before returning to the practice of law, have to:

a) enter into a Practice Supervision Agreement for a period of two years from her return;

b) certify that she would engage in the practice of law only as an employee, associate or partner with two or more members of the Law Society who were not related to her by blood or marriage; and

3. that there would be no costs of the review.

 

Dale Bruce Harder

Kelowna, BC

Called to the bar: June 29, 1972

Undertook not to practise law: November 16, 2001

Ceased membership: January 1, 2003

Disbarred: December 7, 2006

Discipline hearing: August 2 to 5, 2005 and July 13, 2006

Panel: Ralston S. Alexander, QC, Chair, G. Ronald Toews, QC and Ross Tunnicliffe

Reports issued: November 10 2005 (indexed as 2005 LSBC 48) and December 7, 2006 (indexed as 2006 LSBC 48)

Counsel: Maureen E. Baird and Jude Samson for the Law Society and Christopher E. Hinkson, QC, S.L. Kovacs and Una Radoja (articled student) for Mr. Harder

Facts

Following client complaints and deficiencies in Mr. Harder’s 2000 Accountant’s Report (Form 47), the Law Society ordered an audit of his practice pursuant to Law Society Rule 3-79. The audit commenced in April 2001. In July 2001 he failed to pay the second instalment of his insurance fees and practised without insurance until September 25 when he made the payment. In November the Law Society ordered a practice review and Mr. Harder agreed to provide an undertaking not to practise law until the audit was completed. He also consented to the appointment of a custodian. On December 21, 2001 Mr. Harder filed for bankruptcy.

In October 2002, shortly before the audit completed, Mr. Harder provided the Law Society with another undertaking not to practise law. Two months later, he was discharged from bankruptcy. Mr. Harder ceased membership on January 1, 2003 for non-payment of fees.

As a result of the complaints and the audit, the Law Society cited Mr. Harder for:

1. failing to service his clients properly;

2. failing to hold and remit PST;

3. failing to hold and remit GST;

4. breaching Law Society accounting rules;

5. failing to provided a reasonably descriptive statement of services in his accounts contrary to s. 69 of the Legal Profession Act;

6. failing to adequately supervise an employee contrary to Chapter 12 of the Professional Conduct Handbook ;

7. misappropriating client funds;

8. withdrawing trust funds without preparing accounts contrary to Rule 3-57(2);

9. failing to file a Form 47 for the period ending January 31, 2001 contrary Rule 3-72; and

10. practising without insurance from July to September 2001 contrary to s. 30(7) of the Legal Profession Act .

Mr. Harder admitted all counts except count 7 and that his conduct in respect of those counts constituted professional misconduct.

On count 7, Mr. Harder argued that his health problems at the time, including diabetes and depression, were so severe that his mental functions were grossly impaired such that he was not aware of his financial dealings. He further argued that, because of his mental state, the shortages in his trust account could not be characterized as misappropriation.

Other evidence, however, demonstrated that Mr. Harder was at all times, even while suffering from his mental health problems, preoccupied with the balance of his trust account, that he delayed paying employee wages to avoid overdrawing the account and that he transferred money into his trust account to ensure cheques would clear.

Verdict

The hearing panel concluded that Mr. Harder was aware that he was using client funds to meet personal and practice financial obligations and that his conduct amounted to misappropriation. The panel also accepted Mr. Harders’ admissions on the remaining counts and found that they also constituted professional misconduct.

Penalty

The hearing panel ruled that Mr. Harder be disbarred. This was necessary, the panel said, to protect the public and to deter other lawyers who might think that deteriorating health is a defence to misappropriation.

The panel also said Mr. Harder’s impecuniosity was not a valid reason to waive costs and ordered that he pay $149,053.

For a summary of the Special Compensation Fund claims arising from Mr. Harder’s practice, see page 22.

 

Leonard Thomas Denovan Hill

Delta, BC

Called to the bar: July 13, 1982

Discipline hearing: December 19, 2006

Panel: Gordon Turriff, QC, Chair, Carol Hickman and Leon Getz, QC

Report issued: January 10, 2007 (indexed as 2007 LSBC 02)

Counsel: James Doyle for the Law Society and Christopher Hinkson, QC for Mr. Hill

Facts

While acting for two borrowers in a mortgage refinancing transaction, Mr. Hill undertook to pay the outstanding taxes from mortgage proceeds in full upon receipt of the mortgage proceeds.

Mr. Hill received the mortgage proceeds in full on August 23, 2004, but failed to pay out the outstanding taxes. In December 2004 lawyer S, who was acting for the lender, wrote to Mr. Hill to inquire about the outstanding taxes and request immediate payment. Mr. Hill requested a one-month extension, which the lender agreed to grant with a final deadline of February 18, 2005. Lawyer S wrote to the Law Society on March 3, 2005 noting that payment of the outstanding taxes still had not been received.

In letters to the Law Society, Mr. Hill said that, at the time of the transaction, he was under the impression the taxes had already been paid and he did not realize this was incorrect until he received a letter from lawyer S. He said his client was refinancing the property and that the taxes would be paid as part of that transaction. In May 2005, Mr. Hill advised the Law Society that his client had paid the taxes and provided a copy of the receipt.

Admission and Penalty

Mr. Hill admitted that he breached an undertaking to pay the outstanding taxes from the mortgage proceeds in full, and that this breach constituted professional misconduct. Pursuant to Law Society Rule 4-22, the hearing panel accepted Mr. Hill’s admission and proposed penalty. The panel ordered Mr. Hill, within six months of December 19, 2006, to:

1. pay a fine of $2,500; and

2. pay costs in the amount of $1,000

The hearing panel noted that lawyers who give undertakings must ensure they know what will be required to discharge the undertakings, including when they must do so, and that they will personally be able to do so. They further noted that lawyers can neither decide when they will discharge undertakings that are linked to a particular event or stated time nor put themselves in the position of hoping that someone else will do what they have undertaken to do themselves.

 

Jeffrey Francis Murray

Kelowna, BC

Called to the bar: June 16, 1992 (New Brunswick) and September 2, 1994 (BC)

Discipline hearing: November 16, 2006

Panel: Leon Getz, QC, Chair, William Sullivan, QC and Gerald Kambeitz, QC

Report issued: December 6, 2006 (indexed as 2006 LSBC 47)

Counsel: Maureen Boyd for the Law Society and James P. Taylor, QC for Mr. Murray

Facts

Between the summer of 2003 and February 2004, Mr. Murray represented AM on several legal matters. In February 2004, AM paid Mr. Murray $2,000 in cash in respect of the legal matters. Mr. Murray used the funds for his personal use without first: depositing them in trust as required by Law Society Rule 3-51(1); providing a statement of account as required by Rule 3-57(1) and section 69(1) of the Legal Profession Act ; recording the receipt of funds under Rule 3-59; recording the transactions related to the funds in his trust account as required by Rule 3-63; and accounting in writing to his client for the funds as required by Rule 3-48. Further, Mr. Murray did not remit GST or PST in connection with the funds in a timely manner.

AM filed a complaint with the Law Society in June 2005. At the time of receipt of the funds, Mr. Murray had provided legal services to AM of a value of at least $2,000. On March 2, 2006 he rendered a statement of account to AM, which included further legal services to July 9, 2004 and a balance outstanding of $3,932.36. He also deposited $2,000 of his own funds to AM’s credit in trust, applied that $2,000 to the statement of account and remitted the outstanding taxes. Mr. Murray subsequently wrote off the outstanding balance.

Admission and Penalty

Mr. Murray admitted that his conduct in dealing with the funds in breach of the Legal Profession Act and the Law Society Rules amounted to professional misconduct. The panel accepted Mr. Murray’s admission and his proposed penalty and ordered that he:

1. be reprimanded;

2. pay a fine of $1,500; and

3. pay costs of $2,000.