Thursday, July 13, 2017

Penalty Box

The Law Society of British Columbia Hearing Panel has ordered a one-month suspension of an attorney whose cover up was worse than his crime

On the night before the Respondent was to travel to Kelowna to attend a contested hearing, he attended a firm event (Canucks Hockey Game).  As a result, he was out later than planned and, in addition, consumed some alcohol.  He slept through his alarm.

When he woke, realizing that he was not going to get to Kelowna in time, he embarked on a series of initiatives aimed at “damage control.”

 He spoke to his assistant and asked her to send a memo to the court in Kelowna advising that he had missed his plane because the flight had been overbooked.  He provided a similar explanation in a call to his client in Kelowna.

He spoke to opposing counsel by telephone and advised that he had missed his flight.  He did not advance the overbooking excuse to opposing counsel.

He was permitted to attend the hearing by telephone, and the matter was adjourned to later in the same week.  Before the Respondent joined the proceedings by telephone, the Judge noted to opposing counsel that he had been advised that the Respondent had missed his flight due to overbooking.  The explanation for the missed flight was not further canvassed when the Respondent joined the proceedings.  The Respondent advised that he had missed his flight and apologized to the court.

The Respondent did not immediately go in to the office on this day.  In several email messages to partners of the firm, the Respondent apologized profusely for missing the plane but did not correct the explanation offered.  The Respondent attended the Vancouver office of the firm (his usual office was in Langley) and met the partner responsible for the client.  He handed over the file.

 It was not until the evening of the day following the missed plane that the Respondent admitted the truth of the circumstances to the partnership.  We find that the Respondent feared that a promised transcript of the proceedings would expose his misleading comments.  He could not remember what he had said in the telephone attendance in court.

At 9:07 pm on the second day following the event, the Respondent sent an e-mail to several of the partners, in which he confirmed that he had earlier provided wrong answers to direct questions on the issue of whether he had told the client that he had missed the plane due to it being overbooked.  He confirmed that he did not remember what he had said in court and noted that the transcript would likely provide clarity on that matter.

In that email he noted “you asked me point blank, and I didn’t tell you the entire truth.”

The Respondent sent letters of apology to the court and to the client.  He self-reported the events to the Law Society several weeks later.  The explanation for the tardy self-report was the time taken to retain counsel and take advice.

There had been a candor issue on admission

The Respondent’s Professional Conduct Record provides some insight and assistance.  There is a reference in the Conduct Record to a pre-admission requirement that the Respondent provide a letter to the Credentials Committee addressing the importance of truthfulness and candour in being a lawyer.  This reference stood enigmatically unexplained until the Respondent testified.  It refers to an admission made by the Respondent in the course of his application for admission that, while driving under suspension, he was stopped by the police and provided a false name to the officer.  This compounded the problem of driving while under suspension...

The similarities between this matter and the issue considered by the Credentials Committee are too stark to be ignored.  It is apparent that the necessary lesson was not conveyed by the letter requested in support of this Respondent’s initial admission to the Law Society.  A reinforcement of the importance of honesty in all our dealings as a lawyer is necessary.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/07/the-law-society-of-british-columbia-has-ordered-a-one-month-suspension-of-an-attorney-whose-cover-up-was-worse-than-his-crime.html

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