Monday, February 6, 2017
The Law Society of British Columbia Review Board affirmed imposition of a two-month suspension of an attorney for
professional misconduct by improper handling of clients’ trust funds, failure to maintain proper accounting records, intentional misrepresentation to the Law Society by backdating statements of account, and breaches of undertakings.
In brief overview, the citation in this case arose from the Respondent receiving funds from clients and depositing them directly into his general account in payment of fees for services when he had not issued or delivered statements of accounts. After receiving notice of a compliance audit, and prior to the audit, the Respondent and his bookkeeper created numerous “backdated” statements of account, which made it appear as if the statements of account had been issued at the time that the funds were received. The citation included a number of allegations related to this conduct, including improper handling of trust funds and failure to maintain accounting records. The citation also included unrelated conduct involving the Respondent breaching undertakings imposed by ICBC that required him to obtain his clients’ signatures prior to disbursing settlement funds.
One interesting claim came post-hearing
The Respondent seeks to introduce evidence pertaining to events that have occurred since the release of the hearing panel’s decision. The Respondent seeks to admit new evidence in relation to four issues:
(a) The Law Society’s press release following his disciplinary matter, which the Respondent says was unfair and damaging (the “Press Release”). The Press Release described the Respondent’s conduct as “misuse of trust funds,” which the Respondent says led readers to believe that he had misappropriated trust funds. The Press Release did not report the hearing panel’s conclusion that the Respondent’s clients had not suffered any harm from his actions (nor had he gained from them);
(b) An alleged breach of a publication ban by the Law Society with respect to a prior disciplinary matter involving the Respondent;
(c) The Law Society’s online posting of incorrect information concerning the Respondent’s practice status in July, 2015; and
(d) The general impact of the above on the Respondent’s character, reputation and professional standing.
The "fresh evidence" was rejected
It is our view that the evidence regarding the impact of the publication of details regarding the disciplinary action upon the Respondent’s practice and reputation should not be admitted as fresh evidence in this Review. The hearing panel considered at length the Respondent’s submissions concerning the stress and embarrassment caused by the disciplinary process. The hearing panel expressly accepted that this matter involved a serious impact on the Respondent, stating at paragraphs 67 and 68:
The disciplinary process to date has caused the Respondent a great deal of embarrassment and stress. He has been practising in the shadow of this process. The decision on Facts and Determination is the second “hit” when his name is searched on Google. He has also had people calling him to ask about the decision. He has found those calls gut-wrenching and feels that he has let colleagues down.
The Panel finds that the suspension will have a serious impact on the Respondent and his practice. His practice is his only source of income. He has already endured substantial embarrassment and stress as a result of the disciplinary process. The Panel finds this to be a mitigating factor in its consideration of the appropriate disciplinary action.
The evidence that the Respondent seeks to introduce is of a similar nature to the evidence already provided to the hearing panel. Evidence regarding the effects of the disciplinary process on the Respondent’s practice and reputation was already before the hearing panel. In our view, the additional evidence provided by the Respondent when taken with the evidence that was already presented at the penalty hearing, would not have affected the penalty imposed.
Further, as set out in greater detail later in these reasons, it is this Review Board’s view that the impact of publication of disciplinary proceedings on a respondent lawyer should generally not attract much weight in determining the appropriate penalty. We consider that publication is necessary to meet the statutory duties of the Law Society. We also consider that publication will in most instances have a negative effect on the respondent lawyer, including stress, anxiety, embarrassment and loss of reputation. These results are to be expected from disciplinary proceedings. In our view, however, it should generally not have a substantial effect on the nature of the penalty imposed.
We therefore find that the fresh evidence that the Respondent seeks to admit does not meet all elements of the Palmer test and as such cannot be admitted. The application to admit fresh evidence is dismissed.
As to sanction review
The appropriate range approach acknowledges that there is no single correct result in penalty decisions. It avoids second-guessing the hearing panel and avoids allowing any party “two kicks at the can.” This is also reflected in the “no tinkering” admonition. If the penalty is within the appropriate range, it should not be changed simply because the review board may have picked another spot on that range. Notwithstanding the monetary examples given by the Benchers in Hordal, we are of the view that “no tinkering” is not only a quantitative admonition. It is also qualitative in the sense that it discourages substitution of the review board’s assessment for that of the hearing panel unless the review board finds that the hearing panel’s decision was not within an appropriate range of outcomes based on the circumstances of the case.