Wednesday, September 4, 2019
A Hearing Panel of the British Columbia Law Society issued its facts and determination in a matter involving client funds
The Respondent was called and admitted as a member of the Law Society of British Columbia on April 15, 2012. He first practised as an associate with a family law firm until June 1, 2014. He then joined the Langley office of a large firm (“Law Firm No. 2”) and practised as an associate in the area of family, immigration and criminal law until March 2017.
On March 25, 2017, the Respondent voluntarily removed himself from practice and entered a residential treatment facility for treatment of his addiction to alcohol and cocaine. After he completed the residential portion of his treatment, the Respondent provided successive voluntary undertakings to the Law Society not to practise law. During this period, the Respondent put in place a rigorous program of rehabilitation and drug and alcohol monitoring, which continues today.
In this proceeding the Respondent admits, and takes full responsibility for, his professional misconduct but, through counsel, invites this Panel to re-examine the way in which we view and label misconduct where the misconduct has an element of addiction. In particular, counsel for the Respondent suggests that our lexicon ought to expand beyond the usual label of “misappropriation”, a heavily “loaded” term often associated with disbarment, to use less condemnatory language that takes into account that, in some cases, the character of the misconduct may change by the presence of addiction.
The respondent stipulated to alleged facts but
With specific respect to the four allegations that deal with misappropriation, the Respondent admits to the conduct alleged, admits that he improperly handled some or all of the funds in question and admits that he used client funds for his personal expenses, including the purchase of drugs. The Respondent admits that this conduct is professional misconduct, but he refrains from making an express admission of “misappropriation”.
The hearing panel agreed
Given the limited extent to which the term “misappropriation” is used in the Act, Rules or Code, and the fact that no claim under trust protection insurance has been made in this case due to the Respondent having made all of his clients whole, this Panel finds that describing the Respondent’s actions without using the term “misappropriation” will not result in any real or substantial degradation in the authority of the Law Society to effectively govern the Respondent or in its ability to respond to his past behaviour.
After considering all of the evidence before us and the submissions of the parties, we conclude that the Respondent’s behaviour and decision-making processes at the time of the misconduct was sufficiently different from a lawyer unaffected by active addiction that it is appropriate to avoid the term “misappropriation” in this case. The Respondent’s misconduct, because of the effect of the disease, was “wilful” but it was not “wilful” in the same sense that one speaks of the conduct of one who is not in a severe or advanced state of untreated addiction. Accordingly, we conclude that it is appropriate to characterize the Respondent’s conduct as a marked departure from the standard of conduct the Law Society expects of lawyers. It therefore constitutes serious professional misconduct, which we characterize as “conversion of client funds to his personal use while in active addiction.”
Presumably sanctions are yet to be determined. (Mike Frisch)