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REGULATION OF PROFESSION - What constitutes misconduct - Professional and ethical standards

Wednesday, September 08, 2021 @ 5:43 AM  

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Appeal by the lawyer from a finding of misconduct. Cross-appeal by the Law Society of British Columbia (“Law Society”) from the Panel’s dismissal of the allegation that the lawyer engaged in sharp practice. The Panel found the appellant committed professional misconduct by failing to conduct himself in a manner characterized by courtesy and good faith by obtaining a committeeship order for his clients’ mother without notice to the mother’s counsel. The Panel concluded, however, that his conduct did not constitute sharp practice. The evidence was not controversial, and the lawyer accepted as true most of the facts set out in the notice to admit. The Panel found that the lawyer never considered the mother’s counsel to be acting as counsel for the mother on the basis that she had no capacity to retain counsel. The Panel accepted counsel’s assertion that she was unaware of the requisition scheduling the hearing of the committeeship application. The appellant did not advise the court at the hearing of the application that the mother’s counsel asked the appellant to provide written confirmation of his acknowledgement and agreement not to take any steps without informing her. The Panel concluded that the appellant’s dealings with the mother’s counsel concerning the scheduling of the hearing of the committeeship application amounted to conduct that was a marked departure from that expected by the Law Society and that expected of lawyers. The Panel noted that the finding of sharp practice was dependent upon a conclusion that there was a deliberate element to the conduct. Observing that there was no direct evidence that the appellant did not honestly believe that his mistaken understanding of the law regarding capacity was correct, the Panel was unable to conclude that he deliberately intended to circumvent the mother’s counsel. The Panel accepted that he was proceeding expeditiously as instructed by his clients and that he was acting under an erroneous view of the law concerning the role of the mother’s counsel in the proceeding.

HELD: Appeal and cross-appeal dismissed. The evidence readily supported the findings and inferences drawn by the Panel. The appellant was unable to point to any error in the findings of fact or inferences drawn by the Panel. The Panel assessed the conduct of appellant contextually, considered the circumstances in which the two lawyers were acting, and did not err in finding that the appellant obtained the committeeship order when he knew or ought to have known that the mother was represented by counsel who intended to participate in the application. The Panel’s decision was not based on any conclusion about the mother’s capacity to retain counsel or on the question of who bore the burden of proving that fact. The Law Society could not identify an error in principle in the Panel’s approach to the issue of sharp practice but simply advocated for a lower standard of mere knowledge that consequences would flow from the impugned conduct than that applied by the Panel. There was no error in the Panel’s interpretation of the rules of conduct as requiring intentional or deliberate conduct on the part of the appellant as necessary for a finding of sharp practice. Its interpretation was consistent with a plain understanding of what was required to take advantage of another lawyer’s mistakes, suggesting an intentional or deliberate element to the impugned conduct.

McLeod v. Law Society of British Columbia, [2021] B.C.J. No. 1660, British Columbia Court of Appeal, P.M. Willcock, G. Dickson and G.B. Butler JJ.A., August 3, 2021. Digest No. TLD-September62021004