Beyond Description

The Law Society of British Columbia suspended an attorney for 90 days for conduct that amounted to misappropriation

The Panel begins with an appreciation that the state of the financial records of the Respondent at all material times was beyond description.  The English language has insufficient adjectives to pay proper respect to the mess that was the financial records of the Respondent for the period of time from the commencement of the private practice to the date of the completion of the Law Society visits to gather records and information…

A finding of professional misconduct without a matching determination of misappropriation does not sufficiently describe the extent to which the public trust has been abused in the circumstances of this citation.  The evidence of error upon error upon error is overwhelming and frustrating.  This behaviour reaches a level of misconduct that is wrongdoing simpliciter.  The sheer volume of the delicts establishes the necessary element of fault.  This extent of trust account mismanagement must in itself demonstrate the necessary elements of wrongdoing and fault.  More is not required.

All required elements of the definition of misappropriation are made out in these circumstances.  The use of the client’s funds (to cover a shortage in another sub-ledger) was not authorized.  The unauthorized use must occur either knowingly or with gross negligence or incompetence.  We are clear that this test has been satisfied.

Sanction

In our view, the minimum appropriate range of suspension was between three and six months.  We have considered all of the circumstances, which, in our view, include the uncertainty that the Cruickshank decision introduced to the importance the Law Society places on adhering to the Law Society’s accounting rules.  Consequently we find, in the present matter, that a suspension of three months, including the one month already served by the Respondent, is appropriate.

 In addition, we would maintain the restriction that the Respondent not engage in any capacity with files involving the purchase, sale or financing of real estate until relieved of that practice restriction by the Practice Standards Committee.

Given the Respondent’s past accounting practices, we add a further restriction that the Respondent have a second signatory on his trust account who is approved by the Executive Director, until relieved of that restriction by the Practice Standards Committee.

(Mike Frisch)