Discredit On The Profession

The Law Society of British Columbia Hearing Panel declined to suspend an attorney who with his client’s assistance accessed the spouse’s Equifax credit report.

On or about January 24, 2017, in the course of representing your client JR in a family law matter, you engaged in an activity that you knew or ought to have known assisted in or encouraged dishonesty, crime or fraud, when you obtained from a reporting agency a report respecting credit information of your client’s spouse without her written consent, contrary to one or more of rules 2.2-1, 3.2-7 and 5.1-2 of the Code of Professional Conduct for British Columbia.

This conduct constitutes professional misconduct, pursuant to section 38(4) of the Legal Profession Act.

The specifics

With the assistance of JR, the Respondent completed a request for a Credit Report on NR by impersonating NR while responding to various questions posed on the interactive Equifax website.  JR had the necessary familiarity with the financial affairs of NR to facilitate the impersonation of NR by the Respondent.

The Credit Report was duly provided in this process on that day and almost immediately upon its release to the Respondent, JR received a telephone call from NR advising that she had become aware of the fact of the unauthorized Credit Report request and that she intended to report JR to the RCMP and the Respondent to the Law Society.  She did so.

The protection of private credit information is found in the Business Practices and Consumer Protection Act, SBC 2004, c. 2.  Section 108 of that statute requires that credit reporting information must only be provided with the written consent of the party to whom the information relates.  The statute provides a penalty punishable by fine of not more than $10,000 or imprisonment for not more than twelve (12) months or to both.

The Law Society sought a two-month suspension

The Law Society argues that the misbehaviour is very serious as it engages elements of deceit and lack of integrity.  As indicated in the recitation of the facts above, it is clear that, in order to obtain a Credit Report for another party, it is necessary for the applicant to impersonate the subject of the application and to assume that subject’s identity.  The Law Society suggests that that requirement should have alerted the Respondent to the impropriety of his actions in seeking this Report in this manner.

The Law Society characterizes the behaviour as criminal or quasi-criminal based on the nature of the penalties that are available under the legislation.

Finally, the Law Society suggests that this misbehaviour by the Respondent also exposed his client to criminal prosecution, although no such criminal prosecution was undertaken by the police despite the complaint from NR.

Mitigation

The Law Society acknowledges that, since these events have occurred, the Respondent has undertaken several webinars on privacy issues and confirms his intention to continue that learning.  The Respondent has also confirmed to the Law Society a change in his practice that requires a client’s written consent to any Credit Reports obtained on behalf of those clients.  In the oral testimony provided by the Respondent, he confirmed that he has abandoned altogether the practice of obtaining Credit Reports.  The Law Society acknowledges that this work by the Respondent and his change of practice are mitigating factors.

No suspension

We believe that a properly informed member of the public, on reviewing the analysis provided in this decision, will be satisfied that the profession has responded appropriately with this discipline outcome.  The troubled financial circumstances of the Respondent suggest that a fine of any magnitude, when added to the costs that we are directing to be paid, will impose a hardship of significance.  The consequence of these events will endure in the memory of the Respondent for a very long time.

We have earlier confirmed that the Respondent has committed professional misconduct.  We impose as a penalty for that misconduct, a fine in the amount of $8,000.  The Respondent will have until December 31, 2019 to pay the fine.

(Mike Frisch)