A Sad Blemish

The Alberta Law Society reprimanded an attorney

Mr. Galbraith was retained by L.W. to provide legal services with respect to two matters. The first was with respect to discipline proceedings against L.W. arising from a finding of unprofessional conduct by L.W. by her professional regulator. L.W. is an accountant. The second was with respect to assisting L.W. in defending a summary dismissal application and possibly settling a civil claim in what was then the Provincial Court of Alberta. The civil claim by L.W. and her corporation arose from water damage at condominiums owned by L.W. Citation 1 arises from the professional discipline matter and citations 2 and 3 arise from the civil matter.

There was apparent confusion between the parties as to the scope of Mr. Galbraith’s retainers and as to when the retainers were completed. Mr. Galbraith did not provide any written retainer agreements to L.W. at any time. He also failed for the most part to confirm in writing his instructions, opinions, plans, expectations of his client, status of the matters he was handling and the termination or withdrawal of his services.

 In the Statement of Admitted Facts, Mr. Galbraith admitted to a number of deficiencies in his services to L.W. that will be addressed in more detail below. However, in the Statement of Admitted Facts, his testimony and his counsel’s argument, Mr. Galbraith refused to be accountable for deficiencies in his services. He was critical of L.W. for not showing more interest in her case from time to time and for not understanding what he felt he had clearly explained to her, notwithstanding that he did not document to L.W. his understanding. In his oral testimony, in response to a question from his counsel as to what Mr. Galbraith had admitted in the Statement of Agreed Facts, Mr. Galbraith replied that he had set out what he did or did not do and then said, “but you know, in my opinion, I didn’t really do anything wrong.”  As was put by Mr. Galbraith in the Statement of Admitted Facts, the issue in his view was whether his conduct is reviewable by the Committee to determine what, if any, sanction for that conduct is required.

Findings

The quality of service provided by Mr. Galbraith to L.W. respecting her civil action was grossly inadequate. The small amount of money involved in the claim was immaterial to the quality of service required to be provided by Mr. Galbraith to L.W. Mr. Galbraith pointed to L.W.’s apparent lack of interest from time to time in that she failed to contact Mr. Galbraith for long periods. A conscientious and diligent lawyer would have impressed upon their client their obligations as a Plaintiff to advance their action and the serious consequences arising from their failure to do so. Having accepted a retainer to settle the action, or at least to take steps to attempt to do so, Mr. Galbraith’s obligation was to take reasonable steps in that regard. There is no evidence that he was in any way thwarted from advancing settlement talks due to the actions or inactions of L.W. He inexplicably ignored the file and his obligations as counsel.

On the totality of the evidence, the Committee finds that the services provided by Mr. Galbraith to L.W. in relation to the civil action were substantially below those reasonably expected to be provided by a competent lawyer. He failed to serve L.W. conscientiously and diligently and he admitted to failing to respond to communications from another lawyer in a timely manner. Mr. Galbraith seemed to feel that the deficiencies in his services were trivial or immaterial because they in his view did not directly cause harm to his client. That argument is untenable where, as here, there is a pattern of neglect and mistakes that demonstrated lack of a concern for the client`s best interests. In addition, the client did in fact suffer harm as her action was dismissed for long delay and costs were assessed against her.

The Committee finds that the three citations have each been proven on a balance of probabilities and that Mr. Galbraith’s conduct is deserving of sanction.

Sanction

The Committee delivers the following reprimand to Mr. Galbraith:

Mr. Galbraith, you have been found guilty of the three serious citations, in two separate matters of failing to serve your client in a conscientious and diligent manner, and in failing to respond to communications from another lawyer. At the time of your misconduct, you had practiced for over 40 years without attracting any discipline record. That is a record of which you can be proud. However, you admitted that you failed to respond to communications from another lawyer in a timely manner and the Committee has found the quality of your services provided to L.W. were performed in lackadaisical manner and were grossly inadequate. The Committee was surprised and disappointed by your intransigent defensiveness and refusal to be accountable for your misconduct. The Committee would expect that any experienced member for the Bar who reviewed the facts admitted by you would conclude that the client was not served in a conscientious and diligent manner.

You have not practiced for almost five years and the Committee does not know whether you will ever practice again. It acknowledges that this is a sad blemish to the conclusion of a lengthy professional career. The Committee also acknowledges that there were some challenges with this particular client both in terms of language issues and attention to the matters. Those challenges heightened your obligations as a competent lawyer and you failed to respond as required.

(Mike Frisch)