Suspension for lawyer’s misconduct ‘woefully inadequate,’ panel finds
Professional self-regulation is under scrutiny after it took four years for the Law Society of B.C. to deal with a lawyer who admitted stealing more than $30,000, and a disciplinary panel suspended him for only three months.
In a stinging dissent to a Law Society hearing report, panel member Donald Silversides said the veteran Coquitlam lawyer found guilty of misconduct should have been disbarred because dishonesty destroys the foundation of the profession.
“Knowingly taking monies from someone else without their permission is always wrong,” Silversides insisted. “A lawyer who misappropriates funds betrays the fundamental precepts of trust and honesty underlying the legal profession, and such misconduct can never be tolerated or excused.”
While he worked at Drysdale Bacon McStravick LLP between Nov. 20, 2012 and June 15, 2014, Brian Kaminski accepted $33,426 from nine clients, deposited the money into a personal account instead of the law firm’s corporate account, and lied to his partners to cover it up.
A lawyer since 1993, who started at DBM in 2004 and was also involved in real-estate development in the Interior, Kaminski acknowledged the professional misconduct when his duplicity was revealed.
Essentially, his real-estate deals went south — one lender was awarded a $3-million judgment in 2011, and there were other suits, too.
In an effort to stay afloat, Kaminski took money from clients that should have been shared with his partners. They discovered the legerdemain on June 17, 2014, and confronted him.
The next day, his partners reported Kaminski to the Law Society. Knowing the jig was up, he sent the society notice the same day that he had been terminated with cause.
The hearing panel — chair Vancouver-based government lawyer Elizabeth Rowbotham, public representative Carolynn Ryan, and Silversides — split on the plea deal.
“We have struggled with the appropriateness of a suspension as a disciplinary sanction in this matter,” the majority said in a 27-page decision. “Discipline counsel submitted that misappropriation ‘is perhaps the most serious misconduct a lawyer can
In order to conceal the fact that he was stealing money, he fabricated fictitious accounting errors.
commit’ and ‘… absent rare and extraordinary mitigating factors, disbarment is the appropriate disciplinary action for intentional misappropriation of client trust funds.’”
The majority cited a previous decision in which a lawyer was disbarred: “To put it bluntly, a lawyer who, in light of his past conduct, cannot be completely trusted with sole control of his trust accounts should not be practising law. … In effect, the profession has to say to its members, ‘Don’t even think about it.’”
Yet Rowbotham and Ryan endorsed the suspension.
“As mentioned, our role is to accept or reject the proposed disciplinary action,” they explained. “It is not open to us to substitute
another disciplinary consequence or to attach additional conditions.”
The pair argued Kaminski has been out of practice for roughly 45 months — he agreed to stop practising, except to represent himself, starting July 28, 2014. Since April 28, 2017, he has been allowed to provide paralegal services under the supervision of a lawyer.
The majority reasoned the three-month suspension was “in effect” a suspension of about four years. “This is similar to the length of time lawyers who were permitted to resign were required to undertake not to apply for reinstatement to the Law Society,” they added.
The ruling noted Kaminski declared bankruptcy Aug. 4, 2014, but his former partners have been repaid.
Still, Silversides cried foul. He quoted a B.C. Court of Appeal ruling upholding disbarment as the only fit punishment: “No case was cited to us in which the deliberate, repeated recourse to trust funds to ease the lawyer’s personal cash flow problems was sanctioned with anything less than disbarment.”
Silversides pointed to another decision that said “disbarring a lawyer who has deliberately misappropriated client funds is usually the only way to maintain public confidence in the legal profession.”
“This was very serious misconduct, and there were very few mitigating factors, and those were minor in comparison to his wrongful acts,” he said.
“Mr. Kaminski’s misconduct requires clear and unequivocal denunciation. In my view, disciplinary action consisting of a three-month suspension of Mr. Kaminski is woefully inadequate in the circumstances of this matter and is neither appropriate nor acceptable.”
Kaminski was subject of a 1996 conduct review over an inappropriate letter he sent for a client threatening to report a former employer to the authorities.
The Law Society in that incident concluded Kaminski fully understood the seriousness of his error and was satisfied that no further action was needed.
But a citation was also issued against Kaminski in 2006 after he breached an undertaking in a real estate transaction.
In that situation, too, Kaminski admitted his misconduct and reached a disciplinary deal — he was fined $7,500 and paid costs of $2,000.
Silversides maintained the proposed punishment here should have been rejected.
“While (Kaminski) was undoubtedly suffering mental and emotional stress as a result of his financial circumstances, these difficulties do not justify his wrongful acts,” he emphasized.
“In order to conceal the fact that he was stealing money, he fabricated fictitious accounting errors and lied to members of his firm. As well, he unlawfully used his signing authority as a partner to endorse cheques payable to his firm for deposit to an account maintained by his personal law corporation.”
Kaminski will also pay $2,551 in costs.