NOVA SCOTIA BARRISTERS’ SOCIETYHEARING PANEL

Citation: Nova Scotia Barristers’ Society v. Richey, 2002 NSBS 8

Date: 20021029Docket:Registry: Halifax

IN THE MATTER OF: The BARRISTERS AND SOLICITORS ACT,R.S.N.S. 1989, c.30, and the Regulations of theNova Scotia Barristers’ Society, as amended

BETWEEN:

The Nova Scotia Barristers’ Society

- and -

David W. Richey, a Barrister and Solicitor ofHalifax, Nova Scotia

Revised Decision: The text of the original decision has been revised to removepersonal identifying information of the parties on November 18, 2010.

Before: Bruce T. MacIntosh, Q.C., ChairLawrence Evans, Q.C.Beryl A. MacDonald, Q.C.Philip J. Star, Q.C.

Heard: February 11 to 15, 2002

Counsel: Alan J. Stern, Q.C., for the Nova Scotia Barristers’SocietyRaymond F. Wagner, for David W. Richey

(This page did not form part of the original Decision)

CANADAPROVINCE OF NOVA SCOTIACOUNTY OF HALIFAX

IN THE MATTER OF: THE BARRISTERS AND SOLICITORS ACT,R.S.N.S. 1989, C. 30, AND THE REGULATIONSTHEREUNDER, AS AMENDED

-and

IN THE MATTER OF: DAVID W. RICHEY, a Barrister and Solicitor ofHalifax Regional Municipality, Province of NovaScotia

DECISION

HEARD: Halifax, Nova Scotia, before the Hearing Subcommitteeof the Nova Scotia Barristers' Society from February 11,2002 to February 15, 2002.

RELEASED: April 8, 2002

COUNSEL: Raymond F. Wagner for Member David W. Richey

Alan J. Stern, Q.C. for the Nova Scotia Barristers'Society

PANEL MEMBERS: Bruce T. Macintosh, Q.C., ChairLawrence Evans, Q.C.Beryl A. MacDonald, Q.C.Philip J. Star, Q.C.

CANADAPROVINCE OF NOVA SCOTIACOUNTY OF HALIFAX

IN THE MATTER OF: THE BARRISTERS AND SOLICITORS ACT,R.S.N.S. 1989, C. 30, AND THE REGULATIONSTHEREUNDER, AS AMENDED

-and

IN THE MATTER OF: DAVID W. RICHEY, a Barrister and Solicitor ofHalifax Regional Municipality, Province of NovaScotia

DECISION

By Formal Complaint, dated October 19, 2001, the InvestigativeSubcommitteee of the Nova Scotia Barristers' Society's Discipline Committeedirected the Executive Director of the Nova Scotia Barristers' Society (hereinafterthe Society) to charge Member David W. Richey (hereinafter the Member) withprofessional misconduct and professional incompetence, the specifics of whichwere:

"The Complaint of the Nova Scotia Barristers' Society, filed pursuantto the Regulations of the Society, against David W. Richey, barristerof the Supreme Court of Nova Scotia, of Dartmouth, in the County ofHalifax, Province of Nova Scotia, hereby charges David W. Richeywith professional misconduct, conduct unbecoming andincompetence, in that he breached the provisions of the Legal Ethicsand Professional Conduct (a Handbook for Lawyers of Nova Scotia)adopted by the Nova Scotia Barristers' Society as at August 1, 1990("the Handbook") and the general standards for competence of thelegal profession in Nova Scotia. Specifically:

David W. Richey acted contrary to the provisions of Rule 2, Rule 3,Rule 10, Rule 13 and Rule 14 of the Handbook in that he failed in hisduty to his clients to be competent to perform all legal servicesundertaken on their behalf, and failed in his duty to serve his clientsin a conscientious, diligent, efficient and civil manner so as to providea quality of service at least equal to that which lawyers generallyexpect of a competent lawyer in a like situation. In particular, hisconduct in the following instances demonstrates a pattern of neglect

and unprofessional conduct that constitutes a failure to comply withthose duties:

A. While representing T.V.W. and D.V.W., he failed to move the fileto a settlement or trial, contrary to his clients' instructions;

B. He failed to advise D.V.W. of his reasons for not setting her casedown for trial and made frequent representations to T.V.W. andD.V.W. of dates by which certain commitments for moving the fileforward would take place, most of which were not met;

C. While representing E.P., he failed to file a Pre-Trial Brief in atimely manner and in accordance with Civil Procedure Rule 28.He failed to conduct the direct examination of the Plaintiff'switnesses in a competent manner. He failed to competently obtainand disclose all relevant medical records and information toDefence counsel prior to commencement of the trial. As a result,the matter ended in a mistrial 15 days into the three week trial,with significant costs and delay to the client, the Court, theDefence and witnesses;

D. While representing M.F.B., having been retained in 1994 toproceed with a personal injury claim arising from her motorvehicle accident in December of 1992, he did not commencediscoveries and related applications until 1999. In November2000, Mr. Richey was granted a postponement of trial due to hishealth problems and the matter was set down for April 2 - 5,2001. On the first day of trial, Justice Scanlan declared the matterwas not ready for trial and ordered solicitor-client costs of$8,000.00 payable by Mr. Richey within 30 days. Mr. Richey wasinadequately prepared for trial in that:

i. He was 30 minutes late for the opening of Court withoutproper excuse;

ii. He failed to file his Pre-Trial Brief in accordance with CivilProcedure Rule 28, in that he filed his brief ininstallments, including a 50 page section faxed to JusticeScanlan on the Sunday before the commencement oftrial, and then failed to comply with his undertaking thatthe remainder of the Brief would be ready for Court onApril 2;

ii. He failed to file a Pre-Trial Brief of the quality that anexperienced trial lawyer should be expected to produce;

iv. He forwarded to counsel relevant medical informationdating back to 1999 on the afternoon of April 1, the daybefore commencement of trial; and

v. He failed to adequately prepare an important witness priorto calling the witness in Court.

E. In representing his other clients during the periodfrom January 1,1999 up to September 13, 2001,he failed to serve clients in a conscientious,diligent, efficient and civil manner so as to providea quality of service at least equal to that whichlawyers generally expect of a competent lawyer inlike situations, and failed to advance his clients'cases and expedite litigation and/or settle mattersin an expeditious manner for clients. In particular:

i. He failed to respond to communications,requests for information, phone calls, andcorrespondence from clients, lawyers, andothers in a timely manner;

ii. He failed to maintain an adequate filemanagement system and bring forwardsystem to ensure file matters were dealt withon a timely and efficient basis, therebysignificantly impeding file progress in manyinstances;

iii. He failed to provide full and timely disclosureof medical and other evidence by adopting anarrow view of relevance for purposes ofproduction of documents in litigation matters,which further impeded the progress of files;and

iv. He failed to provide clients with preliminaryadvice with respect to the quantum of theirpersonal injury claims prior to preparation ofsettlement proposals, with the result thatclients received little or no advice regardingthe likely outcome of their cases, and/or hadunreasonable expectations regardingquantum.

Pursuant to Regulation 40(6) of the Barristers and Solicitors Act

(hereinafter the Act), the Chair of the Hearing Subcommittee (hereinafter the Panel),Thomas Burchell, Q.C., appointed Panel Members Larry Evans, Q.C., R. JamesFilliter, Q.C., Beryl A. MacDonald, Q.C., Philip J. Star, Q.C., and Bruce T.Macintosh, Q.C. as Chair. The Panel convened Monday, February 11, 2002 andreceived evidence and argument through to Friday, February 15, 2002. The NovaScotia Barristers' Society was represented by Alan J. Stern, Q.C. and the Membercomplained of, David W. Richey, was represented by Raymond F. Wagner.

Counsel for the parties agreed the Panel was properly constituted. Bothparties requested the Panel proceed with full jurisdiction, notwithstanding theanomaly of an unavailable lay representative to serve on the Panel. At thecommencement of proceedings, it was agreed that proposed Panel Member R.James Filliter was required to withdraw because of his participation at an earlierinvestigative stage. Panel Member Beryl MacDonald disclosed that she had recentlybeen consulted on an unrelated matter by one of the proposed witnesses. Bothparties agreed that the circumstances caused no concern or perception of bias.

On the first day of proceedings, the Panel was presented with Exhibits1 - 6, consisting of 6 volumes of materials jointly prepared or agreed to by theparties. It was agreed that all exhibits were admitted without further proof of theircontents. Exhibit 3 was subsequently withdrawn by the Society. During the courseof proceedings, a further 5 exhibits were duly admitted. With consent, counsel forthe Society amended the Formal Complaint by withdrawing the allegation that theMember failed in his duty of civility to his clients; by withdrawing the allegation in (c)that the Member failed to conduct direct examination of the Plaintiffs witnesses ina competent manner; and by withdrawing the allegation of conduct unbecoming. Itwas further agreed that the reference in the formal Complaint to the Legal EthicsHandbook adopted August 1, 1990 included all amendments thereto.

The Panel was advised by both counsel for the parties that this matteris believed to be the first time a contested Complaint of the Nova Scotia Barristers'Society has formally addressed the issue of incompetence, on a stand alone basis.It was agreed that there was no allegation of conduct unbecoming.

ALLEGATION OF INCOMPETENCE

In his opening remarks, counsel for the Society, Alan J. Stern, Q.C.,argued that the Formal Complaint constitutes a single charge, consisting of severalcomponents. This Panel agrees with such characterization. Reduced to its essence,it is alleged that the Member David W. Richey failed in his duty to his clients to becompetent and to serve them in a conscientious, diligent, and efficient manner, atleast equal to generally accepted standards within the legal profession, as definedby members of the legal profession in like situations. The Formal Complaint thenprovides a list of secondary evidentiary specifics in support of the primary charge,

which were alleged to be of such a nature as to constitute not isolated andunconnected errors in professional judgment, but a pattern of errors in professionaljudgment sufficient to support a finding of incompetence.

The starting point in any analysis of the application of incompetence isthe legal framework. Neither the Act nor the Regulations thereunder provide anyguidance on the parameters and definition of incompetence. Regulation 39(i) merelyprovides a circular definition of incompetence: incompetence means professionalincompetence. Section 31(3)(b) of the Act specifically empowers both anInvestigative Subcommittee and a Panel to investigate allegations of professionalincompetence, separate and apart from the more common allegations ofprofessional misconduct and/or conduct unbecoming. Incompetence is accordinglydistinguishable in its own right. Section 31(8) of the Act specifies that the procedural,remedial, and penal provision of the Act and Regulations are applicable toprofessional incompetence in the same manner as professional misconduct andconduct unbecoming.

For reasons described elsewhere in this Decision, this Panel hasconcluded that the evidence supports a finding of professional incompetence againstthe Member, David W. Richey. This Panel also finds that the cumulative effect of theevidence is equally supportive of a disciplinary finding of professional misconduct.

Incompetence in this instance is determinable by its consistent pattern.This Panel does not have to determine whether a single act of negligence, error injudgment, or professional misconduct can, by itself, constitute incompetence. TheFormal Complaint as drafted, and as argued by the Society's counsel, requiresevidence beyond individual acts of disciplinary default: it is in the predictability andconsistency of the pattern of such acts by the member that the finding ofincompetence is based.

Regulation 42(1) of the Act identifies the mandate and objects of theSociety's disciplinary process: it specifically includes protection of the public byinhibiting incompetence. The public is entitled to expect that self governing legalprofession will take reasonable measures to ensure that all lawyers who practise lawwill possess the minimum skill sets reasonably required of the circumstances.Repeated examples of the absence of specific skills - in this instance the skills ofconscientious, diligent, and efficient service to client - will support a finding ofincompetence.

The word "incompetence" has a distinctively negative connotation. Whenused to describe a lawyer, it evokes a strong negative mental image of a personwho is unfit to practice law. In the opinion of this Hearing Committee, that is not theintent of the context in the Act. A finding of incompetence must inevitably bring withit professional embarrassment and a loss of confidence in the member found to beincompetent. Nevertheless, in finding that Member David W. Richey was guilty ofincompetence, it is not the intention of this Panel to conclude that the Member is

generally and generically incompetent. This specific finding of a disciplinary defaultof both incompetence and professional misconduct is fact and time specific, withoutany intended inference that the Member is incapable of meeting generally acceptedstandards of practice. To the contrary, the evidence supports the view that Mr.Richey, when he commits to doing so, can be a most competent and conscientiouspractitioner of law.

In his closing arguments in support of the charges, the Society's counselattempted a somewhat ethereal distinction in semantics when he argued that themember was guilty of a breach of standards of competency, but without an assertionof incompetence by the Society. That particular argument, although well intendedand understood for its attempt to describe the foregoing dilemma created bycommon usage of the word "incompetence", is nevertheless difficult to reconcile withthe specific words of the Act and Regulations. A charge of incompetence requiresa finding of incompetence to be sustained.

The Member complained of is a senior and experienced member of thelitigation bar. Paraphrasing from nursery rhymes of old, when he was good, he wasvery, very good, but when he was bad, he was....incompetent. Counsel for theSociety put it this way in his closing arguments to the Panel:

"Mr. Richey is a highly intelligent, well educated andexperienced lawyer who works hard in the interests of hisclients and who has a significant devotion to his clients."

That is not the description of what one would generally call anincompetent lawyer. Based on the evidence placed before it, this Panel concurs withthat description. Nevertheless, the Member has been found guilty of professionalincompetence. That is because no person is infallible: good people make badmistakes. When a pattern of such poor judgment emerges, as it did in this instance,good lawyering skills on some files is no defence to incompetent lawyering on otherfiles. When the pattern of individual acts of neglect becomes troublingly predictable,then the line is crossed from isolated acts of error in judgment to incompetence.

James T. Casey in The Regulation of Professions in Canada at page 13- 13 provides some insight into the circumstances that can evoke a disciplinaryfinding of professional incompetence:

"It is a question of degree as to whether a mistake made by aprofessional will be of such significance so as to constituteIncompetence". After an extensive review of Americanauthorities, the British Columbia Supreme Court concludedthat the meaning of incompetence was a want of abilitysuitable to the task, either as regards natural qualities orexperience, or a deficiency of disposition to use one's abilityand experience properly. The term may include habitual

carelessness, disposition, and temperament...the OntarioDivisional Court has stated that "incompetence" carries withit connotation that it is self-inflicted or the result of negligenceor ignorance.

Incompetence has also been defined as lacking the qualitiesneeded to give effective professional services. However, anexercise of professional judgment which turns out to beincorrect is not necessarily outside of the range of possiblecourses that a reasonably competent professional mightchoose to make, and as a result, is not necessarilyprofessional misconduct."

Rule 2 of the Legal Ethics and Professional Conduct Handbook (hereinafter theLegal Ethics Handbook) addresses competence in terms of quality of service:

"Rule

A lawyer has a duty to a client to be competent to perform alllegal services undertaken on the client's behalf."

In the Guiding Principles of Rule 2 on Competence:

"Competence includes not merely formal qualification topractise law, but also the sufficiency of the lawyer's capabilityto deal with a particular matter, such as knowledge and skillwith respect to that matter and the ability to use suchknowledge and skill effectively in the interests of a client.Competence includes not only an understanding of legalprinciples, but also an adequate knowledge of the practiceand procedures by which those principles can be effectivelyapplied".

In the Commentary that accompanies Rule 2, it is noted that a client isentitled to assume that a lawyer has the ability and capacity to deal adequately withevery matter the lawyer undertakes on the client's behalf. A lawyer has a duty tonever undertake a matter unless s/he honestly believes that s/he is either competentto handle the matter, or capable of becoming competent without undue delay, riskor expense to the client. Any lawyer who fails in such duty is not being honest,candid, or forthright with the client. Rule 2 highlights that such failure to meetcompetence standards is an ethical obligation, independent and distinguishable fromthe civil standard of care that a Court might apply for purposes of determiningnegligence.

In Rule 2.9:

"It will be observed that this Rule does not prescribe astandard of perfection. A mistake, although it might beactionable for damages and negligence, does not necessarilyconstitute a failure to maintain the standard set by this Rule;conversely, conduct, while not actionable, may constitute aviolation of this Rule. Evidence of gross neglect in a particularmatter or a pattern of neglect or mistakes in different mattersmay be evidence of such a failure, regardless of liability in tortor in contract. Where both negligence and incompetence areestablished, while damages may be awarded for the former,the latter can result in the additional sanction of disciplinaryaction."

In a footnote to Rule 2, there are some quotes which are particularly germane to thecomplaint against Mr. Richey:

"Incompetence goes wider than lack of professional skill, andcovers delay, neglect and even sheer disobedience to theclient's instructions.

...

Competence is...a measure of both capacity to perform andperformance itself. The lawyer must be able to carry outlawyering functions with a requisite degree of knowledge andskill; and he or she must also be willing to perform suchfunctions honestly, and completely, and on time."

Rule 3 of the Legal Ethics Handbook addresses quality of service, an issue closelydirected to Rule 2 on competence:

"A lawyer has a duty to serve a client in a conscientious,diligent, efficient and civil manner so as to provide a quality ofservice at least equal to that which lawyers generally expectof a competent lawyer in a like situation".

It is noteworthy that generally accepted standards of lawyering are to bedefined by lawyers, not clients or other third parties. The role of this Panel is toidentify whether such generally accepted standards have been met by Mr. Richeyin this particular instance.

In the Commentary to Rule 3 on Quality of Service, numerous examplesare provided of conduct that falls below the standards set by this Rule. The followingare particularly applicable to the evidence with respect to Mr. Richey:

(A) Failure to keep a client reasonably informed;

(E) Informing the client that something will happen or thatsome step will be taken by a certain date and thenletting the date pass without follow up information orexplanation;

(G) Doing the work in hand but doing it so belatedly thatits value to the client is diminished or lost;

(I) Failure to maintain office staff, facilities, and lawoffice equipment adequate to the lawyer's practice;

(J) Failure to inform a client of a proposal of settlementor to explain the proposal properly;

(K) Withholding information from a client or misleading aclient about the position of a matter in order to coverup neglect or mistake.

CHRONOLOGY OF EVENTS RE: MEMBER DAVID W. Richey

David W. Richey was admitted to the roll of the Nova Scotia Barristers'Society in November 1978. He is currently 48 years of age. He resides in Dartmouthwith his wife and 6 of his 7 children, ranging in ages from 2 to 24. Mr. Richey initiallyarticled and practised with Clyde Paul and Associates and in 1981 moved toMcInnes, Mont & Randall. In 1983 he transferred to Waterfield and Waterfield. In1985, he joined with Vincent Pettipas to create the new law firm of Pettipas Richey,which partnership continued until January 1, 1999, when Mr. Pettipas switched frompartner to associate and then left the firm on September 1, 1999.

According to Mr. Richey, approximately 90% of his practice during therelevant time periods consisted of personal injury claims for Plaintiffs.

In the earlier years of his practice, Mr. Richey was active in hiscommunity. From 1980 to 1989, he chaired the Board of a major teaching hospital.He served as a Director of the Nova Scotia Association of Health Organizations. Hewas heavily involved in the Dartmouth Chamber of Commerce for several years. Hewas active in a variety of educational issues in an advisory capacity with the NovaScotia Department of Education. His public service included contributions to theNova Scotia Barristers' Society, originally through service on its Practice AssistanceCommittee and subsequently through service on its Lawyer Assistance Program,including three years as its Chair. According to Mr. Richey, his practice and familydemands eventually expanded to the point where he could not continue to maintainhis prior level of community service.

In March of 1991 Mr. Richey was involved in a motor vehicle accidentthat resulted in personal injury to himself. What initially was a low back injurygradually resolved itself, but, according to Mr. Richey, he eventually developedheadaches which continue to this day. He describes himself as a chronic painsufferer. It is noteworthy in the context of the charges that, 11 years later, Mr.Richey has yet to settle or litigate his own personal injury claim.

In April 1999, Mr. Richey developed TMJ problems with his jaw,resulting in a diagnosis of sleep apnea and requiring jaw surgery that put him out ofwork for approximately one month.

In the Fall of 1999, Mr. Richey's former partner, Vincent Pettipas,departed the practice, leaving Mr. Richey on his own to run his practice. Through theFall of 1999 and for a period of approximately 12 months until the Fall of 2000, Mr.Richey experienced a significant turn over in his office staff, frequently leaving hisclients unserviced and unhappy. Within this same time period, Mr. Richey wasexperiencing various family pressures with the hospitalization of one daughter andthe birth of another, all of which placed increased parenting demands on him as heand his wife attempted to care for their 7 children.

In November of 2000, Mr. Richey suffered a sudden deterioration in hiseye sight, which initially caused fears of impending blindness. His condition waseventually diagnosed as related to diabetes. By mid December, he was reassuredthat his condition was treatable. By February 2001, his new eyeglasses resolved allvision problems. During the Fall of 1999 and into early 2000, Mr. Richey claimed hewas incapable of functioning to his normal capacity level, which resulted in some ofthe client complaints that formed part of these disciplinary proceedings. Accordingto Mr. Richey, by February 2001, his ongoing health problems were causing nofurther disruption or distraction from his practice.

On January 19, 2001, Discipline Subcommittee A of the Society directedthat an investigation of the records and files of Mr. Richey be conducted by Mr.Donald Taylor, pursuant to powers granted by Regulation 43A. In her instructionsto Mr. Taylor, the Director of Professional Responsibility Ms. Victoria Rees reportedcomplaints of delay and quality of service from clients that went back approximately2 years. In his response to Discipline Subcommittee A, Mr. Richey cited healthproblems, problems at home, and problems at the office. It was a refrain thatbecame familiar, both during the course of this Disciplinary Hearing and in variouscommunications that Mr. Richey had with his various clients. The record indicatesthat Mr. Richey had earlier been encouraged to seek the assistance of the LawyerAssistance Program, a Society support service with which Mr. Richey was wellfamiliar. Because of the number of times Mr. Richey had already been counseledin the past, Discipline Subcommittee A directed Mr. Taylor to review a randomselection of files and interview Mr. Richey's staff.

On March 19, 2001, Mr. Taylor reported to Subcommittee A on the

results of his practice investigation. He described Mr. Richey as co-operative. Hewas provided full access to files and staff. Mr. Taylor reported on specific aspectsof his investigation and recommended certain changes in office procedures toimprove the level of client service. He observed that the quality of briefs written onpersonal injury files was extensive and appeared thorough. He expressed concernabout a lack of an effective tickler system to ensure that relevant dates are notmissed. He suggested that the source of many complaints was a lack of an effectivesystem. He noted that the client tended to be the alarm clock on the file, rather thanthe lawyer Mr. Richey.

In late April 2001, Mr. Taylor was again called before DisciplineSubcommittee A and again requested to intervene "as soon as possible, that dayif possible", to determine the status of the Client E.P. file which was scheduled tocommence a three week trial before Mr. Justice Nathanson of the Supreme Courtof Nova Scotia in a matter of several days. By letter dated April 24, 2001, Mr. Taylorreported back that the May 1 date for commencement of trial had been originallyassigned as early as June of 2000. He noted that counsel for the Defendant hadfiled his Pre-Trial Brief approximately one year earlier. He reported that, because ofinactivity on the file, the Prothonotary in May of 1997 had threatened dismissal ofthe claim. He noted as early as February 1999, Mr. Richey had prepared apreliminary draft of the required Pre-Trial Brief. Despite all of this, Mr. Richey did nothave his Pre-Trial Brief filed 14 days in advance of trial as required by the CivilProcedure Rules but instead filed with Justice Nathanson an incomplete draft whichcontained cut and paste excerpts only. Mr. Taylor also reported the absence ofcurrent medical reports that would be required to form the evidentiary basis of thePlaintiffs claims. He noted it had been approximately 2 years since an updatedmedical report had been received.

On May 24, 2001, Mr. Taylor was again specifically directed to attendupon Mr. Richey to determine the status of the Client E.P. trial. He was advised byMr. Richey that the trial had commenced on May 1st as scheduled, but ended May16th, when Justice Nathanson declared a mistrial after 2 ½ weeks of evidence beforea jury. In his Report Letter of May 24th, Mr. Taylor itemized some of his findings,particulars of which will be dealt with in later parts of this Decision. Mr. Richeyadvised Mr. Taylor that the mistrial was the consequence of his client's and thefamily doctor's failure to disclose medical information, "even though it was notrelevant". This explanation to Mr. Taylor was an early precursor of Mr. Richey'spattern of blaming others for his own shortcomings.

On June 15, 2001, Mr. Taylor contacted Mr. Douglas Lutz, ManagingPartner of the law firm of Merrick Holm and a civil litigator of considerableexperience. This was followed up by communications from the Director ofProfessional Responsibility on June 20th, at which time Mr. Lutz was formallyretained as a Practice Supervisor. The terms of his appointment required Mr. Lutzto meet weekly with Mr. Richey, to conduct staff meetings in the presence of Mr.Richey, and required Mr. Richey to report and take instructions directly from Mr. Lutz

with respect to practice matters.

Mr. Lutz provided viva voce evidence before this Panel, in addition to hiswritten reports, which formed part of the documentary record. Mr. Lutz testified thatMr. Richey admitted that his office was in turmoil, with little organization. In histestimony before this Panel, Mr. Lutz described a myriad of practice concerns heidentified at the time. His observations included inter alia that:

" Mr. Richey's judgment/assessment of risks and rewardsof litigation was not being carried out at the stagerequired, appropriate, or prudent, to ensure the clientunderstood what the lawyer was capable of providing;

" at the time of his first review, there were at least 10 filesof Mr. Richey that required settlement proposals whichhad not been prepared in a timely manner;

" clients were concerned that nothing was being done;

" Mr. Richey was reluctant to tell a client that a claim wasdifficult or unlikely to succeed; that instead, heespoused the view that "one could never tell";

" the new associate counsel recently hired by Mr. Richeyexpressed concerns to Mr. Lutz about the poor level ofpreparedness for the Client E.P. trial, including thefailure to interview key Plaintiffs witnesses two weeksprior to trial and failure to update medical reports andopinions required to provide the evidentiary basis for thePlaintiff's claim;

" there were an inordinate number of disputes andChambers applications with opposing counsel as aconsequence of Mr. Richey's repeated failure toproduce relevant medical records required to beproduced by the Nova Scotia Civil Procedure Rules;

" Mr. Richey took a very broad and unilateral view of aPlaintiff's right to confidentiality and privacy, a view notsupported by the Civil Procedure Rules;

" Mr. Richey had developed a practice of filing withopposing legal counsel his filtered collection of medicalrecords, rather than a proper List of Documents, but insuch format that could lead opposing counsel to believeit was a List of Documents;

" Mr. Richey's lack of preparedness would includeattendances at Settlement Conferences without anysense of the parameters of his client's financial claim;

" Mr. Richey's settlement proposals were too often basedon the client's unrealistic expectations, rather than Mr.Richey's objective assessment of the value of the claim;

" Mr. Richey's use of contingency fee agreements wasnot in accordance with the guidelines set by the NovaScotia Barristers' Society; and in particular, Mr. Richeycharged a counsel fee in addition to the agreedpercentage fee, in a manner that not only breachedSociety guidelines but also had a detrimental impact onthe ability to settle;

" Mr. Richey was significantly delinquent in attendance tothe day to day routine of file management, includingsuch things as attending to daily mail in a timely manner- i.e. some mail went unaddressed for periods of 6 - 8weeks;

" file triage was being performed by staff, not Mr. Richey;

" Mr. Richey acknowledged he was easily distracted fromfile management and had a reduced attention spanwhich created file management problems;

" Mr. Richey's practice was to refuse to consider orprepare a settlement proposal until the client's medicalcondition and prognosis had fully stabilized;

" the consequence of the foregoing refusal led to clientswho had no knowledge or understanding of the value oftheir claims and who often developed unrealisticexpectations, built up over a period of several years;

" Mr. Richey frequently adopted positions with opposingcounsel on disclosure that had the effect, if not intent, ofharming the client's interests in resolution;

" Mr. Richey procrastinated so consistently that routinefile matters would become urgent file matters beforethey received his attention;

" the number of personal injury files handled by Mr.

Richey's office would appear to be very difficult for onepractitioner to handle;

" Mr. Richey would often take the view that a client didnot know the appropriate time for settlement and thatMr. Richey was best qualified to decide when a mattershould be considered for settlement, which settlementshould not occur until there was finality to the medicalprognosis;

" Mr. Richey had a "forest for the trees" problem withperspective that frequently led to acrimonious debateover disclosure issues that was counterproductive tosettlement of his client's claims;

" Mr. Richey in his communications with medical doctorsdeliberately chose a course of action which invited suchdoctors to unilaterally remove and not identify materialsfrom their files;

" after initial filtering of such file materials by the medicaldoctor, Mr. Richey in turn did likewise and wouldremove documents which he, based upon his uniquedefinition, deemed to be not relevant to theproceedings;

" Mr. Richey would commence a law suit with out firstattempting to correlate the risks and costs of litigationwith the probabilities of success;

" Mr. Richey was resistant to incurring the costs of expertopinion evidence in support of his client's claim and thatMr. Lutz had difficulty thinking of many files where suchexpert opinion had been retained directly by Mr. Richey;

" Mr. Richey would advance a settlement proposal at aPre-Trial Settlement Conference by reliance uponcomparative reference to other expert opinions in otherreported cases, rather than expert opinion evidencedirectly relevant to his client; and

" such reliance upon expert opinions from other reportedcases ran the risk of Mr. Richey being unable to provethe basis of his client's case by direct opinion evidencethat would be required by a court.

The several written reports of Mr. Lutz, made at the time of his practice supervision,reflected similar concerns to those described in his vive voce evidence, includinginter alia:

" while Mr. Richey had a comprehensive and welldeveloped set of retainer documents, contingency feeagreements, and instructions to client, it appeared herelied too heavily on such documents, rather thancommunicating directly with his clients to ensure thatthe clients understood what was being written or said;

" "there is a recurring issue on many of the files withrespect to production of documents. In his initial requestto doctors for medical records, Mr. Richey invariablyinvites the physicians to remove from their files anyreference to matters which they consider to beirrelevant. Upon receipt of the practitioners' file material,Mr. Richey himself edits the files and removes anyreference to matters which he considers to be irrelevant.He then incorporates the 'relevant' portions of themedical record and any medical reports in a documententitled 'Schedule of Medical Records and ProfessionalReports', which any reasonable Defendant wouldassume is a complete medical record. Obviously it isnot.

As a practice, this is, of course, was destined toproduce a confrontation because sooner or later, eitheron production of a complete List of Documents oralternatively on examination for discovery of the medicalpractitioners involved, Defence counsel become awarethat there are other portions of the medical file whichhave not been produced. This has frequently resulted inapplications being made for further and betterproduction of documents, or disputes as to the onus ofproduction and who is responsible for bearing the costthereof. Mr. Richey usually takes the position that hehas produced all of the documents which are relevant tohis case and cites a Decision of the Court of Appealwhich would suggest that the cost of producingdocuments which are favourable to the Defence are tobe borne by the Defendant. This, of course, is not anissue of relevance of production, but rather an issue of

1The Panel notes that this argument by Mr. Richey disregards the fact that such determination oncosts is to be made on application to the Court, not by unilateral declaration of Mr. Richey.

costs1. Mr. Richey carries this debate so far as toimpinge upon his ability to produce a proper andcomplete List of Documents, and the files frequentlybecome bogged down in debates and what I consider tobe unnecessary applications for production".

" Mr. Richey utilizes Section B benefits as a'"bargainbasement substitute" for expert evidence, in a way thatis incomplete and insufficient for effective presentationof his clients' evidence;

" "Mr. Richey has an extremely broad view of hisobligations as counsel and sees part of his task asfacilitating his clients obtaining the best medicaltreatment and service from the health care system aspossibly can be obtained. He takes a personal interestin the recovery of his clients to the point of 'driving' themedical inquiry to such things as pain management,psychological assessment, etc. sometimes withoutreferral from treating physicians or without inquiry fromthe clients. To some extent his pursuit of 'absolute'recovery of his client is sometimes at odds with thedesire of his clients that matters simply be resolved andsettled. He rejects the notion that he is bound to followhis clients' instructions and affect settlement even whenhe personally does not believe that their medicaltreatment is complete, and resists the suggestion thathe has been subjected to complaints as a result of thatbehaviour. This pursuit of 'perfect recovery', of course,feeds into issues concerning disbursements andpreparation, because he is always in pursuit of furthermedical records or an updated report in anticipation oftrial or settlement".

" "Mr. Richey believes that it is inappropriate, if notimpossible, to quantify either liability or quantum ofdamages without having a complete and final medicalrecord. Bearing in mind his pursuit of treatment for hisclients and an exhaustive medical record, he finds itimpossible to give his clients any preliminary opinionson quantum (or, indeed, on liability) before preparationof the settlement proposal. Clearly, this will at timesinvolve a delay of several years from the date of loss,

during which time the client either has no expectationsand certainly no advice from his solicitor as to the likelyoutcome of the case, but also has no balance to his ownexpectations or imaginings as to his entitlement".

" "Since his motor vehicle accident in 1991, Mr. Richeytells me that he suffers from a short attention span andhas had problems concentrating. He concedes and hisstaff have confirmed to me a propensity to bedistracted".

" "Overall, the most immediate and pressing problem isthat the volume of files, the number of clients, and thedemands of those files given the events of the last yearor two, simply exceed his ability to do the work required.He requires assistance. There are too many mattersongoing that require more or less immediate attentionfor one practitioner to do alone".

In his last report of Practice Supervision dated September 25, 2001, Mr.Lutz detailed some 15 files which he reviewed and finished his report with thefollowing two observations:

"In addition to those outlined above, there are several othercases which, while they are not acutely problematic, do havea potential to become high risk for Mr. Richey. He has, forexample, several occupier's liability cases wherein liability iscertainly questionable, but where it appears the client hasbeen given no sense that the case may be unsuccessful.

He also has several cases of alleged medical malpractice. Ineach case, the action has been commenced, but withoutascertaining whether there is a professional opinion whichsupports the allegations of the Plaintiff and without anyanalysis of risk or liability for costs in the event the action isunsuccessful".

It is noteworthy that these remarks of the Practice Supervisor weremade at a time when Mr. Richey had the benefit of both Mr. Taylor and Mr. Lutz fora period of several months.

Before dealing with the particulars of individual clients and files, thisPanel notes that Mr. Richey in his defence to these charges, including his purportedAdmissions in Exhibit 9, acknowledged some failures on his part but consideredthem justifiable in some cases, forgivable in others and in any event, where failuresdid occur, that they did not represent a breach of his ethical duty. In respect to some

of allegations of the Complaint, he denies any failure at all.

SPECIFIC FILE REVIEWS

The standard of proof required to support a finding of professionalincompetence is the same as that required for findings of professional misconductor conduct unbecoming: at a minimum, and proportionate to the gravity of theallegations and their consequences, a Panel requires clear and convincing proof,based upon cogent evidence. In determining the sufficiency of evidence in supportof an allegation of a pattern of practice tantamount to incompetence, this Panel issatisfied that the anecdotal examples of poor client service are fair representationsof a manner of practice sufficient to constitute a pattern of incompetence.

As specifics of these files are now reviewed for the record, it is relevantthat there was little in the way of factual dispute between the parties. In mostinstances, it was more a matter of the Panel's interpretation of the consequencesof undisputed facts. With few exceptions, credibility of one witness as againstanother was not a primary concern of the parties or this Panel. The documentaryrecord provided to the Panel was voluminous, and on its own was convincinglyillustrative of the allegations advanced by the Society. This is so, notwithstandingserious issues of exaggeration and credibility that surrounded the vive vocetestimony of D.V.W., whose testimony was tainted with a bias and subjectivity thatwas at least partially consequence of either or both her medical condition and herunderstandable frustration with Mr. Richey's seeming unwillingness to act asinstructed on her behalf.

As an illustration of the problems Mr. Richey had in servicing his clientswith standards of practice expected of members of the legal profession, hisresponse to the various complaints received from the Society's disciplinary processis telling. Under the Act and Regulations, a member is required to respond in writingto the Director of Professional Responsibility within 10 days of receiving thecomplaint, unless application is made for a specific extension. In his variousdealings and written responses to the Society's disciplinary process, Mr. Richeyrepeatedly demonstrated the same tardiness and lack of respect for due processthat was the basis of the complaints themselves. As he did with certain Pre-TrialBriefs on behalf of clients, he filed incomplete or partial responses to the complaints,always providing a litany of excuses as to why he was unable to comply. While thedemands on Mr. Richey at the time he was receiving complaints were considerable,no explanation was ever provided as to why he did not use his lawyerly skills toextricate himself from any perceived time limitations. Rather than applying forextension, Mr. Richey simply unilaterally refused to meet the deadlines and eitherallowed them to pass without compliance, or filed responses that were not adequateto the circumstances. It is troubling to this Panel that, even at the late stage wherethe disciplinary arm of the Society had to be invoked, Mr. Richey seemed unable to

see the forest for the trees and repeated with the disciplinary process the samepattern of incompetence that was the trademark of the complaints filed by clientsand others.

E.P. File

On February 23, 1991, Client E.P. was involved in a motor vehicleaccident. He was a passenger in his mother's motor vehicle when it was rear-ended.The client attended the local emergency room physician and complained of aninability to move his neck and of pain between his shoulder blades. The attendingphysician reported no evidence of fracture or dislocation and diagnosed whiplash,after which the Client was discharged. Purportedly based upon assurances fromhospital personnel that his injury would improve, the client delayed further medicalattention for an unspecified period of time. Some ten years later, when the matterwas finally brought to trial at the instigation of Defence counsel, incomplete portionsof the Plaintiffs Pre-Trial Brief prepared by Mr. Richey described a multitude ofinjuries and symptoms, which Mr. Richey claimed were attributable to the motorvehicle accident. In contrast, Defence counsel David Farrar asserted that this wasa minor motor vehicle accident with minimal or no injuries to the Plaintiff.

Excerpts of the medical claims of Client E.P. are contained within theincomplete-three page Pre-Trial Brief filed with the trial judge Mr. Justice Nathanson,several days prior to trial:

" Cervical strain due to whiplash: range of motion incervical spine approximately 80% of normal - myofascialpain syndrome secondary to whiplash;

" Thoracic spine pain: both thoracic and lumbarmovements moderately restricted by stiffness in monthsfollowing accident. Significant soft tissue traumasustained on T5 through to T10. Multiple trigger pointsthroughout his neck, upper and lower back;

" Pain between shoulder blades and neck: significantincrease in neck pain symptoms and headaches in1994;

" Lower back pain and stiffness: sacroiliac jointinflammation: 1992 reports indicate back pain andheadaches have not improved and pain has developedchronic back pain;

" Right leg and thigh continue to be source of complaints;

" Anterior hip pain with radiation to groin, interior thighand low abdomen; headaches on a daily basis; and

" depression, anxiety, alcohol abuse and drug addiction:feelings of hopelessness, irritability and sleepdisturbance. Mental state has deteriorated. Started toabuse alcohol after one year of abstinence in 1992.October 1992 report notes that Plaintiff appearssomewhat depressed. Attention to psychologicalaspects of his injury are important if going to make areasonable recovery from this particular trauma.

Exhibit 1, Page 41

Even from the limited medical records made available to this Panel, itwas evident the Plaintiff was claiming a multitude of consequential injuries thatwould not normally be expected to exist some ten years after a moderate whiplashclaim resulting from a rear end motor vehicle collision. Yet the record is replete withexamples of ongoing disputes over the disclosure of the Plaintiffs medical records.Over this same time frame, the family physician, Dr. Wells, was repeatedlyunco-operative or non-responsive in requests for disclosure from Mr. Richey.Although Mr. Richey attempted to place these disclosure problems at the feet of Dr.Wells, the fact remains that it is the responsibility of legal counsel to ensure fullcompliance with disclosure. An unco-operative family physician, a not uncommonexperience in these days when medical resources are stretched to the limit, is noexcuse for delinquency by legal counsel. If pleading and cajoling is not effective,then legal counsel, at a minimum, are expected to utilize the tools of the legalprofession to effect such compliance. A complaint to the Nova Scotia MedicalSociety, as eventually occurred in this instance, or a threat of Court Order fordisclosure, are amongst some of the arsenal of remedies available to anexperienced personal injury practitioner who is having problems with gaining accessto medical records.

The history of this litigation is illustrative of the practice problemsdescribed in the complaint. The motor vehicle accident occurred in February 1991.Other unnamed legal counsel commenced action in 1993. An application fordisclosure of medical records was made by Defence counsel Mr. David Farrar in1994. Mr. Richey, for reasons unexplained, took responsibility for the file in 1995.

By 1999, Mr. Richey was working on a draft Pre-Trial Brief. Sometimein 1999, Notice of Trial was filed by Defence counsel, not Mr. Richey. Trial wasscheduled for February 14, 2000. The Defendant's Pre-Trial Brief was filed inFebruary 2000. The position of the Defence was brief and to the point:

“The evidence will disclose that the impact was very minor. ThePlaintiff alleges that he suffers pain in his neck, back and

shoulders as a result of the accident.

It is the Defendant's position that E.P. suffered little, if any,injury as a result of the motor vehicle accident. The medicalevidence that has been received by the Plaintiff to date doesnot support the Plaintiffs claim....

There is very little medical evidence as to the problem sufferedby E.P.. The last evidence we have of him having seen hisfamily doctor is in 1993. The only medical expert opinionreceived is from Dr. David Petrie dated October 14, 1992.

We do not have any income tax returns or other evidence thatwould support a loss of income or earning capacity claim.

...

It will be the position of the Defendant at trial that the Plaintiffhas not suffered an injury as a result of this motor vehicleaccident or, alternatively, that injury is so minor that it has hadvery little impact on his life.

Although this matter is scheduled for 7 days, it is difficult to seehow it would take any longer than 3 days to enter all of theevidence in this case."

Exhibit 6, Page 608

Notably, the 7 days set aside eventually grew to three weeks of trial.

Ten days prior to the original trial date in February 2000, Mr. Richeynotified the family physician that "we finally have trial dates". Mr. Richey requestedan updated medical report, since no current medical reports had been prepared.The original trial date was adjourned due to unavailability of Defence counsel. InJune 2000, a new trial date of May 1, 2001 was assigned. Mr. Richey's Pre-TrialBrief was due no later than April 17, 2001. The evidence disclosed that the Pre-TrialBrief was not filed as required and Mr. Richey was demonstrably unprepared fortrial.

In Exhibit 9 entitled Admissions, Mr. Richey accepts that in manyinstances, but not entirely, shortcomings existed in his practice. He specificallyadmitted to the allegation in charge e(i ) and (ii).

Also in Exhibit 9 Admissions, Mr. Richey denies that he failed to file aPre-Trial Brief in a timely manner and asserts that such Brief filed a few days priorto trial date was "with approval of Justice Nathanson". He also asserts that he

"received favourable comments on his Brief from the judge during the trial". ThisPanel notes that the evidence does not support either of such assertions and thisPanel finds that the Member failed to file the Pre-Trial Brief in a timely manner inaccordance with Civil Procedure Rule 28.

The sequence of events in the days preceding and surrounding thisthree week jury trial in May 2001 is critical to an understanding of Mr. Richey'sstandards of practice. Repeated requests were made by Defence counsel fordisclosure of all medical records, including the file of family physician Dr. Philip J.Wells. Such disclosure did not occur. Shortly before trial, Mr. Richey was scramblingto obtain last minute production and to requisition and have admitted an updatedmedical report on the condition of his client. In an earlier letter of January 29, 2001to Dr. Wells, some three months before trial, no request for an updated medicalreport was made. This notwithstanding the fact that the last recorded medical reportfrom Dr. Wells was dated some 6 years earlier, and it was describing anexamination made a year and a half earlier in September 1993, some 7 ½ yearsprior to the trial of May 2001.

By April 5, 2001, Mr. Richey was making urgent requests of Dr. Wellsfor an updated report. Despite this lack of preparedness, Mr. Richey was refusingto follow conventional protocol by making arrangements to pay Dr. Wells for hismedical report. Instead, contrary to the established protocol worked out by the NovaScotia Medical Legal Society, he simply advised Dr. Wells that it might be necessaryto wait until after the trial for payment by the Plaintiff.

On April 11, 2001, Mr. Richey's new associate again requested anupdated report from Dr. Wells. Receiving no response, on April 18th, some twoweeks prior to the commencement of trial, Mr. Richey finally wrote the Nova ScotiaMedical Society to enlist its assistance in compelling Dr. Wells to file his updatedmedical report.

On April 24, 2001, Dr. Wells provided his updated medical report. In it,Dr. Wells noted that he had not seen the Plaintiff between September of 1993 andMay of 1999. He referred to a hip dislocation that occurred in 1999 and the chronicpain that it aggravated. He continued:

"The next time I saw him for chronic pain that might reasonablybe ascribed to his recent injury was February of this year.There were no new findings and a prescription for Tylenol withCodeine was given. Its relevant to note that he was seen in theemergency room for various injuries: from assaults on June 2,1999 where he reported he had been hit by a bat three timesand had a human bite on his right arm. The sites of the blowsare not recorded. He was seen on February 9, 2000 in theemergency room by me for hip pain of long standing and nomedication was given. He was seen March 23, 2000 having

been assaulted while intoxicated and had sustained variousinjuries, although the report on file is illegible. On March 3,2000, he again reported to emergency having fallen on hisnose. A minor contusion was noted and he was dischargedwithout medication. On file was a radiology report datedFebruary 9th where x-rays of both hips were reported asnormal.

From the above, and in view of the frequency of these visits tothe emergency room following injuries from other sources, it isimpossible for me to ascribe all of his ongoing chronic pain tothe original injury in question. I can only state that he hasongoing hip pain, although his range of motion, muscle bulk,and x-rays remain normal".

Exhibit 1, Page 55

Mr. Richey formed his professional opinion that this newly disclosedinformation bore no relevance to the law suit, and on that basis insisted that suchrecords were not required to be disclosed.

The May 24, 2001 report of Mr. Don Taylor chronicled this sequence ofevents:

"...what does concern me is that, after all of this, a medicalreport dated April 24, 2001 was finally faxed to Mr. Richey. Hesays it was not received until April 25 and the accompanyingfile notes came by courier the next day. Note that the reportmakes reference to the fact there have been a number of visitsto the emergency room for a variety of injuries.

Mr. Richey says he saw this report on April 25 - he and hisassociate Suzanne Kennedy were working together on the file.He informs me that the first time he spoke to Dr. Wells was ina lengthy telephone call on May 7, 2001. It was at that datethat Mr. Richey learned that there was a separate file on hisclient, maintained by the [...] Clinic, where Dr. Wells hadattended and seen E.P.. This file was sent for and received byMr. Richey on May 11, 2001 and thereafter disclosed to theDefendant's counsel.

I asked, in light of the medical report, and its mention of theemergency room visits, if, when Mr. Richey spoke with Dr.Wells, he asked if the medical records provided contained allrelevant material. He cannot recall if he raised this. I asked whythe emergency room records were not ordered immediately

after April 24th. He indicated that it was the eve of the trial andother matters were more pressing, since Dr. Wells was not thefirst witness.

Note that the second time that Mr. Richey spoke with Dr. Wellswas in the afternoon/evening of May 15, 2001. This was when‘it became apparent' - his words, that he did not have ALL ofthe doctor's file. Mr. Richey did not actually see the file of Dr.Wells until the morning of May 16, when the doctor brought itto court. Looking at the file confirmed that all of the file was notpreviously provided.

Mr. Richey says on the 15th when it was apparent that therewere files at the doctor's (and also the [...] Hospital), he madea request for the same and found out the Medical RecordsTechnician was subpoenaed to come for the Defence.

As an aside, looking at the hospital records, there was a greatdeal of activity. As an example, on March 15, 1992, E.P. wasthere with injuries, including a bruised head, as a result of afight, ethanol was detected in his blood; June 1999 he was hitby a baseball bat three times and bitten by another person;August 1999 he was in emergency as a result of burns,someone poured coffee on him; and in October 1999 withpneumonia.

...

The question is whether he should have taken steps to get Dr.Wells' report earlier and also have read the April 24th lettermore closely and therefore realize, before the trial, that therewere medical records he did not have and therefore were notdisclosed to the Defence, which ultimately resulted in themistrial."

Exhibit 1, Page 48

Even in the face of this last minute disclosure, Mr. Richey continued towithhold medical records that he unilaterally deemed not to be relevant to theproceedings. This included refusal to disclose lab reports and x-ray reports of thePlaintiff's chest, nasal bones, and right forearm.

Some two weeks after receiving this updated and controversial medicalreport, which wreaked havoc on the Plaintiffs causal linkage argument, towards theend of the second week of trial, Mr. Richey had his first contact with Dr. Wells onMay 7, 2001. On May 11th, he received a copy of Dr. Wells' file from the [...] Clinic.

On the evening of May 15th, the day before the mistrial declared byJustice Nathanson, Mr. Richey finally got around to meeting with Dr. Wells "whenit became apparent" that he did not have all the files.

The reaction of Defence counsel was as predictable as it was warranted.A motion for dismissal was entered. The transcript of the proceedings on that motionare again informative of Mr. Richey's cavalier incompetence and professionalmisconduct. Two and one half weeks into a 3 week jury trial, Mr. Farrar receives thefile of [...] Regional Hospital the morning of May 16th. Mr. Farrar notes that he neverheard of these matters before, including a puncture wound to the left lumbar spine,lacerations to the upper lip, a puncture stab wound to the lumbar spine and a stabwound to the flank just below the belt line. Mr. Farrar went on to explain how suchinformation would have been very useful in his cross examination of previouswitnesses, who testified to the Plaintiff's slow movement and inability to be agile. Mr.Farrar then proceeded to provide other examples of the prejudice caused by thisfailure to disclose, including the attempts by Defence counsel in cross examinationto establish that the Plaintiff was a malingerer who actually had no such injuries,rather than a person injured by causes unrelated to a motor vehicle accident.

Inexplicably, Mr. Richey argued that this new medical information wasnot relevant to the proceedings. In Don Taylor's report of May 24, 2001:

"When I questioned Mr. Richey about this two days ago bytelephone, he indicated that the family doctor, Dr. Wells, failedto disclose information to him nor did his client, even though itwas not relevant and it was for this reason the matter ended ina mistrial".

Exhibit 1, Page 48

In the transcript of trial proceedings:

"Mr. Richey: And I'll try to keep this brief. The difficulty here,My Lord, is that I saw nothing. Based on whatwe saw as the issues, and you can look at theissues as we defined them in our Pre-TrialMemorandum, you can look at the Pre-TrialMemorandum from the Defence. I saw nothingin it that would lead us to conclude that any ofthis information referred to by Dr. Wells in hisreport of April 24, 2001 was relevant. We saw,based on that, no reason to obtain the [...]records. We were not requested to do so. Wehave never, never been requested to obtain thefile of the [...] Hospital".

2An extraordinary novel argument: no duty to disclose until well into the trial; and only then ifopposing counsel stumbles into the undisclosed subject matter to make it relevant.

Exhibit 1, Page 97

And continuing at Page 98:

"Mr. Richey: It's the relevance issue. There was noindication that there was relevant informationthat was within the possession, power orcustody of E.P..

The Court: So you say the rules have been complied with?

Mr. Richey: Yes, My Lord."

Mr. Richey continued in his submissions to assert that there was"absolutely no relevance whatsoever" to the previously undisclosed documents.

Matters continued to deteriorate after delivery of the Wells report datedApril 24, 2001. Although the Wells report itself was delivered to Defence counselshortly after receipt, the contents of Dr. Wells' files were still being withheld by Dr.Wells and no disclosure was being made of the Plaintiffs hospital records. Mr.Richey's first contact with Dr. Wells after delivery of such report was almost twoweeks later, in a lengthy telephone call on May 7th, a week into the trial. On May11th, he finally received a copy of Dr. Wells' file notes. On May 15th, Defence counselMr. Farrar again complained of the failure to produce the hospital records whichwere brought to his attention as a result of comments in the April 24th Wells report.By this time in the trial, virtually all medical witnesses and reports had been receivedby the jury, except for the testimony of Dr. Wells, who was scheduled to testify May16th.

On May 16th, after having just received copies of the hospital recordsand Dr. Wells' file, Defence counsel moved to dismiss the Plaintiffs claim. The trialtranscript is telling. Mr. Richey's response, initially at trial, then to the Society'sinvestigator Don Taylor, and eventually in his written responses to the Society, areunacceptable and offensive to this Panel, both in the attempts to blame others andin the attempts to describe as acceptable that which was clearly unacceptable. Forexample, in Mr. Richey's response to the trial judge:

" "What I'm coming to, My Lord, is that we thought wehad anything from the [...] Hospital that was relevant.And keep in mind that we've been somewhat limited inwhat we can determine is relevant until we see how theDefence has approached their cross examination attrial.2

3Again Mr. Richey’s rejection of a proactive duty of disclosure, arguing instead that opposingcounsel must first flush out and identify the undisclosed issue.

Exhibit 1, Page 88

" If there was any concern that there was other relevantinformation from the [...] Hospital, the Defence couldhave requested it and we could have made an effort toget it. We did not. We were content with the informationthat we had. And I'm not aware of any obligation to golooking for what would appear to be irrelevantinformation.3

Exhibit 1, Page 89

" ... there was reference by Dr. Wells to injuries fromassaults on June 2, 1999, when he reported he'd beenhit by a bat three times and had a human bite on hisright arm. I can't see what possible relevance that couldhave to the injuries he sustained in his...

The Court: Well, how about the lumbar puncture, thestab wound in the side?

Mr. Richey: Well, it said here, "seen February 9, 2000in emergency room for hip pain oflongstanding". Dr. Wells can certainlytestify to that. And he was seen March 23,2000, having been assaulted whileintoxicated and sustained various injuries,although the report on the file is illegible,so there is nothing in Dr. Wells' letter thatwould lead us suggest or conclude thatthere was any relevance to a lumbarpuncture.

...

When My Friend made an issue of it yesterday,... wemade a determination that this, in fact may have somerelevant information, so we took immediate steps to getit, both for ourselves and for the Defence.

Exhibit 1, Page 97

" "I'm not sure to what degree My Friend can suggest thathe's been prejudiced by this...”

Exhibit 1, Page 100

There are two final excerpts that perhaps best reflect the standards ofpractice followed by Mr. Richey, who this Panel finds twisted and distorted the dutyof disclosure from a positive one on counsel to a reactive one, only when demandedby the prescience of opposing counsel:

" My Lord, we've done everything we could to ensure thatwe had disclosure of everything that the Plaintiff wasrelying on. And on top of that, we have gone out of ourway to meet every disclosure request that the Defencehas given.

Exhibit 1, Page 138

" "I don't know what else we could have done. I guess,you know, turn it around the other way, you know, whatdid you know and when did you know it? That's thequestion. Go back to the Watergate tapes. It's all aquestion of when the information created a duty to dosomething about it, My Lord. And we had, I submit, aduty when relevance was asserted, and we acted uponthat".

Exhibit 1, Page 150

Even after an opportunity for full reflection and consultation with legal counselfamiliar with the charges against him, Mr. Richey still refused to waiver in his lackof objectivity and professionalism in the disclosure of documents. In his writtenresponse to the Society's Director of Professional Responsibility dated July 13,2001, his own description of the Plaintiff's personal injuries provide the linkagebetween the claims of the Plaintiff and the new medical information which Mr.Richey insisted was not relevant:

"His injuries were essentially of a soft tissue nature, involvingthe neck, back and pain in his hip which he attributed to theseat belt, but which may also have been in part referred painfrom the spine area. In addition, pre-existing substance abuseproblem...blossomed into abuse of both alcohol and painkillers as an effort to cope with the consequences of theaccident. Accordingly, his mental health and anythingassociated with substance abuse became relevant, in additionto his other musculoskletal complaints. Anything relating to

4Note this admission that Mr. Richey specifically addressed his mind to the issue of relevance onApril 25th, an admission that is contradicted elsewhere in his testimony where he claims he did not directhis mind to the issue until later on May 7th.

disability was relevant because of the disabling nature of hisinjuries, and given his poor education (Grade 3 reading level)anything related to education, training or experience wasextremely important".

And continuing at Page 576:

"On the whole, we did an excellent job of discovering anddisclosing relevant medical information and other recordsrelating to our client. The report of Dr. Philip Wells which wereceived on April 25, 2001 made reference to some recordswhich we knew we did not have, but which did not appear tobe relevant to us on April 25th, so it was of no particularconcern when they were not among the documents receivedon April 26th and forwarded immediately to Defence counselthat same day.4

He had been assaulted while intoxicated on March 23, 2000and Dr. Wells described the report on file as illegible, sonothing of relevance to the personal injury claim wasapparent. In the same month, he had fallen on his nose,resulting in a minor contusion with which he was dischargedwithout medication. Again, this caused us no concern. In June1999, he had been struck with a bat and had a human bite onhis right arm. Again there was nothing of relevance to suggestwe should be requesting anything further, since we had Dr.Wells under subpoena and would be questioning him beforehis scheduled appearance".

And continuing at Page 577:

Of course, the more serious the injury, the broader will be thedisclosure required. The more disabling the injury, the broaderthe disclosure required, because the Defence is entitled tosatisfy itself that there are no other disabling conditionscontributing to the inability of the injured person to work. Thepsychological consequences of an injury will render the entiremental health history of the Plaintiff relevant. The Defence isentitled to raise and argue issues of causation, including 'thinskull versus crumbling skull' arguments. This requires thefullest disclosure. In the case of E.P. there was very little thatwould not be relevant subject to disclosure. We accepted this

5Mr. Richey rationalizes his lack of preparedness on the grounds that he had no duty or need tokeep in touch with his client’s circumstances.

and operated on this principle in the case of E.P..

Why did we not obtain the hospital chart sooner? We thought,until the very last minute, that we had complete disclosurefrom the family doctor of all relevant records and information,including many records from the [...] Regional Hospital. As forthe incidents in 1999 and 2000 referred to in the report of Dr.Wells received by fax April 25th, those did not appear to berelevant and when we pressed Dr. Wells on the issue ofcomplete disclosure of his file (on May 7th) that is when wediscovered there was another record maintained for ClientE.P. at the [...] Clinic.

Why did we not learn about the 1999 and 2000 hospital visitsearlier? It should be noted that this matter had been set downfor trial for several years, and an earlier trial had to be abortedbecause Defence counsel was double booked. We lost anentire year just by that reschedulement alone. There were notmany reasons to be in contact with the client in any event.”5

In a troubling and unexplained admission at Page 6, Mr. Richey conceded:

"It is possible some of these other incidents may have comeup in conversation, but given the nature of those difficulties itis possible they may never have been discussed between us.But I might have heard enough to suggest the wisdom ofobtaining the [...] Regional Hospital chart."

In a professionally distasteful attempt to attribute blame to opposingcounsel, Mr. Richey asserted that the disclosure problems were all part of a schemehatched by Mr. Farrar in advance: what Mr. Richey frequently described as trial byambush. Mr. Richey then tried to argue to the Director of Professional Responsibilitythat the Defendant's insistence on document disclosure was properly turned aroundon its ear, by simply providing Mr. Farrar with written authorizations signed by thePlaintiff, allowing Defence counsel to obtain such information, with simultaneousdisclosure to Plaintiffs counsel. Rather than disclose what documents the Plaintiffand/or his counsel knew to be relevant, Mr. Richey instead argued that it wasincumbent upon Defence counsel to go on a fishing expedition to search outundisclosed documents, and then provide the results of that search to the Plaintiff.

Finally, Mr. Richey appeared to take considerable solace in the dicta ofthe learned trial judge Mr. Justice Nathanson, who at the time of the declaredmistrial, declined to attribute blame or responsibility for the mistrial. This Panel notes

that the trial judge may have been generous in declining such attribution, but in anyevent notes that it is the proper jurisdiction of the Society's disciplinary process todetermine when standards of practice reveal such a pattern of conduct as to warranta finding of incompetence and professional misconduct. That issue was not beforethe trial judge and it was apparent his priority was the litigation, not finger pointingfor culpability. The unwillingness of the learned trial judge at that time to assignresponsibility in no way diminishes the obligation of this Panel to do so in thisinstance.

This Panel's findings of both incompetence and professional misconductagainst Member David W. Richey are bolstered by the fact that, in this particularmatter, the Member failed to follow his own good advice in the declared standardsof practice which he provided to each new personal injury client. In a pro forma"Help Wanted Sheet" attached to his initial retainer letter, Mr. Richey provided thefollowing instructions to his clients:

"Over the years that this law firm has represented manyunfortunate accident victims, there have been occasionswhen, during the course of processing the claim, materialfacts have come to light that the client had not disclosed.Clients are respectfully advised that it is the policy of this lawoffice to discontinue representing any client found to haveeither willfully misstated a material fact or concealed essentialinformation touching the case from counsel or any of hisemployees. In that event, the client must face the somewhatembarrassing prospect of securing some other lawyer to takeon the law suit".

There is no evidence before this Panel to suggest that Mr. Richeyadvised the Court, opposing counsel, or his client that he was consideringwithdrawal because of his client's failure to inform him of matters that eventually ledto the mistrial. Rather than hold accountable his client for such shortcomings, Mr.Richey went to some implausible lengths to apportion responsibility elsewhere,without any apparent regard for the relationship of client and solicitor.

Client D.V.W.

Client D.V.W. was involved in a motor vehicle accident May 7, 1992.She was the driver of her Lincoln motor vehicle, which was struck on the driver'sside while traveling at a slow rate of speed, which collision caused the driver's doorto collapse and required D.V.W. to exit the passenger side. She did not loseconsciousness. She suffered no head injury or peripheral nerve injuries. The onlyoutward indication of neck injury was at the muscular sides of the neck. After theaccident, she proceeded to the police station to report the accident. Eventually she

proceeded to the Emergency Department of the local hospital, where x-rays weretaken and she was sent home. Initially, she was unaware of any injuries to herlimbs. She was later told that she injured some of her limb bones and that she wasdiagnosed with instability of the sacroiliac joint. She took approximately 2 weeks offwork as a result of the accident. Upon her return to work, she discovered she hadbeen demoted. Approximately 2-3 weeks later after returning to work, she suddenlyfainted in the workplace. No causative disorder was identified or treatmentimplemented. She quit work shortly thereafter, and has not worked since.

D.V.W. initially retained [...] counsel Solicitor A. She became dissatisfiedwith the quality of his service. On November 13, 1996, after reviewing the contentsof her file, Mr. Richey agreed to take carriage of her file and requested Solicitor Ato transfer his file. Over the ensuing months there was considerable disagreementabout the transfer of such file and arrangements for payment. Eventually, a Noticeof Taxation was issued to tax Solicitor A's account. Consistent with the patterndescribed in the Complaint, even at that early stage on February 14, 1997 Mr.Richey missed the appointment and failed to show for the taxation, without anyadequate explanation to the Taxing Master.

When he took over the file, Mr. Richey described it as seriouslyunder-documented and said he had quite a mess to clean up. He noted that threeseparate actions had been commenced with respect to enforcement of disabilityinsurance, Section B coverage and the primary claim for personal injury. Herecommended to his client that the three actions should be consolidated and achange of venue to the Halifax jurisdiction would be desirable.

For reasons elsewhere described herein, Client D.V.W. eventuallybecame disillusioned with Mr. Richey's repeated pattern of breached promises andfailure to move her claim forward to settlement.

At an early stage it became apparent to Mr. Richey that he was dealingwith a most difficult client. Mr. Richey formed the opinion that her propensity toexaggeration and untruthfulness was symptomatic of her prolonged illness. In anunintended contradiction that appeared to go unnoticed by Mr. Richey, Mr. Richeyin his July 6, 2001 response to the Director of Professional Responsibility explained:

"By the time I inherited her as a client, D.V.W. had beenseverely damaged by the process to which she had beensubject over the previous five years; I would say withouthesitation, she was scarred for life".

This acknowledgment of the harm done the client by the undue delayon this file is irreconcilable with Mr. Richey's opposite assertion at Page 16 of thevery same letter of July 6, 2001:

"While everyone, including me, would like to see all three

proceedings brought to a conclusion, there is nothing tosuggest the case of T.V.W and D.V.W.. has been harmed inany way by delays on my part, nor is there any suggestion inthe evidence that the litigation itself is exacerbating hersymptoms in any way. One would think that if delays inadvancing the litigation were such a concern to D.V.W. or herclinicians, some reference to that effect would appear in themedical evidence".

Mr. Richey went on in the same letter to deny that there had been anyunreasonable delay in advancing the client's cases, and alternatively if there was,it resulted from causes completely independent of his handling of her cases. Thatwas not the view of the Complainant D.V.W.. In her initial complaint to the NovaScotia Barristers' Society, she complained that Mr. Richey was preoccupied with hisown problems, which he used to excuse his failure to advance the best interests ofhis client. She expressed her opinion that Mr.'Richey felt himself to be "above thelaw" and predicted that "Mr. Richey will blame everybody but himself'. She claimedthat her experience with Mr. Richey caused her to question her confidence in NovaScotia's justice system.

The documentary record is replete with examples of Mr. Richey's failureto communicate openly and properly with his client. It is clear from both the recordand the testimony before this Panel that D.V.W. presented herself as a most difficultclient. Mr. Richey was on notice of that fact early in his retainer and specificallyaddressed his mind to her idiosyncracies at an early stage in the proceedings.Despite the absence of any supporting medical opinion to corroborate his opinion,and unequivocal expert opinion evidence to the contrary, Mr. Richey described hisclient D.V.W. as "the most profound case of chronic pain syndrome I have everseen". Notwithstanding the absence of any objective medical opinion in support ofthis undiscriminating opinion, and notwithstanding numerous examples of untruthfulor inconsistent statements by his client, Mr. Richey appears to have remaineduninfluenced in his strategies for representing his client's interests. His apparentunwillingness to objectively analyze the claim of his client is particularly troublesomein view of the opinions provided by his own expert, Dr. Cameron, a medical doctorwhom Mr. Richey described as one of the sharpest and most compassionatephysicians he had met.

Empathy and compassion for a client's circumstances are integralcomponents of any good legal advice. However, such considerations cannot shadowthe objectivity of the legal analysis. In his response to the Society, Mr. Richeyexplained that it was "only by accepting the behaviour of D.V.W. as emanating fromher injuries and her illness, and out of a sense of loyalty to her husband (andperhaps some sympathy for his love and devotion to D.V.W.) that I continued astheir solicitor".

It is not the mandate of this Panel to opine on the correlation between

the evidence and the range of claim being sought by the Plaintiff, and advocated byher counsel. Suffice it is to say that Mr. Richey appeared to place little weight on theabsence of a causal link between symptoms claimed and injuries received at thetime of the motor vehicle accident some ten years ago.

According to the testimony of D.V.W, the precipitating event that causedher to lose all confidence in Mr. Richey and terminate his retainer was the issuanceof a Notice of Dismissal of Action by the [...] Prothonotary in early January 2001.This dismissal related to the separate legal action on disability coverage. It was theclient's understanding that this dismissal order was issued because of neglect by Mr.Richey in moving the matter forward in a timely manner, including disregard of theearlier warning notice from the Prothonotary. They learned of this directly from theProthonotary's office, not Mr. Richey's office. When the Notice was received in lateJanuary, D.V.W. contacted Mr. Richey's office, but she says he was not availableand never returned her phone calls. She testified that her husband subsequently lefta message that if they did not hear from Mr. Richey by February 15th about how hewas going to resolve the Dismissal Order, they would fire him. When they did nothear from him by the specified date of February 15th, they terminated Mr. Richey'sservices and found other legal counsel.

Although the foregoing Notice of Dismissal Order appeared to be theproverbial straw that broke the camel's back, a review of the documentary evidenceindicates a troubling pattern of poor and untruthful communications from Mr. Richeyto his client, most particularly with respect to filing a Notice of Trial . A chronologicalreview of some of such documents illustrates the problem:

" November 1996 - D.V.W. retains Richey and explainsthat she is looking for closure on her personal injuryclaim. Richey advises her that she has a good case andhe would work expeditiously to close the file.

" February 14, 1997 - contested hearing on taxation ofaccount of Solicitor A. On the same date of taxation,Richey faxes a memo to Solicitor A indicating that he"was unavailable for taxation hearing today due to along standing commitment to be in a discoveryproceeding". Taxation proceeds in absence of Richey.In Decision of Taxing Master:

"I am satisfied based upon the materialprovided by Solicitor A that Mr. Richey wasappropriately served with the Notice ofTaxation and it would seem that if Mr.Richey was not available on this date due toa long standing commitment, then he hadample opportunity to advise Solicitor A of his

situation rather than waiting until thismorning".

Exhibit 4, Page 124

" April 30, 1997 - file notes of Richey:

"husband called to say that D.V.W. is gettingvery depressed over the lack of progress onher claims and although I offered theopportunity to change lawyers they definitelyappeared reluctant to do that and we agreedthat I would get an early Chambers date toget Solicitor A's files. I apologized all overthe place for not moving things along morequickly".

Exhibit 5, Page 531

" December 21, 1998 - Letter D.V.W. to Richey:

"Since July 1998, my husband and I contacted you byletter and phone to ask about the progress of myaccident claim. We never heard from you. My husbandcontacted you again in November when he did manageto engage in a conversation with you. You indicated atthat time that your strategy was that a proposal woulddefinitely be going into the insurance company on mybehalf before year end 'because that is when insurancecompanies like to settle claims'. You asked me to lookfor the proposal around the second week of Decemberand to please go over it to ensure all facts werecorrect...we did not receive any proposal. I phoned yoursecretary last week to ask if the proposal had been sentout. She indicated that 'no, she had done nothing on mybehalf'. I ask that either you or she contact me and letme know what was going on and 'if there was a newstrategy'. My husband and I heard nothing from youroffice. My husband kept telling me all weekend youhave a new strategy. He never gave up hope until thismorning...may I ask if there is a new strategy and whatthis strategy will be? If there is no strategy for 1998, ourstrategy is that my health will not allow me to continuethis claim, unless promises and commitments made tome by your office are kept".

Exhibit 5, Page 489

" December 22, 1998 - letter Richey to D.V.W. :

"Thanks for your note of December 21st and yourdetailed message...I am writing to confirm some of whatI told T.V.W. on the telephone on December 22nd, whenyou were unavailable. First, I apologize for notmaintaining the timetable that I set for myself when wespoke at the first of December. It was my plan to havea settlement proposal in the hands of the threedefending insurers in time for their response before yearend. Time for them to respond is becoming increasinglyunlikely. You know what they say about plans...

It is still my intention, however, to have the proposalfully dictated, and perhaps in their hands before the endof the year. As I explained to T.V.W., my detailed reviewof the medical evidence and dictation of the summary ofthat evidence is critical to the preparation of aconvincing settlement proposal, and is equally critical tomy own preparation for trial...as I explained to T.V.W.,some unexpected work in reorganizing the medicalevidence on your file, and some unexpected surprisesin my work for some other clients in the past few weeks,has resulted in placing me behind my intendedtimeframe...I'll be faxing parts of the proposal to you indribs and drabs as it comes off the computer, for yourreview...”Exhibit 5, Page 487

" September 9, 1999 - memo from Richey secretary toRichey -

"T.V.W. called early this morning and asked to speak toyou, but was informed that you were not available, so inturn asked to speak with me, and was told that I was notavailable...At approximately 11 a.m., T.V.W. called backand asked to speak to me. He said that D.V.W. isextremely depressed...T.V.W. thinks it best that youarrange an appointment with D.V.W. for some time inthe very near future. He said it has been quite sometime since the two of you sat down face to face todiscuss the case. D.V.W. is extremely upset with yourdelays. She thought the proposal would have beenprepared long ago, thereby putting this part of her life

6No evidence was placed before this Panel to suggest that defence counsel Mr. Beckett didanything other than properly represent his client’s interests.

behind her and getting on with the rest of her life".

Exhibit 5, Page 460

" February 4, 2000 - appearance before Nova Scotia Court ofAppeal: a motion to appeal an Order of Justice Nunn,particulars of which were not provided to this Panel. D.V.W.testified that Chief Justice Glube gave clear instructions toRichey to start communicating with his peers and moving thefile forward to trial as soon as possible, since it had almostbeen ten years.

" April 20, 2000 - letter D.V.W. to Richey:

"...you had discussed and made a commitment toT.V.W. and I that after my visit at physiotherapy, whichfulfilled everything in the Court Order, you wouldprepare the Notice of Trial. Justice Glube made it veryclear that this matter was to go to Court immediately soI would have my chance at justice and I could speak...Ihope this summation will be useful for future reference.I remain positive that the Notice of Trial will be preparedshortly. Then I can see that the wheels of justice are atleast moving in some direction rather than thisfoolishness that insurance is conjuring up and using theinsured's money to pay for Clary Beckett to become ajudge or have a nice retirement sum".

Exhibit 5, Page 4126

" May 10, 2000 - Letter D.V.W. to Richey:

"On numerous occasions, I have asked you to preparethe NOTICE OF TRIAL. On February 4, 2000, ChiefJustice Glube, in her summation, ordered that thismatter be set down for TRIAL IMMEDIATELY so thewheels of justice, on my behalf, keep turning rather thanbeing stuck in the judicial system. This has not beendone even after my repeated requests to you, as well asChief Justice Glube's remarks on February 4, 2000.

As you know, Mr. Richey, I am disabled. I am also a

victim of Co-op Insurance along with being a victim ofthe justice system...I respectfully ask you, as my lawyer,to prepare the Notice of Trial as directed by ChiefJustice Glube as well as to COMMUNICATE with Mr.Beckett and Mr. Clark as accomplished, professionallawyers are supposed to do".

Exhibit 5, Page 408

" May 16, 2000 - Letter D.V.W. to Richey:

"I forwarded to you the second request for Notice ofTrial to be prepared on my behalf as ordered by ChiefJustice Glube on February 4, 2000, and as requestedfrom myself....if the Notice of Trial is not prepared,Co-op Insurance is going to dance around you and yourstaff for a few more years and then state again, theyhave received no co-operation from you nor myself andgo for dismissal again. If the Notice of Trial is prepared,Co-op knows that you are finally hitting the nail with thehammer through their armour. I request that the Noticeof Trial be done by June 5, 2000

...

T.V.W. and I are not going to tolerate any more excusesabout office problems, or home problems, or personalproblems. There is no excuse nor reason for lying toT.V.W. and I on February 4, 2000 that you would put ina Notice of Trial directly after everything in the CourtOrder was fulfilled. There is no excuse nor reason formaking arrangements to meet with us today in ourhome and not having the professional ability to call tocancel...lt still appears that you and your office and staffare experiencing turbulent difficulties and I, personally,do not want to be part of them, nor does anyone else. Itwas terribly embarrassing and distressing for myhusband and I that Chief Justice Glube had to addressyour disorganization and unpreparedness on behalf ofyour clients in the court room. It showed us that this isthe way you operate and no client needs that in theirlives, especially those that are ill. Actually, it shows agreat deal of disrespect.

Again, we will offer our services. If we can do the Noticeof Trial here in [...], please inform me what to do and I

with members of my family will put it together so it getsdone....l hope that you have a positive resolution for usand not something from one of your staff members onthe foregoing matter".

Exhibit 5, Page 404

" May 17, 2000 - telephone conference with husband T.V.W.and Richey. According to vive voce testimony of T.V.W,purpose of call was to try to keep the case moving. T.V.W.testified that getting another lawyer would just take more timeagain. He believed that D.V.W. could be better if this case hadbeen handled differently 5 years ago. T.V.W. describes thisphone call as a personal plea from him: please move this caseon so this mess can be cleaned up.

" October 1, 2000 - Letter D.V.W. to Richey:

“Have you set trial dates and then perhaps settlementconference dates? If not, why not? If dates are not setsoon, I will call Mr. Beckett myself and tell him that Iwould like to sit down and discuss the settlement. Myhealth and medical records speak for themselves. Theentire legal and insurance systems are rotten in thisprovince and someday I am going to write about thetreatment I have received since the car accident.... I willnot be seeing any more doctors nor attendingdiscoveries, etc. The above is ongoing care and helpand I will be nurturing my health as best I can with whatI have learned in the past and will learn in the future".

Exhibit 8

" November 7, 2000 - Letter D.V.W. to Richey:

"Why are you not advancing my case? I have asked fortrial dates and have asked for a conference settlementdates? I sent you, via fax, reports from all my doctors -then, you sent a letter asking doctors for the samereports I sent you - is that not a wonder why there maybe a problem in our health care system? My husbandand I have asked you to return our calls which you don'tdo. What is your problem - we all have family hurdlesBUT IF YOU ARE GOING TO BE A LAWYER, YOUARE RUINING YOUR CAREER FOR ONE THING;AND NOT COMMUNICATING PROPERLY TO YOUR

FAMILY NOR CLIENTS - BUT THAT IS NOT MYBUSINESS BUT IT IS WHEN YOU HAVE BEEN HIREDBY ME AND YOU MAKE EXCUSES ABOUT YOURFAMILY - OR ARE YOU TWO FACED? PERHAPSYOU ARE PAID BY INSURANCE COMPANIES TOO?If that is the case, my case will never end because inmy will my children will continue the case. I think,personally, you are a very dysfunctional individual asevidenced by letters from John Kulik and our letters.

If you do not wish to advance my case, please send afax....l will find another lawyer and anyone that I havereferred to you I will inform them to find another lawyerand sue you, if they are within their rights. BUT T.V.W.and I are going to sue you personally for the sufferingyou have caused us. You are not a lawyer, you don'tcare, etc. In my eyes, you should be disbarred and ifyou don't start acting like a lawyer, I will do everythingin my power to have you disbarred".

Exhibit 5, Page 381

" November 9, 2000 - Richey's notes of telephone conferencewith T.V.W..

"T.V.W. hasn't read D.V.W.'s letter to me or Kulik butsays it's just D.V.W. 'blowing off steam' and makes herfeel better after. (T.V.W.) downplays the seriousness ofthem but D.V.W. needs Notice of Trial done. He gets alot of verbal abuse, says she's out of control, and hedoesn't know what to do. She won't tell him what she'sdoing and won't let him read anything...I'm to callD.V.W. on Monday".

Exhibit 5, Page 380

" November 10, 2000 - Richey file memo re telephoneconference with D.V.W.:

"Telephone conferences with D.V.W. on todayNovember 10th to discuss medical records of Dr. SelenaWhite and plans to file Notice of Trial next week. Memoto file. D.V.W. apologized for sending the letter to JohnKulik, I told her I accept full responsibility for the delayand I don't mind her directing her abuse at me, but thatsending the letter to John Kulik was stepping outside

the normal solicitor-client relationship. She sees theconfirmation of environmental illness as nailing downthe last detail required to substantiate her injuries andis understandably anxious to proceed so that is what Iagreed to do. I am to try and have the Notice of Trialfiled next week and I will call her on Monday as agreed".

Exhibit 5, Page 379

In the context of the foregoing attitudes expressed by his client, it isapparent from the record that Mr. Richey himself did not hesitate to cast aspersionsupon opposing counsel and/or the opposing party when that suited his need tocamouflage his own failure to move the file forward. For example, in his letter toclient of July 14, 1999, he characterizes the attempts of opposing counsel to obtainlegitimate disclosure of medical records as "intimidation tactics". The inflammatoryrhetoric used with his client simply made matters worse:

"I do not think you should view your agreement with these requests(to disclose medical records) to be a defeat in any way. Quite thecontrary, by putting these issues behind you, you would be robbingthe Defendants of two issues which will only embolden them in theirefforts to further intimidate you...l agree with your sentiments aboutdelay tactics (of the Defendant), but regardless of the motive, I cantell you that the defendant in the personal injury action has the rightto test the claims being made by the Plaintiff and it is better thatsuch issues be resolved rather than create the appearance at trialthat potentially irrelevant information is being withheld because thePlaintiff has something to hide”.

Exhibit 5, Page 471

The foregoing is only one of several examples that demonstrate Mr.Richey's unprofessional propensity to blame others and cast aspersion on themotives of other legal counsel and other parties who are merely doing their jobs andexercising their rights to due process.

Mr. Richey's response to the allegation that he failed to communicatewith his client and failed to follow her instructions is predictably shallow. Within theevidence and documentary records there are numerous examples of the propensityto blame others. Although Mr. Richey's various explanations for the delay in filingNotice of Trial were not always consistent or compatible, one of his primary excuseswas the purported need to obtain additional medical records before D.V.W.'s claimcould be quantified. This particular rationalization is what Mr. Lutz skeptically calledthe pursuit of perfect recovery. In other situations, he was more generic. Forexample:

" in his letter to the Society of July 6, 2001:

"My former clients T.V.W. and D.V.W. do havelegitimate concerns about the progress of this file,but virtually all of the delay has been the result ofdevelopments in the clinical picture of D.V.W....."

Exhibit 4, Page 1

" from the same letter at page 2:

"[When I took over the file] I had quite a mess toclean up, involving litigation previouslycommenced in three proceedings, two of whichshould never have been necessary in the firstplace".

" and also at page 2:

"To be clear, I categorically reject any suggestionof unprofessional conduct on my part and Iwelcome the opportunity to advance a defenceand 'clear my name'. I acknowledge there hasbeen delay in my service to my former clients, butI shall satisfy Discipline Subcommittee A thatthere has been no unreasonable delay orinactivity".

" and further at page 4:

"As indicated previously, it was more than 5 yearspost injury by the time I got the file and couldbegin meaningful work....I was stunned by thevolume of the file material which I inherited, butwith some help from my former partner, I beganmy task as one would eat an elephant: one bite ata time....despite the volume of material, Idiscovered that most of it was legal; the medicalcondition of D.V.W. and other evidentiaryconcerns were seriously under-documented. Thisappeared to result from a reluctance to incur thecost of obtaining relevant records, and

7This assertion contradicts the documentary record, which demonstrates that the client D.V.W.instructed Mr. Richey exactly the opposite. In a letter from D.V.W. to Richey dated February 10, 1997, sheprovided the following instructions:

“ In the matter of any fees for reports/assessments, etc. from anydoctors, psycologists, etc., my husband and I will cover. I do notwant my case held up because of fees for reports. I do receive myCPP and I will use this money”.

Exhibit 5, Page 546

8Contrast this contradictory explanation with later acknowledgment that Notice of Trial could befiled.

comprehensive medical reports".7

" and also at page 9:

"D.V.W. to my knowledge continued in therapywith Dr. J.R.P. in [...] on a regular basis. I havesome treatment reports, but her treatment had notprogressed to the point where I felt it wasappropriate to obtain a comprehensive medicallegal report from this psychiatrist. All of this iscritical evidence to support her case, and a Noticeof Trial cannot be filed without it, because of therequirement for a Certificate of Readiness andcompliance with Rule 31.08. I have been forced tobe rather discreet in approaching this issue withD.V.W., although I thought her husband and I hada pretty clear understanding of what was required.That the psychiatrist has not been successful yetin assisting D.V.W. in anger management is, Isubmit, amply demonstrated by the venomousnature of her attacks on my person and myprofessionalism in her complaint". 8

" and also at page 10:

"[I deny the allegation of] failure to followinstruction. The only basis for this, to myknowledge, is the frequent insistence that we geta Notice of Trial filed, and this is dealt with inmore detail below. BUT I had a client who was notready for trial and would have been a disaster inCourt (or indeed, for update discoveries) until shegot the psychiatric help she needed".

" and also at page 16:

"On the application of October 5, 1999 in [...],Justice David MacAdam did express concern overthe fact this case was so long coming to trial, then7 years after the original car crash. But it must beremembered that for 5 of those years, I did notrepresent T.V.W. and D.V.W..

" and also at page 16:

"I deny that there has been any unreasonabledelay in advancing the cases for the Plaintiff, andif there was, it resulted from causes completelyindependent of my handling of her cases".

" and also at page 17, Mr. Richey explained how theapplication for consolidation of the three legal actions and achange of venue from [...] to Halifax were delaying the Noticeof Trial. No explanation was ever provided by Mr, Richey asto why these two procedural issues, which were identifiablesome 5 years earlier when the file was assumed, had notbeen addressed in a more timely basis. Mr. Richeyacknowledged that the attempt to change venue was withoutthe consent of his client.

" and also at page 18:

"My health problems resulting from the 1999surgery and the development of diabetes inNovember 2000 were real physical restrictions onmy ability to function as a lawyer, but they weretemporary, and have not affected my practicesince February 2001".

" and at page 19:

"I have learned not to make promises I cannotkeep. And given the unpredictable nature of civillitigation generally, and personal injury inparticular (counsel are continuously being'torpedoed' by our clients), great care is required,and exercised on my part, before making any kindof commitment to my clients. BUT I routinely tellmy clients what my plans are. To use an examplepertinent in this case, if filing a Notice of Trial isthe next step, I will tell my clients that I plan to doso once this, that or the other thing is done. In the

D.V.W. cases, it has been my intention for at least2 years to file Notices of Trial as soon as we hadall outstanding medical information".

" and also at page 19:

"But awaiting the report of the psychiatrist was notthe only reason the work of Dr. J.P. justifieddelaying filing of a Notice of Trial. D.V.W. was notready to testify, and until she got the help from thepsychiatrist in dealing with her emotions, shewould make a poor witness, and would probablydestroy her own case. I did not tell her this, and ifthat is considered deceitful, then consider thataccusation denied, with explanation...sometimeswe have to withhold information from our clientsthat we think may be counterproductive, and thatis an ethical dilemma which faces any lawyer".

" and at page 21:

"T.V.W. and D.V.W. were aware that we had asettlement proposal in the works, and they wereactually provided a copy of an early partial draft.Without the key medical evidence which I havealready indicated was required, the file was nomore ready for negotiations than it was for trial.Given the multiple defendants, this was one filewhich I predicted would definitely go to trial, andany settlement would be literally 'on the courtroom steps'. That is why T.V.W. and D.V.W. werepushing to have a Notice of Trial filed, but theywere simply unable to understand (despiterepeated explanations) the necessity forcompliance with the Civil Procedure Rules asregards to expert evidence and a Certificate ofReadiness".

" and also at page 21:

"It was contemplated from the beginning of therelationship that it would not always be possible totalk to me and detailed messages could be leftwith my staff, for appropriate response.Notwithstanding we were in constantcommunication, I had no idea the relationship had

deteriorated to the point where D.V.W. wasprepared to take her file elsewhere, or make acomplaint to the Nova Scotia Barristers' Society.Perhaps I was lulled into a false sense of securityby the emotional mood swings by D.V.W. whichcaused her to complain and criticize on one day,only to receive a apology from her or T.V.W. aday or two later".

" and at page 22:

"He (T.V.W.) said these letters are D.V.W.'blowing off steam' and it makes her feel betterafter. While he downplayed the seriousness ofsuch letters, he did confirm that D.V.W. needs tosee a Notice of Trial filed. I reassured him that wewere still working on it, and I recall explaining theimportance of Dr. White's records in enabling meto do so".

" and also at page 22:

"I spoke with D.V.W. personally twice November10th. She apologized, but given her agitated stateI told her I would try and have the Notice of Trialfiled the following week. I had forgotten this wouldbe a holiday weekend but I did speak with her thefollowing week and updated her on our progress.At that time I alerted her to the change of venueand consolidation of proceedings problem whichI was also working on".

" and at page 23:

"D.V.W. has requested an apology from me,either in writing or in person. I do not claim to beperfect, and given my own health problems, thechanges in my partnership and turnover of staffover the past two years, I would have liked tohave more aggressively advanced the claims onbehalf of my clients. For that I do apologize. Ihave also been unable to meet my clients'expectations for filing a Notice of Trial, and myexplanations herein provide ample justification formy doing so. For this, I cannot apologize".

9Evidence of lack of preparedness of the client by counsel.

The contradictory explanations provided for not filing the Notice of Trial,as set forth in Mr. Richey's response to the Society, is further complicated by Mr.Richey's letter to John Kulik of February 9, 2001, where he confirms that the matterwas ready for filing of Notice of Trial, subject only to the applications for change ofvenue and consolidation of proceedings. In like vein, in Mr. Richey's letter toClarence Beckett of December 20, 2000, he also confirms as of that date he isready to file Notice of Trial, subject only to the consolidation and venue issues.Exhibit 5, Page 365.

Standards of practice and professional competence require that counselalso maintain an objective assessment of the client's claims. The role of legalcounsel is not simply as a mouthpiece for the client. Where a client's conduct isdemonstrably inflated or untrue, there is an obligation on legal counsel to addresssuch issue directly with the client. Although it is a matter of degree and judgmentwhether the circumstances warrant withdrawal in a given situation, at the very least,there is an obligation on Plaintiffs counsel in a file such as this, to avoid frivolousclaims which harm the client and irresponsibly clutter the administration of justice.In the case of D.V.W., Mr. Richey was in possession of an extraordinarily persuasiveand damaging medical report prepared by Dr. Ameis of the Multi DisciplinaryAssessment Centre Inc. of Toronto. Exhibit 4, Page 144. In this detailed 27 pagemedical opinion on the symptoms and complaints of D.V.W., the Defendant'smedical expert went a long way to discrediting the attempts by the Plaintiff toestablish a causal linkage between her symptoms, whether real or imagined, withthe original motor vehicle accident some 10 years earlier. Much of this opinion wascorroborated by Mr. Richey's own expert witness Dr. Cameron, who attended theAmeis examination as an observer and who expressed similar reservations aboutthe Plaintiff's claims.

In his report of April 24, 2000, Dr. Ameis noted:

" that D.V.W. seemed unprepared and surprised by thesuggestion that the single episode of the motor vehicleaccident some 10 years earlier might not provide sufficientgrounds for permanent withdrawal from all forms of work;9

" "the testing of balance and co-ordination found no objectiveevidence of impairment. D.V.W. did tend, occasionally, duringrepetitive tests of finger to nose with eyes closed, to suddenlybut transiently sway and to exhibit difficulty finding her nosewith her finger. I did not find these episodes to be indicativeof any real neurologic deficit, but rather just instances ofimpairment portrayal".

" it is particularly notable that, when I very lightly stroked the

lower back from LI down to S3 midline, as well as for severalcentimeters on either side, she reported a severe painexperience. Paradoxically, when I palpated more deeply, thisfar greater provocation appeared to cause her no distress...a test utilizing simulation of rotation indicated that thesymptom of pain may be substantially fabricated, in as muchas the same pain was reported even when the back wasprotected from provocation".

" D.V.W. declined to walk on her toes, indicating that her leftfoot would not support her weight. It is therefore of relevancethat, during crouching and kneeling, I did not observe theappropriate and confirmatory motor deficits in the left leganti-gravity muscles.

" on kneeling, it is relevant that the right knee down test wasaccomplished without difficulty, although it placesconsiderable load upon the left leg. By contrast, sheappeared unable to do left knee down, although this lattermaneuver places reliance upon the unaffected right leg.

" D.V.W. also reported sudden severe onset of numbness inthe left hand during the Phalen Test. However, it is importantto stress that this symptom onset involved no latency, whilethe test itself is invariably associated with at least a fewseconds of latency as the nerve becomes compressed. Theresult is, therefore, of uncertain significance.

" D.V.W. appeared to be unable to recruit her trapezieusmuscles for test purposes. However, there was no neurologicbasis for this that I could find, and eventually, withencouragement, this impairment portrayal behaviour wasextinguished and then test results were then normal.

" whether one takes the position that environmental sensitivityinvolves a real condition or mere pseudoscience, it isappropriate to note that, at this juncture, there is no scientificevidence supporting a causal relationship betweeninvolvement in a motor vehicle accident and the typicalsymptoms of this condition.

" this raised questions which I did not further explore: (1) shecomplained of severe migraine headaches and markedphotophobia, sensitive even to the flourescent lighting in theoffice today, but she had clearly been out for periods of timeface up in bright Caribbean sunlight. (2) She had flown but

had derived no adverse affect from the confinedunaccomodative seating or the air of the plane.

" the argument that D.V.W. is immunosuppressed and yet hasa robust immune system of great vigilance and violentsustained reactions on detecting the most minute exposureto a host of common environmental agents appears to beinternally contradictory.

" the (employment record) entry of March 18, 92 isunexpected. It would appear to read 'to take one yearmedical leave of absence from work starting May 1, 1992'and would appear to be related to significant medicalproblems involving fatigue and reduced energy, lethargy anddizziness, poor appetite, etc. This entry is entirelyunexpected in the context of the narrative history of thepre-accident excellent health described by D.V.W....it wouldalso be inferred that if the leave of absence was initiated onMay 1, 1992, before the accident, then the patient was notworking at the time of the accident, contrary to what I wastold. That is, I was told that the patient was on her way homefrom work when the accident happened.

" it is my considered opinion that this was a minor, superficial,transient injury which resolved and which at no time requiredspecial investigation, treatment or restrictions of activity. It isrelevant at the present time that the examination of the neckshows no evidence of any disturbance of anatomy orphysiology or any particular discomfort relatable to originalinjury. This region does not exhibit any impairment of functionand thus cannot be considered as contributory to physicaldisability.

" the original documentation does not indicate that any lowerback or pelvic injury took place. In my opinion, the CT Scanreferred to as abnormal...is not amenable to anyinterpretation which relates it to the accident in question.There is no evidence that the lower back sustained anysignificant injury or that the continuing complaints are relatedto any specific cause other than those which are commonwithin the population.

" I cannot relate to current complaint (of lower back injury) inany way to the accident in 1992...

" there is no reasonable basis for any physician to suggest a

relationship (between fibromyalgia) to the car accident inquestion.

" there is no reasonable basis for arguing any causalrelationship linking the symptoms (of chemical sensitivity)and the diagnosis of environmental illness to the car accidentof 1992.

" the issue of post traumatic stress disorder will be touched ononly modestly, since it is more properly the subject ofpsychiatric experts... the literature suggests that posttraumatic stress disorder diagnosis is overused in the contextof car accidents in which life and limb are not reasonably atthreat.

" it is also relevant that D.V.W.'s symptoms are so textbook innature as to raise the question of excess suggestibility on herpart....D.V.W. appears to have a considerably larger numberof the so called text book symptoms than would beconsidered likely. Also, her description of recurrentnightmares of accidents would appear to be contrary to theactual experience of patients: nightmares, as with all dreams,represent accidents in a symbolic and frequently verydistorted fashion.

" the examination today finds an individual who is extremelysymptom-preoccupied and heavily burdened by thoughts ofillness. It is inappropriate to speculate as to why. I amcompelled to reiterate the observation that she did appear tobe energized while talking about herself and her illnesses,without the attendant emotional features of rejection, despair,self-recrimination and humiliation which are more typicalfeatures of the seriously disabled individual who is in a stateof helplessness and hopelessness.

" at the present time, D.V.W. does not demonstrate anycontinuing sequelae of injury causally relatable to theaccident in question.

All of the foregoing devastating medical expert opinion of the Defendantmust be examined in the context of Mr. Richey's standards of practice. As of dateof his discharge almost 10 years after the accident, there were few if any currentmedical opinions to be provided by the Plaintiff which established the evidentiarybasis for the causal link required to prove the claims of the Plaintiff.

Not only did Mr. Richey fail to seek second medical opinions to question

or rebut the assertions of Dr. Ameis, but his own expert witness who he requestedaccompany D.V.W. to the physical examination by Dr. Ameis in many respectsinstead corroborated the findings of Dr. Ameis. When D.V.W. attempted to attackthe professionalism of Dr. Ameis in the manner of his examination, Mr. Richey's ownexpert Dr. Cameron came to the defence of Dr. Ameis in both the manner andquality of examination. Despite the potential set back and high risk created by suchmedical opinion, nothing within the documentary record or evidence placed beforethis Panel would suggest that Mr. Richey was doing anything other than moving thefile forward by rote, without proper consideration of strategic responses andinformed advice to client.

Despite the concerns with respect to the veracity and objectivity of hertestimony, this Panel was struck by the closing remarks of Client D.V.W. uponcompletion of her direct examination. It was her belief that, had she not intervenedand taken the action she did against Mr. Richey, she felt 20 years from now hewould still be asking her for additional medical reports, with the balance of her lifespent seeing specialist after specialist in order to accommodate Mr. Richey's desirefor finality and perfection of prognosis.

Client M.F.B.

David W. Richey was retained by Client M.F.B. with respect to apersonal injury claim arising from a motor vehicle accident December 7, 1992. ThePlaintiff's vehicle slid into a snow bank and was subsequently rear-ended by anothervehicle. As a consequence, the Plaintiff lost 8 1/2 days of work and suffered minorwhiplash, right shoulder tendinitis, and headaches, etc. Immediately following theincident she felt only minimal discomfort and continued to work the balance of herday, despite the gradual experience of neck pain and headache. According to amedical report a year and a half after the accident, the Plaintiff was described ashaving developed chronic neck problems and associated headache andmid-thoracic pain as a result of the initial injury. Her symptoms were described asmild, with occasional exacerbation of moderate intensity neck pain and headache.

As with other files, Mr. Richey's time records show considerable workperformed on behalf of the client. Underlying the issue of competence is thequestion of whether such work advances the client's best interests. Where legalservices are not based on careful analysis and appropriate follow-up, the benefit ofthe work is often lost to the client. In the case of Client M.F.B., it appears that Mr.Richey first met with his client February 22, 1994 and subsequently filed aStatement of Claim December 6, 1994. According to time records in Exhibit 6, page697, nothing further of substance appears to have occurred until March 17, 1999,when the records indicate that Mr. Richey begins the process of requisitioning filesand records as a consequence of an application for disclosure made by Defencecounsel. Given the duty to disclose and file List of Documents shortly after close of

pleadings, it is difficult to draw any conclusion other than that Mr. Richey was failingto advance his client's interests in this case. The record indicates that on December21, 1999, costs of $500.00 were awarded against client M.F.B. as a consequenceof failure to disclose. Either Mr. Richey did not make immediate efforts toaccumulate documents that were required to be disclosed, or if he did, he did notdisclose them to Defence counsel in a timely manner. In either case, it is difficult tounderstand how client M.F.B. could be properly advised about the type of claim shemight pursue and what obstacles might be in her path, in the absence of suchreview.

More than 8 years elapsed between the date of accident and theopening of trial on April 2, 2001. Defence counsel was Ross Haynes and thepresiding judge was Mr. Justice Edward Scanlan. On the morning of trial, Mr. Richeydelivered to opposing counsel and the trial judge some 50 pages of new medicalmaterials, which he explained he had requisitioned from the family physician sometwo weeks earlier. Circumstances were further exacerbated when Mr. Richey arrivedat 10 a.m. for a 9:30 a.m. trial commencement date. He explained he was under themistaken impression that the Supreme Court of Nova Scotia commenced at 10:00a.m on Mondays, a practice which the trial judge said had been discontinued severalyears earlier. The trial judge was also critical of Mr. Richey's delivery of anincomplete Pre-Trial Brief the night before commencement of trial, accompanied bya promise for further installments the following day. A promise that was not kept.

The trial transcript reports the following remarks from the presiding judge:

"Mr. Richey, pre-trial briefs are intended to be just that -pre-trial briefs. They are intended to be filed before the trialstarts. In fact, the rules require they are to be filedsubstantially before the trial starts. You've given yourundertaking to this Court, to me, and to Mr. Haynes on anumber of occasions that it would be filed on earlier dates andI keep getting installments on it. This is not the installmentplan. This is a Court proceeding".

Exhibit 1, Page 208

When the Court inquired of the final installment as promised theprevious week, Mr. Richey advised that it was not ready. When asked whether hewas ready to go to trial with his client's claim, Mr. Richey indicated he was. Whenthe trial judge indicated pre-trial brief was a prerequisite, Mr. Richey explained hedid not have his ready. Discussion then turned to the 50 pages of the familyphysician's file materials which had only been delivered to Defence counsel themorning of commencement of trial. Mr. Richey then made matters worse bysuggesting that production of family physician notes is not something he wouldnormally do as part of the Plaintiffs case and that the only reason he was nowproducing it was because it was at the request of the Defence. The Panel notes this

was yet another example where Mr. Richey continued to assert that his standardof practice is to produce what is required for his client's case and then produce othermaterials as requested by the opposing counsel, if he deems it relevant.

Mr. Richey went on to explain to the trial judge that, approximately oneweek prior to commencement of trial, he realized there was roughly two years ofmedical information missing from his evidence. Mr. Richey commented:

"It was an oversight on my part, for which I take fullresponsibility, that I was late requesting that update reportfrom Dr. Cameron. Frankly, he only had about a week'snotice, well it was requested about a week prior to its delivery,the end of the week before last and this was the firstopportunity he had to deliver it.

Now I want to point out for the Court that production of familyphysician notes is not something we normally do as part of thePlaintiff's case. We're normally content to rely on the reportsthat we have prepared and any relevant file material that thedoctor may have - test results, x-rays, consultations reportsfrom specialists and that sort of thing. All of this was producedat the request of the Defence.

When I was requesting Dr. Cameron's update report, Idiscovered that we were roughly 2 years - we had roughly 2years of information from his file missing. And anticipating thatMy Friend might want that, or make an issue of it, I thought itbest to request it. It came yesterday with Dr. Cameron'supdate report.

...

There's not a lot of change in Dr. Cameron's report....so interms of the 50 pages that were disclosed yesterday, yes theywere late. I don't think an awful lot turns on them. They wereessentially my late attempt to meet the rather unusual andstrict disclosure request from the Defence".

Exhibit 1, Page 213

This Panel's finding of incompetence is further bolstered by the manner in which theM.F.B. trial was scheduled, as described in Mr. Richey's letter of April 27, 2001:

"As I told Justice Scanlan in open Court, it was I who waspushing, back in December [2000], for an early date toreschedule that trial, to avoid any further delay for my client”.

The Panel notes again the propensity of Mr. Richey to attempt to blameopposing counsel for circumstances that were neither unusual or strict. The Panelalso notes that Mr. Richey, until the last moment, did not seem to have addressedhis mind to the fact that he would be presenting his client's case to the Court withoutbeing able to provide any medical opinion of the pain and suffering over the two yearperiod preceding trial.

The response of both the trial judge and Defence counsel were aspredictable as they were appropriate:

The Court:

"Mr. Richey, these are your witnesses. The issue, or one ofthe issues, aside from liability, is damages. The extent of theinjuries. And if this Plaintiff has been seeing doctors over thepast two years, it is not unusual that the doctor's evidence inrelation to the injuries would be coming before the Court.What is unusual is that it be brought to the attention of theother side on the eve of the trial.

It is also very unusual, after several requests and, quitefrankly, undertakings from you to provide a brief to the Court,that we start the trial and still don't have a brief. Mr. Haynesmade it clear as late as our telephone conference on March27 going into trial that he didn't even know what you wereseeking in terms of damages. Because it's never been put tohim.

Mr. Haynes refers to the fact that he's been 25 years at thisbusiness and he's never seen a case quite like this in terms ofthe way its proceeded. I can tell you, Mr. Richey, I've been onthe bench for almost 8 years and I practiced for many yearsbefore that. I've never seen a case come on like this".

Exhibit 1, Page 213

Mr. Richey then tried to explain away such conduct by reference to his"unexpected surgery" that took him out of the office for approximately one monthback in 1999, almost two years earlier. When the trial judge inquired of the promiseto have the balance of the brief by opening of trial, Mr. Richey responded:

"Unfortunately I was wrong. And I don't know what else I cansay except that I could not get it ready. My emphasis in recentdays, frankly, has been toward making sure that we have ourwitnesses under subpoena and that we are ready to proceedwith the evidence to ensure there's no down time for the

Court.

And you know, I can tell you that it has been a struggle to getthis case ready when it was. I've had health problems and acomplete reorganization of my firm in the last 20 months or so,starting with surgery in 1999".

Exhibit 1, Page 215

Mr. Richey then continued with a well-rehearsed litany of his otherexcuses. When Justice Scanlan suggested that perhaps he should not have agreedto trial if he was not ready, Mr. Richey's inexplicable response was that he did notwant to delay matters any longer. Similarly, despite his explanation that the brief wasnot ready because of his preparation of witnesses, shortly thereafter it was learnedthat one of the Plaintiff's key witnesses who provided physiotherapy services to thePlaintiff had not been subpoenaed as Mr. Richey had assured the Court, and hadnot been properly prepared by Mr. Richey, as a consequence of which he arrivedin Court without his file materials.

Mr. Richey's unrepentant unwillingness to accept responsibility for hisactions was not restricted to blaming his health, his office reorganization, and hisfamily problems. In his written response to the Director of ProfessionalResponsibility dated April 27, 2001, he purports to express the greatest ofdeference, but then describes Justice Scanlan's remarks as "a gross overreaction".Following an appearance before Discipline Subcommittee A Member on April 20th,his written response of April 27th even takes a shot at a Discipline SubcommitteeMember who apparently had the audacity to question his explanation: ,

"I was most troubled by the question from Marjorie Hickeyregarding the failure to provide our Pre-Trial Memorandum inthe M.F.B. matter, to Justice Scanlan by the required 14 daysprior to trial. 'How could you let that happen?' After all of thedetails I provided about my health problems, firmreorganization and staffing difficulties over the past two years,I do not know what more I could have said. Everyday, evenduring those dark days of November through January 2001,when my productivity was reduced by my vision problems, Imade decisions how best to utilize my time on that particularday. I stand by every one of those decisions, not to say theywere perfect, but that I am prepared to defend how I spendeach work day based upon priorities which were reasonableand the best I could manage in the circumstances of that day".

Exhibit 1, Page 250

Left unexplained is Mr. Richey's acknowledgment that all such matters

were behind him by February 2001, leaving him a minimum of several weeks toprepare for a relatively straightforward personal injury litigation trial.

Mr. Richey then continued with an accusation of sharp practice againstMr. Haynes, for drafting an Order for signature of Justice Scanlan which reflectedthe findings of Justice Scanlan on that morning. He accused the Defence of"dodging the bullet" and turning the situation on opening day of Court into one ofsheer humiliation for him. As has been the pattern throughout these proceedings,notwithstanding the occasional lip service to acceptance of responsibility, Mr. Richeyalmost always attempted to implicate others in his own professional shortcomings.

Similarly in his letter of July 10, 2001 to the Director of ProfessionalResponsibility:

"M.F.B. and I were victimized by skillful rhetoric on the part ofRoss Haynes, in an attack which was obviously well plannedand deliberate, in circumstances where he knew from this anda couple of other files on which we were dealing, that I hadpractice and personal problems making trial preparationdifficult. Contrary to his expression of sympathy in front ofJustice Scanlan, Mr. Haynes took every advantage possibleof my circumstances".

This Panel notes as a matter of record that such an unprofessionalaccusation by Mr. Richey is unsupported by the transcript and evidence ofproceedings that were placed before this Panel.

The final example of such conduct can be seen in Mr. Richey's responseto the charge that he failed to honour an undertaking to the Court. This Panel did nothave the benefit of testimony from Justice Scanlan to clarify what was said, orspecifically the particulars of the multiple undertakings described by the trial judge.It is clear from excepts already quoted in this Decision that Justice Scanlan was notreferring to one particular undertaking, but several. Whether or not the word"undertaking" was used in any or all of those conversations is almost secondary.The fact remains that any officer of the Court fully understands that a request froma Court, answered in the positive and without any preconditions, should be treatedas if it were an undertaking. It should not be the function of our Courts to obtain alegally binding contractual commitment or formal undertaking. Such formality wouldnot contribute to the atmosphere of trust and confidence that must exist betweenbench and bar in such matters. In contrast, Mr. Richey's response to the Director ofProfessional Responsibility of July 10, 2001 is remarkably similar to his attempt torationalize away the promises and assurances he gives to clients such as D.V.W.:

"Examination of the wording in my letter to Justice Scanlan ofMarch 21, 2001, and the Memorandum by facsimile on March30th, does not support any interpretation of my words as an

'undertaking' to the Court, as that term is understood in thepractice of law. When I said on Friday that I expected to havethe brief completed for Monday, I already knew that witnessinterviews were scheduled for Sunday, and I had been notifiedthat the final update from Dr. Ken Cameron, the familyphysician, would not be ready until Sunday either, so I knewtiming was 'tight' but I thought the relatively minor additions tothe Memorandum could be completed anyway. I was wrong.We simply ran out of time. What is even more difficult tounderstand, is the way in which my simple statement ofintention became an undertaking, which I was then accusedof breaching, an allegation which found its way into the finalOrder as a finding of the Court".

Defence counsel Mr. Ross Haynes responded that he was not withoutsympathy for Mr. Richey's health problems, but that there was a clear responsibilityon counsel to send the Plaintiff to another lawyer if the circumstances werepredictable as early as two years ago. He also noted that the claim was not acomplicated matter, but a minor motor vehicle accident with very minor injuries thatoccurred more than 8 years ago. He noted there had been no wage loss claim otherthan 8 1/2 days of lost work. He commented:

"The Plaintiff's case should be dismissed. This case has beenset down twice. We've had pre-trial conferences, we've had tohave motions for production of documents. My Friend arguesthat somehow the production of doctor's files is remarkable.Production of doctor's file in personal injury cases is a matterof course, it shouldn't require the motions that we've had to gothrough in order to get mere production of the treating familyphysician files from Dr. Marsden and now Dr. Cameron, andnow we are learning that a witness who has been subpoenaedhere to Court today doesn't even have his file with him in orderto give his testimony as the staffing witness".

Exhibit 1, Page 217

Mr. Richey continued to dig his hole deeper by assuring the Court thatthe physiotherapist Mr. Sutherland had been subpoenaed and that the subpoenadirected that the file accompany him. Mr. Richey explained that he was not awareof this oversight by the physiotherapist until commencement of trial. Mr. Richey wenton to explain to the Court that three other expert witnesses, who were allegedlyunder subpoena, were out of province and were unable to give testimony.Accordingly, he argued that he would be unable to finish the trial during the oneweek scheduled in any event. The following day it was learned that thephysiotherapist Mr. Sutherland had not been subpoenaed by Mr. Richey's office, afact Mr. Richey should have known had he properly interviewed and prepared the

witness for trial. The trial judge also took issue with the unavailability of three otherexpert witnesses. There then followed a dispute between Mr. Richey and the trialjudge as to whether an assurance had been provided that the trial could be finishedin the one week scheduled.

The trial judge then requested a brief adjournment, following which hecommented:

"Counsel, I did ask for a few minutes to reserve, just so I couldthink about what should be done in this very unusual case.

The entire system of justice is predicated upon parties, bothPlaintiffs and Defendants, in a civil law setting being entitledto come before the Court and in accordance with the Rules ofCourt have a full and fair hearing so that they can presenttheir claims and their defences, and ask an independent bodyto adjudicate so as to determine what the rights are, either interms of recovery or the right to have a case dismissed.

But the system operates only through the proper use of therules and when a party such as M.F.B. retains counsel, it'sunderstood that counsel will comply with the rules and thatwhen the case comes on for trial, that it is ready.

...

One of the difficulties that I have with this file is that none ofthe difficulties appear to fall at the feet of the Plaintiff. Andwhen I talk of the Plaintiff, I am trying to distinguish betweenPlaintiff and Plaintiffs counsel.

There is an obligation on counsel to comply with the rules,especially when there are specific undertakings to the Courtsaying, yes, we are going to do this or we are going to do that.Those undertakings are not complied with.

I have to ask myself in terms of having this case tried on themerits and properly disposed of on the merits, does it servethe interest of justice when I see nothing that would indicateto me that any of this is M.F.B.'s fault to have the casedismissed outright.

I am concerned, I am extremely concerned, and those arevery harsh words, Mr. Richey, intended to be very harshwords, with the conduct of this case. I am not satisfied that itwould be appropriate to dismiss the case. I am fully satisfied

however that the matter is not ready to proceed".

Exhibit 1, Page 226

The trial judge then noted he would hear arguments on solicitor andclient costs. Defence counsel Mr. Haynes again noted it was a very simple minormotor vehicle accident and that the Plaintiff was claiming a long list of problemssince the accident that had a medical history that was far outside the scope of theaccident. Mr. Haynes then reported that an earlier offer to settle had been made at$50,000.00. When this amount was described in open Court, there ensued someconfusion as the Plaintiff appeared to indicate that she was unaware of such offer.Later in the proceedings Mr. Richey clarified that she was confused because earlierreports to her had described net payments to her, after payment of both hiscontingency fee percentage and the bonus counsel fee and disbursements. Mr.Haynes requested $8,000.00 as a contribution towards solicitor and client costs andthe trial judge then agreed to tax costs at the requested amount. In closing dicta, Mr.Justice Scanlan commented that he would not expect M.F.B. to be required to paysuch costs.

One of the more troubling aspects of this particular file review is the factthat this trial was ongoing at the very time that Mr. Richey was under scrutiny by thePractice Investigator, Mr. Don Taylor. Even when his standards of practice werebeing scrutinized and brought to his attention by the Society, Mr. Richeydemonstrated that he was incapable of serving the needs of his client, in atimeframe when there were no outstanding medical issues, no outstanding staffissues, and no family responsibilities which prevented him from proper preparationof his client's case. There is illuminating irony in the explanation that the pre-trialbrief was not ready because Mr. Richey was preparing his witnesses, when in factthe evidence disclosed that such witnesses were not properly prepared.

While much of the foregoing recitation of evidence speaks for itselfwithout need for further comment, there is another anecdotal indication of Mr.Richey's incompetence in the service of his client. As noted elsewhere in thisDecision, Mr. Richey was not inclined to incur the expense of expert opinion reportsin support of his client's claim. In the instance of the M.F.B. incomplete pre-trial brief,Mr. Richey quoted at some length from a particular reported Nova Scotia case whichaddressed the issue of diminution of future earning capacity. His lack ofpreparedness and apparent inability to advise his client or the Court on the propervaluation of the client's claim is reflected in the following final paragraph of theincomplete pre-trial brief:

"While I am not suggesting that a Court would award anythingclose to the $125,000.00 for diminution of earning capacityassessed in Benson supra, the consequences of her injuriesfor M.F.B. do justify a substantial award of damages underthis head, as recognition of her loss of future income and

impairment of earning capacity".

Exhibit 1, Page 200

STANDARDS OF PRACTICE RE DISCLOSURE OBLIGATIONS OF COUNSEL

In Exhibit 9 Admissions, Mr. Richey attempts to characterize thedisclosure charge as a practice issue rather than an ethics issue. The Panel doesnot accept that characterization. Likewise, Mr. Richey's purported change in hisprevious practice on document disclosure may be relevant to the issue ofsentencing, but is not persuasive with respect to the specific charges before thisPanel.

It is not the function of this Panel to articulate the specific obligations oflegal counsel for disclosure as required by the Civil Procedure Rules. That is amatter within the proper jurisdiction of the Supreme Court of Nova Scotia. However,it does lie within the mandate of this Committee to find that a member's standardsof practice with respect to such disclosure obligation is so below the generallyaccepted standard as to warrant a finding of professional incompetence and/orprofessional misconduct.

With respect to the issue of disclosure, neither the Formal Complaint northe positions argued by the Society alleged that there was deliberate culpableconduct by the Member with respect to his repeated pattern of withholding relevantdocuments. According to his own testimony, Mr. Richey had a least a half dozencontested Chambers applications where he was successfully challenged for hisnarrow parameters of disclosure. After having had the first award of costs personallyagainst him or his client, this Panel would have expected Mr. Richey to have revisedhis practice standards to better reflect the obligation of an officer of the Court toensure compliance, regardless of whether such disclosure helped or hindered theclient's case. Since there is no allegation of culpable conduct or bad faith made bythe Society, this Panel will not address the disclosure issue in that context, otherthan to note that the Society's position on this issue appears to have been generous.

As an officer of the Court, the obligations of legal counsel are somethingmore than to act as a mouthpiece for the client. It is the duty of counsel to explainto a litigant the obligations of disclosure and to ensure that such disclosure occurs,or that counsel withdraws because of inability to obtain instructions from client, orthat opposing counsel and/or the Court are on notice that disclosure has not beenmade. The wishes of a client are only one of several criteria to be considered indetermining the appropriate obligation of compliance with disclosure obligations tothe Court.

For legal counsel involved in litigation on a regular basis, the duty to

disclose provides a regular litmus test of professional integrity. Our Courts havemade it abundantly clear that Rule 20 on the exchange of List of Documents isintended to be given a liberal or wide interpretation. In Sydney Steel Company v.Mannesmann Pipe and Steel Company (1985), 69 N.S.R. (2d) 389 at paragraph 13,Justice Hallett set out the guiding principle for the disclosure of documents:

"In short, the principle that all relevant documentary evidenceshould be made available to the Court (even though damagingto the party who possesses such a document) has ascendedas the dominant principle, subject only to the restrictions thata relevant document need not be produced on the ground oflegal privilege if the dominant purpose for which it is preparedwas to submit it to a legal advisor for use and advice inlitigation".

The scope of Rule 20 was further broadened by the Nova Scotia Courtof Appeal in Eastern Canadian Coal Gas Venture Limited v. Cape BretonDevelopment Corporation (1995), 141 N.S.R. (2d) 180 where Matthews J.A.broadened the relevancy test to a "semblance of relevancy test".

Legal counsel with proper ethical standards will not flinch from thisobligation, even when harmful to the client. For the system of disclosure to workhowever, there must be accountability and consistency in application, sinceotherwise clients of counsel with high ethical standards will be penalized as againstother clients who have legal counsel who do not feel as compelled to follow thedirectives of the Court. Although the Courts can utilize the awarding of costs as acontrol mechanism for abuse, there is a place within the disciplinary process of thelegal profession to ensure that members are held accountable, so in turn a levelplaying field is provided to all litigants.

The object of the Civil Procedure Rules is to secure the just, speedy,and inexpensive determination of every proceeding. That is a difficult object to meet,in the best of circumstances, and relies heavily on the role of counsel to update andresolve that which can be resolved short of litigation. Conversely, a failure to meetat least the minimum acceptable standards of disclosure, as occurred in thisinstance with Mr. Richey, not only creates an unlevel playing field for the litigants,but gives rise in this instance to a finding of professional incompetence.

In being too swayed by the wishes of his clients, in confusing privacyissues with relevance issues, and in unilaterally making determinations on relevancethat should have been disclosed to opposing counsel and/or brought before theCourt for directions, Mr. Richey so breached the standards of practice with respectto duty to disclose in Nova Scotia as to warrant a finding of professionalincompetence. But for the failure of the Society to advance such argument, suchevidence might also have caused this Panel to consider carefully the applicability ofa finding of professional misconduct.

FINDINGS

This Panel of the Nova Scotia Barristers' Society, based upon thecumulative effect and consistent pattern of the clear and cogent evidence describedin this Decision and other documentary and sworn testimony on record as part of theproceedings, has concluded on a balance of probabilities that Member David W.Richey is guilty of both professional incompetence and professional misconduct.Specifically, this Panel finds that he breached his duty to be competent to clientsand serve clients in a conscientious, diligent, and efficient manner, so as to providea quality of service at least equal to that which lawyers generally expect of acompetent lawyer in a like situation.

With respect to the specific allegations contained within the FormalComplaint, this Panel makes the following factual findings which contribute to thelegal conclusions of professional misconduct and a pattern of conduct amountingto professional incompetence:

a. While representing T.V.W. and D.V.W., David Richey failed to move thefile to a settlement or trial, contrary to instructions of client;

b. While representing D.V.W., David Richey failed to advise his client ofthe reasons for not setting her case down for trial and gave frequentrepresentations that certain commitments for moving the file forwardwould take place by certain dates, many of which commitments werenot met;

c. While representing E.P., David Richey failed to file a Pre-Trial Brief ina timely manner and failed to competently obtain and disclose allrelevant medical records and information to Defence counsel asrequired by the Civil Procedure Rules and the directions of the Court;

d. While representing M.F.B., David Richey failed to commencediscoveries and related applications in a timely manner and failed to beready for trial in accordance with conventional standards of practice;

(i) with respect to the allegation of being late without properexcuse, this Panel finds there is not sufficient cogentevidence to support a finding of a disciplinary default.Although an error in judgment, this Panel accepts Mr.Richey's explanation that his tardiness was unintentional andan isolated oversight. This allegation is dismissed;

(ii) this Panel finds that the filing of the Pre-Trial Brief on theinstallment plan was a deliberate and unacceptable breach

of minimum standards of practice and constituted adeliberate breach of an undertaking to the Court, regardlessof whether the specific word "undertaking" was used;

(iii) This Panel does not have sufficient cogent evidence beforeit to make a finding with respect to the quality of Mr. Richey'sPre-Trial Brief to Justice Scanlan and accordingly thisparticular allegation is dismissed;

(iv) This Panel finds David Richey failed to disclose relevantmedical information on the M.F.B. file in a timely manner andin breach of minimally acceptable standards of practice;

(v) This Panel does not have sufficient cogent evidence beforeit to conclude that witness B.S. was not adequately preparedas a witness.

e. While representing other clients during the period from January 1, 1999up to September 13, 2001, this Panel finds that David Richey failed toserve his clients in a conscientious, diligent, and efficient manner, so asto provide a quality of service at least equal to that which lawyersgenerally expect of a competent lawyer in like situations, and further,that he failed to advance clients' cases and expedite litigation and/orsettle matters in an expeditious manner for clients. In particular:

(i) This Panel finds David Richey failed to respond tocommunications, requests for information, phone calls, andcorrespondence from clients, lawyers, and others in a timelymanner;

(ii) This Panel finds that David Richey failed to maintain anadequate file management and bring forward system toensure file matters were dealt with on a timely and efficientbasis, thereby significantly impeding file progress in manyinstances;

(iii) This Panel finds that David Richey failed to provide full andtimely disclosure of medical and other evidence by adoptingan unacceptably narrow view of relevance, below theminimum generally accepted standards of practice within theprofession, which failure further impeded the progress offiles;

(iv) Notwithstanding the persuasive opinion evidence of thePractice Supervisor, which this Panel accepts on its face, inthe absence of more specific factual evidence from clients,

this Panel does not have sufficient cogent evidence before itto conclude upon the required standard of proof that Mr.Richey's clients received little or no advice regardingoutcome, or that such clients had unreasonable expectations.Accordingly, this allegation is dismissed.

Based on the foregoing evidentiary findings, this Panel concludes thatMember David W. Richey is guilty of both professional incompetence andprofessional misconduct on the grounds set forth in the Formal Complaint, exceptingonly those particulars aforedescribed for which there was insufficient evidence.

This Panel reserves jurisdiction and shall reconvene on notice to hearthe parties with respect to penalty.

Unanimously decided at Halifax, Nova Scotia, this 8th day of April, 2002.

Bruce T. MacIntosh, Chair

CANADAPROVINCE OF NOVA SCOTIACOUNTY OF HALIFAX

IN THE MATTER OF: THE BARRISTERS AND SOLICITORS ACT,R.S.N.S. 1989, C. 30, AND THE REGULATIONSTHEREUNDER, AS AMENDED

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IN THE MATTER OF: DAVID W. RICHEY, a Barrister and Solicitor ofHalifax Regional Municipality, Province of NovaScotia

DECISION ON PENALTY

HEARD: At Halifax, Nova Scotia, before the HearingSubcommittee of the Nova Scotia Barristers' Societyfrom February 11, 2002 to February 15, 2002 and onsentencing July 3, 2002.

RELEASED: July 17, 2002

COUNSEL: Raymond F. Wagner for Member David W. Richey

Alan J. Stern, Q.C. for the Nova Scotia Barristers' Society

PANEL MEMBERS: Bruce T. Macintosh, Q.C., ChairLawrence Evans, Q.C.Beryl A. MacDonald, Q.C.Philip J. Star, Q.C.

CANADAPROVINCE OF NOVA SCOTIACOUNTY OF HALIFAX

IN THE MATTER OF: THE BARRISTERS AND SOLICITORS ACT,R.S.N.S. 1989, C. 30, AND THE REGULATIONSTHEREUNDER, AS AMENDED

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IN THE MATTER OF: DAVID W. RICHEY, a Barrister and Solicitor ofHalifax Regional Municipality, Province of NovaScotia

DECISION ON PENALTY

Attached hereto as Schedule A is the Decision of this Hearing Panel,dated April 8, 2002, finding member David W. Richey guilty of professionalmisconduct and professional incompetence, based on the evidence and for thereasons more fully described therein.

This Hearing Panel must now assess the appropriate penalty in thecircumstances. At a Sentencing Hearing held July 3, 2002, this Hearing Panel heardfrom the parties and received additional evidence as to Mr. Richey's professionalconduct in the months since the incidents giving rise to the findings. In particular, thePanel received the Report of Practice Supervisor Douglas W. Lutz, Q.C. dated May8, 2002, which Report found that the member's files are presently in good order, thatprogress is being made on files, that clients are being kept informed, and that Mr.Richey has hired well qualified support staff, all of which contributed to resolution ofmost, if not all, previously identified practice concerns.

In his submissions to the Hearing Panel, Society solicitor Alan Stern,Q.C. reported that the early inclination of the Society was to seek a carefullysupervised practice, but that the Society was gradually convinced that Mr. Richey'sclients and the public interest could be equally well served by minimizing the punitiveaspects of the findings of this Hearing Panel, beyond the findings themselves, andinstead tailoring a less intrusive, disciplinary response that recognizes Mr. Richey'sdemonstrated commitment to rehabilitation.

Mr. Raymond Wagner, on behalf of the member, indicated that Mr.

Richey has accepted full responsibility for his actions and the shortcomings foundby the Hearing Panel in its Decision. Those findings, in and of themselves, carryconsiderable professional embarrassment to and punitive impact on the member.Mr. Wagner highlighted that the impugned conduct was relatively isolated in timeand inconsistent with Mr. Richey's previous unblemished professional record ofmany years. He noted that Mr. Richey had been co-operative throughout theinvestigative and adjudicative aspects of the disciplinary process and that hispersonal and health problems of the past were no longer contributing factors to hisdifficulties.

The guiding objects for a discipline panel are the protection of the publicand the preservation of the reputation of the legal profession. This Panel ismandated to inhibit professional misconduct and professional incompetence byimplementing appropriate disciplinary action. It is specifically part of the statutorymandate of this Panel to studiously weigh and consider the role of the member'srehabilitation in such sentencing process.

Counsel for the Society and the member have made JointRecommendations to this Hearing Panel on penalty, the particulars of which are asfollows:

(a) A reprimand

(b) A fine of One Thousand Dollars ($1,000.00), payable to theReimbursement Fund of the Society on or before the 30th day of August,2002.

(c) Costs to be paid by David W. Richey to the Society in the amount of$27,085.89 plus HST of $3,123.33, payable as follows:

(i) 50% on or before July 31, 2003; and

(ii) 50% on or before July 31, 2004.

In the event that David W. Richey defaults on a required payment,David W. Richey shall be automatically suspended as a member of theSociety until such time as he is no longer in default.

(d) the law practice of David W. Richey shall be monitored by the Societyfor a period of two (2) years. Douglas Lutz, Q.C., or an alternateappointee of the Society if Douglas Lutz, Q.C. is unavailable, shallconduct practice reviews as follows:

(i) A practice review in January, 2003;

(ii) A practice review in July, 2003; and

(iii) A practice review in July, 2004.

Reports of the three practice reviews shall be provided to the Chair ofthis Hearing Panel and copies to the Society and the costs of themonitoring and reporting shall be paid by David W. Richey.

This Hearing Panel shall retain its jurisdiction until such time as allreports have been received and determined by the Panel to besatisfactory. Upon receipt of a report from the Monitor, either David W.Richey, the Hearing Panel or the Society can ask that the hearing bereconvened if concerns arise.

(e) David W. Richey shall not hire an articled clerk prior to August 4, 2004.

This Panel accepts and adopts such Joint Recommendations, with thefollowing amendments and/or clarifications:

1. The imposition and finality of the reprimand described in Clause (a)shall be conditional upon successful completion of the monitoring perioddescribed herein, which shall expire July 31, 2004, unless otherwiseordered. In the event this Hearing Panel is required to reconvene forany reason prior to such expiry date, this Hearing Panel reserves theright to amend, vary or substitute the aforedescribed conditionalreprimand with any other penalty deemed appropriate in thecircumstances.

2. The final practice review described in (d)(iii) above shall be delivered tothe Chair of this Hearing Panel on or before July 15, 2004.

3. All reports received by the Chair shall be circulated to all members ofthis Hearing Panel, any one of whom shall be entitled to require areconvening of this Hearing Panel on the directions of the Chair.

4. The Hearing Panel may accept such reports as satisfactory without aformal reconvening. In the event a hearing is not called by the Chairwithin 14 days of receipt of such report, or such further extension as theChair may direct at the time, then such report shall be deemed to beaccepted as satisfactory by the Hearing Panel.

5. In the event that more than one member of this four person HearingPanel shall be unwilling or unable to serve further at a reconvenedhearing, jurisdiction of this Hearing Panel may be assigned from themembers of this specific Hearing Panel to the members of the regularHearing Panel in existence at the time of such reconvening.

6. The jurisdiction of this Hearing Panel on this matter shall lapse August

1, 2004, unless this Panel or its successor reconvenes prior thereto andprovides further directions in that regard.

Unanimously decided at Halifax, Nova Scotia, this 17th day of July, 2002.

BRUCE T. MACINTOSHCHAIRPERSON OF HEARING PANEL

PROVINCE OF NOVA SCOTIACOUNTY OF HALIFAX SS

IN THE MATTER OF: THE BARRISTERS AND SOLICITORS ACT,R.S.N.S. 1989, C. 30, AND THE REGULATIONSTHEREUNDER, AS AMENDED

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IN THE MATTER OF: DAVID W. RICHEY, a Barrister and Solicitor ofHalifax Regional Municipality, Province of NovaScotia

RESOLUTION

Mr. Raymond F. Wagner Mr. Alan J. Stern, Q.CCounsel for David F. Richey Counsel for Nova Scotia

Barristers' Society

WHEREAS a Formal Complaint was made against member David W. Richey,dated the 19th day of October, 2001, to the Investigative Subcommittee of the NovaScotia Barristers' Society.

The complaints read as follows:

"The Complaint of the Nova Scotia Barristers' Society, filed pursuant tothe Regulations of the Society, against David W. Richey, barrister of theSupreme Court of Nova Scotia, of Dartmouth, in the County of Halifax,Province of Nova Scotia, hereby charges David W. Richey withprofessional misconduct, conduct unbecoming and incompetence, in thathe breached the provisions of the Legal Ethics and Professional Conduct(a Handbook for Lawyers of Nova Scotia) adopted by the Nova ScotiaBarristers' Society as at August 1, 1990 ("the Handbook") and the generalstandards for competence of the legal profession in Nova Scotia.Specifically:

David W. Richey acted contrary to the provisions of Rule 2,Rule 3, Rule 10, Rule 13 and Rule 14 of the Handbook in thathe failed in his duty to his clients to be competent to performall legal services undertaken on their behalf, and failed in hisduty to serve his clients in a conscientious, diligent, efficientand civil manner so as to provide a quality of service at leastequal to that which lawyers generally expect of a competentlawyer in a like situation. In particular, his conduct in thefollowing instances demonstrates a pattern of neglect andunprofessional conduct that constitutes a failure to complywith those duties:

A. While representing T.V.W. and D.V.W., he failed to move the fileto a settlement or trial, contrary to his clients' instructions;

B. He failed to advise D.V.W. of his reasons for not setting her casedown for trial and made frequent representations to T.V.W. andD.V.W. of dates by which certain commitments for moving the fileforward would take place, most of which were not met;

C. While representing E.P., he failed to file a Pre-Trial Brief in a timelymanner and in accordance with Civil Procedure Rule 28. He failedto competently obtain and disclose all relevant medical recordsand information to Defence counsel prior to commencement of thetrial. As a result, the matter ended in a mistrial 15 days into thethree week trial, with significant costs and delay to the client, theCourt, the Defence and witnesses;

D. While representing M.F.B., having been retained in 1994 to

proceed with a personal injury claim arising from her motor vehicleaccident in December of 1992, he did not commence discoveriesand related applications until 1999. In November 2000, Mr. Richeywas granted a postponement of trial due to his health problemsand the matter was set down for April 2 - 5, 2001. On the first dayof trial, Justice Scanlan declared the matter was not ready for trialand ordered solicitor-client costs of $8,000.00 payable by Mr.Richey within 30 days. Mr. Richey was inadequately prepared fortrial in that:

i. He was 30 minutes late for the opening of Court withoutproper excuse;

ii. He failed to file his Pre-Trial Brief in accordance withCivil Procedure Rule 28, in that he filed his brief ininstallments, including a 50 page section faxed toJustice Scanlan on the Sunday before thecommencement of trial, and then failed to comply withhis undertaking that the remainder of the Brief would beready for Court on April 2;

ii. He failed to file a Pre-Trial Brief of the quality that anexperienced trial lawyer should be expected to produce;

v. He failed to adequately prepare an important witnessprior to calling the witness in Court.

E. In representing his other clients during the period from January 1,1999 up to September 13, 2001, he failed to serve clients in aconscientious, diligent, efficient and civil manner so as to providea quality of service at least equal to that which lawyers generallyexpect of a competent lawyer in like situations, and failed toadvance his clients' cases and expedite litigation and/or settlematters in an expeditious manner for clients. In particular:

i. He failed to respond to communications, requests forinformation, phone calls, and correspondence fromclients, lawyers, and others in a timely manner;

ii. He failed to maintain an adequate file managementsystem and bring forward system to ensure file matterswere dealt with on a timely and efficient basis, therebysignificantly impeding file progress in many instances;

iii. He failed to provide full and timely disclosure of medicaland other evidence by adopting a narrow view of

relevance for purposes of production of documents inlitigation matters, which further impeded the progress offiles; and

iv. He failed to provide clients with preliminary advice withrespect to the quantum of their personal injury claimsprior to preparation of settlement proposals, with theresult that clients received little or no advice regardingthe likely outcome of their cases, and/or hadunreasonable expectations regarding quantum.

AND WHEREAS a formal hearing was held from February 11, 2002 toFebruary 15, 2002, at which time Mr. Richey pleaded not guilty to all of the chargesin the Complaint;

AND WHEREAS the Panel having heard evidence and received submissionsas to penalty;

BE IT RESOLVED:

1. David W. Richey is found guilty of both professional incompetence andprofessional misconduct on the grounds set forth in the Decisionsaforedescribed;

2. Conditional upon successful completion of the monitoring period describedherein, a reprimand shall be placed upon the disciplinary records of David W.Richey;

3. David W. Richey shall pay a fine of One Thousand Dollars ($1,000.00),payable to the Reimbursement Fund of the Society, on or before the 30th dayof August, 2002.

4. David W. Richey shall pay costs to the Society in the amount of $27,085.89plus HST of $3,123.33, payable as follows:

(i) 50% on or before July 31, 2003; and

(ii) 50% on or before July 31, 2004.

In the event that David W. Richey defaults on a required payment, David W.Richey shall be automatically suspended as a member of the Society until suchtime as he is no longer in default.

5. (a) The law practice of David W. Richey shall be monitored by the Societyfor a period of two (2) years. Douglas Lutz, Q.C., or an alternateappointee of the Society if Douglas Lutz, Q.C. is unavailable, shall

conduct practice reviews as follows:

(i) A practice review in January, 2003;

(ii) A practice review in July, 2003; and

(iii) A practice review in July, 2004.

(b) Reports of the three practice reviews shall be provided to the Chair ofthis Hearing Panel, with copies to the Society and the costs of themonitoring and reporting shall be paid by David W. Richey. The finalpractice review described above shall be delivered to the Chair of thisHearing Panel on or before July 15, 2004.

(c) The Hearing Panel may accept such reports as satisfactory without aformal reconvening. In the event a hearing is not called by the Chairwithin 14 days of receipt of such report, or such further extension as theChair may direct at the time, then such report shall be deemed to beaccepted as satisfactory to the Hearing Panel.

(d) This Hearing Panel shall retain its jurisdiction until such time as allreports have been received and determined by the Panel to besatisfactory. Upon receipt of a report from the Practice Monitor, eitherDavid W. Richey, any member of the Hearing Panel or the Society canrequire that the Hearing Panel be reconvened. In the event this HearingPanel is required to reconvene for any reason prior to July 31, 2004,this Hearing Panel reserves the right and jurisdiction to amend, vary orsubstitute the aforedescribed conditional reprimand with any otherpenalty deemed appropriate in the circumstances.

6. David W. Richey shall not hire an articled clerk prior to August 4, 2004.

7. The jurisdiction of this Hearing Panel on this matter shall lapse August 1, 2004,unless this Panel or its successor reconvenes prior thereto and providesfurther directions in that regard. In the event that more than one member of this4 person Hearing Panel shall be unwilling or unable to serve further at areconvened hearing, jurisdiction of this Hearing Panel may be assigned fromthe members of this specific Hearing Panel to the members of the regularHearing Panel of the Nova Scotia Barristers' Society in existence at the timeof such reconvening.

DATED at Halifax, Nova Scotia, this 17th day of July, 2002.

BRUCE T. MACINTOSHCHAIRPERSON OF DISCIPLINE SUBCOMMITTEE

PROVINCE OF NOVA SCOTIA )COUNTY OF HALIFAX SS )

IN THE MATTER OF: the Canada Evidence Act

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IN THE MATTER OF: the Barristers and Solicitors Act, R.S.N.S.1989, c. 30, and the Regulations of the NovaScotia Barristers' Society, as amended

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IN THE MATTER OF: David W. Richey, a Barrister and Solicitor, ofDartmouth, in the County of Halifax, Provinceof Nova Scotia

O R D E R

BEFORE THE PROTHONOTARY:

UPON HEARING Alan J. Stern, Q.C., Solicitor for the Nova ScotiaBarristers' Society;

AND UPON IT APPEARING that a Panel of the Discipline HearingCommittee of the Nova Scotia Barristers' Society heard evidence and arguments onthe merits of the charges placed before it from February 11th to February 15th, 2002,and subsequently heard evidence and arguments on sentencing placed before it onJuly 3, 2002;

AND UPON the Panel having issued its written decision on the meritson April 8, 2002, wherein David W. Richey was found guilty of both professionalincompetence and professional misconduct and subsequently issued a writtendecision on sentencing on July 17, 2002;

AND UPON HEARING READ the Affidavit of Darrel Pink, sworn the 22nd

day of October, 2002, and the Resolution of the Panel of the Hearing Subcommitteeof the Discipline Committee of the Nova Scotia Barristers' Society, dated the 17th

day of July, 2002, attached to the said Affidavit as an Exhibit;

NOW UPON MOTION:

IT IS ORDERED THAT:

1. Conditional upon successful completion of the monitoring period describedherein, David W. Richey shall forthwith receive a reprimand.

2. David W. Richey shall pay a fine of One Thousand Dollars ($1,000.00),payable to the Reimbursement Fund of the Society, on or before the 31st dayof October, 2002.

3. David W. Richey shall pay costs to the Society in the amount ofTwenty-seven Thousand Eighty-five Dollars and Eighty-nine Cents($27,085.89) plus HST of Three Thousand One Hundred Twenty-threeDollars and Thirty-three Cents ($3,123.33), payable as follows:

(a) Fifty Percent (50%) on or before July 31, 2003; and

(b) Fifty Percent (50%) on or before July 31, 2004.

In the event that David W. Richey defaults on a required payment, David W.Richey shall be automatically suspended as a member of the Society untilsuch time as he is no longer in default.

4. (a) The law practice of David W. Richey shall be monitored by the Societyfor a period of two (2) years. Douglas Lutz, Q.C., or an alternateappointee of the Society if Douglas Lutz, Q.C., is unavailable, shallconduct practice reviews as follows:

(i) a practice review in January, 2003;

(ii) a practice review in July, 2003; and

(iii) a practice review in July, 2004.

(b) Reports of the three practice reviews shall be provided to the Chair ofthe Hearing Panel, with copies to the Society, and the costs of themonitoring and reporting shall be paid by David W. Richey. The finalpractice review described above shall be delivered to the Chair of theHearing Panel on or before July 15, 2004.

(c) The Hearing Panel may accept such reports as satisfactory without aformal reconvening. In the event a hearing is not called by the Chairwithin fourteen (14) days of receipt of such report, or such further

extension as the Chair may direct at the time, then such report shall bedeemed to be accepted as satisfactory to the Hearing Panel.

(d) The Hearing Panel shall retain its jurisdiction until such time as allreports have been received and determined by the Panel to besatisfactory. Upon receipt of a report from the Practice Monitor, eitherDavid W. Richey, any member of the Hearing Panel or the Society canrequire that the Hearing Panel be reconvened. In the event the HearingPanel is required to reconvene for any reason prior to July 31, 2004, theHearing Panel reserves the right and jurisdiction to amend, vary orsubstitute the aforedescribed conditional reprimand with any otherpenalty deemed appropriate in the circumstances.

5. David W. Richey shall not hire an articled clerk prior to August 4, 2004.

6. The jurisdiction of the Hearing Panel on this matter shall lapse August 1,2004, unless this Panel or its successor reconvenes prior thereto andprovides further directions in that regard. In the event that more than onemember of the four-person Hearing Panel shall be unwilling or unable toserve further at a reconvened hearing, jurisdiction of the Hearing Panel maybe assigned from the members of this specific Hearing Panel to the membersof the regular Hearing Panel of the Nova Scotia Barristers' Society inexistence at the time of such reconvening.

DATED at Halifax, Nova Scotia, this 29 day of October, 2002.

PROTHONOTARY

PROVINCE OF NOVA SCOTIACOUNTY OF HALIFAX SS

IN THE MATTER OF: The Canada Evidence Act,

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IN THE MATTER OF: The Barristers and SolicitorsAct, R.S.N.S. 1989, c. 30, and the Regulations of the NovaScotia Barristers' Society, as amended,

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IN THE MATTER OF: David W. Richey, a Barristerand Solicitor, of Dartmouth, in the County of Halifax,Province of Nova Scotia.

O R D E R

McInnes CooperBarristers and Solicitors

1601 Lower Water StreetP.O. Box 730

Halifax, Nova ScotiaB3J 2V1

Per: Alan J. Stern, Q.C.Solicitor for the Nova Scotia Barristers' Society

512571.1