2008: No. 3 • MAY 2 President’s View: Toward more structured priority-setting and strategic planning 4 CEO’s Perspective: Improving access to legal services through collaboration in BENCHERS’ the pro bono community NEWS 5 New Lay Bencher Stacy Kuiack 6 Anti-money laundering initiatives BULLETIN 8 Continuing professional development: Keeping BC lawyers informed The range of options 10 Law Society committees for 2008 11 Voices on Youth Justice public forum: June 25 12 Law Society program update: Lawyers Insurance Fund 18 Benchers approve Unbundling of Legal Services Task Force report FEATURE 14 The road from Bencher to Afghanistan PRACTICE 20 Permissible social contact or sexual harassment? 21 Practice Watch: Cautions on cash and new scams 24 Practice Tips: On profi ts and paradoxes… REGULATORY 26 Discipline digest

MAY 2008 • BENCHERS’ BULLETIN 1 PRESIDENT’S VIEW

Toward more structured priority-setting and strategic planning

by John J.L. Hunter, QC

AT THE CONCLUSION of my last column I the Law Society of Upper Canada is devel- indicated that the Benchers would be meet- oping a regulatory regime for paralegals. ing on February 29 to set their strategic pri- We have been told that LSUC has been orities for the year and that I would report surprised at the numbers of paralegals ap- on those priorities in my next column. This plying to take advantage of the new regu- is that report. latory scheme. We need to look more com- At the outset, I should indicate that prehensively at British Columbia’s present with the assistance of our CEO, Tim Mc- and possible providers of legal services to BENCHERS’ BULLETIN Gee, the Benchers have adopted a new pol- the public, and at our law society’s policy icy development model directed at setting and strategic options for regulating these The Benchers’ Bulletin and related newsletters are published by the Law annual strategic priorities early in the year service providers. Society of British Columbia to update BC and then appointing committees and task There are a couple of additional issues lawyers and articled students on policy and forces to carry out mandates consistent on our radar screen in relation to access to regulatory decisions of the Benchers, on with those priorities. In the past our policy legal services. The provincial government’s committee and task force work and on Law Society programs and activities. BC lawyers development has been a little haphazard — Civil Justice Reform Task Force is continu- are responsible for reading these publica- with the urgent often taking priority over ing its work on proposed reforms to the civil tions to ensure they are aware of current the important — and we are hoping that justice system. Last year the Law Society standards, policies and guidelines. this more structured method of priority- provided comments on the fi rst report, but The views of the profession on improve- setting will produce better strategic plan- we have struck a small task force under the ments to the Bulletin are always welcome ning and decisions. leadership of Joost Blom, QC to consider — please contact the editor at bdaisley@ whether further input is advisable. In addi- lsbc.org. Additional subscriptions to Law tion, the Benchers have established a distin- Society newsletters may be ordered at a cost of $50.00 (plus GST) per year by con- This inquiry will no doubt take us down guished task force under the chair of Kath- tacting the subscriptions assistant at com- the path of discussing greater provision of ryn Berge, QC to look into issues concerning [email protected]. To review current pro bono services by lawyers, but will also the retention of women in our profession. and archived issues of the Bulletin online, Finally, we will be beginning our own analy- see “Publications & Forms/Newsletters” at pursue institutional effi ciencies to reduce lawsociety.bc.ca. overall cost and to increase access. sis of the thorny issue of reducing fi nancial barriers to accessing legal services. EDITOR This inquiry will no doubt take us down Brad Daisley With that objective in mind, at their the path of discussing greater provision of CONTRIBUTING EDITORS February meeting the Benchers approved pro bono services by lawyers, but will also Dana Bales pursue institutional effi ciencies to reduce Cara McGregor three strategic priorities for policy devel- Bill McIntosh opment in 2008. overall cost and to increase access. The fi rst of these is enhancing access The second strategic objective ap- PRODUCTION EDITOR Denise Findlay to legal services. This is an issue for many proved by the Benchers is enhancing public groups, but the Law Society’s regulatory confi dence in the legal profession and its SUBSCRIPTIONS mandate charges our organization with self-regulation. One of the specifi c tasks will Donna Kokot a unique perspective. At our Benchers re- be to examine the Competition Bureau’s © 2008 The Law Society of British Columbia treat in June we will be examining scope of recent comments on the legal profession, Publications Mail Agreement No. 40062742 practice issues with a view to considering with a view to determining whether regula- whether the profession should re-examine tory changes should be introduced to deal its historic approach to the delivery of le- with some of the issues identifi ed, includ- gal services by non-lawyers. In Ontario, ing advertising restrictions, restrictions on

2 BENCHERS’ BULLETIN • MAY 2008 PRESIDENT’S VIEW

innovative business structures and other regulatory functions remain the primary been rolled out and Law Society auditors matters that might be characterized as hav- roles of Benchers and staff. Our credentials are in the fi eld assisting members to com- ing anti-competitive elements. On balance, and professional conduct departments ap- ply with the trust account requirements. we felt that, while the Competition Bureau pear to be running smoothly, but we will That is the program for 2008. As al- report was not particularly critical of the continue to work on improvements to ways, we welcome comments from our regulation of our profession, it identifi ed is- these core functions during the coming members on our ongoing efforts to regu- sues that should and will be addressed. year. The trust assurance program has now late the profession in the public interest.Y The third and fi nal strategic objective approved by the Benchers is education — education of the public on issues relating to the law and the role of lawyers in the administration of justice, education of our members through our upcoming Continu- ing Professional Development program and education of the Benchers on important policy matters. The Law Society’s activities in educat- ing the public about the law and the role of lawyers have primarily come through pub- lic forums such as last year’s very success- ful Lawyers without Rights. This year, two such forums are planned. Voices on Youth Justice will deal with youth and the law and is scheduled for the evening of June 25 in Vancouver. This form of community out- reach has been well received and has now been institutionalized in the Benchers’ pri- orities determination. Another recent example of the Law Society’s more outward approach to public communications is an informative booklet called Considering a Career in Law? Pro- duced by our Communications Depart- ment, this booklet can be viewed on the society’s website and has been made avail- able to universities across Canada, to quite favourable reviews. Education of our members is the focus of our Continuing Professional Develop- The Law Society’s CEO, Tim McGee, checks in with Alan Treleaven, Director of ment program, scheduled to begin next Education and Practice, at the Law Society’s Law Day display at the Vancouver year. The details are being developed this Public Library. spring by the Lawyer Education Advisory Committee under the leadership of Bruce LeRose, QC. We anticipate that the Bench- LAW DAY 2008: Saturday, April 19 ers will be asked to approve new rules once Twenty-eight public and non-profi t organizations — including the Law Society — were the program has been settled. I will have represented at Vancouver’s Law Day 2008. Law Day is part of Law Week, a national more to report at that time. event convened by the Canadian Bar Association every April since 1983 to commemo- Finally, the Benchers are conscious rate the signing of Canada’s Charter of Rights and Freedoms. that their own education on policy issues requires continual upgrading. The intention This year’s Law Day theme was Access to Justice: Breaking Down the Barriers. Events is to devote a few of this year’s Bencher included courthouse tours, mock trials, citizenship ceremonies, public speaking and meetings to improving our knowledge base essay contests for students, Dial-a-Lawyer clinics, free law classes and a free public on specifi c policy issues, so that our deci- forum in Vancouver. sions can be as informed as possible. All of this deals with policy devel- The Law Society provides partial funding for Law Week events sponsored by the BC opment, but performing, managing and Branch of the Canadian Bar Association. administering the Law Society’s core MAY 2008 • BENCHERS’ BULLETIN 3 CEO’S PERSPECTIVE

Improving access to legal services through collaboration in the pro bono community

by Timothy E. McGee

IN HIS CURRENT President’s View column, $100,000 to the Law Foundation in support location of new clinics and to look at ways John Hunter, QC discusses the strategic pri- of pro bono services in 2007. to combine or rationalize the resources of orities adopted by the Benchers for 2008 By all accounts this new arrangement existing clinics to better serve the needs of and beyond. One of those priorities is for the is working well. The Law Foundation is well their communities. Their collaboration also Law Society to consider ways of enhancing equipped to conduct the necessary evalu- extends to making better use of technology the public’s access to legal services. I would ation and ongoing assessment of funded to streamline their cross-organizational ser- like to pick up on this theme and provide you agencies and our coordination with the vice to clients, i.e. to improve the matching with my perspective on positive develop- Law Foundation in this arrangement has of needs and resources. Possibilities under ments in two related areas: the Law Society’s generated positive feedback from those discussion include integrating the Access new funding model for supporting pro bono organizations. In addition, total Law So- Justice roster database and referral software legal services in BC, and the growing spirit of ciety funding for pro bono services has into Salvation Army clinics, and permitting collaboration among pro bono legal service increased slightly under the new model, Access Justice to book appointments for agencies operating in our province. and the simplicity of the one per cent fee clients and lawyers at Salvation Army pro Last year the Benchers decided to allocation improves the planning and bud- bono clinics through the Salvation Army’s change the model for providing fi nancial geting process for all involved. database. I believe these practical steps and support to organizations in BC that provide I met recently with the leaders of Pro important discussions are taking place be- pro bono legal services. Instead of review- Bono Law BC, Western Canada Society to cause the leaders of these organizations are ing and determining grant requests from a Access Justice and Salvation Army Pro Bono committed to pursuing progress through co- variety of agencies on an ad hoc basis, the Consultants to touch base on their 2008 operation and innovation. From my perspec- Benchers approved a more streamlined initiatives. I came away with the strong tive, they are on the right track. system whereby a fl at one per cent of the impression that collaboration and coop- Beyond funding support for pro bono annual practice fee is now allocated for pro eration among these key service providers legal services, the Law Society is actively bono causes and given to the Law Foun- were important priorities for their respec- looking at ways to support broader collab- dation to administer and distribute to pro tive organizations. oration in the pro bono area. For example, bono agencies throughout the province. In particular, I learned that concrete the Law Society recently hosted a two-hour The Law Society provided approximately steps are being taken to coordinate the workshop discussion on pro bono service referral issues, attended by representatives of almost 50 pro bono delivery organiza- tions and community agencies operating in the Lower Mainland. Many attendees spoke of the importance of this strong communi- ty spirit, and discussed a number of prac- tical opportunities for cooperative action. The group identifi ed as a priority a shared province-wide database of pro bono and publicly funded legal and advocacy service providers and community organizations. We expect there will be further discussions aimed at developing this valuable service tool with the ongoing support and guid- ance of the Law Foundation. I look forward to reporting to you in the future as the Benchers continue their review and assessment of further oppor- tunities of enhancing the public’s access to legal services.Y 4 BENCHERS’ BULLETIN • MAY 2008 NEWS

New Lay Bencher Stacy Kuiack

YOU COULD SAY that Stacy Kuiack has “I have always had a strong appreciation who becomes a Life Bencher after seven been an entrepreneur his whole life. Grow- of the value that lawyers can bring to the years of service.Y ing up in Sooke, BC, Stacy got his start at management team. It is my hope that my Shortly before this issue of the Benchers’ Bulletin the age of fi ve working with his father, an background and experience will add value went to press, Haydn Acheson was appointed a independent electrician. at the Benchers table,” said Kuiack. Lay Bencher, replacing Ken Dobell. Acheson will “My dad would take me to the job site Stacy replaces Lay Bencher June Preston, be profi led in the next bulletin. in his Ford F-150. I would follow the crew around, picking up any copper wire clippings they would leave behind,” said Kuiack. After that experience, Stacy swore that he would get a “normal” job when he grew up. But his entrepreneurial spirit led him on a different path. After earning a BA in eco- nomics and political science, Stacy founded his fi rst company — Vigil Health Solutions, a publicly-traded breakthrough behavioural software and medical technology company — at the age of 25. Now 37, Stacy has an MBA in corpo- rate fi nance from the University of Can- terbury (New Zealand) and serves as cor- porate fi nance consultant to Turner Lane Development Corporation, one of Western Canada’s leading land-development and management fi rms. He is also an execu- tive in residence with the School of Busi- ness at the University of Victoria, where he shares his knowledge and experience with current students. Stacy’s strong business acumen caught Stacy Kuiack — curriculum vitae the attention of the Vancouver Sun, which Professional experience: named Stacy one of their “British Columbi- • President and Corporate Finance Consultant, Turner Lane Development Corporation ans to Watch” in 2002. • Executive in Residence, University of Victoria School of Business He has also been nominated for the Ernst & Young “Entrepreneur of the Year” • Founder, President and CEO, Vigil Health Solutions Inc. award, the Caldwell Partners “National Top • Vice-President, MPI Group 40 Under 40,” and the Business Develop- Community affi liations: ment Canada “Young Entrepreneur of the • Director, Canadian Association of Family Business Year” award. • Director and executive member of the Board of Advisors, University of Victoria In the community, Stacy serves as a School of Business Director of the Canadian Association of • Director, Victoria YMCA Family Enterprise and is a member of the • Member, BC Cancer Foundation Advisory Council BC Cancer Foundation (Vancouver Island) • Former Governor and Finance Committee member, Camosun College Advisory Council. • Former Director, Leadership Council, International Assisted Living Foundation In his spare time, Stacy is an active member of the Vancouver Island Soccer Professional recognition: League, where he serves as a goalie for the • Nominee, Vancouver Island Top 40 Under 40 (2007) Castaways Juniors B team. Stacy’s stellar • Project of the Year, CARE Awards (2006) performance last season, including four • “British Columbians to Watch,” Vancouver Sun (2002) shut outs, helped his team secure a second • Gold Award for Universal Design, The American Society on Aging (2002) place fi nish in the Masters B division. • Finalist, Business Development Bank of Canada “Young Entrepreneur of the Year” (2001) Stacy hopes to bring an entrepre- • Finalist, Ernst & Young “Entrepreneur of the Year” (2000 and 2001) neurial spirit to his role as a Lay Bencher. MAY 2008 • BENCHERS’ BULLETIN 5 NEWS

Anti-money laundering initiatives

THE LAW SOCIETY of BC will enact new, offi ces. The federal regulations are not yet The Federation contended that the client identifi cation rules later this year. in force and, under the terms of a BC Su- legislation, which required lawyers to col- The rules, which will be effective as of No- preme Court injunction, cannot come into lect information about clients against the vember 1, 2008, are based on a model rule force without the consent of the Federation client’s interests and to report that infor- prepared by the Federation of Law Societ- of Law Societies of Canada and other par- mation to a government agency, threat- ies of Canada and are part of the legal pro- ties to the court order, including the Law ened fundamental Canadian constitutional fession’s commitment to the fi ght against Society of BC. principles that require lawyers to maintain money laundering. undivided loyalty to their clients. The Su- All provincial and territorial law soci- BACKGROUND TO THE LAW SOCIETY’S preme Court of Canada, in Maranda v. Rich- eties are expected to enact similar rules KNOW-YOUR-CLIENT RULES er, [2003] 3 SCR 193, has stated that law- this year. This initiative is comparable to In 2000, the federal government passed yers, who are bound by strict ethical rules, an earlier one organized by the Law Soci- legislation now known as the Proceeds of must not have their offi ces turned into ar- ety of BC and the Federation that resulted Crime (Money Laundering) and Terrorist Fi- chives for state authorities. in Canadian law societies adopting “no nancing Act (PC(ML)&TF Act). Under the cash” rules. Act, regulated persons and entities are re- This article provides background to the quired to report fi nancial transactions in- To identify an individual client, a law- client identifi cation rules, as well as a gen- volving $10,000 or more in cash or those yer will have to obtain and record the eral overview of the rule requirements. defi ned as “suspicious” to the Financial person’s full name, home address, tele- Before the rules are implemented, Transactions and Reports Analysis Centre phone number and occupation. Where specifi c information about their appli- of Canada (FINTRAC), a federal agency set applicable, a lawyer must also get the up to receive and analyze fi nancial intelli- cation along with detailed FAQs will be client’s business address. posted on the Law Society’s website and gence and disclose it to the police. circulated to members. The Federation of Law Societies of Also included below is information Canada and the Law Society of British Co- The BC Supreme Court, in Law Soci- about the federal government’s proposed lumbia, supported by the Canadian Bar ety of BC v. AG Canada, 2001 BCSC 1593, client identifi cation and verifi cation regula- Association, initiated proceedings in the concluded the legislation was “an un- tions. These regulations would require law- Supreme Court of BC challenging the con- precedented intrusion into the traditional yers to obtain client information and would stitutionality of the legislation as it applied solicitor-client relationship” and granted authorize warrantless searches of lawyers’ to the legal profession. an interim injunction in November 2001. The BC Court of Appeal affirmed the or- der and the Supreme Court of Canada denied the government’s application for a stay. The government subsequently agreed that lawyers and Quebec notaries would be exempt. Since then, the Federation has held discussions with the federal government regarding the appropriate anti-money laundering regime for the legal profession and has developed initiatives for lawyers in Canada. The fi rst initiative was a model rule that prohibits lawyers from receiving cash in amounts of $7,500 or more. This rule was adopted by all law societies. The federal government subsequently amended the PC(ML)&TF Act to exempt lawyers from the Act’s reporting requirements. The second initiative is a model client identifi cation rule. All law societies have committed to enact this rule. The new re- quirements will assist lawyers in identify- ing potentially fraudulent client activities,

6 BENCHERS’ BULLETIN • MAY 2008 NEWS

such as a client who is attempting to use such as a government-issued driver’s li- and compliance. The requirements are trig- the lawyer to improperly transfer funds. cence, birth certificate or passport. How gered when the lawyer receives or pays a lawyer verifies the identity of an orga- funds, other than those received or paid in THE CLIENT IDENTIFICATION RULES nization will depend on the nature of the respect of professional fees, disbursements, The new, client identifi cation rules are de- organization. A company’s certificate of expenses or bail, on behalf of any person or signed to codify the steps prudent legal corporate status issued by the Registrar organization, or gives instructions in re- counsel would take in the normal course of Companies is an example of a reliable spect of these activities. to verify the identity of a new client. The and independent document. The new regulations require a lawyer rules will also outline the records lawyers to identify a client whenever the lawyer re- must keep to demonstrate compliance ceives $3,000 or more in the course of the with the rule. The Law Society of BC believes the Fed- lawyer’s business activities, with some nar- “Identifi cation” refers to the basic in- eration’s model know-your-client rule row exceptions. formation lawyers need to get from their respects the constitutional requirements The Federation has noted several con- clients to ensure they know who their cli- imposed on the legal profession regarding cerns with the regulations including: ents are at the beginning of the retainer. gathering information from clients. • The regulations would authorize war- “Verifi cation” refers to the information rantless searches of a lawyer’s offi ce, lawyers need to confi rm their clients are contrary to the Supreme Court of Cana- who or what they say they are. A lawyer will also be required to re- da’s decision in Lavallee, Rackel & Heintz To identify an individual client, a law- tain client identification and verification v. Canada (AG), [2002] 3 SCR 209. yer will have to obtain and record the per- records for the longer of (a) the duration • The nature and extent of the information son’s full name, home address, telephone of the professional relationship and for required to be collected goes beyond number and occupation. Where appli- as long as is necessary for the purpose of what is necessary for lawyers to serve cable, a lawyer must also get the client’s providing service to the client, and (b) at their clients. business address. least six years following the completion • If the client is an organization, such of the work for which the client retained Some of the regulations are unclear or as a company, a public body or a trust, a the lawyer. The records must be kept in overly broad or impose unreasonable lawyer must obtain its full name, business the client file; there is no need to main- and impractical requirements on legal address and, where applicable, its incorpo- tain a separate file. As long as a paper counsel. For example, the requirement to ration or business identifi cation number, copy can be readily produced, the records obtain the identities of all persons con- where it was issued, the general nature of may be kept in a machine-readable or trolling more than 25 per cent of a corpo- its business and the name, position and electronic form. ration may be impossible to comply with contact information of the persons autho- in the case of a private company. rized to give instructions. THE FEDERAL GOVERNMENT’S The Law Society of BC believes the PROPOSED REGULATIONS Federation’s model know-your-client rule In June 2007, the federal government respects the constitutional requirements The new regulations require a lawyer to released a draft of proposed client identi- imposed on the legal profession regarding identify a client whenever the lawyer re- fi cation and verifi cation regulations. Law gathering information from clients. A law- ceives $3,000 or more in the course of societies and other interested stakeholders yer must maintain and keep all informa- the lawyer’s business activities, with some were also asked to provide comments on tion needed to serve a client, but must not obtain any information that serves only narrow exceptions. the proposed regulations. The Law Society of BC advised law- to provide potential evidence against the yers of the draft regulations through a client in a future investigation or prosecu- The verifi cation requirements are Notice to the Profession (July 10, 2007) tion by state authorities. triggered when a lawyer receives, pays and an article in the July 2007 Benchers’ The federal government’s client iden- or transfers funds on behalf of a client or Bulletin. Some members provided com- tifi cation and verifi cation regulations are gives instructions on behalf of a client for ments on the government’s proposal. The subject to the November 2001 BC Su- receipt, payment or transfer. There are Law Society prepared its own comments preme Court injunction and cannot come exemptions for funds received for pro- to the Federation, which then prepared a into force without consent from the par- fessional fees and disbursements and for response on behalf of all provincial and ties to the litigation or further order of the funds received from a fi nancial institution, territorial law societies. judge. The Federation has been discussing a public body (such as the government) or The federal government formally its model rule and the proposed regula- a public company. published the regulations, substantially tions with the Department of Finance. To verify the identity of an individual, unchanged, on December 30, 2007 with These ongoing discussions are part of a a lawyer must review and retain a copy an implementation date of December 30, dialogue that began when the PC(ML)&TF of a document that he or she reasonably 2008. The new regulations include detailed Act was fi rst introduced.Y believes is an independent and reliable requirements for client identifi cation, veri- original source identification document, fi cation of client identity, record-keeping MAY 2008 • BENCHERS’ BULLETIN 7 NEWS

fessional Pro De g ve in lo u p in m t n e n Continuing professional development: o t C The range of options

The Law Society of BC’s Continuing Professional Development program Co 9 is set to begin on January 1, 2009. Throughout 2008, the Benchers’ ming in 200 Bulletin is running a series of articles to assist lawyers with meeting their CPD requirements. This is the second article in the series.

THE FRAMEWORK OF the Law Society’s the program starts in 2009, we want law- education, but also engagement in learn- new Continuing Professional Develop- yers to be able to select the type of learning ing,” said LeRose. “The practice of law re- ment program endorses a wide range of that best suits them and their practices.” quires interaction with other lawyers and learning opportunities. The committee’s recommendations discussion of ideas. We want this to be- “One of our goals is to ensure lawyers go far beyond conventional, classroom- come part of our learning culture.” can meet the requirements of the new pro- based courses and endorse non-traditional The committee will make a fi nal re- gram through a variety of educational op- educational programs, such as CBA section port to the Benchers by July 2008 and the portunities,” said Lawyer Education Advi- meetings, teaching, in-house seminars, on- program is scheduled to start January 1, sory Committee chair Bruce LeRose, QC of line courses and writing. 2009. Detailed information will be avail- Thompson, LeRose & Brown in Trail. “When “We want to encourage, not just able before the program begins.Y

Continuing Professional Development program — approved activities The Benchers have already approved a wide • teaching a law-related course (one variety of education activities for the Con- hour of teaching will equal three hours tinuing Professional Development program: of reporting credits to take into account • attendance in person, as well as online preparation time); or by telephone, provided there is an • attending CBA section meetings or opportunity to ask questions, at courses education-related activities offered by offered by the Continuing Legal Educa- a local or county Bar association; tion Society of BC, the Trial Lawyers’ • participation in (including teaching Association of BC, the Canadian Corpo- at) an education program offered by a rate Counsel Association, the Canadian lawyer’s fi rm or employer provided the Bar Association, the Federation of Law program is offered in a group setting; Societies of Canada, the Law Society of • participation in a study group of two BC or a Canadian law school; or more people provided the group’s • attendance in person, as well as online study focuses on law-related activities. or by telephone, provided there is an Guidelines for study groups are still be- opportunity to ask questions, at Law ing developed; and Society-approved, law-related courses • writing law books or articles relat- offered by other organizations; ing to the study or practice of law for • video repeats of an approved course publication. provided it is done with one or more If you have questions or comments about other lawyers so there is an opportunity the Law Society’s pending Continuing Pro- for discussion; fessional Development program, please • completion of an online self-study email Alan Treleaven, Director of Educa- course offered by a provider approved tion and Practice, at [email protected]. by the Law Society, provided that a test- ing component is included in the course;

8 BENCHERS’ BULLETIN • MAY 2008 NEWS

FROM WALLY OPPAL, QC, ATTORNEY GENERAL OF BC FROM WALLY OPPAL, QC, ATTORNEY GENERAL OF BC Draft Supreme Court family rules Budget 2008

THE BC JUSTICE REVIEW TASK FORCE (JRTF) family court structure. Recommendations BRITISH COLUMBIA’S BUDGET 2008 fo- has recently posted a concept draft of pro- related to court rules include: cuses on addressing climate change, pro- posed new Supreme Court family rules for • that rules and forms for family cases be moting greener choices and encouraging review and comment. Lawyers are invited to simplifi ed and streamlined to allow for economic investment. make submissions to the online forum, which expedited, economical resolution of all The Ministry of Attorney General’s can be found at: bcjusticereviewforum.ca. cases with processes proportional and budget includes an increase of just under The task force was established in March appropriate to the value and importance $28 million for 2008/09. 2002 on the initiative of the Law Society to of the case; We received $12 million in dedicated identify reforms to make the justice system funding for reforms recommended by the • that every family law form and procedure more responsive, accessible and cost effec- Justice Review Task Force that will improve be designed to be used and understood tive. The task force includes representatives the effectiveness of British Columbia’s by an unrepresented litigant. from the judiciary, Law Society, Canadian justice system. This funding is over three Following the release of the FJRWG’s Bar Association and Ministry of Attorney years, starting in 2007/08. Innovative civil report, the JRTF formed the family rules General. In 2003, the JRTF appointed the and family justice projects — including working group to draft new Supreme Court Family Justice Reform Working Group (FJR- pilot front-end justice access centres in and Provincial Court family rules, under the WG) to explore fundamental reforms to Nanaimo and Vancouver — will streamline direction of a steering committee made up the family justice system. the justice system so it is faster, more pro- of BC Supreme Court Chief Justice Don- The FJRWG released its report, A New portionate and supports earlier confl ict ald Brenner, Chief Judge Hugh Stansfi eld, Justice System for Families and Children, in resolution, with more streamlined court Deputy Attorney General Allan Seckel, QC, May 2005. The report outlines a new vision processes. Criminal justice reforms will Justice Brian Joyce and Assistant Deputy for family law and touches on a range of hold offenders accountable more quickly family justice services and processes that Minister Jerry McHale, QC. and effectively. are, or should be, available to people expe- The proposed new Supreme Court fam- With the opening of Vancouver’s riencing family breakdown. It makes 37 rec- ily rules, which will be implemented along Downtown Community Court planned for ommendations, including those related to with new Supreme Court civil rules, will be this year, budget 2008 includes $13 million the establishment of family justice “hubs,” available for Bar and public feedback until over three years for operating costs, of consensual dispute resolution, rules and June 30, 2008.Y which just over $4 million is for 2008/09. This project is a collaboration of justice, health and social services and will ad- dress the underlying causes of criminal behaviour among repeat offenders — Law Society and CBA to develop many with mental illness, addictions or who are homeless — in downtown Van- family law practice guidelines couver. My ministry will continue to work closely with our partners to provide bet- THE BENCHERS recently accepted a report create a code of conduct for family law- ter integrated and coordinated services by the Family Law Task Force, adopting the yers, it is important to promote and sup- that encourage earlier, more meaningful key recommendation that the Law Society port professionalism in this area of law to resolutions for offenders and the com- work with the Canadian Bar Association to better protect the public and, in particu- munity. develop best practice guidelines to sup- lar, to reduce the harm caused to children Another $20 million has been al- port the professional development of BC by family law disputes.” lotted for negotiated pay increases for family lawyers. The Family Law Task Force was created judges, lawyers and other Ministry of At- Task force chair, Bencher Carol Hick- in January 2007, in response to a number of torney General staff. man stressed that the focus of the task recommendations received from BC’s Min- With this budget lift, we will con- force’s recommendations is professional istry of Attorney General. The task force’s tinue our efforts to achieve an effective education and support, not regulation research included a jurisdictional study of justice system that is accessible, respon- and discipline. “Through our research and family law, best practice guidelines from sive and affordable — and that gives Brit- consultation, the task force came to be- the United States, the United Kingdom and ish Columbians early solutions and faster lieve that family law is a unique area of Australia, and consultation with members justice.Y practice,” Hickman said. “We concluded of some of the CBA family law sections, col- that while it is not necessary to amend laborative law lawyers and the CBA family the Professional Conduct Handbook or to law provincial chairs.Y MAY 2008 • BENCHERS’ BULLETIN 9 NEWS

Law Society committees for 2008

LAW SOCIETY COMMITTEES carry out many CREDENTIALS COMMITTEE Benchers, at least one of whom is not a regulatory functions under the Legal Profes- Gordon Turriff, QC (Chair) member of the Executive Committee. sion Act and the Law Society Rules. The Law Richard Stewart, QC (Vice-Chair) Society has also established several advi- PRACTICE STANDARDS COMMITTEE sory committees whose role is to keep the The Credentials Committee oversees the Glen Ridgway, QC (Chair) enrolment, education, examination and call Benchers apprised of key developments in Robert Punnett (Vice-Chair) law and policy affecting the legal profession. to the Bar of articled students, the transfer The Practice Standards Committee reviews Below is a list of 2008 committees and their of lawyers into BC and the reinstatement of information about lawyers who may have chairs. Full membership lists are available on former lawyers. When the character or fi t- competency-related problems and orders in- the Law Society’s website. ness of an applicant for admission, readmis- sion or transfer needs to be addressed, the vestigations when appropriate. The commit- EXECUTIVE COMMITTEE committee considers the application directly tee recommends ways for lawyers with com- petency problems to become competent, or John Hunter, QC (Chair) or orders a formal credentials hearing. restricts them from some areas of practice Gordon Turriff, QC (Vice-Chair) DISCIPLINE COMMITTEE when necessary to protect the public. The The Executive Committee assists the Rita Andreone (Chair) committee also helps plan programs to assist Benchers in establishing priorities for Art Vertlieb, QC (Vice-Chair) lawyers to practice more competently. the assignment of Society fi nancial, staff The Discipline Committee reviews com- and volunteer resources and for planning SPECIAL COMPENSATION plaints concerning lawyers or articled Bencher meetings. The Executive Com- FUND COMMITTEE students that are referred by the Profes- mittee consists of the President, the First David Renwick, QC (Chair) sional Conduct Department, the Com- and Second Vice-Presidents, the Second Richard Stewart, QC (Vice-Chair) plainants’ Review Committee or any oth- Vice-President-elect, three other Bench- er committee. The Special Compensation Fund Commit- ers elected from among the Benchers as a tee considers claims for compensation whole and one Lay Bencher elected from ETHICS COMMITTEE arising from the alleged misappropriation among the Lay Benchers. Gavin Hume, QC (Chair) or wrongful conversion of trust funds by AUDIT COMMITTEE Joost Blom, QC (Vice-Chair) a BC lawyer acting in that capacity. While claims made on or after May 1, 2004 are The Ethics Committee identifi es current David Zacks, QC (Chair) covered by Trust Protection Coverage and professional responsibility issues and makes Art Vertlieb, QC (Vice-Chair) managed by the Lawyers Insurance Fund, recommendations on changes to the Pro- the Special Compensation Fund continues The Audit Committee assists the Bench- fessional Conduct Handbook for consider- to exist and is responsible for resolving ers in determining that the financial af- ation by the Benchers. The committee also claims made or discovered prior to adop- fairs of the Society are properly managed. interprets existing Handbook rules, gives tion of the Trust Protection Coverage. This includes reviewing quarterly financial advice to individual lawyers and publishes statements of the General, Liability In- opinions to the profession at large on mat- UNAUTHORIZED PRACTICE COMMITTEE surance and Special Compensation Funds ters of professional responsibility. prior to submission to the Benchers, pro- William Jackson (Chair) viding an annual Audit Committee report FINANCE COMMITTEE Carol Hickman (Vice-Chair) to the Benchers and reviewing with the Gordon Turriff, QC (Chair) The Unauthorized Practice Committee en- Law Society auditors their approach, the Glen Ridgway, QC (Vice-Chair) forces the Legal Profession Act with respect scope of the their audit and the audit is- to all aspects of the practice of law by non- sue results. The Finance Committee reviews the Law Society’s preliminary budget, provides a lawyers and develops policy recommen- COMPLAINANTS’ REVIEW COMMITTEE due diligence and oversight report to the dations for the Benchers in unauthorized practice matters. Dr. Maelor Vallance (Chair) Benchers in advance of the annual practice Thelma O’Grady (Vice-Chair) fee recommendation, brings fi nancial is- ACCESS TO LEGAL SERVICES sues to the Benchers for decision, and acts ADVISORY COMMITTEE The Complainants’ Review Committee reviews as a watchdog for the costs of any new pro- Robert Punnett (Chair) the fi les of complainants who are dissatisfi ed grams or proposals. with dismissal of their complaints following The Finance Committee is composed David Mossop, QC (Vice-Chair) a review by Law Society staff, and may refer of the First Vice-president, the Second The Access to Legal Services Advisory Com- complaints to the Discipline or Practice Stan- Vice-president, Chair of the Audit Com- mittee monitors developments on issues af- dards Committee when appropriate. mittee, a Lay Bencher and two other fecting access to legal services, and reports

10 BENCHERS’ BULLETIN • MAY 2008 NEWS those developments to the Benchers on a ments on issues affecting access to the New task forces semi-annual basis. The committee advises independence and self-governance of the the Benchers annually on priority planning legal profession and the justice system in for 2008 with respect to access to legal services. BC, and reports those developments to the Benchers on a semi-annual basis. The CIVIL JUSTICE REFORM TASK FORCE EQUITY AND DIVERSITY ADVISORY committee advises the Benchers annually COMMITTEE on priority planning with respect to inde- Joost Blom, QC (Chair) Thelma O’Grady (Chair) pendence and self-governance. The Civil Justice Reform Task Force will Patrick Kelly (Vice-Chair) advise the Benchers on the Law Society’s LAWYER EDUCATION ADVISORY further response to the Attorney General’s The Equity and Diversity Advisory Com- COMMITTEE mittee monitors developments on issues Civil Justice Reform Task Force. Bruce LeRose, QC (Chair) affecting equity and diversity in the legal RETENTION OF WOMEN IN profession and the justice system in BC, and Leon Getz, QC (Vice-Chair) LAW TASK FORCE reports those developments to the Benchers The Lawyer Education Advisory Com- on a semi-annual basis. The committee ad- mittee monitors developments on issues Kathryn Berge, QC (Chair) vises the Benchers annually on priority plan- affecting lawyer education in BC, and The Retention of Women in Law Task ning with respect to equity and diversity. reports to the Benchers about those de- Force will review issues relating to the velopments on a semi-annual basis. The retention of women lawyers in private INDEPENDENCE AND SELF-GOVERNANCE committee advises the Benchers annually practice, including the preparation of a ADVISORY COMMITTEE on priority planning with respect to the business case to support their retention Jan Lindsay (Chair) education of lawyers in BC. in private practice. The task force will James Vilvang, QC (Vice-Chair) report back to the Benchers by the first The Independence and Self-Governance meeting of 2009. Y Advisory Committee monitors develop-

Voices on Youth Justice public forum: June 25

THE LAW SOCIETY is presenting a free The forum is presented in partnership with public forum, Voices on Youth Justice, on CBC, the Society for Children and Youth of Wednesday, June 25. Panellists include Mary BC, First Call: BC Child and Youth Advocacy Ellen Turpel-Lafond, BC’s Representative for Coalition and the Federation of BC Youth in Children and Youth, Provincial Court Judge Care Networks. Nancy Phillips and retired youth corrections This will be the fourth public forum offi cer and author Gordon Cruse. hosted by the Law Society. The project Turpel-Lafond will be speaking about began as an initiative of the Equity and Di- some preliminary fi ndings of her Offi ce’s versity Committee in 2006, which is now upcoming youth justice report and her ex- chaired by Thelma O’Grady. The forums tensive experience with vulnerable youth as are aimed at promoting the legal profes- a Provincial Court Judge in Saskatchewan. sion and the rule of law in the community Judge Phillips is the Administrative Judge at at large. They offer an opportunity to en- Robson Square Provincial Court where she gage the public in discussion and engender hears a variety of cases, including family a wider understanding and appreciation of and criminal matters involving youth. She the legal profession’s role in free demo- Voices on Youth Justice will take place has worked on youth matters since 1988 — cratic societies and the Law Society’s role at the Law Society building, 845 Cambie as Crown counsel, as a defence lawyer and in protecting the public interest in the ad- Street, in Vancouver, on June 25 from currently as a judge. Cruse spent 26 years ministration of justice. 6:00 — 8:00 pm. To guarantee your at- supervising young offenders in Victoria and For more information, contact Susan- tendance at the free public forum email listening to their unique stories. He is the na Tam, Equity and Diversity Coordinator, [email protected] by June 18, or call author of Juvie: Inside Canada’s Youth Jails. at 604-443-5727 or [email protected] or con- 604-669-2533. Mark Forsythe, host of CBC Radio One’s tact Dana Bales, Communications Offi cer, BC Almanac program, will be the moderator. at 604-443-5708 or [email protected]. Y MAY 2008 • BENCHERS’ BULLETIN 11 NEWS

Law Society program update

The Law Society operates more than 20 programs, grouped into six operational areas: Credentials and Education, Insurance, Policy and Legal Services, Professional Regulation, Executive Support and Corporate Services. Throughout the year, department heads provide reports to the Benchers outlining program goals and key performance measures. In April, the Benchers heard from the Lawyers Insurance Fund. Below is a summary of the report.

Lawyers Insurance Fund highest rate demonstrated in 2007. Fully 17 of this initiative and, in time, we expect it will per cent of all fi les closed last year were the result in fewer reports of missed deadlines.” STABILITY REMAINS THE hallmark of the result of successfully restoring the client Forbes guided the Benchers through Law Society’s Lawyers Insurance Fund (LIF), to his or her original position. This yields a data collected by LIF staff related to claims. as staff claims counsel consistently draw positive result for all concerned, as a claim “We analyze information by area of practice on the breadth and depth of their practice is avoided at minimal cost to the profession. to provide advice to lawyers on how they experience and sound judgment to achieve can avoid claims in the specifi c areas in which excellent results, Director of Insurance Su they practice,” she said. In relation to the Forbes, QC explained to the Benchers at Fully 17 per cent of all fi les closed last year causes of claims in Part A — professional li- their April meeting. were the result of successfully restoring ability insurance — Forbes told the Benchers Forbes shared some highlights from the client to his or her original position. that lawyers’ “simple oversights, as a cause 2007 with the Benchers. The number and of claims, consistently tops the charts.” frequency of reports is down slightly from Lawyers who have reported claims often 2006, although the number of insured Another highlight from 2007 was LIF’s have advice for their colleagues on how to members has risen by two per cent. More publication of a comprehensive guide for law- avoid getting into similar situations. LIF has signifi cantly, the past few years have seen an yers called Beat the Clock, which is a proac- been collecting that advice for two years and increase in the amount of successful “repair tive risk management tool. Forbes said, “we Forbes shared some of it with the Benchers: missions” achieved by the program, with the have the ability to measure the effectiveness “We received a number of responses along

Lawyers Insurance Fund staff at a regular review meeting.

12 BENCHERS’ BULLETIN • MAY 2008 NEWS

the lines of ‘stick to your area of expertise.’” Forbes quoted another lawyer who said, “careful notes are key to covering where the Beat the Clock: one year later client has forgotten why things have been done a certain way.” Another common sug- gestion “is to confi rm instructions — tell the Beat the Clock – Timely Lessons from 1,600 Lawyersrs client what you will do, and what you won’t was sent to every insured lawyer in BC with thee do, in an engagement letter.” May 2007 issue of the Benchers’ Bulletin. The first such guide published in North America, it provides more than 70 risk man- Forbes explained to the Benchers that agement tips to help lawyers prevent missed one of her overall goals was to enchance deadlines, save lawyers and the Law Society’s cost-effectiveness by increasing in-house Lawyers Insurance Fund substantial costs defence. over a multi-year period and promote bet- ter legal service to BC’s public. The content provides both practical guidance and a high Forbes reported to the Benchers that quality analysis of complex legal processes in 2007 Part B — trust protection cover- and procedures. age, which protects members of the public — saw seven claims paid on behalf of four different lawyers, totaling approximately Positive early results $39,000. Four claims were denied because An online survey showed the guide has hit its mark,ark as it is being used by a broad the lawyer either did not misappropriate spectrum of lawyers across different practice areas, including sole practitioners, small property or did not do so in his or her capac- and large fi rm lawyers, as well as their articled students and legal assistants. The survey ity as a lawyer, resulting in the claim falling yielded the following results: outside the coverage offered by Part B. Forbes shared with the Benchers some • Nearly 90 per cent of lawyers surveyed indicated they have either made changes to of the comments on evaluation forms from how they practise or plan to in the future. Part B claimants. One claimant said, “I real- • Respondents ranked the guide an average 4.5 on a scale of one to fi ve, with fi ve at ly appreciated the fact that you guys dealt the high end. with this so I could get back what I gave. In the future I won’t be afraid to get a lawyer. Readers report benefi ts Your help was appreciated.” Forbes explained to the Benchers that Survey feedback included the following comments: one of her overall goals was to enchance cost-effectiveness by increasing in-house The booklet is so refreshingly useful that it is being granted a place amongst the impor- defence. “We are now defending 42 per cent tant books that live behind my desk for easy access and which are referred to frequently. of all suits in-house.” She added that LIF has seen a 70 per cent increase in the amount of I put Beat the Clock in my “looks useful” pile and within an hour got a call involving an in-house defence in the Provincial Court, and appeal limitation period. I couldn’t fi nd the answer immediately in the statute I thought that the growth in that area has emerged it was in, so opened the front cover of your publication, instantly found what I needed since the small claims jurisdiction increased and was able to give prompt advice after checking it against the proper statute. Thanks to $25,000 in 2005. for this useful publication! Forbes also told the Benchers that LIF I thought the publication was excellent, both in terms of the information contained claims counsel are often both creative and and in the way in which it was laid out. It was user friendly. Now we just have to get practical in resolving claims through nego- everyone to read it! tiated settlements resulting in little or no cost to the insurance program, while also fi nding a satisfactory solution for the cli- Where to get it ent. The bottom line of Forbes’ presenta- tion was that LIF continues to effectively The guide, along with the “Limitations and Deadlines Quick Reference List,” can be manage claims in accordance with the downloaded from the Lawyers Insurance Fund area of the Law Society website in the program’s mission, which is to protect the Risk Management section. profession and the public from the risks as- A limited supply of additional hard copies are available by contacting Hazel Cords sociated with the practice of law by provid- at [email protected] or 604-443-5372. ing high quality professional liability and defalcation insurance. Y MAY 2008 • BENCHERS’ BULLETIN 13 FEATURE

The road from Bencher to Afghanistan

FORMER BENCHER Norine MacDonald, examines global drug policy, world devel- When she left Saskatchewan in her QC, grew up under the Canadian prairie’s opment issues and their relationship with teens and headed for BC, MacDonald never big skies in Yorkton, Saskatchewan. Her international security. Much of MacDon- imagined she had embarked on a path that father was a farmer. Many of the people ald’s work is with poppy farmers, who she would eventually lead her to a war zone. she knew spent long hours in the fi elds and said are “no different then the type of peo- The fi rst steps she took were unconven- made regular trips to church. Despite the ple I grew up with on the Canadian prairies tional within her family setting. She was distance in time and place from her home- — hard-working religious folk. It’s just that the fi rst in her family to go to university. town, MacDonald believes that, in many it’s a different religion.” She went on to study law at UBC. ways, her life in Afghanistan holds those After the early morning call to prayer, the From there she practised at some of same familiar pieces. Muslim farmers are in the fi eld before dawn. Vancouver’s largest fi rms, eventually be- As the founder, President and lead fi eld MacDonald described a conversation with a coming a partner at Bull, Housser & Tupper, researcher in Afghanistan for the think tank man, who reminded her of her father. “I asked specializing in commercial litigation, chari- the Senlis Council, MacDonald — reached him how old he was when he started farming. ties and tax law. In 1992 she was elected on the phone in Paris, France — is based in He looked at me like, ‘what did I just ask him?’ as a Law Society Bencher. In 1998 she left Kandahar province in the southern part of and he said, ‘whenever I could put one foot in the practice of law to begin the work that the country. The Senlis Council, named for front of the other.’ The people there are very would eventually lead her to found the the French town in which it was founded, connected to seasons and nature.” Senlis Council in 2002.

14 BENCHERS’ BULLETIN • MAY 2008 FEATURE

and do it and don’t you be whining and opiates for medical use. Outside the six sniffl ing. So you get toughened up. I was richest countries, much of the world is lack- junior to some really fantastic lawyers and ing suffi cient pain medication for patients. you never broke a sweat in front of those “Ironically, Afghanistan is one of those people. And the other thing they taught countries without enough,” said MacDon- you is if somebody’s pushing you around in ald. Under the Senlis Council proposal, Af- the courtroom you push back. At the time ghans would continue to grow poppies, but I thought they were being a bit tough, but would do so to produce morphine. if that happens to me now, I think, ‘okay MacDonald has been doing research on you’re picking on the wrong girl. You don’t the Poppy For Medicine Project and other know where I come from. I am a member Senlis initiatives for three years. During that of the British Columbia Bar and now you’re time she’s been living in houses in Kandahar going to see what that means.’ So it’s still in and neighbouring Helmand. She described me. And it’s very handy that it is. And I think where she lives as a walled piece of land with that if I can say that Senlis Council has had a house and garden inside — a normal Afghan any success, a large part of that is a credit house, “except that mine’s quite nice by Af- to what I see as the top fl ight training I got ghan standards.” Despite having a generator as a lawyer in BC.” for electricity, it’s still cold in the winter. “We sleep in our parkas with our toques on, but we’re warm compared to how most Afghans Looking back, MacDonald said the road live. And I have enough food,” she said. that took her to Kandahar looks straight “Afghans love their gardens,” explained but “it wasn’t. It was a bit of a zigzag — MacDonald, “and I have a fantastic garden- two steps forward and one step back.” er, so I have a beautiful little garden with roses. We sit outside a lot and in Afghan so- ciety you sit on the fl oor on a carpet, so we MacDonald’s work through Senlis Coun- have most of our meals like that. And we cil has been featured in both Canadian and drink a lot of tea and talk. So it’s a very nice international media, such as CNN, BBC and lifestyle, but for the fact that, of course, Al Jazeera. She shared her insight with the we’re living in a war zone.” Canadian government when she testifi ed And, as one would expect, that war before the Standing Committee on Foreign zone comes with many problems. MacDon- Affairs and International Development and ald calls it “a diffi cult and deteriorating sit- the Standing Committee on National De- uation.” She knows people who have been fence. She also appeared before the United injured in the fi ghting or killed. “It’s impos- Kingdom’s House of Commons’ Defence sible to avoid there. It’s a part of the daily Committee. In February 2007 the Italian Red reality.” Nevertheless, MacDonald said she Looking back, MacDonald said the road Cross awarded her the First Class Medal of doesn’t feel fear living in Afghanistan. that took her to Kandahar looks straight Merit for outstanding contribution to inter- but “it wasn’t. It was a bit of a zigzag — two national humanitarian cooperation. steps forward and one step back,” she said. One of the biggest assignments Mac- MacDonald has been doing research on “I didn’t have a specifi c goal in mind, such Donald is spearheading is the Poppy For the Poppy For Medicine Project and other Medicine Project. The Senlis Council be- as I want to go and establish a think tank Senlis initiatives for three years. that looks at these issues.” lieves the key to meeting the international MacDonald credits her training at community’s goal of stabilizing the country law school and time as a junior to some is resolving Afghanistan’s opium crisis. In- “One thing I learned about myself is of BC’s best lawyers with preparing her ternational counter-narcotics policies have that I can work quite well in that environ- for what lay ahead in Afghanistan. “I’m led to attempts to eradicate Afghanistan’s ment. I actually sleep well at night. I don’t using the same skill set and the same poppy crops. Yet impoverished farmers rely know where that came from, but I’m very training: marshalling facts, writing, advo- on the income from those crops to feed their content and happy, despite the circum- cacy, project management — everything families. MacDonald has found a potential stances. I’m making the best use of my tal- you would do when you’re running a large solution to the opium crisis that also man- ents, so I feel compelled to be there. I feel piece of litigation, for example. I see the ages to meet another global need. It cen- a real connection to those people, and we similarities every day.” tres on the fact that poppies can be used to need to write reports and get information “I came from a tough prairie family, produce morphine instead of heroin. out about what’s going on there.” but when they’re bringing you up in the The International Narcotics Control law fi rm it ain’t easy. It’s like, get in there Board points to a worldwide shortage of continued on page 16

MAY 2008 • BENCHERS’ BULLETIN 15 FEATURE

The road from Bencher to Afghanistan… baggy pants, and “as a nod” to the fact that the risks for my Afghan colleagues who are from page 15 women are supposed to cover their heads, with me are also very substantial.” she wears the same type of cap that Afghan And so MacDonald acknowledges that MacDonald’s experiences in Afghani- men wear. The whole effect is “quite com- eventually she will have to move on. Senlis stan have changed the way she sees her fortable for the hot climate.” Afghanistan has approximately 50 people home country. “When I go home to Can- working for it, mostly Afghans. MacDonald ada, I kind of have reverse culture shock. I has said that, once established, the goal observe things differently now. Some of the No matter which confl ict zone she heads was always that it would stand on its own things I’ve seen in Afghanistan, coming from to next, MacDonald knows she will con- as a voice for Afghans by Afghans. She will a very privileged Canadian background, tinue to do the same type of work she has go on to establish other Senlis branches in were deeply shocking. I’ve held babies who been doing in Afghanistan. other confl ict zones. She recently travelled are skeletons and seen grandmothers who to Somalia to examine issues there. are starving to death. I come home and we No matter which confl ict zone she have 24/7 electricity and malls full of stuff As a western woman in Afghanistan, heads to next, MacDonald knows she will nobody needs. It’s a radicalizing experience MacDonald is not blind to the risks. A for- continue to do the same type of work she to have part of my head in Vancouver and eign woman in Afghanistan she knows was has been doing in Afghanistan, and she en- part of it in Kandahar.” recently kidnapped and is believed dead. As courages other lawyers to do more interna- MacDonald long ago said goodbye to a westerner — female or male — you’re a tional work, because she believes their skill the power suits she wore while practising target for a Taliban kidnapping or attack, and set is well suited to it. law in Vancouver. Unlike many western importantly to MacDonald, “it’s not just a “I think back to the long hours and women who choose to follow the dress of question of my own security. The fi rst thing how hard we worked in the law fi rms and Muslim women while in Afghanistan and that happens when you’re kidnapped is your now I’m a pretty tough person because wear a burka, MacDonald has taken a differ- Afghan colleagues are killed. And so, it’s one of it all. It’s effortless for me. Hard work? ent approach. “I ended up choosing to dress thing for me to say I’m going to take the risk Bring it on. Tough situation? I feel like you as a man.” She wears a long baggy top and to be there and continue to do the work, but should go back and meet some of my for- mer partners if you think this is tough, Mr. Taliban Dude. You have not met my ex- partners. You have not been to a partners’ meeting at a big Vancouver law fi rm if you think this conversation about this road block is a problem.” For MacDonald the rewards of the work she is doing continue to outweigh the personal sacrifi ces. “The sacrifi ce is being away from friends and family. But I’m tiring myself out every day trying to sort this out and it feels great. It does not feel like a sacrifi ce. I feel so lucky. Everybody has inside of them their talents and their aspirations and they want to feel like they’re doing something impor- tant and making a contribution. And I’ve got that. I didn’t always have that when I was practising law,” said MacDonald. “I’ve had moments in Afghan villages in the middle of nowhere where the grand- mas say their salaams to me and the kids are holding onto my clothes, and they accept me in their community,” she said. “That is just a spectacular experience for me to be so privileged to be inside their lives in that way. So that’s not a sacrifi ce. That’s a real gift.”

More information about Norine MacDonald and her work with the Senlis Council, includ- ing video links of footage in Afghanistan, can be found at www.senliscouncil.net. Y

16 BENCHERS’ BULLETIN • MAY 2008 NEWS

Courthouse Library launches online video tutorials

THE BC COURTHOUSE Library Society has THE VIDEO TUTORIALS CAN BE ACCESSED ON THE COURTHOUSE launched a series of online video tutorials LIBRARY WEBSITE (WWW.BCCLS.BC.CA) OR ON YOUTUBE. to help lawyers and the public conduct le- gal research. “These online tutorials are an inno- vative way to bring the expertise of our library staff to lawyers and the public,” says Johanne Blenkin, Executive Director of the BC Courthouse Library Society. “A growing number of people prefer to do legal research from their offi ces or online, so we’ve found a way to bring the library to them. These videos will be an invalu- able resource for lawyers living in smaller communities who don’t have access to a courthouse library,” said Blenkin.

“A picture is worth a thousand words, and these tutorials show rather than tell you how to do this kind of legal research. It’s a better approach than a written guide, which tends to get quite long and complicated.”

The videos provide step-by-step instruc- tion on common but complex legal research tasks, such as researching and noting up leg- islation, and identifying legal precedents. “A picture is worth a thousand words, and these tutorials show rather than tell you how to do this kind of legal research. The BC Courthouse Library Society It’s a better approach than a written guide, wants to know: what would you like to which tends to get quite long and compli- see on the Courthouse Library website? cated. And the video format engages all types of learners with visual, audio and Visit them on the web (bccls.bc.ca) and hands-on components,” said Blenkin. fi ll out a short, 3-minute survey. Your The BCCLS has integrated the video tuto- input will help guide the redevelopment rials into its training program for BC librarians of the BCCLS website, to be launched as part of the Law Matters project, aimed at next year. providing legal information to public libraries for feedback, including suggestions for fu- throughout the province (see: “Courthouse ture videos. This is your chance to have a voice in library partners with public libraries,” Bench- The video tutorials can be accessed on designing how you interact with the ers’ Bulletin March 2007, p. 7). the courthouse library website (bccls.bc.ca) courthouse library. Do you want wikis? “We’ve been getting great feedback or on YouTube. Blogs? Collaborative spaces? RSS feeds from lawyers, librarians and members of The BC Courthouse Library Society pro- that deliver content tailored to devel- the public who have accessed our videos. vides legal information services to the gen- opments in your area of practice? The They say they’re effective and presented eral public and the legal profession through possibilities are endless. a great opportunity for them to learn new BC’s 31 courthouse libraries and online. It Survey participants can also enter a research skills,” said Blenkin. is a registered charity and is funded by the draw to win an iPod Touch. Contest While the society has only produced Law Society, the Law Foundation and the closes June 13. six videos so far, they are always looking Ministry of the Attorney General. Y

MAY 2008 • BENCHERS’ BULLETIN 17 NEWS

2008 Law Society Benchers approve Unbundling of Scholarship Legal Services Task Force report THE BENCHERS HAVE approved a task nity organizations. That session sought to force report containing 17 recommenda- determine which services BC lawyers cur- tions that will make it easier for lawyers to rently unbundle, how and to whom those provide their clients with limited scope or discrete services are offered, and which “unbundled” legal services. unbundled services are seen by commu- The recommendations address four nity leaders as being most helpful to the main contexts for lawyer-client service: public. Participants were also asked to confi dential drafting assistance; limited identify risks, issues or challenges associ- court appearance made as part of a lim- ated with unbundling, to consider whether ited scope retainer; legal information and there should be a broader unbundling of advice provided as part of a limited scope legal services and, if so, to suggest how retainer; and legal services provided at a that broader unbundling might look. court-annexed program or at a non-profi t From its consultations and research the legal service program. task force concluded that, while the demand Created in March 2005 on the recom- for and provision of limited scope legal ser- mendation of the Access to Justice Com- vices have increased over the years, the rules mittee, the Unbundling of Legal Services that govern professional responsibility and Task Force explored a wide range of solic- the rules of court have not kept pace. itor-client and access to justice issues that The task force report notes that “it is arise when lawyers offer their clients the important that guidelines be established to Law Society President John Hunter, QC option of discrete, or limited scope, legal help ensure limited scope legal services are presents a cheque for $12,000 to Abeer assistance instead of full legal representa- enhancing, not hindering, access to justice.” Hasan, winner of the 2008 Law Society of tion on all aspects of a transaction, dispute The task force made recommendations BC Scholarship. or process. regarding: The major public interest implication • general professional conduct of unbundling or limiting the scope of le- A 2004 graduate of the University of • confi dential drafting assistance gal services lies in the potential to increase Victoria’s Faculty of Law, Abeer Hasan • communications has practised civil and criminal litigation access to justice for members of the public with the Vancouver fi rm of Guild Yule who otherwise might not be willing or able • general LLP since her admission to the Bar in to obtain legal representation. • with limited scope partners The task force’s consultations and 2005. Hasan plans to pursue an LL.M in • with the courts and other parties research confi rmed early on that limited international criminal law, building the • with the client foundation for an active career of practice scope or unbundled legal services are a and policy development in this new and fact of life in BC. As Chair, Carol Hickman • confl icts of interest important area of international law. Her said in briefi ng the Benchers on the result • education and transition interest was sparked mid-way through of task force consultation with members The report notes that while “there may her LL.B program, when she interrupted of the Cariboo Bar in September 2006, not be a miracle cure for the ‘epidemic’ of self- her studies to work as an intern at the Of- “We are very aware that considerable un- represented litigants,” the task force believes fi ce of the Prosecutor at the International bundled legal work is already being done that limited scope legal services can contrib- Tribunal for Rwanda in Tanzania. in BC, and done well. While it’s important ute to making legal representation more af- to examine how a more formalized ap- fordable, and can be “an important tool in en- In her letter of reference, University proach to unbundling might contribute to hancing meaningful access to justice.” of Victoria law professor Dr. Elizabeth greater access to justice in this province, The Ethics Committee is working on Adjin Tettey noted the impact of that it is also important not to disrupt what’s draft amendments to the Law Society experience on Hasan: “She was certainly already working well.” Rules and Professional Conduct Handbook a changed person when she returned to Consultation has been an ongoing for presentation to the Benchers in the Canada… She was particularly moved and important element of the task force’s coming months. by the stories of the victims of atrocities work. In May 2005, a facilitated consul- For the full text of the Report of the in the genocide that occurred in Rwanda tation was held in Vancouver including Unbundling of Legal Services Task Force, and she was committed to making a dif- representatives of the legal profession, go to Publications and Forms / Reports at ference in any way that she could.” the judiciary, government and commu- lawsociety.bc.ca.Y

18 BENCHERS’ BULLETIN • MAY 2008 NEWS

New look and feel for LSS website

THET LEGAL SERVICES Society has rede- signeds its website to give it a new look anda feel, and make it more user friendly. TThe improvements include enhanced nnavigation, multilingual support and ad- dditional content.

TheT redesign is the fi rst step in a steady processp of improvements in how the soci- etye uses its website to communicate with llawyers, clients and other stakeholders, as wwell as the general public.

The redesign is the fi rst step in a steadys process of improvements in how thet society uses its website to communi- ccate with lawyers, clients and other stake- hholders, as well as the general public. The vvarious improvements are designed to in- ccrease access to legal aid services in BC. As wwell, lawyers who take legal aid referrals wwill fi nd it easier to navigate through the oonline information and services provided ffor them. The site gets 1,000 visitors a day. Y

Milestones in the profession

The Benchers hosted a luncheon in Van- couver on May 1 to honour lawyers who are celebrating milestone anniversaries in the profession.

A. Donovan Pool (front row, centre) re- ceived a certifi cate for 60 years since call to the Bar. Fifty-year certifi cates were pre- sented to: (front row, left and right): William Arthur Esson and William F. Christensen; (back row, left to right): George P.B. Reilly, W. Richard Underhill, H. Bjorn Hareid, Jack Austin, PC, QC, J. Stuart Clyne, QC, Volmar Nordman and Harry E.S. Fan.

Also receiving 50-year certifi cates this year but not pictured: Gerald J. Lecovin, QC, Donald H.C. Paterson, Barry J. Prom- islow, Duncan W. Shaw, QC and Alan E. Vanderburgh, QC.

MAY 2008 • BENCHERS’ BULLETIN 19 PRACTICE

As part of the Law Society’s on-going initiative to raise awareness about harassment and discrimination in the workplace, the Benchers’ Bulletin is running a series of articles on the topic by Patricia Janzen, a partner at Fasken Martineau DuMoulin. For more information on other initiatives and the work of the Law Society’s equity ombudsperson, Anne Bhanu Chopra, see the October 2007 Benchers’ Bulletin. Permissible social contact or sexual harassment? by Patricia Janzen

IN 1993, THE BC Council of Human Rights to Vancouver, both knew that the relation- Williams Lake and the next night in Prince applied the Supreme Court of Canada’s ship was over. Rupert. The job was related to the fi eld of defi nition of sexual harassment to a case The adjudicator described both parties studies that the complainant wished to that explored “the boundary between per- as honest witnesses who told very similar pursue in the fall in graduate school at UBC. missible social contact and sexual harass- versions of the events. The complainant The respondent was an adjunct professor at ment.” The case of Dupuis v. Her Majesty in admitted that the sex was voluntary but UBC in her area of interest. Right of the Province of British Columbia as insisted that it was unwelcome, not only The adjudicator concluded that the Represented by the Ministry of Forests, For- at the time of the fi ling of her complaint sexual conduct was unwelcome to the com- est Sciences Division (December 23, 1993) but as events unfolded. The respondent de- plainant and that a reasonable person in involved an employee and her supervisor scribed a serious and sincere interest in pur- the position of the respondent would have who travelled alone together to a work site suing a relationship with the complainant realized that the complainant was uncom- in the Queen Charlotte Islands. When they (both were single) and he believed that his fortable with the sexual conduct. After the stopped for the night in Williams Lake, the attraction to her was reciprocated. How- complainant asked him to stop, he should supervisor rented only one motel room with ever, by the time he returned to Vancouver have proceeded with extreme caution. The two beds. During the evening in their room, he knew the relationship was over because adjudicator recognized that people differed the respondent kissed and caressed the they were fi ghting all the time. in their ability to pick up the social cues complainant, but when he tried to remove In deciding whether the conduct was of others but also surmised that a person more of her clothing, the complainant told unwelcome the adjudicator relied heavily could be “blinded by his purpose.” him that she did not know him well enough on the imbalance of power between them. In summarizing earlier case law on the to make love. The respondent stopped. The complainant was young, had role that power plays in cases of sexual ha- They fell asleep on the same bed and dur- moved from Ontario to BC to take the job rassment, the adjudicator wrote: “the bur- ing the night the respondent renewed his only about two weeks before these events den rests with the manager to be certain advances and they had what the adjudica- occurred, was isolated with the respondent that any sexual conduct is welcomed by the tor characterized as “voluntary” sexual in- in a series of remote locations and had a employee and continues to be welcome.” tercourse. They had sex on several further family background dominated by an au- The employer was held vicariously li- occasions over the following week, includ- thoritarian father. The respondent was her able for the conduct of the supervisor and ing after they arrived in the Charlottes, but supervisor and somewhat older than her. the complainant was awarded damages there was increasing friction between them He abused his authority when he rented from the employer for lost income and in- and, by the time the respondent returned only one hotel room for both of them in jury to dignity. Y

The Equity Ombudsperson The Law Society wants to help stop workplace discrimi- nation and encourage equitable workplace practices by providing BC law fi rms with the services of an Equity Ombudsperson. The Ombudsperson, Anne Bhanu Chopra, confi dentially assists anyone who works in a fi rm in resolving concerns over possible discrimination, and assists law fi rms in preventing discrimination and promoting a healthy work environment. Contact the Equity Ombudsperson, Anne Bhanu Chopra, on her confi dential, dedicated telephone line at 604-687-2344 or by email to [email protected].

20 BENCHERS’ BULLETIN • MAY 2008 PRACTICE

PRACTICE WATCH, by Barbara Buchanan, Practice Advisor, Conduct & Ethics CautionsCaut o s oon cascash aand d new e scascams s

does not apply and the lawyer is permitted to return the $2,000 to the client by way of a trust cheque.

Lawyers may only receive or accept an amount of $7,500 or more in cash in the very limited circumstances permitted by Law Society Rule 3-51.1.

What if the client provided a cash re- tainer in a foreign currency? Subrule (4) requires the lawyer to convert the foreign currency into Canadian dollars based on the offi cial conversion rate of the Bank of Canada for that currency as published in the Bank of Canada’s Daily Memorandum CASH UNDER THE mattress, or in a safety Here are two options: of Exchange Rates in effect at the relevant deposit box? Think twice about whether • You can suggest that the client open up time. If no offi cial conversion rate was pub- you can deposit it in your trust account. an estate account and deposit the cash lished, the lawyer would use the conversion If you are acting for a personal repre- into that account. rate that the client would use in the normal sentative of an estate who discovers cash • You can suggest that the client use the course of business. amongst the deceased’s possessions and cash to get a bank draft payable to your who wants you to deposit it into your trust fi rm in trust. account, be careful. You may deposit into Breaches of the “no cash rule” are treated trust cash that in the aggregate amounts to HANDLING CASH REFUNDS seriously. This is an important matter to less than $7,500, but you may not deposit Lawyers may only receive or accept an the Law Society, for the legal profession cash amounting to $7,500 or more (Rule amount of $7,500 or more in cash in the and for the protection of the public. 3-51.1). Be mindful of the words “in the ag- very limited circumstances permitted by gregate” in subrule (3). Here’s how it works. Law Society Rule 3-51.1. Where a lawyer has received a cash retainer in accordance Lawyers are being cited for breaches of with subrule (3.1), and the client is later Rule 3-51.1. Make certain that you and your If you are acting for a personal represen- entitled to a refund, there are rules govern- fi rm understand the rule. Breaches of the tative of an estate who discovers cash ing when the refund must be made in cash “no cash rule” are treated seriously. This is amongst the deceased’s possessions and rather than by cheque. an important matter to the Law Society, for who wants you to deposit it into your trust What happens if a lawyer receives the legal profession and for the protection account, be careful. an $8,500 cash retainer (permitted) but of the public. when the lawyer issues the final invoice, LIST OF VALUABLES FOR MONTHLY $3,000 is left in trust? How does the law- TRUST RECONCILIATION If your client fi nds $2,000 in the de- yer refund the $3,000 to the client? Sub- ceased’s safety deposit box, you may de- rule (3.1) requires that any refund greater If you have received “valuables” (defi ned posit that amount in your trust account, than $1,000 out of the $8,500 retainer in Rule 3-47) such as paintings, sculptures, following accounting rules for deposit must be made in cash. The lawyer must gold, jewellery, securities, bonds (anything of of cash. If your client fi nds $5,500 in the refund $3,000 to the client in cash, not value that can be negotiated or transferred) cookie jar a few days later and wants you by trust cheque. to hold for your client, be aware of the re- to deposit the $5,500 into trust, don’t do What if a lawyer receives a $7,000 cash quirement to list the items received and de- it. In the aggregate, you would have re- retainer but when the lawyer issues the fi - livered and any undelivered portion as part ceived $7,500 in cash in a circumstance nal invoice, $2,000 is remaining in trust? of your monthly trust reconciliation (Rule not permitted by the rule. How does the lawyer return the $2,000 to 3-65 (2)(e)). A sample Valuable Property What can you advise the estate client the client? Because the lawyer received less who brings too much cash to your office? than $7,500 from the client, subrule (3.1) continued on page 22

MAY 2008 • BENCHERS’ BULLETIN 21 PRACTICE

Practice Watch… from page 21

Record is available on the Practice Support/ Articles section of the Law Society’s website. You can simply attach your list of valuables to your monthly trust reconciliation. This may also be a good time to do some spring cleaning. Have a look inside your safe. Are you holding valuables that should be listed?

COUNTERFEIT BANK DRAFTS — YET ANOTHER TRUST ACCOUNT SCAM Recently the Law Society issued a fraud alert relating to counterfeit certifi ed cheques that set out the details of a scam that had arisen in Ontario. Other schemes have surfaced in which counterfeit bank drafts, rather than counterfeit certifi ed cheques, are used as a means of accessing lawyers’ trust funds. Canadian bank and looks completely real. located outside of Canada. The services re- If you call the telephone number printed on quired are for a simple matter. The client the bank draft, the call is professionally an- wants to be paid quickly and may urge you How do you protect yourself? Know your swered and the bank draft is declared valid. to transfer the money electronically. (The client. When you open the new client fi le, In fact, it’s not. amounts involved are usually much less keep in mind the client ID and verifi ca- If you deposit the bank draft in your than the $25,000,000 required for an elec- tion rules that will soon come into force trust account and then pay out a hand- tronic transfer from trust (Rule 3-56(3.1) some sum to your new client, minus your across Canada. (a)). The cheque or bank draft required to fees and disbursements, then you may be pay your client, whether for an outstand- a victim. ing debt, as part of a purchase and sale or One ruse involves a new client, located Regardless of the pretext the rogue for some other reason, is provided quickly outside of Canada, requesting your assis- uses to lure you into relying on a forged tance to recover a debt from a Canadian document to pay out trust funds, there and easily. company. You send a demand letter and seem to be some common elements. How do you protect yourself? Know receive a bank draft for the full amount The client presents as a businessper- your client. When you open the new client from the alleged debtor payable to your son or someone trustworthy (one indi- fi le, keep in mind the client ID and verifi - fi rm in trust. The bank draft is drawn on a vidual claimed to be a pastor) and may be cation rules that will soon come into force

Signing trust cheques Law Society Rule 3-56(2)(c) provides that a lawyer who withdraws funds from a trust account by cheque must ensure that the cheque is signed by a practising law- yer. Notwithstanding this rule, the Professional Conduct Department has recently investigated several cases where lawyers have permitted non-lawyers to be the sole signatories of trust cheques, or where non-lawyers have signed trust cheques without the knowledge of the lawyer. Lawyers are reminded to ensure that trust cheques are being handled in a proper manner. As well, lawyers should discuss this rule with representatives of the fi nancial institutions handling their trust accounts to try to ensure that these institutions prop- erly monitor the signatories on trust cheques so that improperly signed cheques are not processed. Failure to comply with Rule 3-56(2)(c)exposes lawyers to the risk of fraud, as well as to possible disciplinary consequences.Y

22 BENCHERS’ BULLETIN • MAY 2008 PRACTICE

across Canada. If you are dealing with cli- drafter (Foster v. Elsley (1881), 19 Ch. D. ents that you do not know well, relying on a 518). If your client expressly asks you to Services for members phone number to verify the document may insert such a clause without your prompt- Practice and ethics advisors ing, you can explain that since the per- not expose the scam. Ask your bank to con- Practice management advice – Contact sonal representative customarily chooses tact the issuing bank to verify the authen- David J. (Dave) Bilinsky, Practice Manage- ticity of the draft or cheque and to confi rm legal counsel, there may be little advan- ment Advisor, to discuss practice manage- that the funds have cleared. If you draw on tage to inserting the clause other than to ment issues, with an emphasis on technology, your trust account without the bank draft make the client’s wishes known. strategic planning, fi nance, productivity and or certifi ed cheque being verifi ed or cleared, career satisfaction. Email: [email protected] PST NEWS Tel: 604-605-5331 or 1-800-903-5300. your fi rm may be exposed to loss. The Ministry of Small Business and Revenue Practice and ethics advice – Contact Barbara UNITED STATES SUBPOENA SCAM has recently issued Bulletin SST 061 (revised Buchanan, Practice Advisor, Conduct & Eth- Reports have been received of bogus Unit- April 8, 2008) regarding PST on legal servic- ics, to discuss professional conduct issues in practice, including questions on undertakings, ed States District Court subpoenas being es: www.sbr.gov.bc.ca/documents_library/ bulletins/sst_061.pdf. confi dentiality and privilege, confl icts, court- emailed to BC clients. If your client receives room and tribunal conduct and responsibility, The Bulletin, aimed at lawyers and no- an electronic subpoena commanding him or withdrawal, solicitors’ liens, client relation- her to appear to testify, please see the alert taries, provides basic information regarding ships and lawyer-lawyer relationships. on the U.S. Courts website: www.uscourts. taxable legal services and non-taxable legal Tel: 604-697-5816 or 1-800-903-5300 gov/index.html. services. It mainly puts into plain language Email: [email protected]. the content of two earlier versions (March Ethics advice – Contact Jack Olsen, staff law- DIRECTION IN A WILL TO RETAIN 1992 and April 2008). yer for the Ethics Committee to discuss ethi- A PARTICULAR SOLICITOR You can contact the Consumer Taxa- cal issues, interpretation of the Professional Reports have been received that some tion Branch if you have questions at Conduct Handbook or matters for referral to solicitors are drafting wills in which they 604-660-4524 in Vancouver or toll-free at the committee. Tel: 604-443-5711 or 1-800- nominate themselves to do the estate 1-877-388-4440, or email your questions 903-5300 Email: [email protected]. work. The wills contain a direction that to [email protected]. All communications with Law Society practice the personal representative must use the and ethics advisors are strictly confi dential, same solicitor or law firm to provide the FURTHER INFORMATION except in cases of trust fund shortages. legal services as who drafted the will. Feel free to contact Barbara Buchan- X This is improper. The personal represen- an at 604-697-5816 or bbuchanan@lsbc. Interlock Member Assistance Program – tative makes the decision whom to retain org. for confidential advice or further in- Confi dential counselling and referral services by professional counsellors on a wide range of as counsel, and the direction in the will formation regarding any items in Practice personal, family and work-related concerns. Watch. Y does not impose an obligation to use the Services are funded by, but completely inde- pendent of, the Law Society and provided at no cost to individual BC lawyers and articled students and their immediate families. Tel: 604-431-8200 or 1-800-663-9099. Amendments to X Lawyers Assistance Program (LAP) – Con- fi dential peer support, counselling, referrals the Legal Profession Act and interventions for lawyers, their families, support staff and articled students suffer- ing from alcohol or chemical dependencies, ON APRIL 30 the Attorney General intro- Act does not apply to them while sitting as stress, depression or other personal problems. duced a second Miscellaneous Statutes judicial justices. Based on the concept of “lawyers helping Amendment Act for this year, which in- A new section 26.1 gives statutory force lawyers,” LAP’s services are funded by, but cludes two minor amendments adding new to the current protocol between the Law completely independent of, the Law Society sections to the Legal Profession Act. These Society and the Provincial Court regarding and provided at no cost to individual lawyers. amendments are consequential to Provin- exchange of information concerning inves- Tel: 604-685-2171 or 1-888-685-2171. cial Court Act amendments establishing the tigations of complaints about lawyers who X position of “part-time judicial justice.” are also judicial justices. Equity Ombudsperson – Confi dential assis- Many or all of the persons holding These consequential amendments tance with the resolution of harassment and discrimination concerns of lawyers, articled that offi ce are also part-time lawyers and are expected to receive Royal Assent in students, articling applicants and staff in members of the Law Society. A new sec- the coming days. When passed, the pro- law fi rms or other legal workplaces. Contact tion 1.1 of the Legal Profession Act pre- visions will be effective retroactive to Equity Ombudsperson, Anne Bhanu Chopra: serves the judicial independence of part- April 1, 2008.Y Tel: 604-687-2344 Email: achopra1@no- time judicial justice by stipulating that the vuscom.net.

MAY 2008 • BENCHERS’ BULLETIN 23 PRACTICE

PRACTICE TIPS, by Dave Bilinsky, Practice Management Advisor On profi ts and paradoxes...

Ask yourself this question: What is your core business objective? If you have difficulty answering, then imagine how your marketing message appears to the public.

is vision combined with an astute appraisal of business opportunities and a marketing message that reaches out to your target clients. The internet is, of course, one of the major factors in being able to reach out to a wider client base than one limited by ge- ography. Planning means precluding options and embracing those that have the great- est potential for profi t for you.

Planning means precluding options and embracing those that have the greatest Oh, I’m not afraid to face the light, I’m not afraid to think that I might fall potential for profi t for you. YI was goin’ nowhere fast, I was needin’ something that would last… —Words and music by K. Livgren, S.: Walsh, recorded by Kansas You have only so much time, energy WHEN I MEET a lawyer, I am often told reasons for this, not the least of which is and resources. If you spread those out in that theirs is a “general practice.” Implicit that, in many cases, it has only resulted in too many directions, you don’t have any in that statement is the (unspoken) as- wasted time and effort. Other times they resources left to push in any particular sumption that they must appear to offer have moved directly to tactics without lay- direction, which leaves you going no- a wide range of legal services in order to ing the proper groundwork fi rst. But that where fast. stay in business. There is a fear compo- does not take away from the proven suc- nent implicit in there as well — that they cesses of those who have done it right and might fi nd their income falling if they were who have reaped the results. There are many factors to consider — to portray themselves differently. Yet in Ask yourself this question: What is demographics, economics, business trends, the same breath they will be asking how your core business objective? If you have your skill set, staffi ng, training, technology they can improve their profi tability as diffi culty answering, then imagine how and fi nances — to mention a few. they seem to be going nowhere fast. The your marketing message appears to the answer, paradoxically, is to let go of their public. The paradox here is that, by being assumptions and turn to face the light. clear on what you are not, you are coming There are many factors to consider closer to what you are. Consider if you will, — demographics, economics, business a physician. When you have a problem, do trends, your skill set, staffi ng, training, Lawyers typically have diffi culty in em- you wish to see a generalist or a specialist? technology and fi nances — to mention bracing strategic planning. There are Now you may say that there isn’t enough a few. Certainly start with small careful good reasons for this, not the least of work where you live to support a special- steps, but make those steps all line up which is that, in many cases, it has only ist lawyer. The paradox here is that there towards a defi nite goal. Measure your re- resulted in wasted time and effort. are many examples of lawyers developing sults and embrace your successes. Mostly, a tightly focused practice in smaller com- realize that no one else is responsible for munities (and in larger ones) that attract implementing your plan except yourself. Lawyers typically have diffi culty in em- clients from all around the province and And embrace a strategic direction that has bracing strategic planning. There are good elsewhere. The ingredient that is necessary the greatest potential to last.Y

24 BENCHERS’ BULLETIN • MAY 2008 PRACTICE

Provincial Rule changes

Court practice AT THEIR APRIL meeting, the Benchers approved changes, as described below, to the follow- direction ing Law Society Rules. RULE 4-13: RESCISSION OF CITATION The Discipline Committee’s authority to substitute another decision it is entitled to make THE PROVINCIAL COURT of BC has issued a under Rule 4-4(1) when it rescinds a citation has been clarifi ed. The Rule now states: Practice Direction for: 4-13 (2) At any time before a panel makes a determination under Rule 4-35, the Discipline • Colwood — South Vancouver Island Committee may rescind a citation and substitute another decision under Rule 4-4(1). District RULE 4-35: PENALTY • Duncan — South Vancouver Island District Rule 4-35 was silent on orders, declarations and conditions under s. 38(7) of the Legal Profession Act, which involves discipline hearings. Accordingly, the Rule has been amend- • Kelowna — Okanagan District ed to include a reference to that section of the Act. The Rule now states: Regarding Arraignment and Trial Confi r- 4-35 (1) Following a verdict under Rule 4-34 adverse to the respondent, the panel must mation Hearings, Compliance and Admin- (c) include in its decision under this Rule istrative Court Sittings. The directive has three objectives: (i) any order, declaration or imposition of conditions under section 38(7) of the Act, and 1. To authorize Judicial Case Managers by assignment to deal with virtually all (ii) any order under Rule 5-9 on the costs of the hearing, including any order re- administrative and remand matters specting time to pay, (including arraignment and trial con- (d) prepare a written record, with reasons, of its action taken under subrule (b) and firmation hearings). any action taken under subrule (c),

2. To provide a simplifi ed and effi cient means RULE 1: DEFINITIONS of managing breach matters to secure a timely determination of the matter. The defi nition of “professional conduct record” has been clarifi ed to make clear it includes orders and other actions taken against a respondent under s. 38(6) or (7) of the 3. To provide a prompt hearing where there Act. The defi nition now states: has been a failure, on the part of coun- sel or an accused, to comply with the 1 In these Rules, unless the context indicates otherwise: Criminal Casefl ow Management Rules “professional conduct record” includes the following information respecting a lawyer: that require senior judicial attention to (k) an action taken under section 38(5), (6) or (7) of the Act; address issues that lead to backlog in Lawyers and articled students will fi nd amendment pages for their Member’s Manuals the justice system.Y included with this edition of the Benchers Bulletin. Y

MAY 2008 • BENCHERS’ BULLETIN 25 REGULATORY

The Court of Appeal dismissed all four appeals and was highly critical of Goldberg’s conduct and competence in its written reasons. It said Gold- Discipline digest berg’s affi davits were “unworthy of any lawyer” and that his factums and written submissions were “rambling,” “repetitive,” “disorganized” and PLEASE FIND SUMMARIES with respect to: “among the poorest examples presented to this court in recent memory.” • Larry William Goddard The court also said Goldberg used his right of audience to make “seriously • Sheldon Goldberg damaging, but completely unfounded” allegations of misconduct, includ- • Kathryn Jane Karst ing drug and alcohol abuse, against JB. • Donald Eric Linge A Law Society hearing panel reviewed extensive materials concerning the For the full text of discipline decisions, visit the Regulation & Insurance / Reg- allegations Goldberg made against JB and found no proper evidence to ulatory Hearings section of the Law Society website at lawsociety.bc.ca. support the assertions. Further, it found Goldberg failed to demonstrate adequate knowledge of substantive law, practice and procedures needed to effectively represent his clients, contrary to Chapter 3, Rule 1 of the LARRY WILLIAM GODDARD Professional Conduct Handbook. The panel concluded Goldberg did not competently carry out his duties as counsel. Abbotsford, BC Called to the Bar: May 20, 1975 (ceased membership June 6, 2007) VERDICT Discipline hearings: September 17, 2007 (Facts and Verdict) and Febru- The panel found Goldberg guilty of professional misconduct in making ary 27, 2008 (Penalty) unfounded, but serious, allegations about the conduct of JB. They further Panel: Leon Getz, QC, Chair, Ralston S. Alexander, QC and Kenneth M. concluded that he incompetently carried out the duties he undertook in Walker the appeals. Reports issued: October 25, 2007 (2007 LSBC 46) and May 12, 2008 PENALTY (2007 LSBC 14) A majority of the hearing panel ordered Goldberg: Counsel: Maureen S. Boyd for the Law Society and no-one on behalf of the respondent 1. be suspended from the practice of law for a period of 90 days, start- ing January 1, 2008; On May 12, 2008, the hearing panel suspended Larry William Goddard 2. submit any written material relating to an argument based on the for six months. A summary of the decision will be published in the next ineffective assistance of counsel to a practice supervisor for review Benchers’ Bulletin. before fi ling; and 3. pay costs of the hearing. SHELDON GOLDBERG The minority called for a suspension of 180 days, not 90 days. The minor- ity agreed with all other aspects of the decision. Vancouver, BC REVIEW Called to the bar: January 3, 1973 Hearing dates: April 10, 11, 12, May 23, July 13, August 31 and Septem- On February 12, 2008, the Benchers heard Goldberg’s application for a ber 12, 2006 (Facts and Verdict), May 18, 2007 (Penalty) and February review of the hearing panel’s decision on verdict, penalty and costs. 12, 2008 (Review) In a letter to the Law Society dated October 16, 2007 Goldberg listed 11 Hearing panel: Glen Ridgway, QC, Chair, Leon Getz, QC and Gavin points that he believed demonstrated errors made by the original panel. Hume, QC The Benchers found one of the points diffi cult to comprehend and invited Penalty: Majority decision: Leon Getz, QC and Gavin Hume, QC; Minority Goldberg to argue and explain each of his points at the hearing, but he decision: Glen Ridgway, QC chose not to do so. Review panel: Gordon Turriff, QC, Chair, Kathryn Berge, QC, Robert After considering all of the issues raised by Goldberg, the Benchers found Brun, QC, Peter Lloyd, David Mossop, QC, David Renwick, QC, Margue- no merit in any of them. In their decision, the Benchers reiterated that rite Shaw, QC Goldberg exposed JB to severe criticism and allegations without proper foundation. Further, the Benchers stated that Goldberg had “incom- Reports issued: Facts and Verdict, January 10, 2007 (2007 LSBC 03); petently tried to build his client’s cases on allegations that he knew or Penalty, September 7, 2007 (2007 LSBC 40); Review, May 8, 2008 should have known were unsubstantiated.” (2008 LSBC 13) The Benchers noted that, while lawyers must be given latitude in deter- Counsel: Herman Van Ommen, Judy Walker and Brian McKinley for the mining what evidence is required for the proper prosecution or defence of Law Society before the hearing panel, and Jean Whittow, QC, for the Law their clients’ cases, that latitude “is tempered by the responsibility to take Society at the review; Sheldon Goldberg appearing on his own behalf care at all times.” The Benchers said counsel must “understand … what FACTS facts must be proved and how to prove them, having regard to the rules of evidence” and that “counsel have no right to lead just any evidence or Sheldon Goldberg represented four men on four separate criminal ap- say just anything in court.” peals that were heard together. The common ground of appeal was an The Benchers dismissed the review application with costs payable to the allegation of inadequate representation at the trial by JB, the lawyer who Law Society. had originally represented all four accused.

26 BENCHERS’ BULLETIN • MAY 2008 REGULATORY

KATHRYN JAYNE KARST DONALD ERIC LINGE Burnaby, BC Victoria, BC Called to the bar: August 1, 1986 Called to the bar: July 13, 1977 Discipline hearing: March 27, 2008 Hearing dates: February 14, 2008 Panel: James Vilvang, QC, Chair, Robert Brun, QC and William Jackson Panel: G. Glen Ridgway, QC, Chair, Robert Brun, QC and Thelma O’Grady Report issued: April 3, 2008 (2008 LSBC 11) Reports issued: March 10, 2008 (2008 LSBC 07) and Corrigendum is- Counsel: Jaia Rai for the Law Society and Jean Whittow, QC for Kathryn sued April 10, 2008 (2008 LSBC 12) Jayne Karst Counsel: Maureen Boyd for the Law Society and James Carfra, QC for Donald Eric Linge FACTS FACTS Kathryn Jayne Karst practised as a sole practitioner from the date of her call until January 1987, when she ceased to be a member of the In approximately 2000, a vendor retained Donald Eric Linge to act in a Law Society for failure to renew her practice certifi cate. Karst resumed real estate transaction involving lots with an easement registered against practice in June 1989 as an associate with the law fi rm of I & Company them. During the closing procedure, Linge accepted a trust cheque on until January 1990, when she joined the law fi rm of C & Company as an May 9, 2000 on his undertaking to discharge the easement against two associate. From March 1996 until the present, Karst has practised as a of the three lots. self-employed lawyer under the name of C & Company and with C as On approximately May 17, 2000 Linge submitted an application to the an associate. Land Title Offi ce to discharge the easement from the properties. About In January 2005 the Law Society conducted a practice review of Karst’s six days later the Land Title Offi ce issued a notice declining to register the legal practice, as ordered by the Practice Standards Committee under discharge. Sometime in between the application and the notice declining Rule 3-13, fi nding periods of delay or inactivity in six of the seven fi les it, Linge released the funds from trust. reviewed. The committee accepted the nine recommendations set out in Linge explained in a letter to the Law Society dated June 28, 2007 that the practice review report. he had been undergoing a marriage breakdown and fi nancial diffi culties In a follow-up practice review conducted in June 2006, the Law Society found for some time in the 1990s and that by 2000 and 2001 his life was es- delay or inactivity in seven of the nine fi les reviewed, noted eight of the pre- sentially in chaos. His marriage had broken down and relations with his vious recommendations were “partially done” or “not done,” and issued a wife were so disruptive that his then partners wrote her a letter insisting revised set of 12 recommendations. A second follow-up practice review in that she not come to the offi ce. He was also undergoing serious fi nan- November 2006 indicated that eight of the outstanding recommendations cial problems. In addition, after returning from a vacation in September were “partially done” or “not done,” and noted periods of inactivity in four 2001, he was effectively dismissed from the partnership and locked out fi les, including delays in proceeding on a criminal defence, attending to entry of the premises. of a restraining order and securing a client’s release from custody. On October 29, 2002 the lawyer from fi rm Y, who had put Linge on the undertaking, wrote to Linge regarding the discharge of the easement and ADMISSION AND PENALTY requested that Linge “attend to this matter without delay.” Following the Karst admitted she failed to maintain adequate offi ce and fi le manage- letter, Linge spoke to the lawyer on at least two occasions in 2002 and ment systems as alleged in the Law Society’s citation, and admitted that said he was taking steps to discharge the easement. in doing so, she incompetently carried out duties undertaken in her ca- In January 2007 another lawyer at fi rm Y contacted Linge regarding the pacity as a member of the Law Society. discharge. The following month she made a complaint to the Law Society The panel accepted Karst’s admission and proposed penalty under Rule regarding Linge’s failure to comply with his undertaking made on May 9, 4-22, and ordered that she: 2000. In May 2007 the Discipline Committee directed Linge to undergo a 1. be reprimanded; Practice Review. In June 2007 Linge retained a lawyer, at his own expense, to ensure the easement is discharged. 2. practise only as an employee of one or more lawyers to be approved by the Practice Standards Committee and under an employment su- ADMISSION AND PENALTY pervision agreement in a form satisfactory to the Practice Standards Committee, until that committee relieves her of this condition; and While fully admitting his disbursal of funds without fulfi lling his under- taking is professional misconduct, Linge told the panel that his failure to 3. pay costs of $2,000 by December 31, 2008. discharge the easement caused no hardship to any of the parties involved in the transaction. Linge further admitted that between late 2002 and February 2007 he took no signifi cant steps to discharge the easement and fulfi ll the undertaking. Under Rule 4-22, the panel accepted Linge’s admissions and proposed penalty and ordered that he pay: 1. a fi ne of $3,000; and 2. costs in the amount of $2,000 with both being payable at $1,000 per month, beginning April 1, 2008. Y

MAY 2008 • BENCHERS’ BULLETIN 27 ELECTED BENCHERS LIFE BENCHERS President Ralston S. Alexander, QC Patricia L. Schmit, QC John J.L. Hunter, QC* R. Paul Beckmann, QC Norman Severide, QC Howard R. Berge, QC Jane S. Shackell, QC First Vice-President Gordon Turriff, QC* P. Michael Bolton, QC Donald A. Silversides, QC Darrell T.B. Braidwood, QC Gary L.F. Somers, QC Second Vice-President Thomas R. Braidwood, QC Mary F. Southin, QC G. Glen Ridgway, QC* Cecil O.D. Branson, QC Marvin R.V. Storrow, QC Trudi L. Brown, QC William J. Sullivan, QC Rita C. Andreone Mr. Justice Grant D. Burnyeat G. Ronald Toews, QC Kathryn A. Berge, QC A. Brian B. Carrothers, QC Russell S. Tretiak, QC Joost Blom, QC Mr. Justice Bruce I. Cohen Benjamin B. Trevino, QC Robert C. Brun, QC Robert M. Dick, QC William M. Trotter, QC Leon Getz, QC Robert D. Diebolt, QC Ross D. Tunnicliffe Carol W. Hickman Ian Donaldson, QC Alan E. Vanderburgh, QC Gavin H.G. Hume, QC* Ujjal Dosanjh, QC Brian J. Wallace, QC William F.M. Jackson Leonard T. Doust, QC Karl F. Warner, QC Terence E. La Liberté, QC Jack L.T. Edwards, QC Warren T. Wilson, QC Bruce A. LeRose, QC* William M. Everett, QC Jan Lindsay Anna K. Fung, QC MANAGEMENT BOARD David W. Mossop, QC Richard C. Gibbs, QC Chief Executive Offi cer and Thelma O’Grady Dr. James J. Gow, QC Executive Director Robert D. Punnett Arthur M. Harper, QC Timothy E. McGee David M. Renwick, QC John M. Hogg, QC Marguerite (Meg) E. Shaw, QC H. Allan Hope, QC Stuart Cameron Richard N. Stewart, QC Ann Howard Director, Professional Regulation Ronald S. Tindale Mr. Justice Robert T.C. Johnston Arthur E. Vertlieb, QC* Gerald J. Kambeitz, QC Susan Forbes, QC James D. Vilvang, QC Master Peter J. Keighley Director, Lawyers Insurance Fund Kenneth M. Walker Mr. Justice Peter Leask Jeffrey Hoskins David A. Zacks, QC Gerald J. Lecovin, QC Director, Policy and Legal Services / Hugh P. Legg, QC General Counsel LAY BENCHERS Charles C. Locke, QC Haydn Acheson James M. MacIntyre, QC Howard Kushner Patrick Kelly* Richard S. Margetts, QC Chief Legal Offi cer Stacy Kuiack Marjorie Martin Jeanette McPhee Barbara Levesque Robert W. McDiarmid, QC Chief Financial Offi cer Peter B. Lloyd Brian W.F. McLoughlin, QC Alan Treleaven Dr. Maelor Vallance Kenneth E. Meredith Director, Education and Practice Peter J. Millward, QC EX OFFICIO BENCHER Dennis J. Mitchell, QC Adam Whitcombe Attorney General Karen F. Nordlinger, QC Chief Information Offi cer Wallace T. Oppal, QC Richard C.C. Peck, QC June Preston * Executive Committee Emily M. Reid, QC

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