2012: No. 4 • WINTER
Keeping BC lawyers informed
President’s View 2012 … it was a very good year / 2
CEO’s Perspective Pursuit of regulatory innovation an ongoing endeavour / 4
News Justicia launched in BC / 3 Your fees at work: PLTC / 5 Designated paralegals pilot project to begin January 1, 2013 / 6 Law Society ushers in new president, Art Vertlieb, QC / 8
Practice Practice Tips: The Freeman-on-the- Land movement / 11 Practice Watch: Fees, disbursements and interest; Practice Checklists Man- ual; identity fraud; forest land / 16 New Limitation Act in force June 1, 2013 / 18
Conduct & Discipline Conduct reviews / 19 FEATURE Discipline digest / 22 The Code of Professional Conduct for BC / 12 PRESIDENT’S VIEW
2012 ... it was a very good year
by Bruce A. LeRose, QC “Gasp,” 2012 is drawing to a close — where such initiatives that include greater roles has the time gone? It seems like only yester- for articled students and the unbundling day that I was sitting down to pen my first of legal services. January 2013 will bring President’s View, and now here I am already the public launch of the paralegal changes mulling over my last opportunity to speak and the Law Society encourages lawyers to lawyers as president of the Law Society to take up the opportunity to have their of British Columbia. Being this is my last col- paralegals participate in the two-year pilot umn, it seems only proper to reflect on the project with the courts. highlights of 2012. In late October 2012, the Benchers ap- 2012 has been a very eventful year for proved a “road map” for a complete over- the Law Society. In the spring, the BC Leg- haul of Law Society governance. The plan islature passed substantial and significant will provide clear direction to the Benchers amendments to the Legal Profession Act. in terms of their distinct roles as directors These amendments allow the Law Soci- of the Law Society, as regulators of the ety to be a more effective and transparent profession charged with protection of the regulator of the legal profession, while at public interest and, finally, as “trusted ad- Benchers’ Bulletin visors” to the profession. These wide-rang- The Benchers’ Bulletin and related ing changes to how the Benchers govern newsletters are published by the Law Should the Law Society expand its regu- will provide clear and objective policies Society of British Columbia to update BC and procedures so that the Benchers will lawyers, articled students and the public latory authority to cover all non-lawyers be better equipped for each of the three on policy and regulatory decisions of the who deliver legal services? Should it give Benchers, on committee and task force roles that they are required to fulfill. work and on Law Society programs and up its s.15 responsibility for unauthor- Finally, the Benchers have established activities. BC lawyers are responsible for ized practice and just regulate lawyers? a Legal Service Provider Task Force, which reading these publications to ensure Should it continue the status quo? These they are aware of current standards, has been charged with the responsibility to policies and guidelines. are big questions that demand thoughtful consider the future of legal services regu- Suggestions on improvements to the responses. lation. Should the Law Society expand its Bulletin are always welcome — contact the regulatory authority to cover all non-law- editor at [email protected]. yers who deliver legal services? Should it Electronic subscriptions to the Benchers’ the same time providing greater flexibility give up its s.15 responsibility for unauthor- Bulletin, Insurance Issues and Member’s in our dealings with the profession. ized practice and just regulate lawyers? Manual amendments are provided at no This year also saw the final approval of Should it continue the status quo? These cost. Print subscriptions may be ordered the Code of Professional Conduct for BC. In are big questions that demand thoughtful for $50 per year ($20 for the newsletters only; $30 for the Member’s Manual amend- March, the Benchers adopted the conflicts responses. Areas such as the educational ments only) by contacting the subscriptions of interest provisions in the Federation of qualifications and credentialing of non- assistant at [email protected]. Law Societies’ Model Code of Professional lawyers will also have to be considered in Current and archived issues of the Bulletin Conduct, with adaptations to improve its this context. I am very pleased that the are published online at lawsociety.bc.ca use in BC. The new BC Code will be in effect Benchers have agreed to appoint numerous (see Publications and Resources). as of January 1, 2013. representatives from various stakeholders PHOTOGRAPHY In June, the Benchers approved com- to this task force so that the approach will Brian Dennehy Photography: cover and prehensive changes to the Law Society be much more inclusive and holistic. pages 3 and 12 Rules in order to allow for an expanded In conclusion, I want to say to all my © 2012 The Law Society of British Columbia scope of practice for “designated para- friends and colleagues across this great Publications Mail Agreement No. 40064480 legals.” The Benchers are determined to province of ours that having the opportu- come up with ways to improve access to nity to be president of the Law Society for affordable legal services. Allowing parale- 2012 has been the single greatest honour gals to do more is the latest in a series of of my life. My nine years as a Bencher have
2 BENCHERS’ BULLETIN • WINTER 2012 president’s view
been more personally rewarding than I can Benchers fulfill their mandate to protect of working with over the past nine years. I ever express. I want to acknowledge CEO the public interest, as well as responding have no doubt that he will provide strong, Tim McGee, the management team at the to the many needs of BC lawyers. Finally, decisive leadership in 2013, and will be a Law Society and all of the hard-working I want to congratulate my successor, Art terrific ambassador for our profession.v staff who are so dedicated to helping the Vertlieb, QC, whom I have had the pleasure Justicia launched in BC as firms invited to sign on
The Justicia Project was officially Alberta, as well as large regional firms that • Promoting leadership skills for women launched in BC on November 20, 2012 with may be interested in the project. Phase “Our aim is to bring firms together to share a meeting of law firm managing partners to two will be directed at all other BC firms. strategies and best practices,” said Bruce introduce the first phase of the project. Shayne Strukoff, managing partner LeRose, QC, president of the Law Society. Developed by the Law Society of Up- at Gowlings, and Helena Plecko, associ- “Based on its success in Ontario, Justicia per Canada, the Justicia Project is a vol- ate at Gowlings, volunteered to drive the will help advance the Law Society’s stra- untary program for law firms to identify initiative on behalf of the Law Society. The tegic goal of supporting the retention of and implement best practices to retain project is further supported by the Equity women lawyers.” and advance women lawyers in private and Diversity Advisory Committee, as well “We encourage law firms of all sizes practice. It was created in response to evi- as members of the Justicia working group, to lend their support to this important dence that women leave the profession at McCarthy Tétrault’s Lisa Vogt and Blakes’ project,” said Helena Plecko, associate at a higher rate than men in the first 10 years Bill Maclagan, who is also a Bencher. Gowlings. “We hope it will pave the way of practice. Participating law firms will commit to for systemic change in the legal profession Encouraged by the success of the Jus- achieving goals in four areas: that will address the realities women in ticia Project in Ontario, the Law Society of • Tracking gender demographics private practice are facing.” BC, on the recommendation of the Reten- • Reviewing/introducing flexible work Lawyers or law firms with questions tion of Women in Law Task Force, launched arrangements and parental leave poli- about Justicia or how to participate should its own two-phase program. cies contact Michael Lucas, Manager, Policy & Phase one is directed at national law Legal Services at the Law Society of BC at • Adopting initiatives to foster women’s firms with offices in BC that are already [email protected] participants in Justicia in Ontario and networking and business development
Law Society Award
Three hundred thirty lawyers and judges attended the Bench & Bar Dinner on November 8. A highlight of the evening was the presentation of the Law Society Award to Marvin Storrow, QC (left, with Society President Bruce LeRose, QC). The award is a bronze statue of Sir Matthew Baillie Begbie, cast by the late Pender Island sculptor Ralph Sketch.
WINTER 2012 • BENCHERS’ BULLETIN 3 CEO’S PERSPECTIVE
Pursuit of regulatory innovation an ongoing endeavour
by Timothy E. McGee
The Law Society of BC is frequently ac- And while it would not be new to activities. knowledged as an innovator in the regula- many law firms or other businesses, the Our investment in and commitment tory field. We were among the first legal Law Society is implementing a new state- to these projects and others is part of our regulators to address issues like unbundling of-the-art online document and records goal for continuous improvement in all we of legal services, cloud computing and alter- management system. This new capability do. If you are interested in learning more nate business structures, for example. And will be crucial to helping us meet the goals about these or any other of the Law Soci- we remain focused on setting and maintain- we have set for the future efficiency and ef- ety’s initiatives, please contact us at ceo@ ing the highest standard when it comes to fectiveness of virtually all of our regulatory lsbc.org.v effective regulation in the public interest. To achieve this, we are now in the midst of several initiatives that are intend- ed to improve our efficiency and effective- ness as regulators. The Law Society recently completed Opening the doors for public a thorough review of how we handle per- sonal and private information. Taking into participation account the latest legislation and guide- lines and with the help of privacy experts, One year ago this month, the Law Soci- “For the public, having somebody like ety’s discipline and credentials hearings took me as an outsider, hopefully will bring for on a new, more transparent face. Following them a sense of confidence, and a sense Taking into account the latest legislation a thorough application, screening and se- the old boys’ network doesn’t apply,” said and guidelines and with the help of priva- lection process, the Law Society named 21 Goodleaf. cy experts, we now have a comprehensive members of the public who would sit on the The members of the public who were assessment, including policies and steps hearing panels that discipline lawyers, and selected to sit on the panels come from a we can take to improve on our current those that examine the fitness and charac- wide range of academic and professional ter of people applying to become lawyers. backgrounds. Goodleaf is a former Cana- level of privacy protection. “As the legal regulator, being open and dian Ambassador in Central America. He transparent is a key part of what we do,” was also Canada’s Deputy Minister of Indi- we now have a comprehensive assessment, said Law Society President Bruce LeRose, an and Northern Affairs. Among the other including policies and steps we can take to QC. “We are deeply committed to regu- panel members, there are former mayors, improve on our current level of privacy pro- lating the profession in the public interest, a forestry executive, a policing consultant, tection. and I want the public to see that.” university professors, chartered accoun- The Benchers have also recently under- The first hearings to include members tants, and more. taken a full review of our key performance of the new public pool were in Decem- While the public hearing panel pool is measures — those public benchmarks es- ber 2011. Since then, pool members have new, the concept of having lay people help- tablished in 2007 to evaluate how we are helped adjudicate 16 discipline hearings, ing to adjudicate hearings is not. The Law delivering our core regulatory functions — and four credentials hearings. Society’s hearing process already included to ensure they continue to be relevant and “The learning curve was quite high,” some non-lawyers, by the inclusion of gov- provide an appropriate level of account- said Dan Goodleaf, a member of the pub- ernment-appointed Benchers. The public ability and transparency. lic pool. “You’re sitting with very seasoned, pool, however, expands the role the public Another project on the go is a review of well-accomplished individuals. It is a bit plays in the regulatory process by ensuring the services we provide to support lawyers daunting being put among them, with the that a non-lawyer is on each panel. through our practice advice group and our expectation that you will be a co-equal on “Members of the public bring real online resources. Our goal is to ensure that the panel. You are not window dressing, value to our system,” said LeRose. “With we are providing the best resources possi- and you are not there to be subservient. their diverse backgrounds, the public pool ble to assist lawyers in complying with our You are there to be independent in your makes an already strong process, even regulatory standards. thought.” stronger.”v 4 BENCHERS’ BULLETIN • WINTER 2012 NEWS
Your fees at work: Professional Legal Training Course
Th e Law Society regularly highlights how firm management and professional re- Ensuring new lawyers have the skills re- annual practice fees are spent so that lawyers sponsibility. Students are tested on this quired to practise law is critical to their are aware of services to which they are en- knowledge in two written exams. initial and ongoing success and to the rep- titled as well as programs that benefit from The skills and knowledge the students utation of lawyers in general. Law Society funding. acquire at PLTC are supplemented in their One of the highlights of PLTC is the In this issue, we feature members’ sup- articles and on the job after their call, mock civil trial, which allows students to port for the Professional Legal Training prepare and act as counsel for a full trial in Course, or PLTC. Supreme Court. Practising BC trial lawyers One of the highlights of PLTC is the mock volunteer to sit as judges and give the stu- The Law Society’s PLTC has earned inter- civil trial, which allows students to pre- dents feedback. Other assignments have national recognition and has served as a pare and act as counsel for a full trial in students analyzing legal problems, writing model for bar admission programs all over Supreme Court. Practising BC trial law- opinions, drafting contracts from scratch the world. Instructors are all lawyers with and interviewing new clients. a wealth of knowledge and practice expe- yers volunteer to sit as judges and give the students feedback. Student feedback on the program is rience. The 10-week course focuses on the collected after each session. In the words development of skills, including advocacy, of one recent student, typical of the com- writing, interviewing, drafting, legal re- ensuring new lawyers are better prepared ments gathered, “This course does a fantas- search, dispute resolution and problem- for the realities of legal practice. tic job of providing practical skills useful to solving. Students complete numerous Students, or their articling firms, pay the early stages of one’s practice that are practical assignments on which they re- a reasonable, but below-cost fee, to take not taught in law school. The materials are ceive detailed feedback, and they are test- PLTC; the Law Foundation of BC con- extremely well written and comprehensive. ed on four skills assessments. tributes 15% of the annual cost, and the All of the assignments and assessments are PLTC also provides students with remaining amount is subsidized by BC very helpful, and it helps to practise these needed information on legal procedure, lawyers through the annual practice fee. skills.” (July 2012)v
Graduates of foreign law schools Number of Canadian students pursuing foreign law degrees on the rise Students advised to be aware of the benefits and implications of studying outside Canada Admissions staff at the Law Society sure that students know if they gradu- and are therefore ready to enter bar admis- have seen a steady increase in the num- ate from a law school outside of Canada, sion programs here in Canada. However, ber of Canadians who are earning their law it could be months, or even years, before obtaining that certificate from the NCA degrees outside the country and many of they can apply to practise law in BC.” involves payment of fees, as well as consid- those schools are aggressively marketing to Students with international law de- erable time to satisfy additional academic international candidates. grees who want to practise law at home requirements,” said Treleaven. “Students And while studying abroad can have must first apply for a Certificate of Quali- have to write a series of examinations and, great appeal for many reasons, the Law fication from the National Committee on in some cases, they could also be required Society is encouraging students to do their Accreditation, a standing committee of the to complete more course work at a Cana- research before attending law school in a Federation of Law Societies of Canada. The dian university.” country other than Canada. Federation, through the NCA, has a man- After obtaining a Certificate of Quali- “Studying law at an international date from Canada’s law societies to assess fication from the NCA, a student in BC can university is appealing to more and more the education and experience of people apply to the Law Society Admission Pro- students every year,” said Alan Treleaven, with credentials from outside of Canada. gram. Director of Education & Practice with the “The purpose of the certification pro- More information can be found on the Law Society. “We are certainly not sug- cess is to assess whether students trained Law Society website or NCA website: flsc. gesting foreign law schools provide any elsewhere have the same knowledge and ca/en/nca.v less of an education, but we want to make skills as graduates of Canadian law schools
WINTER 2012 • BENCHERS’ BULLETIN 5 news
Designated paralegals pilot project to begin January 1, 2013 Reforms aim to improve access to justice
Since the Benchers approved new expense of effective regulation of the pro- President Bruce LeRose, QC to advise the regulations in the summer for lawyers who fession in the public interest. court would participate in the two-year supervise paralegals, the Law Society’s The second evaluation will track and paralegal pilot project. Beginning January Paralegal Pilot Project Working Group has analyze complaints related to a lawyer’s 1, 2013 the Provincial Court will grant des- been finalizing the details of the project use of designated paralegals. The data will ignated paralegals a limited right of audi- in preparation of next month’s launch. In be a sub-file within a lawyer’s complaint ence in family law matters in the Cariboo/ January, designated paralegals can begin to file and will list the name of the designated Northeast District and Surrey. make appearances in court to speak to cer- paralegals, their function, the area of law Chief Justice Robert J. Bauman had tain family law matters. That pilot project is they were working in, and the number already offered the Supreme Court’s will- in addition to the changes that allow ingness to participate in the Vancou- designated paralegals to give legal ver, New Westminster and Kamloops advice, something that has been per- registries. mitted since July. As designated paralegals begin to make their first court appearances, Measuring success there are some important guidelines When the Benchers’ Bulletin last to be followed. At their first appear- wrote about the paralegal reforms ance in court, designated paralegals in September, one of the chief un- are required to provide the court with answered questions was how the an affidavit from the supervising law- changes would be evaluated. At yer stating: the October 26 Benchers meeting, • the paralegal has the training and the working group proposed a two- experience to deal with the issue at stream evaluation process to help hand; gauge the success of the reforms. The first stream will evaluate the • the materials used by the paralegal new model from an access to justice have been reviewed by the supervis- perspective. The goal of the project is ing lawyer; to help make legal services more af- • the client consents to the applica- fordable for the public, so it is impor- tion being dealt with by a paralegal. tant to measure whether the reforms Lawyers also need to be available to are helping to meet that mark. the paralegal by telephone during the The working group suggested day of the proceeding, and paralegals data should be collected via the must be trained on court protocol Annual Practice Declaration and a before making an initial appearance. web-based survey. The Practice Dec- The kinds of applications para- laration will ask, for example, wheth- legals are allowed to address are in- er lawyers supervise designated tended to be procedural and straight- paralegals, how many, and whether forward. In Supreme Court, they they give legal advice and/or appear in of designated paralegals the supervising include uncontested renewal of notice of court. The survey will ask how many cli- lawyer was overseeing at the time of the family claim, uncontested application for ents used designated paralegals, were the complaint. This information will help in- alternative methods of service, and appli- clients satisfied, and does the lawyer feel form future discussions about whether to cations for which notice is not required. he or she could supervise more than two modify the Law Society rule that caps the Designated paralegals can also speak designated paralegals, the maximum cur- number of designated paralegals per law- to a small number of contested procedural rently allowed. yer at two. matters, including applications to compel The second stream will focus on pro- production of documents for inspection Paralegals in family court tection of the public. While the Law So- and copying unless the objection to pro- ciety wants to increase the affordability On September 24, Chief Judge Thomas duction is on the grounds of privilege, and of legal services, it cannot be done at the J. Crabtree of the Provincial Court wrote applications to change the location of an 6 BENCHERS’ BULLETIN • WINTER 2012 NEWS
examination for discovery. the Professional Conduct Handbook. legal advice and appear in court, they will In Provincial Court, designated parale- In any area of law where a supervising be guided by the provisions and guidelines gals may appear to deal with uncontested lawyer deems a designated paralegal com- contained in the Law Society Rules and the first appearances, uncontested consent petent, the paralegal is now permitted to Code of Professional Conduct (which re- orders requiring attendance before a judge, give legal advice to clients. For example, places the Professional Conduct Handbook and uncontested applications for paternity a designated paralegal could provide oral on January 1, 2013.) testing. Lawyers should remember they bear They may also appear on certain con- overall responsibility for the conduct of tested procedural matters in Provincial While the Law Society wants to increase the designated paralegals they supervise. Court, including contested applications the affordability of legal services, it can- Any mistakes made by the paralegal are to compel production of a financial state- not be done at the expense of effective the lawyer’s responsibility. ment or to compel production of financial regulation of the profession in the public The paralegal pilot project will run for documents. interest. two years. In 2015, a review will be con- ducted to determine what worked, what Paralegals giving legal advice did not work, and whether it should be The pilot project that allows designat- advice to a client during a meeting, or pre- continued or expanded into other areas of ed paralegals to make limited court- pare a document such as a contract or will law. room appearances is one element of the and provide it directly to the client. For more information about the new Law Society’s initiative for lawyers who rules and regulations governing lawyers Guidelines for working with supervise paralegals. The other allows who employ paralegals, see the Law Soci- designated paralegals designated paralegals to give legal advice ety’s website.v directly to clients, something that was not As lawyers move ahead with “designat- permitted prior to the changes made to ing” paralegals and allowing them to give
In Brief
Judicial appointments Gordon Funt, a lawyer with Fraser judge of the Provincial Court of BC. Michael Manson, a lawyer with Smart & Milner Casgrain LLP in Vancouver, was ap- William Jackson, QC, administrative Biggar in Vancouver, was appointed a judge pointed a judge of the Supreme Court of Crown counsel with the Criminal Justice of the Federal Court, to replace Mr. Justice BC, replacing Mr. Justice D.C. Harris (Van- Branch of the BC government and a Life D.R. Campbell, who elected to become a couver), who was appointed to the Court Bencher of the Law Society, was appointed supernumerary judge. of Appeal. a judge of the Provincial Court of BC. David Graham, a lawyer with Koff- John Steeves, a sole practitioner in Ronald Lamperson, a partner at Mar- man Kalef LLP in Vancouver, was appointed Vancouver, was appointed a judge of the shall and Lamperson in Qualicum Beach, a judge of the Tax Court of Canada, replac- Supreme Court of BC, to replace Madam was appointed a judge of the Provincial ing Mr. Justice L. Little, who retired. Justice L.A. Loo (Vancouver), who elected Court of BC. The Honourable Robin Baird, a judge supernumerary status. Jennifer Oulton, a Crown counsel with the Provincial Court of BC in Surrey, Andrea Brownstone, a staff lawyer lawyer with the Criminal Justice Branch of was appointed a judge of the Supreme and manager with the Law Society of BC, the BC government, was appointed a judge Court of BC in Nanaimo. He replaces Mad- was appointed a judge of the Provincial of the Provincial Court of BC. am Justice J.A. Power, who was transferred Court of BC. Garth Smith, a prosecutor with the to Victoria to replace Mr. Justice R.W. Bonnie Craig, a prosecutor with the Public Prosecution Service of Canada, was Metzger, who elected to become a super- Tsawwassen First Nation, was appointed a appointed a judge of the Provincial Court numerary judge. judge of the Provincial Court of BC. of BC. The Honourable Kenneth Ball, a judge Roger Cutler, a Crown counsel lawyer James Sutherland, a partner with of the Provincial Court of BC in Surrey, was with the Criminal Justice Branch of the BC Sutherland Jetté Barristers in Vancouver, appointed a judge of the Supreme Court of government, was appointed a judge of the was appointed a judge of the Provincial BC in Vancouver, replacing Mr. Justice B.M. Provincial Court of BC. Court of BC.v Davies, who elected to become a supernu- Kathryn Denhoff, a partner with merary judge. Davis LLP in Vancouver, was appointed a
WINTER 2012 • BENCHERS’ BULLETIN 7 news
Law Society ushers in new president, Art Vertlieb, QC
vice-president and was very active in Subcommittee. campus life, including touring with Outside the Law Society, he recently the football team as a student repre- capped a 10-year stint as a governor of the sentative. American Association of Justice and is an However, it was tragic events elected fellow of the International Acad- that brought him back to Canada. emy of Trial Lawyers and a member of the The assassinations of John F. Ken- Yukon Law Society Discipline Committee. nedy, Martin Luther King and Robert He is also a former president and Kennedy, whom Vertlieb had heard founding vice-president of the Trial Law- speak in person, were a shock. “The yers Association of BC and a former chair violence stunned me,” he said. and founding member of the Lawyers As- Vertlieb returned to Canada to sistance Program of BC. Art Vertlieb, QC and wife Bev Briscoe attend law school at Osgoode Hall. Vertlieb’s passion has long been with Asked why he decided to become the issue of access to justice, and he in- As of January 1, 2013, Art Vertlieb, QC a lawyer, he was quick to answer “Perry tends to make that the focus of his term as will take the reins as president of the Law Mason,” referring to the fictional lawyer of president. Society of BC, capping off many years of the television show of the same name. “He “I have spent more time on access is- dedicated service to the organization. was brilliant and led an exciting life and sues than any other at the Law Society,” “I am incredibly proud of the work it seemed amazing to me that he could said Vertlieb. “It’s a big issue, obviously, that is done by the Law Society, Bench- represent and fight for people with such and I want to see the Law Society con- ers and the profession as a whole,” he ex- success.” tinue the fine work that has been done to plained recently. “It is a privilege to be able Vertlieb has certainly brought that increase the availability of affordable legal to serve as president.” Perry Mason zeal to his practice and the services.” Vertlieb came to Vancouver by way Law Society. As a partner with Vertlieb Vertlieb has played a pivotal role in re- of Hamilton, Ontario, where he was born, Dosanjh in Vancouver, his focus in on per- cent enhancements to the scope of duties and Tucson, Arizona, where he moved with sonal injury law, medical negligence, pro- that can be performed by paralegals and his family at the age of 13. The next eight fessional disputes and criminal law. articled students. In fact, he chaired the years proved to be life-changing for him Elected a Bencher in 2004, Vertlieb very first Law Society task force that con- as he completed high school and then an has a long history of committee work with sidered this issue years ago. undergraduate degree at the University of the Law Society and is currently chair of In addition to his inspiring youth, Vert- Arizona. the Finance Committee. He will move lieb is quick to credit his family for his suc- “I loved the energy of the US and from vice-chair to chair of the Executive cess. His wife, well-known corporate and the ambition of the people around me,” Committee in the new year, and he is public director Bev Briscoe, is an intelligent recalled Vertlieb, “and it had a dramatic also vice-chair of the Governance Review and highly qualified sounding board for impact on my life.” While in university, he Task Force as well as a member of the Ap- Vertlieb. Their sons, Dan, Mike and Dave, campaigned and was elected student body pointments Subcommittee and Litigation round out the package.v Bencher by-election results
Lynal E. Doerksen range of practice experience. In 2005, he currently the president of the North Star has been elected as a joined the BC bar and became a Crown Skating Club of Kimberley. Bencher for Kootenay prosecutor in Cranbrook, where he remains In his election statement, Doerksen county in the No- today. noted, in part: “Despite living most of my vember 15, 2012 by- Doerksen has served as a volunteer for life in Alberta I have never looked back af- election. Doerksen’s many organizations, including the Crimi- ter moving here in 2005. I am thrilled to one-year term begins nology Advisory Committee at the College live in and be a part of the Kootenays.… Al- on January 1, 2013, of the Rockies, CBA Law Day, Cerebral Palsy though my career in BC has been entirely when Bruce LeRose, Association of Ft. McMurray and many tri- in criminal prosecutions, I have not forgot- QC completes his term as president and his athlon events. He is the chair of the CBABC ten the challenges of the general practitio- final term as a Bencher. Court Services Committee and a past pres- ner and believe I am well suited to address Doerksen was called to the bar in Al- ident of the Kootenay Bar Association and and understand the concerns of the entire berta in 1990, where he gained a broad the Fort McMurray Bar Association. He is Kootenay Bar.”v 8 BENCHERS’ BULLETIN • WINTER 2012 NEWS
News from the Law Foundation
Scotiabank commended for rate Society appointment to the Law Founda- education programs that the Law Founda- of return tion Board of Governors for Cariboo Coun- tion contributes to is the Provincial Court Law Foundation Chair Margaret Sasges ty. Fatt was called to the bar in 1981. He externship. The externships are a semester- commends Scotiabank for its commitment has a diversified legal aid practice, and has long judicial internship offered for credit to paying a competitive rate of return on regularly been counsel on circuit courts to third-year students at the UBC Faculty lawyers’ pooled trust accounts. Scotiabank outside of Prince George. For a number of of Law in partnership with the Provincial agreed to a new interest agreement effec- years, he has been the supervising lawyer Court of BC. tive December 1, 2012, that will provide a of the Law Foundation-funded poverty law The students receive a week-long ori- welcome increase to the Foundation’s over- advocacy program in Prince George, oper- entation to the court, delivered by judges, all trust revenues. ated by Active Support Against Poverty. and then spend the remainder of the se- The Law Foundation thanks Paula The Society’s appointment for West- mester working in an assigned courthouse Merrier, Director Western Canada, and minster County is Ajeet Kang, who was four days per week. Students observe the Evonne Macleod, Senior Manager of Global called to the bar in 1994. Kang is the man- operation of the court, undertake legal re- Transaction Banking, at Scotiabank for the aging partner of Kang and Company, a search to support the work of the judiciary, leadership shown in making this new agree- small firm in Surrey. She practises in the and observe the judicial decision-making ment possible. areas of immigration, family and crimi- and court processes. Students also partici- Increased revenues enable the Founda- nal law, is a family law mediator, and has pate in a seminar offered by the Faculty of tion to fund programs that make the justice worked as a federal and provincial pros- Law that provides an opportunity to dis- system accessible to the people of British ecutor. Kang is very involved in the South cuss and analyze the work they have done. Columbia. The funded programs include Asian community, speaking Punjabi and Students consistently describe the experi- professional legal education, public legal Hindi. She founded CORSA, a not-for-prof- ence as eye-opening and very valuable. education, law reform, legal research, legal it organization that works with South Asian As part of the program, students trav- aid and law libraries. youth at risk. She has also served on the BC el with a judge to one of the circuit courts The Law Society, the Canadian Bar Review Board. that serve some of the more remote rural areas of the province. The Law Foundation Association (BC Branch) and the Law Foun- Provincial Court externships dation encourage lawyers to consider which makes an annual grant that funds the trav- One of the continuing professional legal financial institutions provide the best sup- el costs for those students.v port to the Law Foundation when deciding where to place their trust accounts. New board chair At its November meet- ing, the Law Foundation Hon. Kenneth E. Meredith Board of Governors ap- proved Tamara Hunter The Honorable Kenneth E. Meredith as its new chair. Hunter passed away on December 3, 2012 at is a litigation lawyer the age of 90. Meredith was a Bencher at Davis and Com- from 1964 to 1973 and received the Law pany in Vancouver and Society Award in 2002 (right, with 2002 Tamara Hunter practises in the areas Law Society President Richard Gibbs, of administrative law, QC). privacy law, professional regulation and When announcing Meredith would commercial litigation. She began her legal receive the award, the Benchers’ Bulletin career as a law clerk to Chief Justice Lamer stated: of the Supreme Court of Canada and was called to the bar in 1992. She has represent- Mr. Meredith’s career has embraced 23 years of practice as a commercial law law- ed both private and public sector organiza- yer in Vancouver, 10 years as editor of the Advocate, eight years as a Bencher and tions before the Office of the Information over 20 years as a Justice of the Supreme Court of BC. and Privacy Commissioner and in related litigation. His vision and commitment led to the establishment of a legal aid plan that has served British Columbians for the past 30 years and to founding of the Law Foun- Law Society appointments dation of British Columbia in 1969, which has played a critical role in funding legal As of January 1, 2013, Fred Fatt is the Law aid, law libraries, legal education, legal research and law reform in the province.
WINTER 2012 • BENCHERS’ BULLETIN 9 news
Discipline advisory Improper to seek withdrawal of complaint to the Law Society
Discipline advisories are designed to inform lawyers about conduct that can A lawyer must not … wrongfully influ- lead to discipline. The most effective way to receive Discipline advisories is to ence any person to prevent the Crown or regulatory authority from proceed- subscribe to the RSS feed. The Law Society also provides RSS feeds for News ing with charges or a complaint or to releases, hearing reports, Highlights and Fraud alerts. cause the Crown or regulatory author- ity to withdraw the complaint or stay The Professional Conduct Handbook complaints about the conduct or compe- charges in a criminal or quasi-criminal prohibits a lawyer from improperly ob- tence of the people it regulates. The agree- proceeding. structing or delaying Law Society investi- ments are also void and not enforceable gations (Chapter 13, Rule 3). This includes in the courts: Re Sandra Thompson Family A “regulatory authority” includes profes- attempting to have a complainant with- Trust, 2011 ONSC 7056. sional and other regulatory bodies. draw a complaint to the Law Society as It is a discipline violation for a lawyer While lawyers are free to settle civil part of the settlement of a civil dispute, or to enter into such an agreement or to offer disputes to which they are a party, they otherwise offering to pay money to a com- an inducement to withdraw a complaint or may not seek as part of that settlement to plainant to withdraw a complaint. to not make a complaint: Law Society of BC curtail in any way the right of a person to Such offers or agreements interfere v. Gerbrandt, [1993] LSDD No. 190. bring a complaint to the Law Society or to with the duty of a regulatory body to pro- Rule 3.2-6 of the upcoming Code of continue it.v tect the public interest by investigating Professional Conduct for BC stipulates that:
Unauthorized practice of law
Under the Legal Profession Act, only Inc., dba Weihua Services Centre documents and representing herself trained, qualified lawyers (or articled stu- and www.weihua.ca, of Richmond, as a lawyer or otherwise capable of dents under a lawyer’s supervision) may provided legal advice and offered to practising law. Leveque is prohibited provide legal services and advice to the pub- prepare various legal documents, in- from commencing, prosecuting or de- lic, as others are not regulated, nor are they cluding immigration applications, sep- fending an action in any court, unless required to carry insurance to compensate aration and other divorce documents, acting on her own behalf. Levesque clients for errors and omission in the legal and corporate documents. They have must also inform the Law Society of work or claims of theft by unscrupulous indi- consented to an order not to engage her involvement in any legal matter viduals marketing legal services. in the practice of law as defined in sec- whatsoever, except where she is repre- When the Law Society receives com- tion 1 of the Legal Profession Act and senting herself without counsel. These plaints about an unqualified or untrained not to falsely represent themselves as prohibitions will remain in place until person purporting to provide legal assis- counsel, lawyers, a law firm or a law Leveque is reinstated as a member in tance, the Society will investigate and take corporation. good standing with the Law Society. appropriate action if there is a potential for • Jacqueline Levesque, of Prince George, • The Law Society received informa- harm to the public. is a former lawyer who resigned in tion that Grant Fathie, of Vancouver, From August 14 to November 13, 2012, the the face of disciplinary proceedings represented himself as counsel and Law Society obtained undertakings from in 2010. In 2012, the Law Society re- solicitor for a party to a motor vehicle eight individuals and businesses not to en- ceived information that Levesque accident. Fathie consented to an order gage in the practice of law. provided legal services to a collection prohibiting him from falsely repre- The Law Society has obtained orders company and appeared in court on senting himself as a lawyer, counsel, prohibiting the following individuals and its behalf. Levesque consented to an solicitor, advocate or in any other businesses from engaging in the unauthor- order prohibiting her from engaging manner that suggests he is entitled to ized practice of law: in the practice of law for or without a or capable of engaging in the practice • The Law Society received informa- fee, including giving or offering legal of law. Fathie was also ordered to pay tion that Bankson Cheung, aka Bank- advice, negotiating the settlement the Law Society its costs.v son Zhang and Weihua Consulting of a claim for damages, drafting legal
10 BENCHERS’ BULLETIN • WINTER 2012 PRACTICE
Practice Tips, by Dave Bilinsky, Practice Management Advisor The Freeman-on-the-Land movement
♫ we don’t need you that government-issued identification is Paper “attacks” or your rules – this is ours somehow different from the “natural per- Notwithstanding that the Freemen reject there’s something to die for… ♫ son.” They commonly list their names in the authority of the state, they do file Lyrics, music and recorded by Integrity the format of “First:Last” (using a colon in many private prosecutions and claims of between). They are loosely affiliated with legal rights in the courts. Typically, they Canadian “detaxers,” whose tenet is that Who are the Freeman-on-the- income taxes do not have to be paid to the Land? government. This is a new movement that has impor- tant implications for both lawyers and no- Common symbols taries. It is not just another fringe group in Freeman-on-the-Land follows a com- society. Freeman-on-the-Land is listed on mon formula. Symbols that are associ- the FBI’s domestic terror watchlist (www. ated with the movement, and which are fbi.gov/stats-services/publications/law- found on their documents, include: Biblical enforcement-bulletin/september-2011/ references and religious threats, postage sovereign-citizens). People who have been stamps placed on documents, Uniform linked to this movement include Terry Commercial Code (UCC) citations in the Nichols and Timothy McVeigh (of the 1995 US, fingerprints and “blood seals” affixed Oklahoma City bombing). to documents. They use names for docu- According to the FBI: “Since 2000, ments that are either obscure or not rec- lone-offender sovereign-citizen extrem- ognized in any legal text. ists have killed six law enforcement offi- Claims of the Freeman movement cers. In 2010, two Arkansas police officers stopped sovereign-citizen extremists Jerry Freemen claim that the US government Kane and his 16-year-old son Joseph dur- (and, in Canada, the Bank of Canada) has ing a routine traffic stop on Interstate 40. established secret bank accounts for every Joseph Kane jumped out of the vehicle and person. This idea relies on their “theory opened fire with an AK-47 assault rifle, kill- of redemption.” For example (from www. ing both officers.” policemag.com/channel/patrol/arti- cles/2012/09/sovereign-citizens-a-clear- These are not just people with and-present-danger.aspx): extremist views This theory claims that the United seek costs and orders against public offi- “Freemen” (or Sovereign Citizens, Living States went bankrupt in 1933 when it cials, peace officers and whoever seems to Souls or Natural Persons, as they some- chose to no longer use the gold stan- be standing in their way: times call themselves) believe that all dard to back up its paper currency. statute law is contractual. They further Needing collateral to trade and con- The filing of frivolous lawsuits and believe that law only governs them if they duct commerce with other countries, liens against public officials, law en- choose or consent to be governed. By the United States began to use citizens forcement officers and private citi- implication, they believe that, by not con- as collateral to ensure the value of its zens, on the other hand, has remained senting, they can hold themselves inde- money. Subsequently, secret bank ac- a favorite harassing strategy. These pa- pendent of government jurisdiction. These counts, containing millions of dollars, per “attacks” intimidate their targets individuals believe that they can live under were supposedly established by the and have the beneficial side effect of “common (case) law” and “natural laws” United States Treasury Department clogging up a court system that sov- (per Wikipedia). on behalf of each citizen, or “straw- ereign citizens believe is illegitimate. Freemen may number up to 30,000 man,” used as collateral. Redemption Frivolous liens became such a prob- in Canada and hundreds of thousands in is used as a gateway by sovereigns to lem in the 1990s that a majority of the United States. They believe they can commit various fraudulent acts all in states were forced to pass new laws to avoid taxes, mortgages, utility bills and an attempt to “redeem their straw- make filing them illegal, their removal more. They state that they have an un- man” and access these non-existent easier, or both. Today, eager sovereign fettered right to travel (hence their belief secret Treasury accounts to satisfy that they do not need driver’s licences, various debts, including mortgages, continued on page 14 licence plates or insurance). They believe cars, and credit cards. WINTER 2012 • BENCHERS’ BULLETIN 11 feature
The Code of Professional Conduct for British Columbia An ethical guide for lawyers
On January 1, 2013 the Law Society of BC contained in the Professional Conduct growing awareness among provincial law will retire the Professional Conduct Hand- Handbook have been preserved in the BC societies, as well as their coordinating book. Adopted in 1993, the Handbook has Code, the new document should provide body, the Federation of Law Societies of been the ethical guide for the legal pro- more detailed guidance for lawyers facing Canada, that the Canadian legal profession fession in BC. Replacing it is the Code of an ethical dilemma. needed greater uniformity among ethical Professional Conduct for British Columbia and professional codes of conduct. A push for harmonized ethical (BC Code). “Mobility was the primary issue,” ex- standards The BC Code is the result of years of plained Jack Olsen, an ethics advisor with work, both at the national and provin- The origins of the new BC Code date back the Law Society. In 2005, the Law Society cial level. While the ethical principles more than eight years. In 2004, there was appointed Olsen and Life Bencher David
Gavin Hume, QC was the chair of the Federation’s Standing Committee on the Model Code of Professional Conduct.
12 BENCHERS’ BULLETIN • WINTER 2012 feature
Zacks, QC as BC’s representatives on the committee that set out to work on a na- tional model code of conduct upon which Law Society and CLE provide free education law societies could base their provincial on new BC Code codes. “The whole idea of mobility has gained The Law Society and Continuing Legal Education Society of BC great momentum in the past 10 to 15 years, are teaming up to offer two free online courses for lawyers on with lawyers seeking the ability to read- the Code of Professional Conduct for British Columbia (BC Code). ily move from one province to another. The BC Code comes into effect January 1, 2013, replacing the With that comes the question of uniform Professional Conduct Handbook. standards,” said Olsen. “If lawyers are • Part one is offered on January 15, 2013 and repeated on moving between provinces and territories, January 29, 2013. Delivered by Life Bencher Gavin Hume, and the standards are dramatically differ- QC and Law Society Practice Advisor Lenore Rowntree, this ent, it is going to require significantly more course will provide a general introduction to the BC Code Lenore Rowntree adjustment.” and then discuss the provisions surrounding confidentiality The Model Code of Professional and conflicts. Conduct and conflicts • Part two is offered on February 6, 2013 and repeated on Following considerable effort at both the February 12, 2013. Delivered by Life Bencher Gavin Hume, national and provincial level, the Federation QC and Law Society Practice Advisor Barbara Buchanan, this adopted most sections of the Model Code course will examine the relationship between lawyers and in 2009. Provisions that dealt with the fu- the Law Society, the justice system and others under the ture harm exception to the requirement of new BC Code, as well as aspects of the business of law. confidentiality were adopted in 2010. But Both parts run approximately 90 minutes and are offered via the matter of conflicts of interest proved Barbara Buchanan CLE-TV. These interactive courses count towards Continuing a sticking point. Those provisions were not Professional Development credit in the area of professional adopted by the Federation until 2011, and responsibility and ethics. Lawyers can register via the CLEBC even today, the debate is not over. website: cle.bc.ca/Courses. The issue surrounding conflicts boiled down to a difference of opinion between the Canadian Bar Association and the Fed- eration when it came to the section that dealt with acting against current clients. A lawyer must not represent a client representative to the Federation Council. whose interests are directly adverse to However, the debate over acting “The whole idea of mobility has gained the immediate legal interests of a cur- against current clients is not over. Hume great momentum in the past 10 to 15 rent client — even if the matters are points to a case going to the Supreme years, with lawyers seeking the ability to unrelated — unless both clients con- Court of Canada, Canadian National Rail- readily move from one province to an- sent. way v. McKercher LLP. other. With that comes the question of The Canadian Bar Association was of a dif- That case involves a class action law- uniform standards. If lawyers are moving ferent view. It argued the Federation’s ap- suit against Canadian National Railway and others. The representative plaintiff, Gor- between provinces and territories, and proach was rigid and overly broad and that, in unrelated matters, client consent should don Wallace, alleged prairie farmers had the standards are dramatically different, been over-charged for grain transportation it is going to require significantly more not be required if the lawyer believed there was no conflict of interest and there was for the last 25 years. When the claim was adjustment.” no real or substantial risk to the represen- launched, Wallace’s law firm, McKercher – Jack Olsen tation of a client. LLP, was also acting for Canadian National The issue was referred to the Federa- Railway on several other matters, and CN tion’s Standing Committee on the Model applied to have McKercher LLP disqualified from acting for Wallace. The Federation, bearing in mind the Code of Professional Conduct. Commit- “All of this is going to be resolved in a mandate of law societies to protect the tee chair and BC Life Bencher Gavin Hume, case coming before the Supreme Court of public interest, was of the view that, in or- QC said the Federation ultimately adopted Canada,” said Hume. “So the debate con- der to act against a current client, a lawyer a rule that favoured obtaining client con- tinues.” must have client consent. The advisory sent. “The Federation took that position committee on conflicts recommended the because of its public interest perspective,” following: said Hume, who is also the Law Society’s continued on page 14
WINTER 2012 • BENCHERS’ BULLETIN 13 feature
Code of Professional Conduct ... from page 13 The BC Code and client’s position on a matter that was the Professional central to the retainer. It is not im- The BC Code Conduct Hand- proper, however, for a lawyer to act book against a former client in a matter In BC, the Model Code was carefully re- wholly unrelated to any work the law- viewed by the Ethics Committee and put The BC Code, like the yer has previously done for that per- out to the profession for analysis and com- Professional Conduct son if previously obtained confidential ment. The Benchers approved the portions Handbook that came information is irrelevant to that mat- of the code in April 2011 that did not deal before it, is the regu- Jack Olsen ter. with conflicts of interest, and then adopted latory guide regard- the conflicts portion in March 2012. Some ing lawyers’ ethical “This is going to be of greater assistance to sections of the Model Code were modified obligations. Olsen says, in his experience, the profession because there will be more to improve its use in BC. ethics are an important part of lawyers’ explanation provided with respect to the “We took the approach that, if it was professional lives. intent of a particular rule,” said Hume. “We have over 6,000 inquiries a year important or unique to BC, we would make Implementation across Canada a change,” explained Hume. from members relating to practice and BC is one of six Canadian provinces that One instance where the BC Code dif- ethical questions,” said Olsen. “And that have either adopted or implemented the fers from the Model Code is in marketing. certainly is an indication that lawyers are Model Code. Also on the list are Alberta, The Model Code lists specific activities that very much alive to the ethical questions that can arise in practice.” Manitoba, Saskatchewan, Nova Scotia, The BC Code has been designed as a Newfoundland and Labrador. In the other reference tool to help assist lawyers and provinces, the code is still under review. “The principles are the same, but the the Law Society in answering those ethical “Canadian lawyers are becoming manner of expressing those principles is questions. The ethical guidelines familiar more and more mobile every year,” said better,” from the Handbook have been preserved in President Bruce LeRose, QC. “Harmonizing – Gavin Hume, QC the BC Code, but they have been expressed the ethical standards across the country is in a way that is expected to make it easier a big improvement on the current patch- for the profession to use. work of ethical rules and regulations.” could contravene the rules, for example “The principles are the same, but the Applying the same ethical standards suggesting superiority over other lawyers. manner of expressing those principles across the country is one of several na- The Model Code also gives explicit guide- is better,” said Hume. He describes the tional initiatives aimed at standardizing lines regarding the advertising of fees. The Handbook as a kind of “statutory” docu- the overall regulatory framework for law- marketing rules in the BC Code, while not ment, similar to legislation. The BC Code, yers. LeRose also points to the pilot proj- dissimilar in intent, are considered more on the other hand, provides a rule and then ect designed to test uniform standards for liberal than their national counterparts additional commentary on how the rule disciplinary regulation, as well as efforts to and do not specifically deal with those is- operates. create national standards for admission to sues. For example, the rule in the BC Code the profession. Hume stresses, however, that the BC regarding acting against former clients “The Law Society of BC has been Code is a “living document” and subject corresponds to that in the Handbook, but deeply involved in these initiatives and I to change. “We are going back to the Fed- the BC Code provides the following com- am glad we continue to be a leader among eration to propose changes to reflect our mentary: Canadian law societies,” said LeRose. thinking, but if they don’t accept it, then This Rule prohibits a lawyer from “Harmonizing our standards should help BC may well move back to the Model Code attacking legal work done during the create a more effective, efficient legal v standard.” retainer, or from undermining the profession.”
F reeman-on-the-Land ... from page 11 Group, hold seminars around the 68105762/Ecclesiastical-Notice-of-Pri- country to teach people — for a price — vate-Agreement for an example of one citizens can use the Internet to down- about the latest tactics and weapons. such document against Clarke Burnett, in load a variety of boilerplate forms and (www.adl.org/learn/ext_us/SCM.asp? his capacity as a crown prosecutor) or a documents to wield against the gov- LEARN_Cat=Extremism&LEARN_ mandatariat (a demand made on a peace ernment. More adventurous types can SubCat=Extremism_in_America& officer to produce his or her oath of office matriculate at “schools” such as the xpicked=4&item=sov) and qualifications to a Freeman). Erwin Rommel School of Law; addi- Freemen rely on bogus documents, such They also seek to file liens against tionally, a number of activists, ranging as an “ecclesiastical notice of private from David Wynn Miller to The Aware agreement” (see www.scribd.com/doc/ continued on page 15
14 BENCHERS’ BULLETIN • WINTER 2012 PRACTICE
F reeman-on-the-Land ... from page 14 the like. They are usually pseudo-legal and 2004 www.statcan.gc.ca/pub/85f0033m/ completely unlike any legal document that 85f0033m2007013-eng.pdf) stated that individuals, which can severely damage a lawyer or notary would draw or witness. 17 per cent of all self-reported violent a person’s credit rating. Many individuals In one case in BC, a notary witnessed crimes occurred at the victim’s place of who have been the subject of these attacks a series of documents with names such as work. That is over 356,000 incidents of seek to remove their names from public di- a “Notice of Non Response,” a “Notarial violence in Canadian workplaces in a single rectories for their own protection. For ex- Certificate of Dishonour” and a “Notarial year. ample, in Meads v. Meads, 2012 ABQC 571, Instrument of Protest,” which led to the While the Freeman movement rep- the cover page of the reasons for decision creation of a “True Bill and Notice of Ac- resents a small but potentially growing states: counting” for the sum of $3.5 billion dol- threat, there remains the possibility that a Editorial Notice: On behalf of the lars. These were all stated to be against the law office could face this or other type of Government of Alberta personal data BC Court of Appeal. In this case, the notary security threat. Accordingly, there are two identifiers have been removed from apparently witnessed the documents in steps that law offices should consider and this unofficial electronic version of the her capacity as “Notary Acceptor.” She was implement for the safety of their workers. judgment. disciplined by the Society of Notaries Pub- The first is to have a workplace security In Meads, Associate Chief Justice J.D. Rooke lic for breach of Rule 11.01 of the Notary plan in place to deal with external threats goes into great detail regarding the “Orga- Rules, and admitted that her conduct was to those in the office. This plan should in- nized Pseudolegal Commerical Argument contrary to the best interests of the public clude dealing with an angry and possibly [“OPCA”] Litigants” and is an excellent and the notarial profession. armed individual entering the office. It review of the Freeman-on-the-Land move- Lest one believe that only notaries should also extend to dealing with poten- ment and how it tries to disrupt court have witnessed and notarized these docu- tial bomb threats, suspicious packages be- operations and frustrate the legal rights of ments, there have been instances when BC ing delivered to the office, etc. Everyone in governments, corporations and individu- lawyers too have been approached about the office should be familiar with the plan als. acting in this capacity. and, like a fire drill, it should receive an oc- These Freeman legal matters are also casional trial run to ensure that everyone occurring in BC. BC Supreme Court Justice understands their role and what is, and is Dev Dley recently had to deal with one While the Freeman movement represents not, to be done in the circumstances. Darwin Sorenson, who would not identify a small but potentially growing threat, Examples of such security plans can be himself and spoke of Freeman principles in there remains the possibility that a law found at: court. office could face this or other type of se- • University of Washington (www.wash- “I am a declared sovereign” and “My curity threat. ington.edu/admin/police/prevention/ name is Darwin” was stated in court, ac- Workplace_Security_Plan_current. cording to Cam Fortems of the Kamloops pdf) Daily News on November 26, 2012. Dar- Safety • Michigan Workplace Security Re win refused to step into the area of the Since one of the tenets of the Freeman- source Guide (www.michigan.gov/ court where litigants typically speak to on-the-Land movement is an unrestricted documents/CIS_WSH_security_ the court, saying, “If I enter this area of the right to possess and use firearms, they 73971_7.htm) courtroom, do I have a contract with the raise significant safety and security con- The second is to recognize when a Freeman court?” When Justice Dley warned Darwin cerns. They have been known to become or sovereign citizen is attending the office that he would have him removed from the angry when lawyers or notaries have re- and asking to have documents executed, court, Darwin responded that this would fused to notarize their documents or when witnessed and/or notarized and to take ap- cost the Justice a $30,000 fine. stopped by police officers. propriate action in the circumstances. In another case also before Justice The CBC did an excellent feature on Lawyers should determine when they Dley, another Freeman, Brian Alexander, the Freeman-on-the-Land movement that are being asked to notarize documents had his appeal dismissed of a justice of the mentions an affidavit of truth: www.cbc. that they do not recognize and that appear peace’s decision finding him guilty of fail- ca/news/canada/story/2012/02/29/free- to have no legal purpose. Lawyers should ing to produce a valid driver’s licence. His man-movement-canada.html. It includes not be acting in a way that gives a patina of appeal stated that the court had no juris- video of a Freeman acting up in court. credibility to a pseudo-legal litigant. Above diction. YouTube has a video showing a routine all, “A lawyer owes a duty to the state, to How do lawyers and notaries fit traffic stop of a “sovereign citizen” that maintain its integrity and its law.” (Chapter into all this? ended in the death of the two peace offi- 1, Rule 1(1) Canons of Legal Ethics – Profes- Freemen have attended law firm and cers involved: www.youtube.com/watch? sional Conduct Handbook). notary offices, seeking to have their docu- v=3sDAyGod5PM. Being prepared to deal with the ments “notarized.” The documents have S. de Léséleuc in Criminal Victimiza- Freeman-on-the-Land is simply prudent strange wordings, stamps, blood and fin- tion in the Workplace (Canadian Centre business planning. After all, notarizing a ger seals, UCC and biblical references and for Justice Statistics, Statistics Canada, document isn’t something to die for.v WINTER 2012 • BENCHERS’ BULLETIN 15 PRACTICE
PRACTICE WATCH, by Barbara Buchanan, Practice Advisor Fees, disbursements and interest; Practice Checklists Manual; identity fraud; forest land
and client have a fiduciary relationship, there must be no hidden fees. Rule 3.6-3 requires that the amounts charged as fees and disbursements must be clearly and separately detailed in the statement of account to the client. If there is a joint re- tainer, the fees and disbursements must be divided equitably, unless the clients agree otherwise (rule 3.6-4). What may be charged as disbursements and “other charges”? A lawyer may charge as disbursements “only those amounts that have been paid or are required to be paid to a third party by the lawyer on a client’s behalf” (e.g. long distance phone charges, postage, out of office photocopying and printing, courier charges, government filing fees). If the client has agreed in writing to such costs as paralegal, word processing, com- BC Code section 3.6 – Fees, such as: puter charges, in-house photocopying and dis bursements and interest fax charges that are not disbursements, • the time and effort required and spent; the statement of account may include A lawyer must not charge or accept a fee • the matter’s difficulty and its impor- a subcategory entitled “Other Charges” or disbursement, including interest, un- tance to the client; under the fees heading. (See rule 3.6-3 less it is fair and reasonable and has been • the results obtained; commentary). disclosed in a timely fashion: BC Code rule 3.6-1. • whether a special skill or service was What if something unforeseen happens I recommend that lawyers provide a required and provided; that may substantially affect the amount client with a written retainer agreement, • fees authorized by statute or regula- of a fee or disbursement? before taking the case or very early in the tion; A lawyer should immediately explain relationship. Rule 3.6-1 (see commentary) • special circumstances, such as the to a client about any fees or disbursements requires a lawyer to “provide to the client postponement of payment, uncer- that the client might not reasonably have in writing, before or within a reasonable tainty of reward, or urgency; been expected to anticipate. This and all time after commencing a representation, fee discussions should be confirmed in • the likelihood, if made known to the as much information regarding fees and writing, and the client should be kept up client, that acceptance of the retainer disbursements, and interest, as is reason- to date as the matter progresses, including will result in the lawyer’s inability to able and practical in the circumstances, about any revision of the initial estimate accept other employment; including the basis on which fees will be of fees and disbursements. (See rule 3.6-1 determined.” Also, if a lawyer and client • any relevant agreement between the commentary). lawyer and the client; agree that the lawyer will act only if a re- Can a lawyer charge interest on an over- tainer is paid in advance, the lawyer must • the lawyer’s experience and ability; due account? confirm the agreement in writing with the • any estimate or range of fees given by A lawyer may only charge interest if client and specify a payment date (rule the lawyer; and it is fair and reasonable and it is disclosed 3.6-9). • the client’s prior consent to the fee. in a timely fashion. The lawyer should set What is a fair and reasonable fee? A lawyer must be ready to explain the basis out the rate and how interest will be calcu- As set out in the commentary to rule of the fee and disbursement charges to lated in the retainer agreement. 3.6-1, that depends on several factors, the client, with full disclosure. As a lawyer See BC Code section 3.6 in its entirety
16 BENCHERS’ BULLETIN • WINTER 2012 PRACTICE
for other important information regarding fraud in Alberta had a BC component, fees, including contingent fee agreements and we bring it to your attention in case Services for lawyers and referral fees, and appropriation of cli- it comes your way. Three lawyers were Practice and ethics advisors ent’s funds, as well as the existing provi- involved, two legitimate Alberta lawyers sions in the Legal Profession Act and the and one fake BC lawyer. Below is generally Practice management advice – Contact Law Society Rules. what happened: David J. (Dave) Bilinsky to discuss practice management issues, with an emphasis on Checklists Manual – new updates • Fraudsters pretending to be the prin- technology, strategic planning, finance, pro- cipals of a company posed as the true ductivity and career satisfaction. Check out recent updates to the Law Soci- owners of a piece of Alberta commer- email: [email protected] tel: 604.605.5331 or ety’s free Practice Checklists Manual (go to cial real estate. The players, a “hus- 1.800.903.5300. Practice Support and Resources on the Law band and wife” and their “son,” were Practice and ethics advice – Contact Society website). Twenty-eight out of the represented by an Alberta lawyer. Barbara Buchanan, Lenore Rowntree or 41 checklists in the manual have recently • The fraudsters made arrangements for Warren Wilson, QC to discuss ethical issues, been updated: interpretation of the Professional Conduct a $3 million commercial loan from a Handbook or matters for referral to the Eth- • Client Identification and Verification legitimate mortgage company operat- Procedure ics Committee. ing in western Canada. The lender was Call Barbara about client identification and • Criminal – Criminal Procedure, Judicial represented by Alberta counsel. verification, scams, client relationships and Interim Release Procedure, Sentencing • The lender required a $20,000 good lawyer/lawyer relationships. Procedure, Impaired/Over 80 Trial Ex- faith deposit from the borrower (the Contact Barbara at: tel: 604.697.5816 or 1.800.903.5300 email: [email protected]. amination of Witnesses fraudsters’ fake company) to conduct • Family – Family Practice Interview, Contact Lenore at: tel: 604.697.5811 or due diligence. 1.800.903.5300 email: [email protected]. Family Law Agreement Procedure, • The fraudsters provided the $20,000 Contact Warren at: tel. 604.697.5857 or Separation Agreement Drafting, Mar- to the lender and also provided a fake 1.800.903.5300 email: [email protected]. riage Agreement Drafting, Family Law company minute book and personal All communications with Law Society practice Proceeding, and Child, Family and guarantees. and ethics advisors are strictly confidential, Community Service Act Procedure • The son met with the Alberta lawyer, except in cases of trust fund shortages. • Human Rights Complaint Procedure and claimed that his mother and fa- • Immigration – Protection Claim, Ap- ther were in BC. PPC Canada EAP Services – Confidential peal Against Deportation • The parents’ identity was to be veri- counselling and referral services by pro- • Will and Estates – Wills Procedure, fied in BC by a person the fraudsters fessional counsellors on a wide range of personal, family and work-related concerns. Testator Interview, Will Drafting, Pro- claimed was a BC lawyer; however, it bate and Administration Interview, Services are funded by, but completely inde- so happened that there was a legiti- pendent of, the Law Society and provided at Probate and Administration Procedure mate BC lawyer with the same name. no cost to individual BC lawyers and articled • Real Estate – Residential Convey- • The fraudsters asked the Alberta law- students and their immediate families. ance Procedure, Mortgage Procedure, yer to wire the loan funds to Mexico tel: 604.431.8200 or 1.800.663.9099. Mortgage Drafting instead of BC where they lived (a • Litigation – Foreclosure Procedure, sudden change in plans that raised Lawyers Assistance Program (LAP) – Con- General Litigation Procedure, Personal suspicion). fidential peer support, counselling, referrals Injury Plaintiff’s Interview or Examina- • The Alberta lawyers did some cross- and interventions for lawyers, their families, tion for Discovery, Collections Proce- checking and discovered that the con- support staff and articled students suffer- dure, Collections – Examination in Aid tact details for the fake BC lawyer did ing from alcohol or chemical dependen- of Execution, Builders Lien Procedure cies, stress, depression or other personal not match with the legitimate BC law- problems. Based on the concept of “lawyers Watch for updates to the 13 corporate yer. The legitimate BC lawyer was un- helping lawyers,” LAP’s services are funded and commercial checklists, expected to be aware that his name was being used. by, but completely independent of, the Law published shortly. • The fraudsters lost their $20,000 de- Society and provided at no additional cost to If you have suggestions for improving posit. The legitimate law firms only lawyers. tel: 604.685.2171 or 1.888.685.2171. the manual’s content, send them to Barba- lost their time. ra Buchanan at [email protected]. The Equity Ombudsperson – Confidential as- manual has been developed by the Law So- What are some lessons to take away from this? sistance with the resolution of harassment ciety with the assistance of the Continuing and discrimination concerns of lawyers, Legal Education Society of BC. 1. If a lawyer is not able to meet with articled students, articling applicants and a new client in person to verify their staff in law firms or other legal workplaces. Identity fraud – Alberta loan on Contact Equity Ombudsperson, Anne Bhanu Alberta land Chopra: tel: 604.687.2344 email: achopra1@ A recent real estate mortgage identity continued on page 21 novuscom.net.
WINTER 2012 • BENCHERS’ BULLETIN 17 PRACTICE
New Limitation Act in force June 1, 2013
On June 1, 2013, the new Limitation Act, knew or ought to have known that the discovered on or after June 1, 2013. SBC 2012, c. 13 (formerly Bill 34) comes injury, loss or damage was caused by the Understanding the new law and its ef- into force. The new Act simplifies the time defendant, and that a court proceeding fects, including the transition provisions, limits for filing civil lawsuits. It replaces the would be an appropriate remedy (although requires a comprehensive review of the current two, six and 10-year limitation pe- discovery is postponed for some claims). new Act and its terms. Lawyers will want riods for civil claims with a two-year-from- Lawyers can continue to rely on the to familiarize themselves with the new leg- discovery basic limitation period and the current Act’s provisions to advise clients on islation before it comes into effect so they current 30-year ultimate limitation period existing matters, as the new Act provides can properly advise clients about future with a 15-year-from-occurrence limitation that the current Act’s limitation periods claims. The Canadian Bar Association, BC period (with some exceptions). continue to govern if the act or omission Branch has a webcast available and Con- The new Act’s limitation periods will occurs and is discovered before June 1, tinuing Legal Education will be offering apply to claims arising from acts or omis- 2013. The new Act also contains transi- training and resources. Details of the new sions that occur and are discovered on or tion rules that will govern pre-existing Act, including transition information, can after June 1, 2013. Under the new Act, most claims arising from acts or omissions that be found at www.ag.gov.bc.ca/legislation/ claims are discovered when a claimant occur before the effective date but are limitation-act/2012.htm.v
Wellness and LAP Making it through the tough times Lawyers encouraged to take advantage of confidential support programs when needed The legal profession is, for most, an For more information, see the pro- articled students, as well as their immedi- extremely rewarding career. However, at gram’s website at www.lapbc.com or call ate families. the same time, it can be very demanding. 1.888.685.2171 or 604.685.2171. Help is For more information, contact PPC And, occasionally, the pressures of life, ca- available 24/7. Canada at www.ca.ppcworldwide.com or reer and other factors can become over- 1.800.663.9099. Employee and family assistance whelming. program – counselling and Wellness working group All BC lawyers have access to con- referral services explores additional options fidential support services. Though these services are financially supported by the The Law Society funds personal counselling The Law Society remains committed to profession through the Law Society, they and referral services through PPC Canada advancing lawyer wellness and the need are entirely and strictly confidential. Abso- to ensure programs are available to assist lutely no personal or identifying informa- lawyers with regulatory and workplace changes has been identified in the strate- tion is shared with the Law Society. The Law Society remains committed to gic plan. Lawyers Assistance Program – advancing lawyer wellness and the need To that end, the Practice Standards funded for and by lawyers to ensure programs are available to assist Committee has established a working The Lawyers Assistance Program (LAP) lawyers with regulatory and workplace group mandated to gather information on provides confidential support, counsel- changes has been identified in the strate- current wellness programs, to identify and ling, referrals and peer interventions for gic plan. eliminate barriers to lawyers using well- lawyers, their families, support staff and ness programs, and to report back to the articled students who need help to deal Practice Standards Committee with rec- with alcohol or chemical dependencies, (Personal Performance Consultants), an ommendations for the future. stress, depression or other personal prob- organization that has been serving Canada The working group is chaired by lems. since 1977. Bencher Catherine Sas, QC, who is joined Based on the concept of “lawyers Through a network of counsellors by Bencher Bill Maclagan, Appointed helping lawyers,” LAP relies on a network across the country, PPC can help with per- Bencher Peter Lloyd and Paula Cayley, for- of volunteers from the BC legal commu- sonal, relationship and family problems, mer president of the employee assistance nity. The program also provides outreach, stress management, substance abuse or agency Interlock Corporation and a mem- support and education services including work-related concerns. ber of the Law Society’s public hearing many workshops, seminars and support Services are confidential and available panel pool.v group meetings. at no cost to individual BC lawyers and 18 BENCHERS’ BULLETIN • WINTER 2012 conduct & discipline
Conduct reviews
The publication of conduct review summaries is intended to assist A lawyer failed to keep proper trust account records, signed blank trust lawyers by providing information about ethical and conduct standards. cheques, did not record trust transactions within seven days, made pay- ments from trust when records were not current and did not maintain A conduct review is a confidential meeting between a lawyer against trust and general account records on site. The lawyer’s conduct in failing whom a complaint has been made and a conduct review subcommittee, to comply with a court order requiring him to hold funds in trust pending which may also be attended by the complainant at the discretion of the agreement between the parties was also addressed. On a post-audit re- subcommittee. The Discipline Committee may order a conduct review view, the lawyer had made progress in dealing with some of the account- pursuant to Rule 4-4, rather than issue a citation to hold a hearing re- ing issues. Should the lawyer be subject to further disciplinary action, the garding the lawyer’s conduct, if it considers that a conduct review is a conduct review subcommittee wanted to record its view that the lawyer more effective disposition and is in the public interest. The committee failed to take personal responsibility for the issues and did not appear to takes into account a number of factors, including: appreciate the seriousness of his breaches of the accounting rules or the • the lawyer’s professional conduct record; court order. (CR #2012–50) • the need for specific or general deterrence; A lawyer withdrew trust funds that were impressed with a specific pur- • the lawyer’s acknowledgement of misconduct and any steps taken pose contrary to Rule 3-57(7). The court had ordered the funds to be used to remedy any loss or damage caused by his or her conduct; and to pay down a joint family debt. Opposing counsel agreed to the funds • the likelihood that a conduct review will provide an effective reha- being paid to the lawyer on the understanding that the funds were to bilitation or remedial result. be used as ordered. Instead, the lawyer used some of the funds to pay Breach of undertaking his legal fees and paid out the balance to his client. A conduct review subcommittee advised the lawyer that his conduct was inappropriate in A lawyer breached an undertaking given in a real estate matter by that he had acted contrary to his obligation as an officer of the court to releasing holdback funds. The lawyer failed to personally review the file ensure the terms of an order were fulfilled and contrary to his agreement and instead relied on her paralegal assistant, who misunderstood the with opposing counsel. The subcommittee also pointed out that opposing terms of the undertaking and had not been involved in the file when counsel’s client was harmed by his conduct and that the lawyer’s conduct the undertaking was given. The lawyer has reorganized her practice and reflected poorly on the legal profession. (CR #2012-55) has allocated a portion of each work week to the administration of her A lawyer billed a client for disbursements that had not been billed or paid practice. (CR#2012-61) by the lawyer, failed to properly record cash payments and disbursements A lawyer breached an undertaking given in a real property transaction and had an aggressive communication style with a client. The lawyer had and a related litigation matter and did not take immediate steps to rectify medical and financial issues that affected her ability to conduct a trial. the breach when he became aware that he could no longer comply with The lawyer agreed not to take on work that is beyond her capacity. The the undertaking. His client gave him contrary instructions post closing, lawyer currently has a practice supervisor. (CR #2012–57) and the lawyer mistakenly believed that his client’s instructions were par- A lawyer acted as executor of a simple estate, but had not fully adminis- amount to the undertaking. A conduct review subcommittee discussed tered the estate after five years. He failed to maintain proper records for the Professional Conduct Handbook requirement that a lawyer fulfill all the accounting of the estate and inaccurately represented on his trust undertakings. The subcommittee discussed the large array of resources reports that he had maintained them in accordance with Part 3, Division available to help resolve ethical issues, including the Benchers and Law 7 of the Law Society Rules. He rendered bills with no description of the Society practice and ethics advisors who can provide immediate and work, and took funds prior to delivering a bill and without first obtain- helpful assistance. The lawyer stated that, in the future, he would get his ing the beneficiary’s approval. The lawyer also failed to keep the client client’s written instructions concerning money that is the subject of an informed of the status of the matter and failed to provide an accounting undertaking and his client’s written approval of any payments to be with- of the estate to the beneficiary. (CR #2012-59) held from the client. (CR#2012-65)
Breach of trust accounting rules Breach of no-cash rule A client deposited $10,000 in cash into a lawyer’s bank account at a A lawyer withdrew trust funds prior to delivering a bill, failed to report bank branch in another province to cover a residential conveyance. The trust shortages, failed to perform monthly trust reconciliations in a time- lawyer mistakenly believed that Rule 3-51.1(3.3) only applied when he ly way, failed to record cash receipts in cash receipt book and failed to or his staff actually received cash in his office. The lawyer also failed to maintain proper records. The errors were numerous but not substantively record the funds in a cash receipt book contrary to Rule 3-61.1(1) and serious. The lawyer cooperated with the Law Society and had improved failed to correctly report the transaction on the firm’s trust report con- his accounting practices by the time of the follow-up audit. A conduct trary to Rule 3-72(5). A conduct review subcommittee emphasized the review subcommittee recommended that he develop a succession plan, importance of self regulation in this area. It suggested that, unless the review the Trust Accounting Handbook with his bookkeeper and hire an accountant to do informal audits on an annual basis to check for general compliance. (CR #2012-48) continued on page 20
WINTER 2012 • BENCHERS’ BULLETIN 19 conduct & discipline
Conduct reviews ... from page 19 failed to disclose an undertaking given as part of a negotiated disposition of the criminal charge and made inaccurate statements in an affidavit profession can illustrate its ability to regulate itself in respect of receipt about the Law Society investigation. Lawyers are reminded of their of cash, the government may impose its own regulation and thereby limit obligation to report a criminal charge under Rule 3-90(1) and of the the capacity of lawyers to act independently in their clients’ interests. importance of precision and accuracy in the wording of affidavits. (CR #2012-63) (CR #2012‑46)
Failure to remit GST and PST Conduct unbecoming A lawyer failed to remit GST and PST and provided inaccurate responses A lawyer was publicly intoxicated and charged with obstruction of justice on his trust reports. The lawyer has now hired a full-time financial man- and assault of a driver, after a motor vehicle accident in which he was a ager. A conduct review subcommittee recommended that he hire com- passenger in another car. This conduct was contrary to Chapter 2, Rule 1 petent accountants and tax professionals and that he contact the Law of the Professional Conduct Handbook. Although he reported the criminal Society practice advisors if he encounters technical accounting issues in charges, he withheld information and delayed responding to the Law So- the future. (CR #2012-45) ciety. The lawyer has undergone counselling and is more aware of the role of a lawyer in the community. (CR #2012-64) Taking default without reasonable notice conflict of interest A lawyer obtained default judgment without giving adequate notice to opposing counsel as required by Chapter 11, Rule 12 and Chapter 1, Rule A lawyer commenced a relationship with a client’s common law part- 4 of the Professional Conduct Handbook. He also paid out trust funds ner. The lawyer failed to provide undivided loyalty to her client, failed when he knew the other party would likely apply to set aside the default to disclose all relevant information to her client and engaged in con- judgment. The lawyer was subject to an imposed undertaking not to take duct that would adversely affect the integrity of the legal profession. steps to note defendant in default without adequate notice. The lawyer The lawyer withdrew as counsel shortly after the relationship began. stated he would be more prudent in the future to review and comply with The lawyer apologized to the client and acknowledged her misconduct. undertakings, would not bow to client pressure and would ensure that he (CR #2012‑51) made the appropriate course of action clear to his clients. (CR #2012–44) A lawyer personally invested, and solicited investment from other peo- Rudeness and incivility ple, in a client who was eventually found to be involved in a US Ponzi scheme. Lawyers should avoid mixing an investment sales role with A lawyer contacted a represented opposing party on two occasions and their professional status as a lawyer. Lawyers should also refrain from engaged in unprofessional and discourteous communications with other engaging in conduct, whether in private life, extra-professional activities lawyers. The lawyer was a former lawyer at the time of the review. A or professional practice, that casts doubt on the lawyer’s professional conduct review subcommittee reminded him that lawyers must remain integrity or reflects adversely on the integrity of the legal profession. civil, courteous and objective, even in the face of frustration and dissatis- A conduct review subcommittee noted that lawyers are trusted by the faction. (CR #2012-49) public. By soliciting investment, the lawyer attached his credibility to the A lawyer engaged in unprofessional and discourteous communications investment scheme. The subcommittee recommended the lawyer refrain with opposing counsel while acting in a difficult matrimonial matter. The from making investment opportunities available to others when he has tone of his correspondence ranged from somewhat abrasive to implicitly not independently investigated the veracity of the facts upon which the threatening and was not in accordance with guidelines 1 and 3 of the Best investment was based. The lawyer acknowledged his misconduct and ad- Practice Guidelines for Lawyers Practising Family Law. A conduct review vised that he would be more vigilant with respect to his intake of poten- subcommittee reminded the lawyer of the importance of remaining ob- tial clients in the future. (CR #2012-56) jective and of his professional obligation to do so even while vigorously A lawyer drafted a share purchase agreement on behalf of both a vendor representing interests of his client. (CR #2012-60) and the purchaser without ensuring each party obtained independent le- gal advice, contrary to Chapter 6 of the Professional Conduct Handbook Failure to respond to another lawyer and the minutes of the Ethics Committee dated July 4 and December 11, A lawyer delayed in responding to communication from another lawyer 2008 .(CR #2012-62) contrary to Chapter 11, Rule 6 of the Professional Conduct Handbook and left an executed Form A transfer of property with his clients when he Duty to court knew that the property was under foreclosure, that the financial institu- A lawyer made certain representations as to the principal driver and me- tion had conduct of sale of the property and that his clients did not have chanical condition of a personal motor vehicle during a small claims court sufficient funds in place to pay out the mortgage. The transfer was filed trial. The court found that the lawyer had wilfully made false representa- by the clients and had to be set aside as a fraudulent conveyance/prefer- tions. Chapter 1, Rule 2 of the Professional Conduct Handbook states that ence. The lawyer acknowledged that the transfer should have remained a lawyer must not attempt to deceive the court by offering false evidence in his possession. (CR #2012-58) or by misstating facts or law. A conduct review subcommittee accepted the lawyer’s acknowledgment of poor judgment in an isolated, personal Failure to report criminal charge matter. (CR #2012-47) A lawyer failed to report an impaired driving charge to the Law Society,
20 BENCHERS’ BULLETIN • WINTER 2012 conduct & discipline
Duty to court and other lawyers Electronic filing and duty of other lawyers A lawyer swore an affidavit that materially misstated the terms of two A lawyer signed his name over the names of US patent agents employed court orders. In doing so, he cast aspersions on the integrity of oppos- by his firm without their permission and used a patent agent’s digital sig- ing counsel without justification. The lawyer also pressed an application nature without permission when he had been expressly directed not to do to dismiss based on non-compliance with court orders, even after he so. The lawyer also failed to ensure that his practice met US patent law knew his characterization of the court orders was mistaken. The lawyer requirements. The lawyer candidly recognized the gravity of his mistakes. did not intend to mislead the court, and it was not, in fact, misled. A (CR #2012–52) conduct review subcommittee reminded the lawyer of his obligation not to misstate facts before the court or knowingly assert facts for which Electronic filing there is no reasonable basis. The subcommittee also stressed the im- A lawyer allowed his electronic signature to be affixed by his real estate portance of finding a balance between vigorously pressing a client’s case paralegal, contrary to sections 168.3 and 168.9 of the Land Title Act, the and acting with courtesy, civility and good faith towards another lawyer. Land Title and Survey Authority of BC requirements and his agreement (CR #2012‑53) with Juricert. The conduct brought into question the lawyer’s compe- tence and reflected adversely on the integrity of the legal profession un- Duty to state der Chapter 2, Rule 1 of the Professional Conduct Handbook. A conduct A lawyer obtained a publication ban on evidence and then subsequently review subcommittee noted that the requirement was designed to pre- spoke with reporters about matters covered by the ban. By speaking with vent fraud and to uphold the integrity of the land title system in BC. The reporters, he may have encouraged the publication of information by the subcommittee cautioned that a possible consequence of the misuse of media notwithstanding the ban, contrary to Chapter 1, Rule 1(1) of the electronic signatures is that Juricert could revoke the authority to digi- Professional Conduct Handbook. (CR #2012-66) tally sign documents. The lawyer has now obtained a new signature and has corrected his practice. (CR# 2012-67) A realtor, related to purchasers of real property, forwarded deposit mon- ey to a lawyer after the purchase transaction had collapsed. The realtor Failure to supervise employees failed to impose any explicit trust conditions on the money but did for- ward the funds care of the purchase file. The funds were deposited in the A lawyer failed to supervise her employee who was acting unprofession- lawyer’s trust account to the credit of the purchase file. Prior correspon- ally toward a client. A conduct review subcommittee advised the law- dence made it arguable that the funds were received as a “stakeholder.” yer that she had a duty to supervise her staff and ensure that they act The vendor claimed the deposit monies. The lawyer used the deposit professionally and in a manner that does not tarnish the reputation of funds to pay his fees then paid the balance to the purchasers. The lawyer the legal profession. The lawyer has now implemented a policy that any facilitated the breach of the realtor’s obligations under the contract of client complaint is dealt with directly by her and that staff is to avoid purchase and sale and the Real Estate Services Act, contrary to Chapter 1, substantive conversations or any personal discussions with clients. Rule 1 of the Professional Conduct Handbook. (CR# 2012-68) (CR #2012‑54)v
Practice Watch ... from page 17 change in plans to send funds to a dif- • paying taxes on timber harvested by ferent person or location. the vendor; and identity, the lawyer should choose the For more information about scams against • paying exit fees if the property is re- individual who will do it. Don’t let a lawyers, see Fraud Alerts on the Law Soci- moved from managed forest class. potential fraudster choose the guar- ety website or contact Barbara Buchanan Detailed information regarding managed antor, commissioner or agent. at [email protected]. forest land and these tax issues is available 2. If a fraudster thinks that the potential Warning to lawyers acting for in the notice at www.lawsociety.bc.ca/ return is high enough, he or she may purchasers for private managed docs/bulletin/bb_2012-04-winter_forest- gamble putting up their own money forest land – tax issue land.pdf or directly from BC Assessment. as a deposit or retainer, in this case a BC Assessment has informed the Law So- formation $20,000 deposit. Further in ciety that two aspects of tax law have Contact Practice Advisor Barbara Buchan- 3. Fraudsters are creating increasingly caused concern for some purchasers of sophisticated documents to make a an at 604.697.5816 or bbuchanan@lsbc. private managed forest land. org for confidential advice or more infor- fraud seem real, in this case a com- Take note that purchasers of private pany minute book. mation regarding any items in Practice managed forest land may be responsible Watch.v 4. Lawyer should be alert to any sudden for:
WINTER 2012 • BENCHERS’ BULLETIN 21 conduct & discipline
Discipline digest below are summaries with respect to: attention to the administrative side of his practice. There was no evidence • Laird Russell Cruickshank of any harm to clients, and he did not gain any financial advantage from • Aaron Murray Lessing his conduct. For the full text of discipline decisions, visit the Hearings reports section The majority acknowledged that Cruickshank’s infractions between 2005 of the Law Society website. and 2010 were due, in part, to the fact that he relied on office manag- ers who were unfamiliar with Law Society trust accounting practices and procedures. However, the majority also recognized that this was not an excuse, as lawyers must ensure their professional staff is qualified and ca- LAIRD RUSSELL CRUICKSHANK pable of performing the duties and responsibilities expected of members Vancouver, BC of the Law Society. Called to the bar: May 10, 1983 In addition to admitting to the rules breach and the incidents of profes- Discipline hearing: April 19, 2012 sional misconduct, the majority found that Cruickshank had taken steps Panel: Majority decision: Tony Wilson, Chair, and Adam Eneas; Minority to alleviate management and accounting deficiencies in the future. In decision: Carol Hickman, QC February 2011, Cruickshank completed the Law Society’s trust account- Oral Reasons: April 30, 2012 ing course. He hired an experienced bookkeeper who is familiar with trust Report issued: August 22, 2012 (2012 LSBC 27) accounting for lawyers. Counsel: Alison Kirby for the Law Society and Gerald Cuttler for Laird The majority accepted Cruickshank’s admission and the proposed disci- Russell Cruickshank plinary action and ordered that he: Facts 1. be suspended from the practice of law for one month; and Between 2005 and 2008, Laird Russell Cruickshank failed to comply with 2. pay $8,500 in costs. various accounting rules in multiple instances, breached two undertak- Minority (Hickman) ings in separate civil litigation matters, failed to enter into written contin- gent fee agreements with five clients, and failed to remit PST and GST in a The minority did not accept the majority’s characterization of Cruick- timely way. His failures to comply with Law Society rules were uncovered shank’s behaviour as simply “profoundly sloppy,” since the incidents of during a compliance audit and a subsequent investigation of his practice. misconduct occurred over a period of five years and on a repeated basis. As an example, Cruickshank’s failure to prepare monthly trust reconcilia- Cruickshank’s annual trust report for the period ending April 30, 2010 re- tions occurred 18 times between 2005 and 2008. vealed his continued failure to remit PST and GST in a timely way, failure to remit employee source deductions, and failure to comply with various The minority found it even more disturbing that Cruickshank’s behaviour accounting rules in several instances in 2009 and 2010. continued throughout 2009 and 2010, despite being made aware of the mistakes he was making by 2008 as part of the compliance audit report At the hearing, Cruickshank’s lawyer submitted that Cruickshank was a process. Further, he did not hire a qualified bookkeeper to address his poor administrator of the business side of his practice and was taking accounting problems until May 2011. steps to remedy that. In May 2011, he hired a bookkeeper experienced in law firm accounting practices. Given the severity and duration of the breaches and misconduct, the mi- nority did not accept that a one-month suspension was “fair and reason- Admission and disciplinary action able” or in the public interest. The minority stated that the public must be confident that lawyers will do everything possible to maintain their trust Cruickshank admitted to a breach of the Law Society accounting rules accounts and fulfill their undertakings. and also admitted to professional misconduct. Pursuant to Rule 4-22 and subject to the ruling of the panel, both Cruickshank and the Law Society’s The minority believed that the suspension should be significantly longer Discipline Committee agreed to a proposed disciplinary action of a one- than the one month proposed and, accordingly, rejected the Rule 4-22 month suspension and $8,500 in costs. The panel could either accept or conditional admission. reject the proposed disciplinary action but could not modify it. The panel noted that Cruickshank had a prior discipline history with the Law Society, which included a previous conduct review for breach of un- AARON MURRAY LESSING dertaking. Surrey, BC Majority (Wilson, Eneas) Called to the bar: May 17, 1991 In the majority’s view, Cruickshank was profoundly sloppy in his book- Discipline hearings: March 29, July 30 and 31, 2012 keeping, accounting and law firm management practices. Although the Panel: David Renwick, QC, Chair, Graeme Roberts and Donald Silver- misconduct amounted to numerous breaches over a period of five years, sides, QC the misconduct was largely caused by Cruickshank paying little or no Reports issued: May 28 (2012 LSBC 19) and October 1, 2012 (2012
22 BENCHERS’ BULLETIN • WINTER 2012 conduct & discipline
LSBC 29) On June 9, 2009, Lessing produced the incorporation documents required Counsel: Alison Kirby for the Law Society and Henry Wood, QC for in the first order. He subsequently produced the documents that had Aaron Murray Lessing been ordered to provide in the second and third orders.
FACTS Lessing consulted a psychologist for counselling in early 2012. The psy- chologist advised the panel that, in his diagnosis, Lessing went through Failing to notify the Law Society of monetary judgments a period of clinical depression and showed symptoms of post-traumat- Between 2002 and 2011, eight monetary judgments were made against ic stress disorder, likely triggered by his marital issue. The psychologist Aaron Murray Lessing. believed that the chances of Lessing repeating this type of avoidant behaviour or getting into a similar state of depression and traumatized One of the judgments required him to make monthly instalments to the paralysis was low. co-owner of his condominium. When Lessing did not make any payments after the first instalment, the co-owner filed a complaint with the Law DETERMINATION Society. The panel determined that, by failing to notify the Law Society of first six During the Law Society’s investigation, it was discovered that five other monetary judgments, Lessing breached the Law Society rules and that, judgments had also remained unsatisfied for more than seven days and by failing to notify the Law Society of the last two judgments, he com- that Lessing had not notified the Society of the existence of these judg- mitted professional misconduct. In the panel’s view, Lessing was aware ments. of his obligations under Rule 3-44 when the last two of the unsatisfied In August 2009, the Law Society wrote to Lessing informing him of his ob- monetary judgments were entered, so they warranted more severe dis- ligations to notify the executive director, pursuant to Rule 3-44. Lessing ciplinary action. responded that he was not aware of the rule and that he would comply The panel determined that Lessing committed conduct unbecoming a in future. lawyer by failing to comply with three court orders. Failing to comply Two more judgments were made against Lessing in December 2010 with court orders and being found in contempt of court by a judge is very and February 2011. In February and March 2011, counsel for the client serious conduct that undermines the rule of law; however, the panel con- involved in litigation with Lessing advised the Law Society of the two sidered mitigating circumstances: judgments and that the amounts that Lessing had been ordered to pay 1. The panel found that Lessing made a serious mistake in repre- remained unpaid. senting himself in the matrimonial litigation; simultaneously acting as litigant and his own counsel undoubtedly clouded his The Law Society wrote to Lessing asking whether a judgment had been judgment. satisfied and, if not, whether he had notified the executive director. Less- ing replied that he did not report these orders because they were made in 2. The panel agreed that, except for the incorporation documents his absence and he intended to apply to set both orders aside, including that should have been matters of public record, Lessing’s delay the order for costs. in producing the documents required by the court orders was not substantial. Lessing satisfied these two judgments in July 2011. 3. The court permitted Lessing to cure his contempt by producing Lessing did not satisfy any of the eight monetary judgments within seven within 14 days the documents required in the earlier orders, and days after the date of their entry. He failed to notify the Law Society in he did so. writing of the circumstances of the judgments against him and to pro- 4. The panel accepted Lessing’s testimony regarding his mental vide a written proposal for satisfying the judgments, as required by Law state and his inability to deal with the matrimonial proceedings Society rules. in which he acted as his own counsel, and accepted the psy- Failing to comply with three court orders chologist’s conclusion that Lessing was suffering from clinical depression in 2008 and 2009. Lessing represented himself in matrimonial proceedings in the Supreme Court of BC that involved claims for spousal support, child support and a The panel also considered Lessing’s professional conduct record, which division of assets. included four conduct reviews between 1999 and 2011. None of these conduct reviews involved serious actions, and the conduct was not simi- During the proceedings, Lessing received an order to provide opposing lar to the conduct in this case. counsel with incorporation documents by August 29, 2008. Lessing did not provide the incorporation documents, despite receiving several let- DISCIPLINARY ACTION ters from opposing counsel. The panel ordered that Lessing pay: On April 14, 2009, there was a second order that Lessing provide a list 1. $2,000 fine (first citation); of documents and information to opposing council before May 7, 2009. 2. $12,000 fine (second citation); and A third order was made when Lessing did not provide the list of docu- 3. $8,000 in costs ments or any of the documents specified in the second order. The Discipline Committee has referred the decision on disciplinary action to On June 4, 2009, at a court hearing that was not attended by Lessing or the Benchers for review on the record, under section 47 of the Legal Profes- his counsel, Lessing was found in contempt of court for failing to comply sion Act.v with the three orders. A fourth order was made at this time.
WINTER 2012 • BENCHERS’ BULLETIN 23 ELECTED BENCHERS LIFE BENCHERS William J. Sullivan, QC G. Ronald Toews, QC President Ralston S. Alexander, QC Russell S. Tretiak, QC Bruce A. LeRose, QC* R. Paul Beckmann, QC Benjamin B. Trevino, QC Howard R. Berge, QC First Vice-President William M. Trotter, QC Joost Blom, QC Arthur E. Vertlieb, QC* Ross D. Tunnicliffe P. Michael Bolton, QC Gordon Turriff, QC Second Vice-President Thomas R. Braidwood, QC Dr. Maelor Vallance Jan Lindsay, QC* Cecil O.D. Branson, QC Alan E. Vanderburgh, QC Trudi L. Brown, QC James D. Vilvang, QC Mr. Justice Grant D. Burnyeat Rita C. Andreone, QC Brian J. Wallace, QC A. Brian B. Carrothers, QC Kathryn A. Berge, QC Karl F. Warner, QC Mr. Justice Bruce I. Cohen E. David Crossin, QC Warren T. Wilson, QC Robert M. Dick, QC Tom Fellhauer David A. Zacks, QC Leon Getz, QC Robert D. Diebolt, QC Miriam Kresivo, QC Ian Donaldson, QC MANAGEMENT BOARD Bill Maclagan Ujjal Dosanjh, QC Maria Morellato, QC Leonard T. Doust, QC Chief Executive Officer and Nancy G. Merrill Jack L.T. Edwards, QC Executive Director David W. Mossop, QC William M. Everett, QC Timothy E. McGee Thelma O’Grady Anna K. Fung, QC Deborah Armour C.E. Lee Ongman Richard C. Gibbs, QC Chief Legal Officer Vincent Orchard, QC Arthur M. Harper, QC Gregory A. Petrisor Carol W. Hickman, QC Susan Forbes, QC Philip Riddell John M. Hogg, QC Director, Lawyers Insurance Fund H. Allan Hope, QC David M. Renwick, QC Jeffrey Hoskins, QC Ann Howard Catherine A. Sas, QC Tribunal and Legislative Counsel Richard N. Stewart, QC* Gavin Hume, QC Herman Van Ommen, QC* John J.L. Hunter, QC Jeanette McPhee Kenneth M. Walker, QC* Judge William F.M. Jackson Chief Financial Officer / Director of Tony Wilson Mr. Justice Robert T.C. Johnston Trust Regulation Barry Zacharias Gerald J. Kambeitz, QC Alan Treleaven Master Peter J. Keighley Director, Education and Practice APPOINTED BENCHERS Patrick Kelly Terence E. La Liberté, QC Adam Whitcombe Haydn Acheson Mr. Justice Peter Leask Chief Information and Planning Satwinder Bains Gerald J. Lecovin, QC Officer Stacy Kuiack* James M. MacIntyre, QC Peter B. Lloyd Richard S. Margetts, QC Benjimen Meisner Marjorie Martin, MSW Claude Richmond Master Robert W. McDiarmid Brian W.F. McLoughlin, QC EX OFFICIO BENCHER Peter J. Millward, QC Minister of Justice and Dennis J. Mitchell, QC Attorney General Shirley Bond Karen F. Nordlinger, QC Richard C.C. Peck, QC * Executive Committee June Preston, MSW 845 Cambie Street, Vancouver, British Columbia, Canada V6B 4Z9 Emily M. Reid, QC Telephone 604.669.2533 | Facsimile 604.669.5232 G. Glen Ridgway, QC Patricia L. Schmit, QC Toll-free 1.800.903.5300 | TTY 604.443.5700 Norman Severide, QC Jane S. Shackell, QC lawsociety.bc.ca Donald A. Silversides, QC Gary L.F. Somers, QC Lawyers Insurance Fund Mary F. Southin, QC Marvin R.V. Storrow, QC Telephone 604.682.8911 | Facsimile 604.682.5842