Benchers’ Bulletin

A publication of the Law Society of British Columbia 2003: No. 4 July-August

President’s View – The CBA — why it’s time for choice: page 2

News Ministry of AG invites Queen’s Counsel nominations: page 4 BC lawyers’ compulsory insurance under national mobility: page 5 Update: Special Compensation Fund claims relating to Martin Wirick: page 6 Change in Annual Practice Declaration filing date: page 9

Inside Practice & Ethics Law firms should prepare now for the Personal Information Protection Act (Bill 38): page 11 Interlock: On the verge of collapse: how to help a colleague in trouble: page 12 Practice Tips: page 14 Do ICBC adjusters discourage claimants from seeking legal advice?: page 17

Regulatory Special Compensation Fund claims: page 18 Disbarment and suspension: page 19 Unauthorized practice actions: page 19 The CBA — why it’s time for choice

by Howard R. Berge, QC September 19 is the day that BC law- BC lawyers as a component of the President’s View yers at the AGM vote on a resolution to practice fee, whether or not those law- set the 2004 practice fee for the opera- yers choose to be CBA members. It’s tion of the Law Society. worth noting that, for the purpose of these alternative fee resolutions, the The Benchers resolved at their July 2004 CBA fee increase in BC will be $20 meeting, after much debate, to follow less than in the rest of the country, as a the very clear terms of the Legal Profes- means of the CBA encouraging man- sion Act, section 24, which provides for datory membership in BC. This reduc- an agency relation for collecting CBA tion is likely temporary as BC lawyers fees. The Act, however, limits this would presumably be expected to agency to only those BC lawyers who catch up in the fees in the future. In the are members of the CBA. Further, un- result, the alternative resolutions pro- der this section the CBA fee collected pose a 2004 practice fee for all BC prac- by the Law Society is deemed to be a tising lawyers of $1,492.91 (for those in part of the practice fee. Accordingly, practice five full years or more) or BC lawyers who choose not to belong $1,303.91 (for those in practice less to the CBA would pay only the prac- than five full years). tice fee of $1,027.50. Those who choose Benchers’ Bulletin to belong to the CBA will pay an addi- In this column, I’d like to address two issues in advance of the September 19 The Benchers’ Bulletin and related news- tional $485.41 as the CBA fee, for a to- letters are published by the Law Soci- tal of $1,512.91 (if in practice five years AGM. One is freedom of choice. A fun- ety of British Columbia to update BC or more) or an additional $296.41, for a damental reason for the Benchers’ fee lawyers and articled students on policy total of $1,323.91 (if in practice less resolution is that each individual law- and regulatory decisions of the than five years). yer should be given a clear choice on Benchers, on committee and task force whether or not to belong to the CBA work and on Law Society programs After the profession was notified of and whether to pay the CBA fee. The and activities. the Benchers’ fee resolution, the Cana- key reasons have been canvassed in The views of the profession on im- dian Bar Association (through Robert our notices for the AGM, and I will re- provements to the Bulletin are always Brun and J.J. Camp, QC) put forward cap some of the pivotal points later in welcome – please contact the editor. two alternative practice fee resolu- this column. tions, one of which the movers intend Additional subscriptions to Law Society But there is another issue I’d like to to put forward for discussion and vote newsletters may be ordered at a cost turn to first — and that is the serious fi- at the AGM. of $50.00 (plus GST) per year by con- nancial impact of the Brun/Camp al- tacting the subscriptions assistant. To In essence, each of these alternative ternative fee resolutions on BC review current and archived issues of the Bulletin online, please check out the resolutions would make payment of a lawyers, particularly on CBA mem- “Resource Library” at CBA fee equivalent mandatory for all bers. www.lawsociety.bc.ca. * * * Editor: Denise Palmer The financial impact of the alternative fee resolutions [email protected]; Tel. 604 443-5706 Editorial Assistant: Denise Findlay If either of the Brun/Camp alternative fee from those lawyers who are mem- [email protected]; Tel. 604 443-5788 practice fee resolutions were passed in bers of the CBA. This was in anticipa- preference to the Benchers’ fee resolu- tion that the Benchers would collect Subscriptions: Donna Kokot [email protected]; Tel. 604 443-5768 tion, how would such a resolution be fees from CBA members on a volun- interpreted? tary basis. © 2003 The Law Society of British One has to consider that, at the time The Benchers passed their resolution Columbia they passed their practice fee resolu- pursuant to section 24(1)(c) of the Legal Canada Post Publication No. 1475525 tion in July, the Benchers also passed a Profession Act, which states that “the resolution to authorize the Law Soci- Benchers may … authorize the society to ety to serve as agent to collect the CBA act as agent of the Canadian Bar

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Association for the purpose of collecting theless pay a practice fee that includes resolution may be passed at the AGM fees of that association from lawyers who an amount equivalent to the CBA fee. or the Benchers could hold a referen- are members of it.” Section 24(2) pro- Second, those BC lawyers who are CBA dum to set the practice fee, which is an- vides that “fees collected under subsec- members will pay both a practice fee other option under section 23 of the tion (1)(c) form part of the practice fee that includes a CBA equivalent fee plus Legal Profession Act. There may be cir- referred to in section 23(1)(a).” a further CBA fee, which the Benchers cumstances in which the Benchers must collect as agent for the CBA in would feel it necessary to do both. Per- Having passed such a resolution un- furtherance of their resolution in July. haps the worst case scenario would be der s. 24(1)(c), the Benchers will be re- This would result in particularly harsh seeing the Benchers forced to run the quired to collect a CBA fee from CBA financial consequences for CBA mem- operations of the Law Society through members in 2004. The result is a dou- bers, as reflected in the table below. a special assessment — that would be ble payment by CBA members unless unprecedented and an unconstructive the Benchers are able to pull back from I thought it important to flag this statu- approach for both the Law Society and that resolution. tory issue for the profession in ad- the CBA. Notably, the Society would vance of the AGM. It’s important to have no means to collect an equivalent If this problem is not fixed and should note, at this juncture, that this is my one of the Brun/Camp practice fee res- fee or serve as agent for the CBA in own interpretation of the statute. such a scenario. olutions pass at the AGM, I believe the There may be Benchers who do not financial impact on BC lawyers could share it. While this gives food for thought on a be two-fold. First, those BC lawyers financial front, the question of free- who are not CBA members will never- I should also note that a practice fee dom of choice remains critical.

Practice fee CBA equivalent Total fee payable CBA fee Total fee component (as part for non-CBA (payable by payable by of practice fee) members CBA members) CBA members Benchers’ In practice 5 $1,027.50 Not applicable $1,027.50 + $485.41 $1,512.91 resolution years or more In practice less $1,027.50 Not applicable $1,027.50 + $296.41 $1,323.91 than 5 years

Brun/Camp In practice 5 $1,027.50 + $465.41 $1,492.91 + $485.41 $1,978.32 resolution years or more In practice less $1,027.50 + $276.41 $1,303.91 + $296.41 $1,600.32 than 5 years

Please note: Mr. Berge points out in payment consequences would be un- “extra” funds to the CBA, that is not a his column a possible problem in- dertaken. However, the problem re- direction that the membership is au- volving a duplication of charges to mains that the passage of one of the thorized to give the Benchers except CBA members of the Society. The Brun/Camp resolutions will require by the process described in section 13 Benchers considered this issue at non-members of the CBA to pay to of the Legal Profession Act. The their meeting on September 5 and in- the Law Society an amount equiva- Benchers’ consideration of this mat- formally agreed that, if one of the lent to the CBA fee. The Benchers ter at their July meeting led to the sec- Brun/Camp resolutions were have not decided how to deal with tion 24 agency resolution. This passed, all reasonable efforts to ame- those funds. Although the CBA reso- resolution of the Benchers respects liorate the unintended double lution directs the Benchers to pay the members’ freedom of choice.

The matter of choice Most Benchers believe it is right for Provincial and National Councils, I Our Law Society and the BC Branch of lawyers to have the choice of whether look forward to a change. I am confi- the CBA have shared a relationship to belong to the CBA and pay CBA dent that the CBA will emerge as a fees. Having been active in the CBA for stronger and more vibrant organiza- many years and as a past member of tion in this province. continued on page 10

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Ministry of AG invites Queen’s Counsel nominations

Each September, beginning this year, the Attorney General will send out a call for nominations of candidates for appointment as Queen’s Counsel. Under the Queen’s Counsel Act, the Lieutenant Governor in Council, on recommendation of the Attorney Gen- eral, may bestow on lawyers in British Columbia the honorary title of Queen’s Counsel to recognize excep- tional merit and contribution to the le- gal profession. While the Law Society has historically assisted through informal consulta- tions to identify potential QC appoint- ments, no formal nomination process has existed until now. Nominations The call for nominations in September Attorney General Geoff Plant (front right) presents a certificate to Thomas H. Hara, QC, will be directed to the judiciary and to one of 27 BC lawyers honoured with the title of Queen’s Counsel in late 2002, while Chief the Law Society, the BC Branch of the Justice Donald I. Brenner of the Supreme Court of British Columbia, Chief Judge Carol Baird Canadian Bar Association and the Ellan of the Provincial Court and Chief Justice of British Columbia Lance Finch share in the Trial Lawyers Association for commu- moment. The presentations were made at a reception hosted by the Law Society in February, nication to the profession. Any lawyer 2003. interested in making a nomination Mr. Hara practises criminal and labour law in Vancouver. He is a director of the Japanese Ca- may obtain an application package, in- nadian Citizenship Association and was the first Japanese Canadian to open a law office in BC. cluding forms and instructions, from The Ministry of Attorney General is calling for nominations for new Queen’s Counsel ap- the Ministry website. pointments this September. Outside of an immediate family member of a nominee or nominees themselves, anyone can submit a nom- ination by completing an application faxed no later than midnight, Novem- exceptionally gifted practitio- form. The application must be accom- ber 3. Appointments will be an- ners; panied by a statement of support from nounced at the end of the year. two nominators and a nominee’s c.v. ° having demonstrated excep- or brief biography and may also be ac- Criteria for candidates tional qualities of leadership in companied by letters of support. the profession, including in the Candidates must: conduct of the affairs of the Ca- All nominations are confidential. · Nominators may be contacted to clar- belong to the BC bar, and have nadian Bar Association, the Law ify information in support of the been members for at least five Society of British Columbia and nomination, but will not be updated years; and other legal organizations; · on its status. Application information demonstrate professional integ- ° having done outstanding work will not be made public. rity, good character and excellence in the fields of legal education or Unsuccessful candidates may be nom- in the practice of law. Such excel- legal scholarship. inated in subsequent years; however, a lence could be determined by any complete application is required for of the following: Advisory committee every nomination. ° being acknowledged by their All applications will be reviewed by An application must be postmarked or peers as leading counsel or an advisory committee, which will

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also recommend deserving candidates appointed by the Benchers (for circumstances only. to the Attorney General. The commit- 2003-2004 these appointees are tee includes: First Vice-President William M. Contact information Everett, QC and Second Vice-Pres- · The Chief Justice of British Colum- ident Peter J. Keighley, QC); For more information, contact: bia; · Office of the Deputy Attorney General · The Deputy Attorney General. The Chief Justice of the Supreme PO Box 9290 Stn. Prov Govt Court of British Columbia; The Attorney General retains author- Victoria, BC V8W 9J7 · ity to directly appoint lawyers who The Chief Judge of the Provincial meet the eligibility criteria. It is ex- Telephone: 250 356-0149 Court; pected that this power will normally Website: www.ag.gov.bc.ca/queens- · Two members of the Law Society be exercised in exceptional counsel.G

Lawyers Insurance Fund BC lawyers’ compulsory insurance under national mobility

Lawyers who wish to take advantage agreements reached with the other in- of more than one Canadian law society of the new national mobility regime,* surers. have always been entitled to claim an which came into effect on July 1, will Two minor revisions were made to the exemption from the requirement to wish to take note of the insurance as- policy wording, effective July 1. These buy insurance in BC, in certain circum- pects of the regime. revisions are brought into effect by a stances, there is now an exemption tai- lored specifically for lawyers who are Any lawyer eligible to practise tempo- second renewal endorsement to the members of a law society in more than rarily (up to 100 days in a calendar compulsory policy, a copy of which is one reciprocating jurisdiction under year) in another reciprocating prov- enclosed in this mailing as an amend- the national mobility agreement. ince must carry professional liability ment to the Member’s Manual. insurance that is reasonably compara- An insuring agreement has been A BC lawyer is entitled to the ble in coverage and limits to that re- added to the policy to address the exemption if he or she is a member of a quired by the host law society and that scope of coverage under the new law society in a reciprocating prov- extends to the lawyer’s practice in the regime. It provides BC lawyers who ince, is entitled to practise law in that host jurisdiction. If a lawyer is a mem- are entitled to practise on a temporary province, has purchased the compul- ber in more than one jurisdiction, the basis in a reciprocating jurisdiction sory policy in that province and is resi- lawyer need purchase only one com- with the comfort that they carry dent there. “Resident” has the pulsory policy and can claim an ex- professional liability insurance that is meaning, with respect to a province, emption from the mandatory reasonably comparable in coverage that it has with respect to Canada in requirement to purchase insurance in and limits to that required by the host the Income Tax Act (Canada). In that another jurisdiction. law society and extends to that case, the reciprocating jurisdiction’s To ensure conformity under the na- lawyer’s practice in the host jurisdic- policy will extend to the lawyer’s prac- tional mobility regime, insurers in the tion. Wording changes were also tice in BC. made to the “non-stacking” provision various reciprocating jurisdictions If you have any questions on insur- have agreed to adopt certain specific of the policy (a standard term that maintains the limits of coverage ance under the national mobility re- policy provisions and practices. The gime, please contact Margrett George compulsory insurance program for BC available when a lawyer has more than one policy), but the effect of the at 604 443-5761 or [email protected] lawyers already satisfied the require- at the Lawyers Insurance Fund. ments of the new regime in most re- non-stacking provision is essentially spects, and minor changes were unchanged. * For background, see the May-June, recently made to comply fully with the Although lawyers who are members 2003 Benchers’ Bulletin.G

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Update Special Compensation Fund claims relating to Martin Wirick

The Law Society’s Special Compensa- Mr. Wirick’s handling of trust funds in line entries recorded in approximately tion Fund Committee has now re- these transactions has led to numerous 1,082 pages to be reviewed. The ac- viewed almost one-third of the dollar claims against the Special Compensa- counting documents, such as client value of the claims arising from the ac- tion Fund. ledger cards, cancelled cheques, tions of former Vancouver lawyer cheque stubs, bank deposit books, Martin Keith Wirick. The Committee The Law Society’s investigation bank reconciliations and bank state- has made a decision on most of the The Law Society’s audit is focusing on ments, fill 64 large binders. Some of claims that have come before it and ad- approximately 870 of the 3,700 files the transactions are very complex and, journed certain others pending receipt that the Law Society’s auditors found in one case, the forensic auditors of more information. in Mr. Wirick’s office — those relating traced the proceeds of a single convey- to his client Tarsem Singh Gill, a Van- ance to more than 40 other transac- As reported in the September-Octo- couver-based property developer, to tions. ber, 2002 Benchers’ Bulletin, Mr. Wirick Mr. Gill’s companies and to Mr. Gill’s wrote to the Law Society on May 23, nominees. Mr. Gill was petitioned into Mr. Wirick’s breaches of 2002, resigning his membership and bankruptcy in June, 2002. In addition undertaking and admitting to breaches of undertakings to its audit of Mr. Wirick’s records, the misappropriations or in several real estate transactions. Law Society recently obtained a BC wrongful conversion Those breaches had resulted in money Supreme Court order permitting its remaining unpaid to various parties auditors to review records held by Mr. In the claims reviewed by the Special and financial institutions. The Law So- Gill’s trustee in bankruptcy. Compensation Fund Committee up to ciety immediately applied for ap- The Law Society’s staff auditors are early July, 2003, the typical scenario is pointment of a custodian of Mr. being assisted in the Wirick investiga- that Mr. Wirick’s client, Tarsem Singh Wirick’s practice by the BC Supreme tion by forensic auditors from KPMG Gill, either personally or through a Court and began a full forensic audit and Mackay and Co. Also involved in company or nominee, purchased of his files. Mr. Wirick declared bank- the case are Law Society staff investi- property and resold it. In some cases ruptcy in July, 2002, listing contingent gators (who before joining the Society Mr. Gill redeveloped or contracted to liabilities of about $52 million. were senior members of the RCMP) redevelop the property. A Law Society discipline hearing and staff lawyers and paralegals who The purchase and redevelopment panel found Mr. Wirick guilty of pro- are working on the investigation and were sometimes financed by a con- fessional misconduct for breaching his preparing claims for presentation to struction mortgage. Mr. Wirick re- undertaking to discharge mortgages the Special Compensation Fund Com- ceived the sale proceeds from and ordered that he be disbarred on mittee. solicitors or notaries acting for the pur- December 16, 2002: see Discipline Case In August, 2002, the lead auditor on chasers and mortgage lenders. Instead Digest 03/05. the file estimated there were 22,000 of paying off the prior encumbrances,

The Special Compensation Fund … an overview

The Law Society has maintained a their collective commitment to the claims are first reviewed by Law Soci- Special Compensation Fund since public and illustrates why, despite ety staff who verify their accuracy. A 1949, funded entirely through annual actions such as those of Mr. Wirick, staff lawyer then presents the claims assessments paid by all practising members of the public can have con- to the Special Compensation Fund lawyers in BC, to compensate people fidence in the legal profession. Committee (chaired in 2003 by Law who lose money through the misap- Claims to the Special Compensation Society Second Vice-President Peter propriation or wrongful conversion Fund are governed by s. 31 of the Le- Keighley, QC), which determines of funds by a lawyer acting in his or gal Profession Act and by Part 3, Divi- whether the claim should be paid. her capacity as a lawyer. The Fund is sion 5 of the Law Society Rules. All Payment from the Fund is discretion- one way BC lawyers demonstrate ary.G

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as he undertook to do, Mr. Wirick was $5.5 million. The Committee, ulated in the mortgage to May 24, 2002 misdirected the down payment and however, determined that it needed to and the lesser of the mortgage rate or mortgage funds for the benefit of Mr. pay out only $3.5 million on 11 of the 6% thereafter to the date of the Com- Gill, such as to a Gill nominee or a Gill 15 mortgages in order to put the par- mittee’s decision. Most financial insti- company. In some cases, the money ties in the same position they would tutions have provided the Law Society was used to make payments on mort- have been in had Mr. Wirick honoured with information to assist in the foren- gages that should have been dis- his undertakings. sic audit and are awaiting the outcome charged on other properties — thereby of the Special Compensation Fund As of August 1, 2003, the Law Society ensuring the scheme went undetected. process, rather than commencing fore- had received 521 claims totalling $73.4 Because mortgage lenders frequently closure actions against innocent pur- million. The Special Compensation take several months to issue discharge chasers. Unfortunately, there are a few Fund Committee had considered 71 of certificates, the new purchasers and mortgage lenders that have not these claims, totalling $23 million. Be- their mortgagees did not know that provided the Law Society with finan- cause of overlapping claims, however, the prior mortgages had not been dis- cial information and have started fore- the total payments approved by the charged. closure actions — an approach that Committee on those claims totalled slows down the Special Compensation In the Special Compensation Fund $12.3 million. Summaries of these de- Fund process. When a mortgage cases considered so far, Mr. Wirick cisions have been or will be reported in lender has commenced foreclosure ac- frequently took fees from the money the Benchers’ Bulletin. It is not possible tion against an innocent owner of a that was subject to his undertaking, at this stage to determine whether this residential property who is in danger but there is no evidence that he other- ratio of overlapping claims and dollar of losing the residence, the Law Soci- wise profited personally from his values will continue or will increase or ety has provided counsel to represent misappropriations or wrongful con- decrease. that owner’s interests. version of funds. These claims can be very time-con- Recoveries from the Wirick and Overlaps in the claims suming for the Special Compensation Gill bankruptcy estates considered Fund Committee. In a typical case, the Committee deals with all claims relat- To receive payment from the Special The Law Society has encouraged any ing to an individual property at the Compensation Fund, claimants must person or financial institution suf- same time. Often there are a number of agree to a number of conditions, which fering a loss as a result of Mr. Wirick’s claims relating to each property and generally include providing to the actions to file claims and to provide between 150 and 700 pages of docu- Law Society an assignment of any whatever information they can to as- mentation, including details of the fo- claims they may have against Mr. sist the forensic audit. This has re- rensic audit, Land Title Office Wirick, Mr. Gill, Mr. Gill’s nominees sulted in a great many overlapping documents and financial documents, or Mr. Gill’s companies. The Law Soci- claims, but the Law Society believes it for the Committee to consider. ety will pursue these claims and ex- is necessary for the auditors to have pects to be able to trace some trust As noted, almost one-third of the mon- complete information. Because of claims to money received by Mr. Gill’s etary value of all claims received to overlapping claims, it is impossible to trustee in bankruptcy. Recoveries date have either been decided or con- gauge the potential aggregate dollar from Mr. Wirick’s bankruptcy estate sidered in a preliminary way and are value of valid claims until the audit is are uncertain as he appears to have awaiting further information for dis- completed and the claims are ana- few assets. lyzed by Law Society staff and the Spe- position. Many of the remaining cial Compensation Fund Committee. claims are from owners of individual Paying for the Wirick claims suites in condominium developments. For example, in the first of the Special As noted by former Law Society Presi- In one of these condominium cases, Compensation Fund decisions relat- dent Richard Gibbs, QC in the Septem- there are 100 claims relating to a single ing to Mr. Wirick — reported in the ber-October, 2002 Benchers’ Bulletin,in development. The Special Compensa- January–February, 2003 Benchers’ Bul- the 15 years prior to the discovery of tion Fund Committee may decide it is letin as “The East Vancouver proper- Mr. Wirick’s misappropriations, the most expeditious to consider all claims ties” — the Committee considered 17 Special Compensation Fund paid out relating to that development at the claims. Those 17 claims related to 15 an average of $348,000 a year on claims same time. separate mortgages involving two ad- for compensation. joining properties that had been sub- In the claims approved so far, the divided into three separate properties. Committee has generally authorized continued on page 8 The total amount of those 17 claims payment of the amount of interest stip-

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assessment on BC lawyers. requirements and the CBA undertak- Update on Wirick … from page 7 ings, see the May-June, 2003 Benchers’ Changes to conveyancing Bulletin. practice and trust In 2002, when the Law Society learned In the near future, BC lawyers will also of the Wirick misappropriations, the accounting see a revised form of trust accounting Special Compensation Fund was In addition to providing financial report to replace the current Form 47 insured for $17.5 million. Under the compensation to those who have suf- accountant’s report. Mr. Wirick’s ac- terms of the insurance policy, the Law fered loss as a result of misappropria- tions emphasized the need for the Law Society is responsible for the first $2.5 tion or wrongful conversion by Mr. Society to improve the regulation of million of all claims. The Fund, in 2002, Wirick, the Law Society has worked on trust accounts. As a result of consulta- had reserves of $8.5 million to cover conveyancing reforms to ensure tion with both lawyers and accoun- the $2.5 million deductible and any greater public protection through en- tants, the Society is developing a new claims over the insurance limits. All hanced transparency over mortgage trust accounting form that will require claims relating to Mr. Wirick’s discharges. lawyers to provide more detailed in- misappropriations fall within the 2002 formation about their practices. The New Law Society Rules now require a insurance policy because evidence of focus of the new form is risk assess- lawyer to report to the Law Society the the misappropriations was discovered ment, along with cost effectiveness for failure of a mortgagee to provide a in that year. both the Law Society and lawyers. registrable discharge of mortgage In recognition of the need to maintain within 60 days of a transaction that Funding future public confidence, the Benchers in closes March 1, 2003 or later. The new misappropriation claims September, 2002 rescinded Law Soci- rules, recommended by the Law Soci- ety Rule 3-33 to remove the $17.5 mil- ety Conveyancing Practices Task The financial implications of Mr. lion cap on payments that the Special Force, also oblige a lawyer to report to Wirick’s actions have led the Benchers Compensation Fund Committee can the Law Society the failure of another to reflect on whether there are ways to authorize in a calendar year. This step lawyer or a notary to provide satisfac- compensate the public for losses gave the Committee discretion to ap- tory evidence that he or she has filed a caused by lawyer misappropriation prove claims without the restriction of registrable discharge of mortgage as a other than through a Special Compen- a pre-determined cap. It was yet an- pending application to the Land Title sation Fund. other affirmation of the commitment Office within that 60-day period. The Benchers are now considering the of BC lawyers to public protection. The Law Society is collecting this in- potential for coverage through an in- surance vehicle, rather than a discre- In 2003, the Law Society increased the formation to learn more about the tionary fund. The Benchers have asked Special Compensation Fund assess- business processes of financial institu- Law Society staff to investigate the fea- ment paid by each practising lawyer tions, whether there are certain institu- sibility of innocent insured coverage by $350 — from $250 to $600. This in- tions unable to discharge mortgages as part of the compulsory professional crease was needed to cover audit and within a given timeframe and whether liability policy, which might be investigation costs, to pay claims and there are situations that require Law funded through a fee on trust accounts to increase the Special Compensation Society assistance or intervention. opened for clients. The work on this is- Fund reserves. Based on current infor- The Conveyancing Practices Task sue is at a preliminary stage and will mation, this assessment is not ex- Force is also encouraging lawyers to be presented to the Benchers at a later pected to increase in 2004 and may use the newly revised CBA standard date and reported to the profession in possibly decrease by as much as $200. form undertakings in real estate con- the Benchers’ Bulletin. veyances. These undertakings now in- At present, all claims approved by the clude transparency provisions Conclusion Special Compensation Fund Commit- respecting mortgage discharges. Spe- tee have been paid without the need The Law Society’s duty, pursuant to cifically, the new undertakings require for additional financing. If the total of section 3 of the Legal Profession Act,is a vendor’s lawyer to provide the pur- approved claims goes beyond the “to uphold the public interest in the chaser’s lawyer within five business Fund’s reserves and insurance as a re- administration of justice.” Compen- days of completion copies of specific sult of the Wirick-related claims, the sating Mr. Wirick’s victims and ensur- documents that demonstrate that the Benchers anticipate borrowing money ing that lawyers carry out their duties vendor’s lawyer has made payments to pay the claims. This will allow the honestly and ethically is a demonstra- to existing chargeholders. Law Society to finance claims over tion of the profession’s commitment to time, rather than imposing a large For more information on the reporting that duty.G

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Change in Annual Practice Declaration filing date

Practising insured lawyers in BC will sent a declaration for return to the Law declaration as part of the new accoun- not be asked to file an Annual Practice Society by September 30. Beginning tant’s report. A lawyer’s declaration Declaration this September as in previ- this year, only those practising will accordingly be due on the same ous years. Instead they will be asked to lawyers who are exempt from Law So- date as the accountant’s report for his do so when their firms file a new form ciety professional liability insurance or her firm. of Form 47 accountant’s report, which will be sent a declaration for filing in More information about the new is expected to be introduced by the September. All practising lawyers accountant’s report will be published Law Society later this year. who carry either full-time or part-time to the profession in the coming Until now, all practising lawyers (both insurance through the LSBC Captive months.G insured and insurance exempt) were Insurance Company will complete the

Erratum

The caption to the Benchers photo- appears in that photo) as Bencher Wil- online version of the 2002 Annual Re- graph on page 1 of the 2002 Annual Re- liam Jackson. Apologies to both Mr. port at www.lawsociety.bc.ca.G port incorrectly identifies Nanaimo Ridgway and Mr. Jackson for the er- Bencher G. Glen Ridgway, QC (who ror. The correction is reflected in the

2003 Gold Medallists

Victoria Bencher Ann Wallace presents over his three years at the University of Andrew Petter (left) in attendance. Prior the 2003 Law Society gold medal to Ben Victoria law school. The presentation was to studying law, Mr. Blackmore earned a Blackmore (centre) who achieved the made at a law faculty reception that fol- BA (Honours) degree in Mathematics highest cumulative grade point average lowed convocation ceremonies, with Dean from Acadia University and later worked in South Korea as an ESL teacher and in Northern Ontario as a tree-planter. While at law school, he received many prizes and scholarships for academic achievement. Mr. Blackmore will article with Davies Ward Phillips & Vineberg in Toronto.

At the July Benchers’ meeting, President Howard Berge, QC had the pleasure of presenting the 2003 Gold Medal for the University of British Columbia to Amy Jennifer Davison. A recipient of multiple scholarships, Ms. Davison complemented her academic achievements at law school with active service on campus — as a mem- ber of the UBC Law Students Legal Advice Program, the UBC Law Review and the Law Faculty Council Student Caucus. Ms. Davison will clerk with the BC Su- preme Court before beginning articles at Borden Ladner Gervais in Vancouver.G

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The upshot of all of this was that — bilities, the Law Society and the CBA President’s View … from page 3 while CBA membership was volun- should not be seen as too closely con- tary — payment of a CBA fee compo- nected. nent was not. Governments are now scrutinizing that stretches back more than 50 years. and, in some cases interfering with, In the mid-forties the legislature sup- The Benchers have always regarded the self-regulation of the legal ported mandatory CBA membership the Canadian Bar Association as a profession. While some of the criti- as follows: “The Benchers may out of the valuable organization, and this goes a cisms levelled in other jurisdictions annual fee paid by each barrister pay to the long way to explaining why, year after would not be justified in BC, too close Canadian Bar Association the annual fee year, they have recommended that an integration between any law soci- for his membership in that association” payment of a CBA membership fee be ety and a lawyers’ association, such as [section 14(2), Legal Professions Act]. included as part of the practice fee. Historically, the Law Society has also the CBA, may not enhance public con- In 1987 the legislature deleted the been concerned that, should the CBA fidence. above provision, and introduced the drop certain functions for financial In addition, the CBA should not be de- current, much narrower, section 24, reasons, the Law Society might need to pendent on all BC lawyers for provid- permitting the Benchers to authorize take on those functions. ing such a large share (25%) of its the Law Society to act as agent for the income, a large portion of which re- If the CBA is a valuable professional CBA for the purpose of collecting the mains with the National Office, or on association — and most of us believe it fees of CBA members and deeming our provincial law society for using is — it should respect BC lawyers by that such fees collected “form part of the mantle of the practice fee to secure giving them the same choice as other the practice fee referred to in section that income stream. When I say that Canadian lawyers and by having con- 23(1)(a).” the CBA will come out stronger in BC, fidence that most BC lawyers, given it is because each of its members will In recent years, BC lawyers have be- the choice, will see CBA membership make a deliberate choice to have the gun questioning the nature of CBA as good value for money. Our own CBA serve and represent them. membership, and a few have resigned Law Society’s polling reveals two im- membership. While the CBA has taken portant things. First, just over half of The mandatory nature of CBA fees is the position that membership is volun- lawyers polled in BC do want CBA now arising again and again as a tary, it has nevertheless continued to membership to be voluntary. Second, source of discontent in the profession. advocate payment of a CBA fee com- three out of four would choose CBA The issue now routinely dominates ponent by all BC lawyers. membership if it were voluntary. the Law Society AGM. It has prompted several BC lawyers into ini- After a lively debate at last year’s These two findings are not hard to rec- tiating court challenges. It is con- AGM, members passed a 2003 practice oncile. Most people care passionately stantly diverting time, energy and fee that included “an amount equiva- about the associations and community resources away from important pro- lent to the CBA fee.” The Benchers had organizations to which they belong — jects of both the Law Society and the originally recommended the “fee but would not seek to force others to CBA. This ongoing strife is not good equivalent” in recognition of the fact join. The choice to belong is the very for either organization, or for BC law- that certain lawyers have expressly essence of a membership association. yers. chosen not to be CBA members. The It is what ensures that the association 2003 practice fee therefore comprised reflects and serves its members. I believe that BC lawyers, whether or several components — the Law Soci- not they are active CBA members, are ety fee, the CBA equivalent fee and The Law Society and the Canadian Bar ready to support the Benchers’ pro- funding amounts for the BC Court- Association carry out very different posal for individual choice. If you con- house Library Society, the Lawyers roles. The Law Society is a regulatory sider this an important issue, the Assistance Program and subscription body for lawyers and its primary re- September 19 AGM is the opportunity sponsibility is to protect the public in- G to the Advocate. to make your vote count. terest in the administration of justice. The Benchers subsequently resolved For that reason, membership in the So- to pay to the Canadian Bar Association ciety is a requirement of practising the full amount of the CBA equivalent law. The CBA, in contrast, is a profes- fee under their general authority to ap- sional association that speaks first and ply Law Society funds, and the CBA foremost for the interests of its mem- accepted this money as payment for bers. To maintain public and lawyer fees of its members in BC. confidence in our separate responsi-

10 Practice & Ethics

Law firms should prepare now for the Personal Information Protection Act (Bill 38)

The Personal Information Protection Act However, the federal government is individual the right to see and ask for (Bill 38) passed second reading in the permitted to exempt organizations or corrections to his or her personal infor- Spring session of the provincial legis- activities in provinces that have their mation that an organization may have lature. While the Bill did not receive own privacy laws if those laws are collected. third reading prior to the adjournment deemed to be “substantially similar” of the legislature at the end of May, it is to the federal legislation. The obligations on law firms to protect privacy expected to pass into law sometime in Bill 38 was drafted following wide- the Fall. spread consultation by the BC Law firms are vast repositories of Bill 38 will govern the personal infor- government over the past year. The personal information. In addition to mation that businesses, non-profit or- Bill is intended to protect personal in- maintaining information about em- ganizations and other private sector formation within the private sector in ployees, firms possess sensitive per- entities in the province can collect BC as well as to protect employee in- sonal information about both clients from clients, customers, employees formation in provincial organizations, and non-clients. and volunteers and how that personal something which PIPEDA, for consti- The personal information of clients is information is to be used, disclosed tutional reasons, could never do. already protected by a lawyer’s pro- and stored. This legislation will apply An overlying issue is that PIPEDA re- fessional responsibility to protect cli- to law firms and to lawyers in private quires any provincial privacy legisla- ent confidences. Moreover, the law of practice and will affect how firms han- tion intended to govern the private solicitor-client privilege protects priv- dle the personal information of em- sector to be substantially similar to the ileged information, which a lawyer ployees and clients, as well as personal federal legislation, which means that must never disclose without client information gathered by lawyers Bill 38 could not vary too significantly instructions. Bill 38 provides that about non-clients in the course of a re- from PIPEDA. nothing in the legislation affects solici- tainer. tor-client privilege. Bill 38 has not yet been determined to In order to properly discharge their Why is this legislation be substantially similar to PIPEDA. duties and professional obligations in necessary? The federal cabinet will make that de- the practice of law, however, lawyers termination on recommendation of In- In 1998 the European Union issued a must be able to collect, use and dis- dustry Canada after the Bill becomes directive to prohibit EU businesses close personal information. Sections law. While the former federal Privacy from sharing personal information 12, 15 and 18 of Bill 38 set out the cir- Commissioner, George Radwanski, with businesses from other countries cumstances in which an organization had earlier stated that Bill 38 had unless those countries had privacy re- governed by the legislation can do so “grave deficiencies,” the Information quirements that satisfied the EU. Can- without the consent of an individual, and Privacy Commissioner for BC, ada responded by enacting the federal and these sections should be reviewed David Loukidelis, has expressed the Personal Information and Protection of closely by lawyers. For example, per- view that Bill 38 provides broader cov- Privacy Act (“PIPEDA”). That Act, sonal information may be collected erage than the federal act and is less which has met with EU approval, gov- without the consent of an individual if: complex. erns the protection of private informa- · tion of individuals that is collected, it is for use in an “investigation” or The purpose of privacy a “proceeding” (both are defined used or disclosed within the federally legislation regulated sector in the course of com- terms), provided that it would mercial activities. PIPEDA also covers The general purpose of privacy legis- reasonably be expected that the ac- all organizations engaged in interpro- lation, including Bill 38, is to ensure curacy or availability of the infor- vincial commercial activity. that the collection, use or disclosure of mation may be compromised by having to obtain consent; As of January 1, 2004 PIPEDA will also personal information about an indi- · purport to cover the collection, use vidual does not occur without that in- the collection is clearly in the and disclosure of personal informa- dividual’s consent or unless the tion in the course of any commercial information falls within specific ex- activity within provinces, including ceptions. continued on page 16 provincially regulated organizations. Privacy legislation also gives an

11 11 Practice & Ethics

Interlock Member Assistance Program On the verge of collapse: how to help a colleague in trouble by Nancy Payeur, Regional Director, Interlock “A partner in our firm recently lost several cases he should have won. Not only that, but two of the firm’s clients have com- plained to the Law Society that he hasn’t followed up on their files. And his behav- iour towards other lawyers and staff at the firm has dramatically changed. This is someone who is normally very outgoing, and now he’s withdrawing … spending most of the day behind closed doors. When we ask him if anything’s wrong, he denies any problems. This has been going on for months now, and it’s not getting any better.” * * * The above scenario is typical of those I hear from lawyers who have contacted Interlock out of concern for a col- league. It’s easy to overlook the early signs of distress in others with whom we work. We may sense something is wrong, but are not sure — or may con- clude that it’s a private matter and that a gesture of help will not be welcome. · number of things — marital problems, We may even harbour resentment if a Forgetfulness a runaway teenager, addictions, a psy- colleague’s failings are impacting on · Lowered productivity and drasti- chiatric illness, workload stress or us directly in the workplace and think cally reduced billable hours pressing financial difficulties. He may it’s up to them to take responsibility be “collapsing” — losing control of his for their own problems like everyone · Increased number of personal calls life in a number of ways and finding else. · Personality changes: irritability, that his habitual coping methods no Avoiding a problem can have serious mood swings, angry outbursts longer work. consequences, however, both for a Law firms often wait far too long to · Withdrawing or avoiding others lawyer in trouble and for others in the attempt to address a situation that firm. Lawyers need to rely on each · may already be chronic. This may be other. For partners in particular, the Alarming statements — suggest- ing self-harm or threats due to a natural reticence or awkward- overall financial interests of the firm, ness about approaching a colleague on as well as the interests of each partner, · Deterioration in personal appear- the sensitive issue of work perfor- bring a heightened sense of urgency to ance and grooming mance, or to the human tendency to the situation. deny or minimize concerns until they · Signs of severe fatigue If you are wondering whether another are blatantly obvious to all. But lawyer needs help, here are some · Signs of potential drug/alcohol whatever the reason, delay may warning signs of distress: use: bloodshot eyes, smell of alco- worsen the problem. A matter that hol. could have been dealt with effectively · Lateness or absenteeism early on can easily become entrenched The lawyer I’ve described in my sce- and more difficult to turn around later. · Missed deadlines or court dates nario may be struggling with any At that point, a partner may instead be

12 12 Practice & Ethics

expelled from the partnership and end acknowledge your concerns readily resolve them. You do need to ensure up trying to work alone — unprepared and openly. Or he or she may deny or there is follow-through, and that your and without adequate resources and minimize the problem, or become an- colleague understands that things support. That can easily lead to a gry, perhaps accusatory. Do not be cannot continue unchanged. In the marginal legal practice that spells drawn into arguing, but continue lis- case of either a partner or an associate further problems ahead for both the tening actively and probe for an un- in your firm, it needs to be clear what lawyer and clients. derstanding of that point of view. actions will be taken if changes are not Restate and summarize your concerns forthcoming. Both elements — sup- Recommended steps in making and give the person time to think over portive resources and clear require- the approach your feedback if that appears neces- ments for change — are necessary sary. Don’t leave things hanging components of a successful plan. My advice in such a situation is though — follow up within 24 hours to straightforward. The partner who has These conversations take courage. finish the conversation. the most positive relationship with the Give yourself credit for facing the lawyer must make the approach and A plan of action problem directly and offering help. level with him or her. I would usually The rest is up to your colleague.G suggest this as the first step. The per- Whatever the response, let your col- son confronting the lawyer needs to be league know that you will provide prepared for a range of reactions — concrete support and will help sketch from defensive denial to angry coun- out specific plans to “get things back ter-attack. In the best of all possible on track.” Depending on the core is- outcomes, the lawyer will acknowl- sue, this will include a range of alter- edge the concerns, possibly explain natives. what is going on and admit that he or If the lawyer needs to improve prac- she needs some help. Here are the key tice management skills, the plan could steps to follow. include additional training, appropri- Express concern for the person’s ate systems and administrative sup- well-being port. If the lawyer’s ability in certain We are all better able to hear criticism areas of the law is the issue, the plan when we believe that someone is try- could include a mentorship structure, ing to be a caring human being, and the help of lead counsel on specific How to reach Interlock there is positive intent. types of cases, continuing legal educa- Interlock offers personal coun- tion or limiting the lawyer’s practice in selling and referral services that Review the specifics the firm to proven areas of compe- are confidential and available at During the meeting, you must calmly tence. no cost to individual BC law- build your case, describing examples If personal or family issues are in- yers and articled students and of the concerns, including complaints volved — including addictions, their immediate families. Inter- from clients, deadlines or court dates marital or mental health issues — you lock can help with personal, missed, irritable or withdrawal behav- will need to provide information and relationship and family prob- iour, etc. The goal is not to provide an assistance, such as a referral to lems, stress management, sub- amateur diagnosis or become a coun- Interlock’s Member Assistance Pro- stance abuse or work-related sellor to your colleague, but to provide gram. You may also wish to consider concerns. clear, compelling and unequivocal exploring resources available through Interlock can be reached at: feedback about a pattern of behaviour the Lawyers Assistance Program Lower Mainland: 604 431-8200 occurring over a period of time that is (LAP), including ongoing peer sup- causing serious concern. When you port. Toll-free in BC: 1-800-663-9099 are making this approach on behalf of a number of partners, let the lawyer A final note … know this, as kindly as possible, to in- dicate the seriousness and urgency of Remember that you cannot take re- the situation. sponsibility for “fixing” the prob- lem. All you can do is let your Listen to the response colleague know your concerns are Your colleague may surprise you and serious and together plan a way to

13 Practice & Ethics

Practice Tips, by Dave Bilinsky, Practice Management Advisor

xAnd I could have done so many things, related to career, family, sport, art, categories, according to Edwin baby attitudes, finances, self (mind and Bliss, author of Getting Things Done. If I could only stop my mind from body), community and other peo- These are Important and Urgent, wondrin’ what ple. Consider what accomplishing Important but not Urgent, Urgent but I left behind and from worrying ‘bout your goals would look like. Hold on not Important, Busy Work and Wasted this wasted time … x to that vision. Time. Go through your daily log and Words and music, Don Henley and Glenn Fry, · To free up time for the most impor- categorize your tasks. Tasks that are recorded by The Eagles tant matters in your life and in your Important and Urgent are just that — Management moment work, you have to know how you it is rare that time is ever wasted on spend your time. So ask yourself, these matters. However, the last About 20 years ago, I was told a story. “How do I spend my day?” Start three categories tend to rob time This particular story was true. It was making a log of all the activities that from Important but not Urgent — the about a man who was otherwise rather you do now and the amount of time “stuff” that holds the most meaning unremarkable, except for one little for our lives but is pushed aside by matter. Early in his life, he had set the time-robbers. Gaining control down a list of all the things he wanted over our lives, our goals and our pri- to do in his lifetime. By the time he orities means having to corral the reached his 70s, he had managed to last three categories and get them cross off all but a few remaining items out of our lives in order to give room — and was eagerly anticipating ac- to the matters that have meaning to complishing the ones left on his list. us. What follows is further tips and How many of us can look back and say techniques to do just this. that we have used our time accom- Making time for what matters most plishing those goals that matter most · Learn to say “no.” People will try to to us? How many of us have even encroach on your time for good and taken the time to identify those goals? not so good reasons. Each time this To take up the lyrics of Beautiful Boy happens, ask yourself, “Is this tak- by John Lennon: “Life is just what hap- ing me closer to or away from my vi- pens to you, while you’re busy making sion?” Put that way, saying no, other plans.” How often do our plans politely but firmly, becomes easier. actually reflect our values as opposed to just distracting us from the more · Don’t be a perfectionist. Achieving important things in life? How do you perfection is usually impossible, set priorities, cull the wheat from the and setting too high a standard for chaff and set your own journey to re- yourself can result in procrastinat- claim your life? Here are some sugges- ing on matters because of the time tions: and energy required to complete the task. · Steven Covey, in his Seven Habits of you spend on them. Also track your · Highly Effective People, said: “Begin energy levels during the day. Now Recognize the danger of doing with the end in mind.” Vision is a look at the tasks and ask yourself, someone else’s work. While it may gift that has been valued in all cul- “Am I necessarily the best person be easier to do a task than to show tures; possessing a vision of what for each of these? Can some of these someone else how to do it, in the you wish to do with your life is in- be delegated? Are some make- long run, this means that you will deed being gifted. Take a moment work? What would happen if I end up doing it over and over again. and reflect on your values — what stopped doing some of them? How Let the appropriate person try, and matters to you over all else? Write much time is spent taking care of in- take time to correct the work know- these down. Consider the different terruptions? Am I using my best ing that, once this is done, you may aspects of these values, as well as the time during the day on the most im- never have to spend time on this people, the goals, and the timelines portant tasks?” again. As well, watch out for “Could involved, to gain a perspective on you please do this? You are so much · what you are aiming at. Goals can be Tasks can be divided into five better at this than I am.” While we

14 Practice & Ethics

all have to balance requests for our to pushing work down to associates Think win/win, Seek first to be under- time, be vigilant for the well-mean- and paralegals — who can learn standing, then to be understood, and ing person who should be honing and, in turn, complete the task at a Synergize. Putting first things first his or her skills rather than using lower overall cost to the client. This translates to ensuring that all the yours. When assistants come to you allows you to have time to think and facets of a job are understood and with partly completed work, don’t create strategy while the troops communicated prior to starting on finish it for them — give them the in- carry out the tactics. As for what to the work. formation they require to do the job. delegate, look at your activity log In the context of a client file, it is · and start by delegating those Make the people around you more busy-work and important but not equivalent to understanding the cli- efficient. While all of us have to deal urgent tasks. As you become com- ent’s desired cost and outcome of a with others, some of us have to deal fortable with the new paradigm, matter, rather than making an as- with supervisors — be they part- you can start delegating urgent and sumption that leads to a costly mis- ners, department heads or practice important tasks. understanding. Thinking win/win group leaders. When you spend is searching for a way to solve a time dealing with tasks that are One added benefit: by becoming a problem that meets everyone’s ill-defined by others, whether in mentor, you may find that associ- needs. This technique is frequently poorly run meetings or in striving ates start flocking to you, as they used in alternative dispute resolu- for last-minute deadlines — your soon realize that you are passing out tion negotiations. own schedule and deadlines will be work that others horde — thereby Seek first to be understanding, then adversely affected. Take time at the allowing them to gain a wider range to be understood means truly listen- outset to clearly outline what is re- of experience. Be sure to set up a sys- ing and being empathetic prior to quired from you. Establish a system tem to have the interim results communicating. For lawyers who to identify upcoming priorities brought to you early enough to al- are trained advocates, this can be a early enough to avoid the deadly low you to make corrections bit of a leap, since we are paid to put impact of deadlines. Furthermore, mid-stream. Remember to support forward a position rather than truly when people come to you with “ur- the associates while resisting the hear someone else’s. gent” requests, ask them to priori- urge to do the work yourself. One other thing — shoulder the blame tize those requests in light of your Synergize means being comfortable when something goes wrong and existing deadlines. Chances are they being open and honest with people spread the credit when things go will not want to incur someone on the understanding that they are right — your associates will love else’s displeasure by vaulting their doing the same with you and both of you for it. request to the top of the pile. you are looking for a “third alterna- · Make time for the right people. It is tive” that allows everyone to reach · Sharpen the saw. Covey recom- understood that, before you dele- to a higher level. mends taking time to reflect. In gate anything, you must be comfort- other words, evaluate your own · able with the delegate’s ability to Concentrate on results, not on pro- performance and reflect on whether tackle the task. Take time to find and cess. Effective leaders do not care you are so busy working that you nurture the right people. Spend time how a job is done — they only con- have not taken a moment to see if on the Cs — communicating, check- centrate on the goal. Effectively there is a better way of proceeding. ing and coaching — and not the Ds managing a busy practice depends Build in time for training, develop- — despairing, digging in and doing. on working with and managing ment and “group thinking.” En- busy people and not on looking courage people to come forward · Make time for yourself. Part of the busy. In the final analysis, ask your- with ideas on how to make incre- reason for managing your time is to self: If I were the client, would I be mental improvements in how you create time for the important but not happy paying my hourly rate to do go about your work. urgent matters, such as getting in this task or would I be just as happy the exercise you need. Take the time if an associate were to do it? Use that · Delegate, delegate, delegate. One of to start new habits and feel good yardstick to determine how to the best time-saving techniques is to about yourself and you will be en- change and still keep your clients give work to others — especially if couraged to continue along on this happy. that work would empower a dele- new path. gate and allow you to supervise After all, just think about all the things rather than doing the work directly. · Follow Covey’s remaining five hab- you could do if you could just stop In a law firm setting, this translates its: Be proactive, Put first things first, worrying about wasted time….G

15 Practice & Ethics

without having to obtain the A law firm should consider appoint- Privacy legislation … from page 11 consent of the individual for the ing someone within the firm to purposes of an investigation or coordinate the development of such interests of the individual and con- proceeding that has not yet com- policies and practices. That person sent cannot be obtained in a timely pleted. should become familiar with Bill 38, way; or Like all other employers in the prov- consider how the principles of the leg- ince, law firms will also have to ad- islation apply to the firm and organize · the collection is already authorized dress the personal information of their an audit of the kinds of personal infor- by law. employees. Lawyers should therefore mation collected by the firm. Consid- There are similar provisions for the become familiar with the definition of eration should be given to whether use and disclosure of personal infor- “employee personal information,” the consent is needed in order to collect, mation without consent. provisions on the collection, use and use or disclose personal information disclosure of such information and the and, if so, how such consent can be ob- Access to and correction of personal tained. These steps are often referred information is governed by Part 7 of right of an employee to access such in- formation. to as a “privacy diagnosis.” There are Bill 38. Lawyers, of course, already general resources available for assis- have professional obligations to dis- How should law firms prepare tance in performing such a diagnosis close to a client information in that cli- for Bill 38? on the BC Information and Privacy ent’s file at his or her request. Bill 38 Commissioner’s website at www. Section 5 of Bill 38 will require a law will also permit access to, and correc- oipc.bc.ca/private. tion of, personal information about a firm to: third party (including witnesses, for Law firms should also be familiar with · develop and follow policies and example) in the possession of a lawyer. the requirements of PIPEDA in the practices necessary for the firm to Exceptions to this requirement are event that Bill 38 is not determined to meet its obligations under the leg- enumerated in section 23(3), and in- be “substantially similar” to the islation, and clude situations where: federal legislation. Law firms that · · develop a process to respond to carry on business interprovincially the information is the subject of so- complaints that may arise respect- will need to ascertain their own licitor-client privilege; ing the application of the legisla- obligations to comply with the federal · the information was collected tion to the organization. legislation.G

Services to members Practice and ethics advice Contact David J. (Dave) Bilinsky, Practice Management Advisor, to discuss practice management issues, with an emphasis on technology, strate- gic planning, finance, productivity and career satisfaction. Email: [email protected] Tel: 604 605-5331 or 1-800-903-5300. Contact Felicia S. Folk, Practice Advisor, to discuss professional conduct issues in practice, including questions on undertakings, confidentiality and privilege, conflicts, courtroom and tribunal conduct and responsibility, withdrawal, solicitors’ liens, client relationships and lawyer-lawyer relation- ships. All communications are strictly confidential, except in cases of trust fund shortages. Tel: 604 669-2533 or 1-800-903-5300 Email: advi- [email protected]. Contact Jack Olsen, staff lawyer for the Ethics Committee, on ethical issues, interpretation of the Professional Conduct Handbook or matters for re- ferral to the Committee. Tel: 604 443-5711 or 1-800-903-5300 Email: [email protected].

Interlock Member Assistance Program – Confidential counselling and referral services by professional counsellors on a wide range of personal, family and work-related concerns. Services are funded by, but completely independent of, the Law Society, and provided at no cost to individual BC lawyers and articled students and their immediate families: Tel: 604 431-8200 or 1-800-663-9099.

Lawyers Assistance Program (LAP) – Confidential peer support, counselling, referrals and interventions for lawyers, their families, support staff and articled students suffering from alcohol or chemical dependencies, stress, depression or other personal problems. Based on the concept of “law- yers helping lawyers,” LAP’s services are funded by, but completely independent of, the Law Society and provided at no cost to individual lawyers: Tel: 604 685-2171 or 1-888-685-2171.

Equity Ombudsperson – Confidential assistance with the development of workplace policies, training and education, prevention of discrimination and the resolution of harassment and discrimination concerns of lawyers and staff in law firms or legal workplaces. Contact Equity Ombudsperson, Anne Bhanu Chopra. Tel: 604 687-2344 Email: [email protected].

16 Practice & Ethics

Do ICBC adjusters discourage claimants from seeking legal advice?

Earlier this year, Law Society Presi- claimants that they should not seek a “ICBC adjusters should not be dis- dent Howard Berge, QC raised with lawyer’s advice and who threaten to couraging claimants from seeking le- ICBC President Nick Geer concerns withhold payments if they do would gal advice,” he said. from lawyers and their clients that not meet the high standard of com- some ICBC adjusters discourage mercial morality that our community Mr. Geer has advised the Law Society claimants from seeking the assistance expects,” Mr. Berge said in his letter to that, should any lawyer be concerned of lawyers. Mr. Geer. He asked ICBC to confirm that a particular adjuster is discourag- ing claimants from seeking legal ad- According to those clients, ICBC ad- that it does not have or promote such a vice, the lawyer should bring the justers told them that, if they sought policy and to advise the profession of concerns to the attention of that ad- the assistance of lawyers, any pay- how to best address complaints of juster’s manager. ments being made on their behalf such practices. (such as payments for chiropractic In his response, Mr. Geer noted that If a lawyer decides to take such a step, treatment or physiotherapy) would be many files are amenable to settlement the Law Society also invites the law- discontinued until their claims were directly between ICBC and claimants, yer, with client consent, to send a copy settled. On the other hand, if they con- and that 66% of tort bodily injury of any correspondence to the Society tinued to deal directly with the adjust- claims are settled with unrepresented to ascertain the extent of the problem ers, their payments would be kept claimants. He said that ICBC would overall. This correspondence can be current. prefer to settle claims without the ne- sent to Carmel Wiseman, Staff Law- The Law Society has expressed con- cessity of litigation, but recognizes yer, Policy and Legal Services, at 845 cern about reports of such practices. that claimants are entitled to legal rep- Cambie Street, Vancouver BC V6B 4Z9 “In our view, adjusters who advise resentation if they wish it. or by email to [email protected]

BC Courthouse Library to survey lawyers and other users

The BC Courthouse Library Society manner that meets the needs of its will conduct a needs assessment users. survey of lawyers and other members The BC Courthouse Library Society of the legal community from Septem- appreciates the assistance of members ber to November, 2003 through the of the legal community who will be se- research firm Synovate. This survey is lected at random to participate in the essential to ensuring that the Society survey.G continues to develop its services in a

From the courts BC Supreme Court

Fax filing rule (Rule 67) will be effective and governs Kelowna (250 979-6768); Nelson (250 how documents may be delivered to 354-6133); Penticton (250 492-1290); Practice direction: June 24, 2003 (in ef- the registry by fax for the purposes of Prince George (250 614-7923); Rossland fect from July 1, 2003 to July 1, 2004 filing. As per Rule 67(3)(a), the desig- (250 362-7321); Salmon Arm (250 and replacing the direction issued Jan- nated fax numbers for the registries to 833-7401); Smithers (250 847-7344); Ter- uary 7, 2003) which Rule 67 applies are as follows: race (250 638-2143); Vernon (250 Issued by Chief Justice Donald I. Chilliwack (604 795-8397); Cranbrook 549-5461) and Williams Lake (250 Brenner (250 426-1498); Dawson Creek (250 398-4264).G On July 1, 2003, the new fax filing rule 784-2218); Kamloops (250 828-4345);

17 Regulatory

Special Compensation Fund claims

The Special Compensation Fund, T was a nominee of Mr. G whom Mr. position to commence foreclosure pro- funded by all practising lawyers in BC, Wirick also represented. T held the F ceedings against the innocent pur- is available to compensate persons Street property in trust for V Ltd., a chasers L and D, the Committee also who suffer loss through the misappro- company owned by Mr. G. exercised its discretion to pay to A priation or wrongful conversion of T sold the property to L and D. They Bank interest at the contract rate of money or property by a BC lawyer act- obtained $275,000 in mortgage financ- 4.9% to the date of payment. ing in that capacity. ing through A Bank. Mr. Wirick re- As a result of the payment, and dis- The Special Compensation Fund ceived from the purchaser’s solicitor charge of the prior charges from title, Committee makes decisions on claims the sale proceeds in trust on his under- both A Bank and L and D would be re- for payment from the Fund in accor- taking to pay out and discharge the stored to the positions they would dance with section 31 of the Legal Pro- prior A Bank mortgage and assign- have been in had there been no wrong- fession Act and Law Society Rules 3-28 ment of rents. Mr. Wirick did not in ful conversion of funds by Mr. Wirick. to 3-42. Rule 3-39 (1)(b) allows for pub- fact use the funds to pay out these Accordingly, a separate claim by L and lication to the profession of summaries charges, contrary to his undertaking. D for compensation was denied. of the written reasons of the Commit- Instead, he transferred the funds to an- tee. These summaries are published other property, paid his own account Special Compensation Fund Com- with respect to paid claims, and with- and forwarded the remaining funds to mittee decision involving claims out the identification of claimants. another financial institution. 20020055, 20020326 and 20020234 As a result of Mr. Wirick’s breach of Decision date: June 18, 2003 undertaking, the prior mortgage and Report issued: July 3, 2003 Martin Wirick assignment of rents (with T as mort- Claimant: B Credit Union gagor) remained on title and in prior- Payment approved: $191,249.36 Vancouver, BC ity to the mortgage obtained by L and ($180,887.59 and $10,361.77 interest) Called to the Bar: May 14, 1979 D, which was the only charge that The 61st Avenue property Resigned from membership: May should have been on title. 23, 2002 The Special Compensation Fund In June, 2000 T purchased a residential Committee found that, while not ev- property on 61st Avenue in Vancou- Custodian appointed: May 24, 2002 ery breach of undertaking is fraudu- ver, financed through a B Credit Un- Disbarred: December 16, 2002 (see lent, in this case Mr. Wirick’s pattern of ion mortgage of $186,300. In Discipline Case Digest 03/05) behaviour did not suggest an error, November, 2001 T entered into a con- but rather conduct similar to that re- tract to sell the property to C for flected in his earlier discipline pro- $475,000. The property was to be con- ceedings. He misled and deceived the veyed to C’s spouse (M). Mr. Wirick Special Compensation Fund Com- purchasers’ lawyer and he breached acted for T in the conveyance of the mittee decision involving claims his undertaking in order to facilitate property to M. 20020056 and 20020423 the misappropriation and wrongful M was financing the purchase of the Decision date: March 5, 2003 conversion of the funds that he re- property through a mortgage with C Report issued: May 2, 2003 ceived in trust. Bank. M’s lawyer sent the sale pro- Claimant: A Bank The Committee decided that it would ceeds to Mr. Wirick in trust on his un- Payment approved: $158,478.63 not require the claimant to exhaust its dertaking to, among other things, pay ($152,244.93 and $6,233.70 interest) civil remedies in this case by obtaining out and discharge the B Credit Union a judgment against Mr. Wirick, given mortgage from title. Mr. Wirick depos- The F Street property that there was little hope of recovery ited the funds to his trust account but In March, 2002 Mr. Wirick represented from him. did not pay out and discharge the B T who purchased a property on F The Committee allowed the claim of A Credit Union mortgage, contrary to Street in Vancouver for $227,000. T ar- Bank, subject to certain releases, as- his undertaking. ranged a $152,750 mortgage loan from signments and conditions, including The Special Compensation Fund A Bank, and the mortgage and assign- the requirement on A Bank to dis- Committee found that, while not ment of rents were registered on title charge the T mortgage and assignment every breach of undertaking is dishon- on March 5. of rents. Noting that A Bank was in a est, the circumstances of this case

18 Regulatory

suggested not negligence or error, but had not received the funds to which it had instigated any disciplinary action an intention by Mr. Wirick to deceive was entitled on sale of the property. against any employee, terminated the and to facilitate the misappropriation employment of any employee or and wrongful conversion of the funds. The Committee allowed the claim of B whether any employee had resigned Credit Union in the principal amount The Committee decided that it would as a result of any matter connected of the mortgage, together with interest with this claim. All claimants were not require the claimant to exhaust its at the mortgage rate to May 24, 2002 civil remedies in this case by obtaining also required to provide the Law Soci- and thereafter at the mortgage rate to a ety with their original files and origi- a judgment against Mr. Wirick, given ceiling of 6% per annum, subject to cer- that there was little hope of recovery nal documents with respect to this tain releases, assignments and condi- matter. from him. B Credit Union had not tions agreed to by all claimants. B commenced foreclosure proceedings Credit Union was, among other As a result of the payment and dis- in this case at the Law Society’s re- things, required to provide the Law charge of the B Credit Union mort- quest, pending a decision on its claim Society with a statutory declaration gage, C, M and C Bank would sustain against the Fund. setting out the availability of any in- no loss and their claims against the B Credit Union suffered a loss in that it surance to pay its claim and whether it Fund were accordingly denied.G Disbarment and suspension

Karl-Heintz Eisbrenner, of Brides- pending final disposition of the disci- after having found him guilty of pro- ville, BC: On August 28, 2003 a Law pline citation. fessional misconduct. The suspension Society discipline hearing panel or- James Galt Martin, of North Vancou- takes effect at 5:00 pm on September 5, dered that Mr. Eisbrenner be dis- ver, BC: On August 25, 2003 a Law 2003. barred after having found him guilty Society discipline hearing panel or- * * * of professional misconduct. Mr. dered that Mr. Martin be suspended These decisions will be reported in Eisbrenner had earlier been sus- from the practice of law for 18 months upcoming issues of the Discipline Case pended on November 29, 2002 Digest.G Unauthorized practice actions

Court orders The BC Supreme Court has further or- dered, by consent, that Can-West Di- On application of the Law Society, the vorce Services Ltd., as well as its BC Supreme Court has ordered that agents, employees, officers and direc- Graham Kent, of Victoria, and his tors, be prohibited from giving legal company Legal Weavers be prohib- advice, drawing documents for use in ited from appearing as counsel or ad- a judicial proceeding or a proceeding vocate, drawing documents for use in under statute or offering or holding a judicial or extra-judicial proceeding, out that the company is qualified or negotiating or settling a claim or de- entitled to provide any of these ser- mand for damages, giving legal advice vices for a fee: August 1, 2003. or offering or representing that they are qualified or entitled to provide any Undertakings of these services for a fee: June 19, 2003.

The BC Supreme Court has also or- dered, by consent, that Robert Chung Fai Yau and AAA Business Secre- tarial Centre Ltd. be prohibited from drawing corporate documents, giving legal advice or holding out that they are qualified or entitled to provide these services for a fee: June 27, 2003. G

19 ELECTED BENCHERS LIFE BENCHERS Gary L.F. Somers, QC Madam Justice Mary F. Southin R. Paul Beckmann, QC President Marvin R.V. Storrow, QC P. Michael Bolton, QC Howard R. Berge, QC Benjamin B. Trevino, QC Robert W. Bonner, QC William M. Trotter, QC First Vice-President Darrell T.B. Braidwood, QC Alan E. Vanderburgh, QC Mr. Justice Thomas R. Braidwood William M. Everett, QC Brian J. Wallace, QC Cecil O.D. Branson, QC Karl F. Warner, QC Second Vice-President Trudi L. Brown, QC Warren T. Wilson, QC Peter J. Keighley, QC Mr. Justice Grant D. Burnyeat A. Brian B. Carrothers, QC *** Mr. Justice Bruce I. Cohen MANAGEMENT BOARD Ralston S. Alexander, QC Robert M. Dick, QC Executive Director Robert D. Diebolt, QC Ujjal Dosanjh, QC James G. Matkin, QC Ian Donaldson, QC Leonard T. Doust, QC Anna K. Fung, QC Jack L.T. Edwards, QC *** David W. Gibbons, QC Richard C. Gibbs, QC Lane Brownell Robert W. Gourlay, QC Dr. James J. Gow, QC Manager, Audit & Investigations John J.L. Hunter, QC Arthur M. Harper, QC Mary Ann Cummings William Jackson David B. Hinds, QC Manager, Special Fund & Gerald J. Kambeitz, QC John M. Hogg, QC Custodianships Robert W. McDiarmid, QC H. Allan Hope, QC Brad Daisley Margaret Ostrowski, QC Ann Howard Public Affairs Manager G. Glen Ridgway, QC Henry E. Hutcheon, QC Todd Follett Patricia L. Schmit, QC Robert T.C. Johnston, QC Acting Senior Discipline Counsel William J. Sullivan, QC Peter Leask, QC Susan Forbes, QC Grant C. Taylor Gerald J. Lecovin, QC Director, Lawyers Insurance Fund G. Ronald Toews, QC Hugh P. Legg, QC Russell S. Tretiak, QC Tim Holmes Charles C. Locke, QC Manager, Professional Conduct Ross D. Tunnicliffe James M. MacIntyre, QC Gordon Turriff, QC Jeffrey G. Hoskins Richard S. Margetts, QC General Counsel James D. Vilvang, QC Marjorie Martin Susan James Anne K. Wallace Allan D. McEachern Human Resources Manager David A. Zacks, QC Meredith M. McFarlane, QC Lloyd G. McKenzie, QC David Newell Corporate Secretary LAY BENCHERS Brian W.F. McLoughlin, QC Michael J. Falkins Colin D. McQuarrie, QC Neil Stajkowski Chief Financial Officer Patrick Kelly Kenneth E. Meredith Patrick Nagle Peter J. Millward, QC Alan Treleaven June Preston Dennis J. Mitchell, QC Director, Education and Practice Lilian To Karen F. Nordlinger, QC Adam Whitcombe Dr. Maelor Vallance Richard C.C. Peck, QC Chief Information Officer Emily M. Reid, QC EX OFFICIO BENCHER Norman Severide, QC Jane S. Shackell, QC Attorney General Donald A. Silversides, QC Geoff Plant, QC

Contact

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