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Benchers Bulletin, July-August 2003

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Benchers Bulletin, July-August 2003 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 2 Editorial 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.
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