1999: No. 5 November-December

Table of contents

Fifty years of service

The Hon. Thomas Kemp Fisher, Q.C. accepts a certificate from President Warren Wilson, Q.C. at a special luncheon on December 2 to commemorate 50 years of professional service, both in practice and on the Bench. A 1948 call and Treasurer from 1976-77, Mr. Fisher rejoined the profession this year following his judicial retirement. Also honoured this year: Duncan Harry Bell-Irving, Q.C., Donald Gordon Cameron, The Hon. Alexander Brian Beatty Carrothers, Q.C. (Treasurer in 1972-73), The Hon. Leslie Frederick Cashman, Donald Ross Dunfee, Arthur Fouks, Q.C., The Hon. Garde Basil Gardom, Q.C., Harvey Johnson Grey, Q.C., Thomas Owen Griffiths, Ormonde James Hall, Robert James Harvey, Q.C., James Ross Ker, William Norman King, John Rutherford Lakes, George Roy Long, Jr., James Gibson Lorimer, Ronald Francis Thérès MacIsaac, Ian Edward McPherson, Q.C., Dennis Douglas George Milne, Hugh Crothers Murray, James Hector Noble, Leslie Raymond Peterson, Q.C., The Hon. John David (Jack) Taggart, Q.C. and the family of David W.H. Tupper, Q.C. (also a 1948 call and Treasurer in 1987), in memory of Mr. Tupper.

Top of page | Table of contents | Index

Report recommends new pro bono society and foundation

Pro bono plan gets nod from Benchers

More and more people are appearing in court alone because they cannot afford a lawyer. Severe budget cuts have had a dramatic impact on the availability of legal aid. Community organizations that traditionally assist poor people are finding their resources stretched to the limit. Equal access to justice is a problem. But it is one the legal profession can and should help tackle according to the Law Society/CBA Pro Bono Committee, which delivered an interim report in December.

On the Committee’s recommendation, the Benchers have now authorized the creation of a new society to promote the delivery of pro bono legal services in B.C. and a separate charitable foundation responsible for fundraising for the society’s operations. The society will not deliver services, but rather will help lawyers engage in pro bono in the community. If the CBA Provincial Council also endorses the initiative at its meeting next spring, this plan is to be underway in the coming year.

The Pro Bono Committee — co-chaired by Kamloops Bencher Rob McDiarmid, Q.C. and CBA Executive member Carman Overholt — expects the new society will provide a coordinated approach to the delivery of pro bono legal services in B.C. and ensure those services are delivered effectively and in accordance with the highest professional standards.

The proposed society will support and encourage lawyers and law firms in the delivery of pro bono legal services, support organizations and pro bono programs in their delivery of services, promote a "pro bono culture" in the legal community, including law schools and community colleges, and develop and monitor policy as well as liaise with other jurisdictions.

A fundamental principle underlying the work of the Pro Bono Committee has been that pro bono is no substitute for a properly funded legal aid system.

In proposing this new initiative, the Pro Bono Committee was also careful to in no way undermine lawyers who deliver legal aid services — strict criteria will be maintained to ensure that only clients who are ineligible for legal aid will be eligible to receive pro bono services. The Committee was of the view that a pro bono society can, in fact, strengthen the position of the profession to lobby government for additional legal aid funding by tracking pro bono work and demonstrating the strong contribution lawyers make in helping the disadvantaged.

The program will also help demonstrate to the public that lawyers already perform a significant amount of charitable work and will mobilize lawyers who are looking for new, meaningful ways to give back to their community.

Impetus for the pro bono initiative came from within the profession. Lawyers at the Law Society’s 1998 Annual Meeting asked the Law Society to encourage every lawyer to participate in a pro bono program and the Benchers to take practical steps to further the development of one or more pro bono programs, in cooperation with the CBA. The CBA National also passed a resolution in support of promoting pro bono across Canada.

The Pro Bono Committee has focused considerable time and effort in 1999 researching other initiatives in Ontario, Alberta, the United States, Great Britain and Australia and plans to survey and consult broadly with B.C. lawyers and other interested parties in the coming months. The Committee is also looking at regulatory issues connected with pro bono, such as the avoidance of conflicts, quality assurance and providing insurance to exempt, non-practising and retired lawyers to allow them to participate in pro bono programs.

Top of page | Table of contents | Index

President’s View

By the time you read this, my year as President will be over. I have thoroughly enjoyed the experience. And what was that experience?

As your representative, I spoke on 28 occasions, attended 13 local or county bar meetings, introduced students to each PLTC session, presided over numerous call ceremonies, responded to the media on 14 occasions, wrote hundreds of letters, presided over 14 days of Benchers meetings, attended five days of meetings of the Federation of Law Societies, sat on several hearings and attended many committee meetings. All in all, my duties took more than 1,000 hours. I mention this not to seek thanks. Rather, I wish to publicly thank my firm, Ladner Downs, and my partners for the tremendous support given to me, not just this year but during all nine years I have been a Bencher.

I also mention this to request your support for an upcoming referendum to approve an increase in the honorarium paid to the Second Vice-President, First Vice-President and President. At the moment, the honorarium is $50,000 for the President only. The proposal is for an honorarium of $25,000 a year to each of the Second Vice-President and First Vice-President and for an increase in the President’s honorarium to $75,000. Two of the three people on the ladder are sole practitioners and the other is from a small firm. They are all committed, unselfish people who will represent your Law Society well. Their commitment is not dependent upon honoraria, but they could use the proposed extra help. Please give it to them.

I leave you with a few thoughts:

• As you will see elsewhere in this publication, the Benchers are committed to encouraging pro bono initiatives within the profession. These initiatives are important so that all members of the public have access to justice. The judiciary has been actively seeking ways to reduce the time it takes for a case to be heard. This too is important for access to justice. I hope efforts will continue until every case can be heard within a year of seeking a trial date.

• Multi-disciplinary partnerships are coming. Take an interest in the issue and have concern for preservation of the four core values of our profession — solicitor-client privilege, confidentiality, undivided loyalty to the client and independence of the profession.

• Internet commerce has significant relevance to the legal profession. There is some suggestion that it will revolutionize the way we practise law and force change on our professional responsibility standards that will make some of our current standards unrecognizable. One obvious example is website advertising. B.C. residents can pick up lawyer websites locally, nationally and internationally. B.C. lawyers will increasingly find competition from outside our borders. How does a governing body regulate the international provision of legal services? How do B.C. law firms compete if the Law Society rules restrict advertising of B.C. firms but cannot restrict international firms? The Internet has apparently given rise to the creation of instant law firms in the U.S.

In closing, I would like to thank the Law Society staff for their devotion to their duties and for helping me do my job. I could not have done it without them. I would particularly like to recognize the 16 years of service by Don Thompson, most recently as our Deputy Executive Director. Don has now joined the Law Society of Alberta as their Deputy. Our loss is definitely their gain.

I also thank my fellow Benchers. The most rewarding part of being a Bencher is working with a group of outstanding, totally dedicated people. Ross Tunnicliffe deserves special thanks as he leaves the Bencher table with me. I hope he will run again in the future. His presence as a solicitor was very valuable.

Finally, I thank the five lay Benchers — Nao Fernando, Ann Howard, Wendy John, Marjorie Martin and Anita Olsen. The devotion of the lawyer Benchers is understandable. The devotion of our lay Benchers is quite remarkable. The profession and the public owe them a great debt.

Top of page | Table of contents | Index

				Two new Benchers elected for 2000 – 2001 term
Ian Donaldson, Q.C.		Terry La Liberté, Q.C.

Two well-known criminal law lawyers join the Law Society as new Benchers for Vancouver for the 2000-2001 term, following the November 15 election: Ian Donaldson, Q.C. of Donaldson Jetté and Terence (Terry) La Liberté, Q.C. of Lauk Liberté.

All incumbents were re-elected for another term — by acclamation in several districts — other than Ross Tunnicliffe who was edged out in a very competitive field of candidates in Vancouver. There was also a vacancy to fill in Vancouver as Warren Wilson, Q.C. caps off nine years of service as a Bencher, including his year as President on December 31.

When they begin their two-year terms on January 1, 2000, Mr. Donaldson and Mr. La Liberté will bring with them a solid background of professional service, including work on law reform initiatives.

Mr. Donaldson has been Chair of the Vancouver Criminal Justice Section of the CBA, a member of Provincial Council and a B.C. representative to the National Executive of the Criminal Justice Section, a member of the Joint Justice Planning Committee of the Chief Judge, a member of the Executive of the Trial Lawyers Association of B.C. and a lecturer for CLE, PLTC, Trial Lawyers Association, Crown Counsel and UBC.

Mr. La Liberté has served as President of the B.C. Branch of the Canadian Bar Association from 1990 to 1991 and as a member of CBA National Executive from 1992 to 1994. He has also been a board member of the Legal Services Society, a member of the Judicial Council of B.C., a Law Society representative on the Hughes Committee on Justice Reform and a member of the Law Society Planning Committee. He is currently a member of the CBA Executive Committee on Legal Aid, an Adjunct Professor at the UBC Faculty of Law and chair and co-founder of the CBA (B.C.) Benevolent Society.

Top of page | Table of contents | Index

Presidential honoraria increase will go to referendum

A blue ribbon task force reviewing the Law Society President’s annual honorarium has recommended that the honorarium increase from $50,000 to $75,000 in 2000, and that the First Vice-President and Second Vice-President each receive a $25,000 annual honorarium. The blue ribbon committee was comprised of Paul Beckmann, Q.C., Trudi Brown, Q.C., G. Leigh Harrison, Q.C.and Martin Taylor, Q.C.

The Benchers have now voted to send the issue to a mail-back referendum of all B.C. lawyers early in the new year.

The annual honorarium for the President has not increased since it was first approved by referendum in 1991. The money is intended to at least partially compensate the President for time spent in service to the profession, and to enable him or her to devote a greater percentage of professional time to Law Society affairs. The payment has also been supported as a way to permit sole practitioners or members of small firms to stand for election as President, thus expanding candidacy to a broader cross-section of the Society.

In recommending an increase, the blue ribbon task force noted that inflation had reduced the value of the $50,000 honorarium, which would have increased to $79,000 if linked to the Consumer Price Index. While in some cases a President’s firm might absorb a significant portion of the cost, a President who is a sole practitioner must do so personally — and the costs of maintaining a practice have increased.

"We recognize and respect the great contributions freely given by all Benchers," the task force said in its report. "However, we do not think it right to expect the President to devote the additional time now required by the duties of the office without some appropriate compensation for the economic impact on his or her practice."

That financial impact begins as soon as a Bencher is elected Second Vice-President, in the view of the task force, which is why some compensation is recommended for the three years of the presidential track.

Law societies in four other provinces, and several other professional organizations in B.C., pay honoraria to their presidents, and two law societies pay their vice-presidents.

Top of page | Table of contents | Index

Election and referendum results, 2000 committees

Bencher election

Of the 7,437 members of the Law Society eligible to vote in the November 15, 1999 Bencher election in Vancouver and Westminster, 2,940 cast their ballots, a turnout of 40%. Here is the breakdown of the results by district. All candidates elected as Benchers for 2000-01 are in bold type.

District No. 1 County of Vancouver
Eligible voters: 6,128 / Turnout: 2,460 (40%)

District No. 4 County of Westminster
Eligible voters: 1,309 / Turnout: 480 (37%)

Referendum

On November 15, 1999, more than a two-thirds majority (79%) of members voting in a referendum authorized the Benchers to amend Rule 1-1 of the Law Society Rules to allow a Lay Bencher to continue in office until a successor is appointed; 2,698 lawyers voted "yes" to the ballot; 696 voted "no."

2000 Law Society committee chairs

Executive Committee: Karl Warner, Q.C.
Access to Justice Committee: Gerald Lecovin
Audit Committee: Jane Shackell, Q.C.
Complainants’ Review Committee: Marjorie Martin
Credentials Committee: Richard Gibbs
Discipline Committee: Richard Margetts
Equity and Diversity Committee: Anna Fung
Ethics Committee: William Sullivan
Practice Standards Committee: Robert Gourlay, Q.C.
Special Compensation Fund Committee: Robert Gourlay, Q.C.
Unauthorized Practice Committee: Gerald Kambeitz, Q.C.
Electronic Registration Task Force: Bruce Woolley, Q.C.
Fee Review Task Force: Richard Gibbs
Futures Task Force: Richard Gibbs

For a complete listing of committee members, see our website under "About the Law Society."

Top of page | Table of contents | Index

Practice certificates may now precede call ceremonies

Call ceremonies mark an important achievement for new lawyers and for their friends and family. But to better accommodate articled students and lawyers from other provinces, the Law Society will now issue practising certificates as soon as lawyers are qualified, which may be in advance of call ceremonies, on the condition that they attend a ceremony before their certificates are renewed.

The Law Society will now issue practising certificates to new lawyers once they have qualified for call and admission, which may be in advance of a formal call ceremony.

The traditional path for an articled student has been to enrol in the Law Society admission program (on one of four fixed dates) and be called to the bar at a mass call ceremony a year later. For most students, these call dates have been appropriate as they closely followed nine months of articles, 10 weeks of PLTC and two weeks of vacation.

In recent years, however, there is more diversity among call applicants, and a greater need for flexibility. For example, the Benchers decided several years ago to accommodate regional call ceremonies, allowing students to be called to the bar in their own communities without the inconvenience and expense of travelling to Vancouver. There are now about 20 regional call ceremonies each year.

The Credentials Committee and Benchers recognize that articled students and transfer applicants can also be at a disadvantage if they have to wait a substantial period of time before being called, even though they are otherwise qualified to practise.

Articled students can find the fixed schedule is a problem for a variety of reasons. They may need to take maternity, parental or other leaves; they may have been accorded credit for articles outside B.C., which means their articles are shortened; they may be completing their articles on a part-time basis; or they may have failed PLTC and have been unable to make up exams or assessments prior to the call date. There are other articled students who, because of a shortage of positions, do not begin articles on the anticipated schedule, and there are lawyers transferring from other provinces who wish to begin practising as soon as possible.

The Benchers first looked at this issue in late 1998 and asked the Credentials Committee to work out the logistics and consult with the courts before moving forward.

Under the new initiative, the Law Society will, in cooperation with the B.C. Supreme Court, continue to schedule call ceremonies. This is not only to fulfil the legal requirement for call and admission under the Legal Profession Act, but to carry on a tradition that has been highly valued.

Top of page | Table of contents | Index

New temporary mobility rules in effect

Criteria eased for visiting lawyers and in-house counsel on transfer

More liberal rules are now in effect for temporary practice by lawyers coming to B.C. temporarily and for in-house counsel transferring to B.C.

The August-September Benchers’ Bulletin described the Benchers’ decision to allow Canadian lawyers to come to B.C. on an occasional basis — without checking in with the Law Society — for up to 10 matters or 21 days (whichever comes first) during a 12-month period. Those visiting lawyers are assumed to judge their own competence to act on matters in B.C. and will be held to the same standard as B.C. lawyers. To gain the benefit of these rules, a visiting lawyer must carry appropriate liability insurance and defalcation coverage, have no criminal or disciplinary record and be under no criminal or disciplinary proceedings.

To stay in B.C. longer will require a permit or a transfer, depending on the situation.

In October the Benchers also decided to ease the transfer criteria for in-house counsel who transfer to B.C. from elsewhere in Canada, exempting them from the transfer examinations so long as they continue to work as in-house counsel.

The new rules are included in this mailing as part of the Member’s Manual amendment package. The Benchers anticipate that the Law Society of Alberta and other law societies will bring in similar mobility provisions.

Top of page | Table of contents | Index

Courthouse libraries and Lawyers Assistance Program to benefit

Benchers increase 2000 budget allocations

On December 3 the Benchers voted to increase funding to the B.C. Courthouse Library Society (BCCLS), rather than freezing funding at 1999 levels as originally projected in the 2000 budget, and to maintain funding to the Lawyers Assistance program, rather than reducing it.

In raising these funding issues, Benchers Richard Gibbs and Gerald Kambeitz, Q.C. noted that the Law Society had, several years earlier, given BCCLS and the Law Foundation a written commitment to increase its funding of the courthouse libraries from 1995 through 2001, and BCCLS had relied on that commitment in drawing up its financial restraint plan and budget. They asked the Benchers to honour the commitment by increasing the Law Society contribution from approximately $107 per lawyer in 1999 to $118 in 2000.

With the Benchers approving this increase, the overall funding commitment of the Law Society to the BCCLS in 2000 increases from $925,000 to $1,050,000.

The Lawyers Assistance Program will be assured of $160,000 contribution from the Law Society in 2000, up $1,200 from 1999, rather than seeing that contribution reduced to $151,000 as in the original budget.

Mr. Gibbs and Mr. Kambeitz pointed out that $160,000 is the minimum funding level the Benchers had committed themselves to in 1998 as a matter of policy and the Lawyers Assistance Program had no advance notice of a reduction.

The Law Society’s commitment to increased funding of the courthouse libraries (from $66 per lawyer in 1995 to $130 per lawyer in 2001) was to help ensure BCCLS has sufficient funding in the short term.

The Law Foundation provided a $1 million special grant to allow the BCCLS to plan and implement steps to decrease its dependence on grant funding in the longer term. The BCCLS has faced escalating costs and has undertaken a business and technological review.

Top of page | Table of contents | Index

Law Society takes unauthorized practice action

Undertakings not to practise

The Law Society is frequently able to stop non-lawyers from engaging in the unauthorized practice of law without seeking a court injunction, instead obtaining undertakings from them. In some of these instances, the non-lawyers may not have been aware of the restrictions on the delivery of legal services or may not appreciate how their lack of legal knowledge and skills can put other people at risk.

The Law Society has recently obtained undertakings and covenants from the following people and businesses:

Injunctions

In November, on application of the Law Society, the B.C. Supreme Court ordered that Lyle Patrick O’Sullivan, of Vancouver, be prohibited from appearing as counsel or advocate, drawing, revising or settling a document for use in a judicial or extra-judicial proceeding, drawing, revising or settling a document relating in any way to proceedings under a statute, giving legal advice, or offering or holding out as entitled or qualified to offer these services: The Law Society of British Columbia v. O’Sullivan (November 10, 1999) BCSC Vancouver Registry A992659.

In October the Supreme Court ordered that Robert Arnold Gunderson (aka Bob Gunderson) and his business Norman Wright International, of Victoria, be prohibited from appearing as counsel or advocate, drawing, revising or settling a document for use in a judicial or extra-judicial proceeding, drawing, revising or settling a document relating in any way to proceedings under a statute or documents relating to real or personal estate, negotiating for the settlement of a claim or demand for damages, giving legal advice, or offering or holding out as entitled or qualified to offer these services: The Law Society of British Columbia v. Gunderson (October 7, 1999) BCSC Vancouver Registry A983044.

Top of page | Table of contents | Index

Acting for more than one party: when is it a "simple conveyance"?

Appendix 3 of the Professional Conduct Handbook on "Real Property Transactions" has been revised to relieve lawyers who act for more than one party in a simple conveyance of the duty to recommend independent legal advice. The appendix also provides more direction on what is, and what is not, a "simple conveyance." Conveyances are not simple if they contain a commercial element, if one of the lawyer’s clients is the vendor and developer of the property or if the conveyance is of residential property with improvements under construction at the time of the agreement.

The Ethics Committee has contemplated revisions for a number of years, consulted with the profession and provided advice on simple conveyances: see the June-July, 1997, January-February, 1993 and August-September, 1992 Benchers’ Bulletin.

The Ethics Committee reported to the Benchers that the requirements imposed on lawyers acting jointly for clients under Chapter 6 of the Handbook are sufficiently explicit to ensure clients understand the implications of a joint retainer. The additional burden on a lawyer under Appendix 3 to recommend independent legal advice is unnecessary and, in the circumstances of a simple conveyance, makes the lawyer appear indecisive and inconsistent.

While easing this restriction, the Committee also recommended tightening up the examples of a "simple conveyance" to exclude conveyances with a commercial element and to restrict lawyers from representing both purchasers and vendor/developers. Problems of delay or completion of units and deficiencies in construction quality are some of the potential conflicts a lawyer could encounter.

Lawyers will wish to review the revised Appendix 3, which is set out in the enclosed Member’s Manual amendment package. Some of the pivotal sections include:

Acting for parties with different interests

2. A lawyer must not act for more than one party with different interests in a real property transaction unless:

(a) because of the remoteness of the location of the lawyer’s practice, it is impracticable for the parties to be separately represented,

(b) the transaction is a simple conveyance, or

(c) paragraph 10 of this Appendix applies.

Simple conveyance

3. In determining whether or not a transaction is a simple conveyance, a lawyer should consider:

(a) the value of the property or the amount of money involved,

(b) the existence of non-financial charges, and

(c) the existence of liens, holdbacks for uncompleted construction and vendor’s obligations to complete construction.

4. The following are examples of transactions that may be treated as simple conveyances when paragraph 5 does not apply to exclude them:

(a) the payment of all cash for clear title,

(b) the discharge of one or more encumbrances and payment of the balance, if any, in cash,

(c) the assumption of one or more existing mortgages or agreements for sale and the payment of the balance, if any, in cash,

(d) a mortgage to an institutional lender,

(e) transfer of a leasehold interest if there are no changes to the terms of the lease,

(f) the sale by a developer of a completed residential building lot at any time after the statutory time period for filing claims of builders’ liens has expired, or

(g) any combination of the foregoing.

5. The following are examples of transactions that must not be treated as simple conveyances:

(a) a transaction in which there is any commercial element, such as

(i) a conveyance included in a sale and purchase of a business,

(ii) a transaction involving a building containing more than three residential units, or

(iii) a transaction involving a mortgage, the proceeds of which are to be, or may be, advanced in stages,

(b) a lease or transfer of a lease, other than as set out in paragraph 4(e),

(c) a transaction in which there is a mortgage back from the purchaser to the vendor,

(d) an agreement for sale,

(e) a transaction in which the lawyer’s client is a vendor who:

(i) advertises or holds out directly or by inference through representations of sales staff or otherwise as an inducement to purchasers that a registered transfer or other legal services are included in the purchase price of the property,

(ii) to the lawyer’s knowledge, directly or indirectly leads purchasers to believe that it is unnecessary for them to be separately represented in the transaction, or

(iii) is or was the developer of property being sold, unless paragraph 4(f) applies, or

(f) a conveyance of residential property with substantial improvements under construction at the time the agreement for purchase and sale was signed.

Top of page | Table of contents | Index

Professional Conduct Handbook changes

Lawyers giving second opinions

The Professional Conduct Handbook has been changed to make it clear that lawyers who give second opinions are not violating the Handbook prohibition against communicating directly with another lawyer’s client.

Lawyers sometimes ask whether Chapter 4, Rule 1.1 "Communications with clients of other lawyers" prevents them from meeting with the client of another lawyer for the purpose of giving second opinions or advice on the client’s situation. A client may request the advice formally, or informally where there is no intention to retain the second lawyer — such as a client asking a lawyer friend to comment on a situation. The Ethics Committee recommended clarifying the rule, which was not intended to prevent such communications.

Chapter 4, Rule 1.1, as revised, reads:

Communications with clients of other lawyers

A lawyer who has an interest in a matter, or represents a client who has an interest in a matter, must not communicate with any person regarding the matter if, to the lawyer’s knowledge, the person is represented by another lawyer, except through or with the consent of the person’s lawyer.¹

FOOTNOTE:

1.  A lawyer who is not otherwise interested in a matter may provide a second opinion to a person with other legal representation, whether or not the lawyer is formally retained to do so.

This rule is subject to a lawyer’s right to contact a witness under the conditions set out in Chapter 8.

New Member’s Manual amendment pages reflecting this change will be included in the next mailing.

Top of page | Table of contents | Index

Benchers relax requirements for stating a preferred area of practice

The Benchers have lifted the restriction that prohibited a lawyer from stating a preferred area of practice unless the lawyer has been engaged in the practice of law for at least three years. The revised rule reads:

16.  A lawyer may state in any marketing activity a preference for practice in any one or more fields of law if the lawyer:

(a)  [rescinded]

(b)  regularly practises in each field of law in respect of which the lawyer wishes to state a preference, and

(c)  has, during the most recent three-year period that the lawyer has practised,³ devoted at least 20% of his or her time to practising in each field of law in respect of which the lawyer wishes to state a preference.

FOOTNOTE:

3.  If the lawyer has practised for less than three years, the relevant period is the whole time that the lawyer has been in practice.

The Benchers will consider other possible changes to the marketing rules in 2000, including looking further at issues relating to client testimonials.

Top of page | Table of contents | Index

Reinstatements

The following people have been reinstated to membership in the Law Society.

These reinstatements do not relate to discipline proceedings.

As of August, 1999: Jakob Stephanus De Villiers, of Horsefly; As of September, 1999: Sheldon Brock Tate, of Kamloops; Brenda Jean Wemp, of Vancouver; Teri Lee Wynn, of Cranbrook; As of October, 1999: Ashlynne Victoria Dale, of Vancouver; Nancy Mabel Marie LeClair, of Ottawa; As of November, 1999: Lorine Ann Evans, of Regina; Yvonne Yuk Yee Ho, of Hong Kong; Jae Hong Kim, of Vancouver.

Top of page | Table of contents | Index

Appointments

Continuing Legal Education Society: The President of the Law Society and President of the CBA, B.C. Branch have reappointed Ronald J. Smith of Kelowna, and have appointed Patricia Burchmore of Vancouver and Charles G. Stein of North Vancouver, as directors of the CLE Society, for terms ending in December, 2002. Ms. Burchmore and Mr. Stein replace Susan Arnold and William Kaplan, who have served on the Board since October 1, 1993 and whose terms expired on October 1, 1999.

Surrey Foundation: The Benchers have appointed Wayne Stilling, Q.C. of Surrey as the Law Society’s representative on the board of directors of the Surrey Foundation for a three-year term ending August 31, 2002.

Top of page | Table of contents | Index

Practice management

	The Practice Management Advisor David J. (Dave) Bilinsky is the Society's new Practice Management Advisor. His focus is to develop educational programs and materials to increase lawyers' efficiency, effectiveness and personal satisfaction in the practice of law with a special emphasis on technology.
His preferred way to be reached is by email to: dbilinsky@lsbc.org (no telephone tag). Alternatively, you can call him at the Law Society office at (604) 605-5331 or toll-free in B.C. 1-800-903-5300, or address mail to the Law Society office.

What’s goin on?
What’s goin on?
I don’t know what, they want from me
It’s like the more money we come across
The more problems we see

Words and music: The Notorious B.I.G. feat. Mase & Puff Daddy.

You come into the office with a smile. Another bright day! You scan your mail. You notice a letter from the British Columbia Consumer Taxation Branch. Hmmm … what’s this about? You read the letter:

Dear Sir/Madam:

I have been advised that Mr. I.B. Gone is no longer a partner.

When furniture, machinery, equipment and fixtures are acquired through a change in partnership, the assets (excluding goods for resale) are subject to 7 per cent social service tax. Since this tax is due at the time of purchase, interest may be charged at the current rate.

Please complete and return the enclosed form within 30 days along with your tax remittance AND a copy of your partnership agreement or other relevant documentation.

If you have any questions, please contact me at ...

Yours truly,

Ms. Pay It & Weep
Close of Business
CONSUMER TAXATION BRANCH

You blanche when remembering the departure of your ex-partner, Mr. Gone, two years ago and the changes in partnership that have happened since then. The joy of the day seeps away as you dial the telephone number of your accountant …

Far-fetched? Hardly. The Consumer Taxation Branch has taken the position that the arrival or departure of a partner involves a transfer of an interest in the tangible personal property of the partnership and is subject to PST. The Branch has started sending letters similar to the above to firms across B.C.

To visit the legal arguments involved, we have FOR the government: the cases of Seven Mile Dam Contractors v. The Queen (1980) 116 DLR (3rd) 398 (BCCA), Boyd v. Attorney-General for British Columbia (1917) 54 S.C.R. 532 and see Lindley and Banks on Partnership, 1995 p. 532 et seq. These authorities support the principle that each partner has a direct interest in all partnership property.

AGAINST the government we have: Geffen v. Lavin [1921] 1 WWR 965 (SCC) and Barker v. Belzberg [1952] 3 DLR 141 (Alta S.C.). In Geffen the Supreme Court of Canada decided that a partnership interest is a chose in action and not a direct interest in the partnership property.

There may have to be a test case to determine the conflict between these two opposing points of view. Moreover, this case may be fought by another professional partnership, since lawyers would appear not to be the only group affected by this approach taken by the B.C. government. In the meantime, what can be done from a practice management standpoint? Let us visit the alternatives:

The fundamental goal is to avoid the ownership of tangible personal property (TPP) by a partnership of individuals.

• For new firms, all assets can be leased rather than purchased. In this way, there is no TPP owned by the partnership.

• New firms can incorporate a holding company and place all assets in the hands of the corporation. In this way, there is a transfer of the shares of the holding company when a partner leaves or joins and no direct interest by any individual in TPP.

• For existing firms, a partnership can roll its TPP tax-free into a corporation using s. 85 of the Income Tax Act and Regulation 3.14 for PST purposes. For this to work for both s. 85 and regulation 3.14, shares must be taken as consideration for the TPP. This will not change the ability of the government to attempt to collect taxes on past partnership changes, but should eliminate their ability to do so in the future.

• Alternatively, an existing partnership can sell all of its TPP to a financial institution and lease it back without paying PST. If the lease does not give the partnership any interest of value in the TPP, changes in partnership interests will not attract PST.

• Partnership agreements should be written to make it clear that no single partner has a direct beneficial interest in partnership property and that any legal title in that property is held in trust for all the partners exclusively for the purposes of carrying out the partnership agreement, so that no right is vested in any partner to exercise any indicia of ownership except as trustee in accordance with the partnership agreement.

As in every situation involving taxes, prior to taking any action, professional advice should be sought appropriate to your particular situation to avoid generating any further problems.

Top of page | Table of contents | Index

From the Ethics Committee

	Acting for couples in the preparation of wills The Ethics Committee was asked for guidance in circumstances where lawyers are acting for couples in the preparation of wills. Some examples of the circumstances that may give rise to a concern of possible conflicts are the following:

• members of the couple have children from former relationships;
• one member of the couple has most of the debts, the other most of the assets;
• one member of the couple is many years older than the other;
• the couple have children, but one of the couple would like to leave a significant portion of joint assets to charity;
• the couple are involved in complex business ventures, some joint, others separate.

It is the view of the Ethics Committee that the central concern in all these examples is whether the spouses are agreed with respect to the distribution of their estates. In order for the lawyer to determine whether the couple is in such agreement, it is necessary for the lawyer to review with the couple the relevant governing legal rules that may impact on the contemplated distribution of their respective estates, such as:

• the provisions of the Wills Variation Act;
• the provisions of the Estate Administration Act;
• the law of constructive trust;
• the laws of jointure and tenancy in common; and
• a surviving member’s testamentary freedom to alter his or her will prior to death.

If, after reviewing the relevant legal rules, the lawyer determines that the couple has agreed on the method of distribution of their estates, it is proper for the lawyer to draft wills for both of them. However, if after reviewing the legal rules, it is apparent to the lawyer that the couple disagrees on the method of distribution of their estates, or if one member of the couple later requests changes that conflict with the instructions of the other, then both individuals must be referred to other counsel. It is proper for a lawyer acting in these circumstances to meet with each member of the couple separately to verify that they agree on the distribution of their estates.

Lawyers taking joint instructions from a couple for the preparation of wills must follow the requirements of Rules 4, 5 and 6 of Chapter 6 of the Professional Conduct Handbook entitled "Acting for two or more clients."

Top of page | Table of contents | Index

Practice Watch

Your Practice Advisor Felicia S. Folk, the Law Society's Practice Advisor, is available to discuss your practice concerns. All communications between Ms. Folk and lawyers are strictly confidential, except in cases of trust funds shortages. You are invited to call her at (604) 669-2533 or toll-free in B.C. 1-800-903-5300 at any time, or write to her at the Law Society office.

BC Online, the Land Title Office and New Year’s Eve

BC Online and the Land Title Office have both announced that they will be closed at 3:00 p.m. Pacific Time on December 31, 1999. If you anticipate registering a document or performing a search on that date, be aware.

BC Online expects to reopen Monday, January 3, 2000 at the usual time. Although it is a statutory holiday on January 3, support staff will be available from 8:00 a.m. to 1:00 p.m. The LTO will be closed on the Monday for the holiday, and will be open normal hours on Tuesday, January 4, 2000.

Because of the uncertainty surrounding Y2K, check about any other scheduled early closings or late openings for any registries or other organizations you rely on in the course of your work.

Filing your own affidavit

This is to remind you that Chapter 8, Rule 9 of the Professional Conduct Handbook says that unless the evidence relates to a purely formal or uncontroverted matter, a lawyer who gives viva voce or affidavit evidence in a proceeding shall not thereafter act as counsel in that proceeding unless it is necessary in the interests of justice. That means you should consider carefully before filing your own affidavit — you may find yourself unable to continue acting for your client as a result.

Phone messages & clients

A client who is unaccustomed to dealing with lawyers or other professionals may not understand what to expect when leaving a phone message. When told by the receptionist that a call will be returned, a client may assume this will happen within a few minutes. It is important to explain to new clients what to expect. If you have told your clients in advance that you will return phone calls before the end of the day, or within 24 hours, and you do so, the clients will have realistic expectations and will be unlikely to complain that you did not answer phone calls promptly.

Withdrawing from a file

When you withdraw from a file, the Professional Conduct Handbook, Chapter 10, Rule 8, requires that you notify the client in writing of that fact and the reasons for the withdrawal or severance of the solicitor-client relationship. The Professional Conduct staff at the Law Society have received several complaints recently that likely would not have been made if the lawyers involved had properly notified the clients.

Corrections

The March-April, 1999 Practice Watch included an item expressing a recommendation that a Crown grant search is necessary to determine if there are timber reservations. The item contained an editorial error, and as a result, may have been confusing.

A Crown grant search is necessary as part of the process to determine whether rights to resources such as timber, minerals and water are included in the title to land. Where a client has expressed an interest in acquiring rights to a certain resource, a Crown grant search should be considered. In the normal circumstance, a Crown grant search would not be needed for a residential conveyance.

To understand completely about any of these rights to resources, review the applicable related legislation (e.g., Mineral and Tenure Act, Petroleum and Natural Gas Act, Water Act, Forest Act, Forest Practices Code and Land Act). See also chapters 23 to 25 of CLE’s Due Diligence Deskbook and the discussion relevant to s. 179 of the Land Title Act in the Land Title Practice Manual, Volume 1.

Copies of the original Crown grants are available from the Land Title Office, Ministry of the Attorney General or Crown Land Registry Services, Ministry of Environment, Lands and Parks.

As well, the Ministry of the Environment has indicated that you may seek direction from the Land Management Division of the British Columbia Assets and Land Corporation relative to timber ownership, stumpage requirements and the process for removing timber provisos.

A further opinion on hearing fees

The August-September, 1999 Practice Watch included a reference to the Ethics Committee’s June, 1999 opinion that a lawyer does not have a professional financial obligation to pay hearing fees unless the lawyer has assumed such responsibility or it is imposed by the court. That opinion was based on the fact that Form 37 of Appendix A of the Rules of Court no longer requires a lawyer to undertake to pay hearing fees.

When that issue was considered by the Ethics Committee in June 1999, the Committee was not advised that the undertaking removed from Form 37 "Trial Certificate" had migrated to Form 35 "Notice of Trial." At the November, 1999 meeting, the Ethics Committee gave its opinion that this additional information did not change its view of counsel’s obligation to pay hearing fees: A lawyer does not have a professional financial obligation to pay for hearing fees unless the lawyer has assumed such responsibility, either by signing Form 35 or undertaking to pay in some other way, or it is imposed by the court.

Top of page | Table of contents | Index

Proposed Handbook change

Benchers contemplate new rule on acting for and against a client

After considering comments from the profession* and options for revising the Professional Conduct Handbook, the Benchers have asked the Ethics Committee to draft new provisions that would permit lawyers to act for and against clients in limited circumstances.

Currently, Chapter 6, Rule 7 of the Handbook deals only with lawyers acting against former clients. Rule 7 states:

Acting against a former client

7.  A lawyer must not represent a client whose interests conflict with those of a former client, unless:

(a) the former client gives informed consent to the lawyer’s new representation,

(b) the new representation is wholly unrelated to the lawyer’s representation of the former client, and the lawyer does not possess confidential information arising from the representation of the former client that might reasonably affect the new representation, or

(c) the new representation is otherwise permitted under Rule 7.4.

It is common for some lawyers to act for and against government, large corporations and even the Law Society on different matters. While there is a rule prohibiting a lawyer from acting against a former client, there is no provision in the Handbook dealing with acting both for and against a current client. One arguable interpretation of the Handbook is that the principle behind Rule 7 would also prohibit a lawyer from acting both for and against current clients, even where the matters are unrelated.

In considering the issue in December, most Benchers favoured following the approach taken in Alberta. The Rules of the Law Society of Alberta provide:

Except with the consent of the client or former client, a lawyer must not act against a client or former client if the lawyer has confidential information that could be used to that person’s disadvantage in the new representation.

The Benchers are expected to consider draft rules on this issue sometime next year.

* Background to this issue and a call for comments from the profession was set out in the March-April, 1999 Bulletin.

Top of page | Table of contents | Index

Neutral case citations

The B.C. Court of Appeal began using neutral case citations in 1999, and this practice will also be followed for all judgments issued by the Supreme Court of B.C., beginning January 1, 2000. If a referenced case has a neutral citation, counsel should provide the court with that citation in addition to any other citation.

A notice to the profession was issued by Chief Justice Bryan Williams on November 23: see the Superior Courts website at www.courts.gov.bc.ca/SC/pdir/note-25.htm.

What is a neutral citation? The main elements are 1) a style of cause (e.g. Smith v. Jones), 2) a year (e.g. 2000), 3) the name of the court in a unique condensed format (e.g. BCSC), and 4) a number (which is assigned sequentially as judgments are released. According to the notice to the profession, a neutral citation for Smith v. Jones would be "Smith v. Jones, 2000 BCSC 3," but a reference to "2000 BCSC 3" would allow anyone to access the judgment, even without knowledge of the style of cause.

The Law Society adopted a neutral citation protocol for its hearing panel decisions in 1999.

Top of page | Table of contents | Index

Call for participants

Law Society to study barriers to lawyers and students with disabilities

The Law Society of British Columbia is embarking on a study to identify barriers to people with disabilities in legal education and practice. The study, projected for February, 2000, will be conducted through a series of focus groups with law students, law graduates and lawyers with disabilities.

The project is led by a steering committee of Halldor Bjarnason, Ken Kramer and Henry Vlug, three practising lawyers with disabilities, and facilitated by Dr. Linda Hill, a registered psychologist and disability researcher.

The Society is interested in hearing from practitioners and graduates with a broad range of disabilities, whether visible or not. All information will be collected anonymously and will form the basis for a report that will be used to develop policy changes. The end goal is to ensure greater access and accommodation for people with disabilities entering the legal profession.

If you are interested in participating in this study or wish to find out more about it, please contact Kuan Foo at the Law Society office by telephone at (604) 443-5727 (toll-free in B.C. 1-800-903-5300), fax at (604) 660-5232, TTY at (604) 443-5700 or email to kfoo@lsbc.org.

Top of page | Table of contents | Index

Counsel should note risks of poor interpretation

Choosing a court interpreter

Often overlooked in the Charter of Rights is section 14, which provides that "a party or witness in a proceeding who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter."

The Supreme Court of Canada in R. v. Tran [1994] 2 SCR 951 found that linguistic understanding is protected under the Charter and is defined by a number of criteria aimed at helping to ensure that a party or witness has the same opportunity to understand and be understood as if that person were conversant with the language used in the court proceedings. The court has an independent responsibility to ensure that an interpreter is provided, whether or not a request has been made. The general standard for interpreting includes continuity, precision, impartiality, competency and contemporaneousness, and lack of any of these criteria risks a Charter infringement argument. According to Tran, the standard for adequate translation at trial requires "continuous word for word translation of everything that is said."

British Columbia has been at the forefront of interpreter education through the Vancouver Community College (VCC) Court Interpreting Certificate Program, and most recently its distance education program. The program is open to anyone with a minimum secondary school graduation and an excellent command of English and another language. Potential students are screened before entering to assess their language and comprehension skills. The program lasts for six months and includes legal principles, terminology, ethics, interpreting skills and practice. Successful graduates earn a certificate that meets the standards of the Society of Translators and Interpreters of B.C. (STIBC).

STIBC, as the name suggests, includes both translators and interpreters and is part of a Canada-wide organization to ensure competency in translation and interpretation. The distinction between translators and interpreters should be emphasized: translators translate written documents from one language to another, and interpreters convey messages orally from one language to another. STIBC can be contacted at 1322 – 808 Nelson Street in Vancouver, tel. (604) 684-2940.

With a multitude of translation and interpretation services and agencies available, it is difficult to know how to choose an interpreter and how to be assured of competency. The choice of interpreter is often left to support staff and, unfortunately, is treated as a secondary procedural consideration.

As of June 1, 1992 the Ministry of the Attorney General adopted a Court Interpreters Policy which recognizes as accredited interpreters in criminal proceedings those persons with certificates either from STIBC or graduation from the Court Interpreting Certificate Program at VCC. An interpreter accredited by the Court Services Branch is paid a higher hourly rate as an incentive for accreditation, and court clerks are instructed to use accredited court interpreters when available.

There is a Court Interpreting Certificate Program Advisory Committee, which is made up of representatives from the Ministry of Attorney General, the Courts, Canadian Bar Association (B.C. Branch), Law Society, VCC and STIBC who meet to ensure the Court Interpreting Program satisfies the needs of the court system.

Through the work of the committee, and in consultation with the judiciary, a new policy is anticipated next year. Before interpreters are sworn in criminal matters, they will be asked by the court clerk whether they have received accreditation by the Court Services Branch in the language to be interpreted. If the answer is "yes," there is no need for further inquiry — by reason of the interpreter’s certification by STIBC or completion of the Court Interpreting Program at VCC. If the answer is "no," the court and counsel will have to make further enquiry to ensure the interpreter’s competence before allowing him or her to proceed.

Because of these recent developments, counsel should satisfy themselves that the interpreters they use are competent within the meaning of the law; the safest course is to confirm in advance that the interpreter is either a member of STIBC or has satisfactorily completed the Court Interpreters Program at VCC. This approach is important in criminal proceedings, but counsel in civil matters should also be careful. Many people freelance in the interpretation business without accreditation and, while some are competent, others are not, and lawyers will often not be in a position to assess this directly, which may put a client at risk.

* Mr. Petronio practises with Hawthorne, Piggott, Emerson, Petronio & MacKinnon in Burnaby and is a member of the Law Society’s Equity and Diversity Committee. He is also Chair of the Advisory Committee for the Court Interpreting Certificate Program and a Law Society representative on that Committee.

Top of page | Table of contents | Index

The Life Benchers dinner

Top of page | Table of contents | Index

Law Society to intervene on Guess appeal

On December 15 the B.C. Court of Appeal granted the Law Society’s application intervenor status in the appeal of R. v. Guess.

Ms. Guess was found guilty of obstruction of justice last year for her conduct as a juror in the murder trial of Bindy Johal, Peter Gill and four other accuseds. She is appealing the verdict on a number of grounds, including that the invocation of court proceedings that barred her from attending a portion of her trial and that prevented her counsel from discussing certain matters with her had a serious impact on her right to a fair trial.

The Law Society applied for intervenor status in the appeal following a request of Ms. Guess’s former lawyers. The Society plans to stress the need to preserve the fundamental duty of undivided loyalty owed by a lawyer to his or her client. Lawyers have an ethical mandate to give full and complete disclosure of potentially relevant information to their clients. As officers of the court, lawyers also have a professional responsibility to cooperate with the court and assist in its work.

"Ordinarily, lawyers owe their clients a duty to disclose to them all relevant information that they become aware of during the course of representation," Law Society President Warren Wilson, Q.C noted at the time the Law Society made its application. "However, there have been circumstances when non-disclosure of information in a trial is appropriate and possibly in the best interests of the client. But there needs to be a proper process in place to ensure that such actions do not improperly interfere with the lawyer-client relationship. The Law Society is intervening in this case to assist the court by suggesting a process that can be used in future trials."

In its intervention, the Law Society is taking no position on whether the appeal should be allowed or dismissed.

Top of page | Table of contents | Index

Electronic filing project

Law Society progresses on plan to become certifying authority

Work continues on a plan for the Law Society to become the certifying authority for lawyers in their on-line legal transactions — most immediately to allow lawyers to carry out secured electronic filings with the Land Title Office on behalf of clients. Although the timelines for the LTO to begin offering electronic filing of fee simple conveyances and mortgages was originally contemplated for mid to late 2000, that timeline has been moved back to sometime in the spring of 2001.

The LTO and the Law Society are working in cooperation on the project and the Society is also interested in electronic filing at the Court Services Branch, Corporate Registry and other registries. In this respect, the Society is contacting the appropriate ministries to ask that they take steps to coordinate their efforts, and to work with the Law Society and other stakeholders in the development of uniform electronic filing projects, processes and policies.

The Law Society began a pilot project on digital signatures mid-year, in conjunction with RLG NetPerformance Inc., but is now in the midst of a transition to working on the project with DMR, an internationally recognized technology company.

In October, the Benchers approved the Law Society incorporating a company under the Canada Business Corporations Act to spearhead the project and to allow for the possibility of other law societies or other professional bodies in Canada using the service. That company — Juricert Services Inc. — is now in place, with all shares currently owned by the Law Society of B.C., which has made a $15,000 capital contribution to the company. It is anticipated that other law societies may join in ownership of the company.

The Law Society’s Electronic Registration Task Force, chaired by Bencher Bruce Woolley, Q.C., is overseeing the project, along with Executive Director Jim Matkin and staff lawyer Ron Usher.

Top of page | Table of contents | Index

Back to list of Benchers' Bulletins