2020 Annual General Meeting – second notice

2020 Annual General Meeting of the Law Society of British Columbia

Tuesday, October 6, 2020

Call to order: 12:30 pm PDT

Meeting location: Virtual meeting

Virtual meeting

As permitted by Ministerial Order No. M167 and in light of the current public health orders, the 2020 AGM will be a virtual meeting and there will not be any physical meeting locations.

Members will be able to join, vote, and speak at the meeting virtually. Instructions on how to join the meeting will be sent to all registered members in advance of the AGM and will be made available in the Member Portal. On October 6, 2020, please join the meeting as close to 12:00 pm as possible to allow enough time to resolve any technical issues before the meeting commences.

If you are planning to attend the virtual meeting, you will need to register prior to the meeting. Please register by using the RSVP function available in the Member Portal. Please RSVP by 5:00 pm on Monday, October 5, 2020.

Business of the meeting

The business of the 2020 AGM will be as follows:

• Election of Second Vice-President for 2021
• Benchers’ report of proceedings since last meeting
• Resolution 1: Appointment of Law Society auditors for 2020
• Resolution 2: Benchers’ Resolution regarding Conduct of Future General Meetings
• Resolution 3: Resolution to direct the Benchers to ensure that Articling Agreements are consistent with section 16 and Parts 4 and 5 of the Employment Standards Act
• Resolution 4: Resolution to direct the Benchers to appoint a Committee of Indigenous and non-Indigenous persons to consider a replacement for the statue of Sir Matthew Baillie Begbie
• Resolution 5: Resolution to direct the Benchers to amend Law Society Rules to confirm that practising lawyers providing services as Mediators, Arbitrators, and Parenting Coordinators are engaged in the practice of law and may deposit retainers into their trust accounts

Election of Second Vice-President for 2021

Each year at the AGM, there is to be an election for the position of Second Vice-President-elect. Pursuant to Law Society Rule 1-19, if only one candidate is nominated, the President will declare that candidate Second-Vice-President-elect. The Benchers are pleased to announce their nomination of Christopher McPherson, QC for Second Vice-President-elect.

Pursuant to Rule 1-5(2), the Second Vice-President for 2021 will be First Vice-President in 2022 and President in 2023.

Benchers’ report: Proceedings since last meeting

Pursuant to Rule 1-8(4), on behalf of the Benchers, President Craig Ferris, QC will provide a brief outline of Law Society proceedings since the 2019 Annual General Meeting.

Resolutions

Resolution 1: Appointment of Law Society auditors for 2020

BE IT RESOLVED that PricewaterhouseCoopers be appointed as the Law Society auditors for the year ending December 31, 2020.

Resolution 2: Benchers’ resolution

BE IT RESOLVED to authorize the Benchers to amend the Rules respecting general meetings to provide that:

1. the Executive Committee may determine whether an annual general meeting should be conducted entirely with in-person participation, as a combination of in-person participation and electronic participation, or entirely through electronic participation; and
2. if the Executive Committee determines that an annual general meeting will be conducted partially or entirely through electronic participation, Rules 1-8 to 1-13.2 apply, with the necessary changes in so far as they are applicable, to an annual general meeting conducted through electronic participation.

Note: Section 12 of the Legal Profession Act requires the approval of two-thirds of members voting in a general meeting or referendum to permit the Benchers to make rule changes with respect to general meetings.

Commentary:

Following an unprecedented year due to COVID-19 and in light of the public health limits on events, the Executive Committee determined, as permitted by Ministerial Order M167, that the 2020 Annual General Meeting would be held through an electronic communications medium without physical locations. While the present pandemic is not expected to continue in the long term, the Benchers agreed to propose a Bencher Resolution for consideration and approval by the members that would allow future Annual General Meetings to be held through an electronic communications medium, in whole or in part, should circumstances justify it.

Resolution 3: Member resolution submitted by Chase Blair and Sonja Luck

WHEREAS articled students produce valuable work, attend court on behalf of clients, and contribute to the success of law firms and organizations; and

WHEREAS articled students are entitled to adequate compensation, including a minimum wage; and

WHEREAS guaranteeing the fundamental labour rights of articled students furthers the public interest, bolstering confidence in the ethics of the legal profession; and

WHEREAS the Law Society has made improving mental health in the legal profession, which includes articled students, a priority; and

WHEREAS excessive work hours, stress, and financial pressures often contribute to and exacerbate mental health issues, including depression, anxiety, and substance misuse; 

Be it resolved that membership directs the Benchers:

To amend the appropriate sections of the Law Society Rules and/or Code of Professional Conduct within 12 months of the date of this resolution, requiring that articled student agreements provide articled students with at least such rights and protections as are guaranteed under section 16 and Parts 4 and 5 of the Employment Standards Act, RSBC 1996, c 113, and ensure that articled students are able to seek financial redress for practices that contravene the amended Law Society Rules and/or Code of Professional Conduct. 

Resolution 4: Member resolution submitted by Thomas R. Berger OC, OBC, QC and Hamar R.K. Foster, QC

WHEREAS the Law Society of British Columbia is currently seeking through its Indigenous Intercultural Competency Program to "establish and maintain a mutually respectful relationship between Indigenous and non-Indigenous people" and has issued an appeal to the Membership stating: "We need your help to get there";

AND WHEREAS the undersigned and other current and retired Members who presented a Request to the Law Society referred to below strongly support achievement by the Law Society of this objective;

AND WHEREAS in response to a Report by their Truth and Reconciliation Committee the Benchers decided on May 3, 2017 to dissociate the Law Society from the memory of our first Chief Justice, Sir Matthew Baillie Begbie, by removing his statue from its premises and erasing his name from all connection with its affairs;

AND WHEREAS this Report, which was disclosed to the Membership only after the decision had been made and later removed from the Law Society website, includes findings with respect to the conduct of Chief Justice Begbie that are considered by the undersigned and other Members to be unfounded, and inconsistent with achievement of the objective of the Law Society's Program and its credibility;

AND WHEREAS our retired Chief Justice, the Hon. Lance Finch, has written a paper questioning such findings, and calling for a renewed assessment of the work of Chief Justice Begbie and adoption of a symbol to replace that of Chief Justice Begbie acceptable to both Indigenous and non-Indigenous Members;

AND WHEREAS the undersigned and other Members presented a Request to the Law Society dated February 13, 2020 asking that the matter be remitted for such reconsideration and recommendation after receiving submissions from all interested parties; including historians;

AND WHEREAS this Request has not been acted on:

BE IT NOW RESOLVED that the Benchers be asked to: (i) refer the above Report of the Truth and Reconciliation Committee to a Committee of Indigenous and Non-Indigenous persons for reconsideration and recommendation of a symbol acceptable to both Indigenous and Non-Indigenous people to replace the Begbie statue; and (ii) place its report and recommendation before the Membership for approval.

Resolution 5: Member resolution submitted by Morag MacLeod, QC, and Nancy Cameron, QC

Law Society of British Columbia members Morag MacLeod, QC, and Nancy Cameron, QC have provided for consideration at the 2020 Annual General Meeting of the Law Society of British Columbia the following resolution:

WHEREAS Law Society Rule 3-58.1 was passed in July of 2019, to take effect on January 1, 2020.  The Rule provides as follows:

Trust account only for legal services

3-58.1 (1) Except as permitted by the Act or these rules or otherwise required by law, a lawyer or law firm must not permit funds to be paid into or withdrawn from a trust account unless the funds are directly related to legal services provided by the lawyer or law firm.

(2) A lawyer or law firm must take reasonable steps to obtain appropriate instructions and pay out funds held in a trust account as soon as practicable on completion of the legal services to which the funds relate.

WHEREAS on February 7, 2020, the Law Society issued its monthly E-Brief newsletter which included the following notice:

Application of client identification and verification and trust rules for mediators and arbitrators Law Society Rules 3-98 to 3-110 apply to lawyers who are retained by clients to provide legal services. These rules generally do not apply to lawyers who act as mediators or arbitrators (Rule 3-99(1)). Mediators and arbitrators who take pre-payment of fees for their services from parties or the parties’ counsel must not deposit these funds into their trust account regulated by the Law Society (Rule 3-58.1). See the FAQS on the Client ID & Verification web page for more information. [emphasis added]

WHEREAS the February 2020 E-Brief was the first time that lawyer mediators and arbitrators were informed that retainers received for mediation and arbitration services must not be deposited into their trust accounts regulated by the Law Society. It was the first indication that certain members of the Law Society were not considered to be practicing law in the eyes of their regulatory body. As explained below, this perception does not align with the practice of family lawyer mediators and arbitrators and will likely trigger unintended consequences that do not serve the public interest.

WHEREAS on February 20, 2020 an ad hoc committee of senior lawyer mediators wrote to the Executive Committee of the Law Society to express their significant concerns about the implementation of Rule 3-58.1, including:

1. the lack of consultation with members who practice in the areas of Mediation, Arbitration and Parenting Coordination (MAP Lawyers”);
2. the erroneous characterization of retainers provided to MAP Lawyers as “pre-payment of fees for services” contrary to the Law Society trust accounting rules;
3. the apparent creation of two classes of lawyers;
4. the flawed interpretation and application of the Supreme Court of Canada decision in Canada (Attorney General) v. Federation of Law Societies of Canada [2015] 1 SCR 401 as the foundation for the Rule; and
5. the unintended consequences of the Rule, including:
   1. loss to the public of the security and oversight of the trust rules in respect of MAP retainers;
   2. the increased administrative burden of the Rule and consequential cost to both MAP lawyers and their clients; and
   3. the resulting potential impact on access to justice as the result of the Rule

WHEREAS on May 13, 2020 the Law Society extended an invitation to give feedback on a consultation paper titled: “Retainers Held by Lawyers who are Mediators, Arbitrators, or Parenting Coordinators”. The Consultation Paper set out a “proposed solution” which was different from the February 7, 2020 E-Brief:

“The Executive Committee considered this issue and resolved to recommend to the Benchers to amend the definition of “trust funds” in the Law Society Rules to provide that, for the purposes of the definition, “legal services” do not include the provision of legal services incidental to the provision of mediation or arbitration services by a lawyer

... This proposal takes the handling of retainers outside the scope of the Rules regarding the handling of trust funds but it could be accompanied by Rules prescribing how lawyers must manage any funds received as retainers in connection with the provision   of mediation and arbitration services."

Be it Resolved that the membership direct the Benchers to forthwith:

1. withdraw the edict promulgated in the February, 2020, edition of E-Brief that practicing  lawyers providing services as Mediators, Arbitrators and Parenting Coordinators are not providing legal services and engaged in the practice of law;
2. confirm the requirement of practicing lawyers providing services as Mediators, Arbitrators and Parenting Coordinators to deposit retainers received into their trust accounts in accordance with the Law Society Rules; and
3. amend the Law Society Rules to the extent required to explicitly confirm that practicing lawyers providing services as Mediators, Arbitrators and Parenting Coordinators are providing legal services and are engaged in the practice of law.