Highlights of amendments to the Professional Conduct Handbook
The Benchers adopted new rules and agreed on some important steps toward enhancing the role of paralegals. Specifically, a lawyer will be permitted to supervise two “designated paralegals” who will be entitled to perform a number of additional legal services, including giving legal advice and appearing in court on certain matters. (Chapter 12, Rules 1 to 6, and Appendix 7)
Chapter 4, Rule 6 is amended in response to a court decision that a fraudulent conveyance does not necessarily involve dishonesty, on the part of the lawyer or client.
A lawyer's obligation to submit to regulation by the Law Society is clarified (Chapter 13, Rule 3).
Chapter 10 is revised to comply with the Supreme Court of Canada ruling in R. v. Cunningham that, in a criminal matter, a court has the authority to require counsel seeking to withdraw from a case to continue to represent an accused when the reason for withdrawal is non-payment of fees (Chapter 10, Rules 7, 8 and 9, and footnotes 2 and 3).
A new rule recognizes that lawyers provide extensive pro bono services and that a lawyer’s obligation to provide quality legal services to a client is not affected by the pro bono status of the case (Chapter 3, Rule 13 and footnote 7).
Chapter 11, Rules 16 to 21 are moved to Chapter 3, Rules 6 to 12 and are revised to take into consideration issues that may arise when a law firm changes its composition. In particular, Rule 6 expressly covers situations where a law firm is winding up or dividing, not just where a lawyer is leaving a firm, and Rule 10 places an obligation on lawyers to protect client information, files and other client property and to minimize any adverse effect on the interests of clients.
Language is altered for consistency with the professional liability insurance policy (Chapter 4, footnote 2).
December 2009 – Multi-disciplinary practice (effective July 1, 2010):
The Benchers amended the Law Society Rules and the Professional Conduct Handbook to permit lawyers to form partnerships with non-lawyers in limited circumstances. Lawyers must have actual control over the delivery of legal services and the services provided by non-lawyers must support or supplement the delivery of legal services to clients of the law partnership. The new rules are effective on July 1, 2010, following development by the Credentials Committee of the necessary forms by which partners of a firm may apply to become a multi-disciplinary partnership. (See Chapter 6, Rule 7.1, Chapter 9, Rules 6 and 6.1, Chapter 12, Rules 1, 3, 4, 5, 5.1 and 6, Chapter 13, Rule 5 and Chapter 14, Rules 10, 23 and 24.)
A conveyance is no longer disqualified from being treated as a simple conveyance simply because the lawyer's vendor client has advised the purchaser that the purchaser need not be separately represented (Appendix 3, paragraph 5); the sample joint representation letters have been updated (Appendix 6).
Chapter 14 is revised and reorganized to make the marketing rules more focused, easier to understand and less intrusive:
- the definitions of "advertisement" and "inter-jurisdictional law firm" are deleted and the remaining definitions consolidated (Chapter 14, Rule 2);
- Chapter 14, Rules 3, 11, 20 and 21 and Appendix 7 are rescinded as being unnecessary or obsolete;
- Chapter 14, Rules 4.1, 4.2, 9, 12, 13, 13.1, 14, 15 and 17 are rescinded as being adequately covered in Rule 4;
- a more general test of whether marketing activities violate Rule 4 is applied (Chapter 14, Rule 5);
- in order to focus Chapter 14 on marketing matters, as opposed to public comments and representations, Rule 6 is moved to Chapter 4, Rule 8 and Chapter 8, Rule 23, Rule 6.1 is moved to Chapter 8, Rule 24 and footnote 1 is moved to Chapter 8, footnote 4;
- marketing rules respecting former judges or masters and family law mediators are moved to Law Society Rules 2-54 and 3-20 (Chapter 14, Rules 7, 7.1 and 19);
- minor alterations are made to Chapter 14, Rules 4, 10, 16 and 18.
With appropriate screening measures, a law firm may continue to act when a transferring lawyer with confidential information relevant to a matter joins the firm, and need not establish that it is in the public interest that it continue to represent its client (Chapter 6, Rule 7.4 and footnote 7 and Appendix 5, items 1 and 2); a transferring lawyer need not execute an affidavit when the lawyer has no relevant confidential information (Chapter 6, Rule 7.5 and Appendix 5, item 2); if a guideline is not realistic or required, lawyers should document the reasons for not complying with it (Appendix 5, item 3); guidelines 4 to 6 of Appendix 5 are rescinded, as guidelines 1 to 3 sufficiently restrict a firm from passing on information to the transferring lawyer; guideline 8 of Appendix 5 is rescinded as affidavits may not be required at first instance; in certain circumstances, a screened lawyer may participate in fees generated by the client matter (Appendix 5, guideline 10); more precise language is used (Chapter 6, footnote 9); a statutory reference is updated (Chapter 12, Rule 6).
Lawyers who deliver short-term services in court-annexed or non-profit programs or clinics are exempt from some conflict rules in certain circumstances (Chapter 6, Rules 7-01 to 7-04 and footnote 4).
Chapter 2, Rules 3 through 6 are amended and Rules 3.1 and 4.1 are added to update a lawyer's professional responsibility to respect human rights laws, consistent with recent changes in the BC Human Rights Code.
Chapter 8, Rule 19 is amended and footnote 3 is added to clarify the restrictions on a lawyer’s personal involvement in the securing of an accused’s judicial interim release.
Guidance is provided to lawyers on cross-examining witnesses (Chapter 8, Rule 1(e.1) and footnote 1) and dealing with payment by cheques from other lawyers (Chapter 11, footnote 1). Minor housekeeping amendments are made to Chapter 11, Rules 5, 6 and 12-22.
Lawyers are prohibited from participating in restrictions on future representation as part of a civil settlement (Chapter 4, Rule 7).
Minor housekeeping amendments are made to Chapter 8, Rules 1 to 10, 16 and 21 for plain language and consistency.
Construction (multiple draw) mortgages are no longer specifically excluded from the definition of “simple conveyances,” making it permissible in appropriate circumstances for one lawyer to act for both borrower and lender (Appendix 3, paragraphs 4 and 5).
Appendix 1 is expanded to describe the circumstances under which a lawyer may and may not take affidavits for British Columbia and for or in other jurisdictions (Appendix 1, footnote 1).
Changes are made for clarity and to strengthen the language of the footnote (Chapter 4, Rule 6 heading and footnote 3); lawyers are referred to their obligations in Chapter 6 with respect to acting jointly for clients (Appendix 3, paragraph 2.1); a transaction is not considered to have a commercial element that disqualifies it as a simple conveyance merely because one of the parties is a corporation (Appendix 3, footnote 1).
A lawyer must not engage in any activity that the lawyer knows or ought to know assists in or encourages conduct that is criminal, fraudulent or dishonest (Chapter 4, Rule 6 and expanded footnote 3); a lawyer must withdraw from representing a client who gives the lawyer instructions inconsistent with the lawyer's professional responsibility (Chapter 10, Rule 1); changes are made for clarity and plain language (Chapter 4, Rules 1, 2, 3 and 4 and Chapter 10, Rules 0.1, 2 (and footnote 1), 3, 4, 5, 6, 7, 8, 9 and 10).
October 1, 2004
New rules govern the work that can be delegated to staff by a lawyer selling real estate under section 3(3)(f) of the Real Estate Services Act (Chapter 12, Rules 10-12, Chapter 14, Rules 13, 13.1 and 22 and Appendix 7; minor text changes are made in the interests of plain language and clarity (Chapter 14, Rule 2, 8, 9, 11, 12, 14, 15, 20 and 21).
Minor text changes are made in the interests of plain language (Chapter 13, Rules 1 to 4 and 6); restrictions on lawyers employing certain individuals includes a person who is the subject of a credentials hearing that does not proceed (Chapter 13, Rule 5).
Footnote 2 (restricting enforcement of solicitors' liens over client files) is deleted as unnecessary since a client may apply under section 77 of the Legal Profession Act for relief (Chapter 10, Rule 8).
A new footnote recognizes the framework in which prosecutors operate, takes account of prosecutorial discretion and refers lawyers to the Krieger decision (Chapter 8, Rule 18 and footnote 1); rules on fees are changed to reflect inter-jurisdictional practice (Chapter 9, Rules 0.1, 2, 3 and 6); minor text changes are made in the interests of plain language (Chapter 9, Rules 1, 4, 5 and 7-9).
Lawyers may take shares in their corporate clients in lieu of fees in certain circumstances (Chapter 7, footnote 2); lawyers are cautioned to review insurance coverage before performing legal services considered by this chapter (Chapter 7, preamble and footnote 1); minor text and grammar changes improve readability (Chapter 7, Rules 1-7).
If a client cannot adequately instruct a lawyer as a result of incapacity, the lawyer must maintain a normal client-lawyer relationship to the extent reasonably possible and may, under certain circumstances, (a) seek the appointment of a guardian or take other protective action and (b) disclose the minimum amount of the client's confidential information necessary to take that action (Chapter 3, Rules 2.1 to 2.3 and Chapter 5, Rule 16); a lawyer may provide reasonable and necessary minimal assistance to a person who, because of incapacity, is prevented from entering into a client-lawyer relationship (Chapter 3, Rule 2.4); minor text changes improve readability (Chapter 3, Rules 1 and 2).
The term "weakened state," in describing certain recipients of marketing, is changed to "vulnerability" (Chapter 14, Rule 5(a)).
In certain circumstances and with client consent, which may be inferred, a lawyer may act against a current client on substantially unrelated matters, so long as the lawyer does not possess confidential information that could be used to that client's disadvantage in the new representation (Chapter 6, Rules 1, 2, 3, 6.3, 6.4 and 7).
A person not entitled to practise law may be listed in law firm marketing materials, provided his or her proper designation is shown (Chapter 14, Rule 10).
Further clarification is provided on transactions included in and excluded from the definition of a "simple conveyance" (Appendix 3, Rules 4(d) and 5(a) and (g)).
Reference to "Secretary" is amended to "Executive Director" (Chapter 14, Rule 21).
A paralegal under the supervision of a lawyer is no longer prohibited from negotiating the settlement of a claim in tort (Chapter 12, Rule 8); Chapter 12 has been rewritten for clarity and consistency.
Sample letters assist lawyers in their obligations when acting jointly for more than one client (Chapter 6, Rule 6.01 and Appendix 6); marketing activities must not imply that a lawyer is aggressive, and conditions are set on the use of past performance and testimonials (Chapter 14, Rule 4.2).
Lawyers who give second opinions are not violating the prohibition against communicating directly with another lawyer's client (Chapter 4, Rule 1.1 and footnote 1 and Chapter 8, Rule 12); rules are amended in the interest of plain language and clarity (Chapter 8, Rules 13 to 15 and Chapter 14, Rules 3 and 18); "testimonial" is defined (Chapter 14, Rule 2); marketing activities must be dignified and professional (Chapter 14, Rule 4.1); an example of "unseemly circumstances" is removed (Chapter 14, Rule 5); the restriction that prohibits a lawyer from stating a preferred area of practice unless the lawyer has been in practice for three years is lifted (Chapter 14, Rule 16 and footnote 3).
Footnote 2 is removed as incorrect, and footnote 1 is amended (Chapter 5); lawyers are no longer required to recommend that each party in certain real property transactions receive independent legal advice, and further provisions indicate what is not included in a "simple conveyance" (Appendix 3).
Trust cheques must be capable of being certified (Chapter 11, Rule 8).
The procedures for reswearing an affidavit are clarified (Appendix 1, Footnote 6).
Endorsement of commercial products by lawyers is restricted (Chapter 14, Rules 6 and 6.1).
Rules governing the use of judicial title in marketing activities are expanded upon (Chapter 8, Rule 22 and Chapter 14, Rules 1 and 7 to 7.2); lawyers must not pay referral fees to members of their staff (Chapter 9, Rules 2 and 6).
Rules that govern the taking of affidavits and solemn declarations are updated (Appendix 1).
Lawyers from other jurisdictions come under the rule for hiring suspended or disbarred lawyers and certain applicants for call or enrolment or certain former articled students (Chapter 13, Rule 5).
The circumstances permitting disclosure of confidential information to prevent a crime are clarified (Chapter 5, Rule 12).
New rules set standards for the preservation of valuables held by lawyers on behalf of clients and others (Chapter 7.1).
Space-sharing arrangements are defined, and rules are imposed to protect confidentiality and prevent conflicts of interest (Chapter 6, Rules 6.1 and 6.2).
Contacting persons, including parties and witnesses, who are represented by another lawyer requires notice to and/or the consent of the lawyer (Chapter 4, Rule 1.1 and Chapter 8, Rules 11 to 12.3).
The duty of lawyers in space-sharing arrangements to maintain client confidentiality is clarified (Chapter 6, Footnote 1 (now Footnote 4)).
Rules on undertakings are clarified (Chapter 11, Rules 7 to 11); any cheque drawn on a lawyer's trust account is an implied undertaking that it will be honoured (Chapter 11, Rule 8).
An intimate relationship between lawyer and client may constitute exploitation (Chapter 2, Footnote 1); reference to Appendix 5 is added (Chapter 6, Footnote 5 (now Footnote 8).
New rules comply with the Federation of Law Societies' model conflicts rules arising from Martin v. Gray (Chapter 6, Rules 7 to 7.9 and Appendix 5).
Rules are amended to improve readability (Chapter 6, Rules 4 to 6).
Anti-discrimination rules are transferred from Chapter 11, "Responsibility to other Lawyers," to Chapter 2, "Integrity," to make it clear that the provisions apply to lawyers' relations with all members of society, not only other lawyers (Chapter 2, Rules 1 and 3 to 6).
Non-practising members must be designated as such in marketing activities, including letterhead and business cards (Chapter 14, Rule 10).
Reporting requirements of possible or actual errors or omissions are clarified (Chapter 4, Rules 5 and 5.1).
Rule 2 of Appendix 2 ("Family Law Mediation") is rescinded as being adequately covered in the Law Society Rules.
May 1, 1993
A new Professional Conduct Handbook takes effect.