Practice Watch, by Felicia S. Folk, Practice Advisor

Reading the Handbook

I strongly recommend that you take an hour one day soon to re-read the Professional Conduct Handbook, found in your Member's Manual and on the Law Society website. Written in plain language, and not very long, the Handbook will answer many of the questions that may nag at you from time to time. There have also been a number of changes to the rules in the Handbook over the last several years and you will wish to stay on top of these.

I have answered questions recently for lawyers who were unaware that we had changed some rules, for example, the rules about dealing with incapable clients, the rules about acting for and against the same client and the rules about referral fees. If you have been too busy to insert the amendment pages into your Manual, or if your packages from the Law Society are destined to stay at the bottom of your in-basket, I recommend you go to our website and read the up-to-date Handbook.

Using your notarial seal

What is the meaning of a notarial seal on a document? What obligation do you have to use your notarial seal judiciously? Do you have an obligation to examine a document before you affix your seal? To what kind of document are you lending the credibility of your name and professional reputation? What does it mean to "notarize" a document?

The Law Society recently received a spate of odd documents purporting to be surety

bonds, together with bizarre and confusing claims, some with religious symbols and pictures, some with judges and lawyers and US cabinet ministers named throughout and using phrases that are clearly non-legal or meaningless. A few lawyers in BC had affixed their notarial seals to these documents.

A notarial seal may be used when a lawyer certifies, and states that he or she is certifying, a copy of a document as a true copy. Even then, it is not necessary for a lawyer to use the seal - it is enough for a lawyer to state that he or she is a commissioner.

A lawyer, acting as a commissioner or as a notary, has the authority to take an oath, so that a person may swear to the truth of something contained in an affidavit or a statutory declaration. That creates a "sworn document," which may then be offered as evidence of the facts contained in it. A lawyer asked to take such an oath need not read the contents of the document. A lawyer may take an oath that the contents of a document are true, even if the document is in a language the lawyer does not understand.

Why use a notarial seal at all? The seal is generally used so that persons in other jurisdictions may accept the authority of the notary public. Other than for that purpose, what is the point of placing a notarial seal on a piece of paper without taking an oath? Does affixing a notarial seal give a paper additional force or effect? If you are asked to affix your notarial seal without being asked to take an oath or certify that a document is a true copy of another document, it would be prudent to consider whether there is any good reason to do so.

In the case described above, the documents were brought to the attention of the Law Society by the Supreme Court of BC, and the lawyers' use of their seals became the subject of a professional conduct investigation.

Succession planning

If you have not yet made plans for the disposition of your practice in the event of your sudden death or disability, now is the time to do so. It is not fair to leave the headache of having to deal with files to an unsuspecting spouse. If that happens, your estate may have to pay the costs of a custodian to wind down your practice if the Law Society must step in to obtain an order for a custodian.

The most important aspect of planning for your death or disability is designating a lawyer to take over your practice should the need arise, and providing him or her with a power of attorney to deal with bank accounts. This person should be someone who is competent and experienced and will be able to make the time to come into the practice. The designated lawyer's task is not to come in and take over the practice, but rather to wind it down.

Make certain that appropriate employees are aware of who the designated lawyer is and how to contact this person in an emergency.

Always thoroughly document your files. The designated lawyer will need to review all client files and make a determination as to whether any immediate protective action is necessary. Write a letter that details duties for all employees; includes passwords for the computer system; sets out financial details, such as location and account numbers for all bank accounts, particularly client trust accounts; and notes contact information for all staff and principal vendors, such as banks, insurance companies, utility companies and the landlord.

Associate Counsel

The Law Society does not have specific rules referring to names and titles, other than those in Chapter 14 of the Professional Conduct Handbook. Lawyers in British Columbia can, for example, call themselves "Counsel," or "Associate Counsel" to a firm.

You must not call yourself anything that would mislead the public, but there is wide discretion in the use of terminology.

You must also keep in mind that any marketing activity must not be contrary to the best interests of the public or to the maintenance of a high standard of professionalism and must be dignified. Before making any decision about names, titles and marketing generally, please take a few minutes to read Chapter 14.

Protection of privacy legislation

On January 1, 2004, law firms in British Columbia became subject to new privacy legislation. At the time this is written, it is not yet known whether private sector organizations in BC that do not operate federally or across provincial borders will be subject to the federal Personal Information Protection and Electronic Documents Act, known as PIPEDA, or BC's Personal Information Protection Act, known as PIPA. That will depend on a decision by the federal government as to whether PIPA is "substantially similar" to PIPEDA. This decision is expected soon and will be noted on the Law Society website.

Whether PIPEDA or PIPA applies, law firms, like all private sector organizations, will be subject to the legislation. A sole practitioner is considered a private sector organization. All private sector organizations will be required to have a privacy policy.

Firms will not find relationships with clients much affected by this legislation, since lawyers' confidentiality obligations mean that lawyers are generally in compliance with privacy requirements. The legislation, however, places on organizations certain obligations with respect to the collection, use and disclosure of personal information. This includes the personal information of clients, other parties (such as witnesses or even parties adverse in interest to a client) and employees. For an outline of how those obligations may be expected to impact on lawyers, see the June-July, 2003 Benchers' Bulletin.

To assist BC lawyers, we have drafted two model privacy policies for use in firms, one dealing with the personal information of clients and other parties and one dealing with the personal information of employees. You can find these model privacy policies on the Society's website under "Practice and Services/Practice Resources."

For more information about the Personal Information Protection Act, and how it will affect your practice, please go to the Ministry of Management Services website at www.mser.gov.bc.ca/FOI_POP. We recommend reading the "Implementation Tools" section of that website at www.mser.gov.bc.ca/foi_pop/Privacy/Tools/Tools_toc.htm.

If you have questions about the Law Society's model privacy policies, please contact Michael Lucas, Staff Lawyer, Policy & Legal Services, at mlucas@lsbc.org or 604 443-5777 or Felicia S. Folk at ffolk@lsbc.org or 604 669-2533.