Practice Watch

by Felicia S. Folk, Practice Advisor

Don't be pressured into unacceptable practices

This is a reminder that lawyers must not allow themselves to be pressured into following unacceptable practices, whether such practices are advocated or followed by other lawyers or anyone else.

These examples arise from calls to the Law Society from lawyers seeking practice advice:

  • A sole practitioner who had witnessed the signing of a lease was asked by the other party's solicitors, a large firm, to authorize the large firm to attach the signature page to a short form of lease, which would then be registered. The lawyer properly refused to allow his signature to be attached to a document that he had not witnessed, despite being urged by a lawyer from the large firm to do so because this was allegedly a common practice.
  • Lawyers from some areas of the province say that they lose business to other local lawyers who ignore the real estate conflicts rules, especially the rule that defines a "simple conveyance." Some banks urge lawyers to disregard the rule and to accept mortgage files in breach of the rules. The fact that certain other lawyers are breaching the rules of professional conduct should not influence your own conduct.
  • Regardless of how pressing the situation may be for your client, do not alter a client's affidavit without having it resworn, even if your client has since left the country and is not available to sign a document. This advice applies even if the alteration appears to be minor.

A lawyer's duty to approve draft orders

A lawyer's obligation to approve a court order is owed to the court and to opposing counsel, as well as to the lawyer's own client. The duty to approve a draft order that accurately reflects the court's decision continues even when the lawyer has been dismissed by the client and despite the client's instructions that the lawyer must not approve the order. Instructions not to approve a draft order would conflict with the higher duty a lawyer owes to the court to enter orders promptly.

Furthermore, when a client has given instructions to a solicitor not to approve a draft order and there are no proper grounds on which to withhold such approval, the neglect or refusal of the solicitor to approve the order may attract an award of costs against that solicitor: Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd (1991) 5 OR (3d)65 (Ont Gen Div), cited in Fraser & Horn, The Conduct of Civil Litigation in BC, c.26, p.1002.

Communicating with a judge

If you need to communicate with a judge about any matter, there are guidelines to follow. You should never address your letter to the judge. Instead, address your letter or other communication to the court registry. You may ask the registry to refer your communication to the judge for reasons that you set out. For example, you may wish to correct an error you have made or a false impression you may have left, or to provide the name and citation of an authority. Any such communication must be copied to opposing counsel.

If a letter has some more complex purpose than merely correcting your own error, however, counsel should not write to the court registry about a matter in litigation without first conferring with opposing counsel.

Before making any decision about communicating with the court, please read the June 27, 1988 practice direction of then CJSC McEachern, "Memorandum re: Communications to the Court," which sets out certain procedures to be followed.

The memorandum says, "the Profession should understand that most judges will not usually read or respond to letters which are, or appear to be, written ex parte. Counsel are not precluded in a proper case from writing to the Court just because one or more opposing counsel says such a letter should not be written, but such view should always be disclosed. An exception to the above is where counsel believes it is necessary to write to the Court and he cannot reach his learned friend. In such case counsel must, of course, disclose that there has been no discussion between counsel and the reasons for that situation."

Cheque imaging at credit unions

If you maintain a trust account at a credit union, you may have received a notice that the credit union will no longer return cancelled cheques, but instead will provide account holders only with images of cheques. Cheque images are not acceptable under Law Society Rules 3-60 and 3-68, which require that cancelled trust cheques be retained by a lawyer for 10 years.

The Law Society has discussed this issue with Credit Union Central of British Columbia, which has now implemented a system to enable credit union branches to return cheques and statements on lawyers' trust accounts. Please call your branch manager to ensure that your accounts are designated "trust" and that cancelled cheques will be returned to you.

If necessary, your branch manager may wish to contact Credit Union Central of BC at 604 734-2511.

Cheque imaging is expected to be implemented by banks within the next several years. The Law Society is reviewing its trust accounting rules to ensure they are in keeping with this and other technological changes implemented by financial institutions.