PRACTICE WATCH, by Barbara Buchanan, Practice Advisor
New legislation, public harm and confidentiality, practice resources and scams
Transition to the new Limitation Act
A new Limitation Act (Bill 34), intended to replace the current Limitation Act and simplify the time limits for filing civil lawsuits, received Royal Assent on May 14, 2012. The new legislation doesn’t come into force until proclamation, which is currently expected in 2013.
Lawyers can continue to rely on the current Act’s provisions to advise clients on existing claims discovered before the new legislation is in force. Under the new legislation, the two, six and 10-year limitations in the current Act govern claims based on acts or omissions that occur and are discovered before the new Act takes effect. The new Act also provides that most claims are discovered when a claimant knew or ought to have known of the damage caused and that a court proceeding would be an appropriate remedy (although discovery is postponed for some claims). Those claims must be brought within the time limits currently prescribed.
The limitations in the new Act govern claims discovered after the new Act is in force, even those claims arising from acts or omissions occurring before then. The new Act replaces the current two, six and 10 year limitations for civil claims with a two-year-from-discovery basic limitation and the current 30 year ultimate limitation with a 15-year-from-occurrence limitation (with some exceptions). There are transition provisions relating to the ultimate limitation for claims that are not discovered until after the Act comes into force, including a special transition provision in relation to claims against hospitals and medical practitioners.
This summary isn’t intended as a review of the upcoming changes. Understanding the new law and its effects requires a comprehensive review of the Act and its terms. Lawyers should familiarize themselves with the new legislation before it comes into effect so they can properly advise clients about future claims. For more information, see www.ag.gov.bc.ca/legislation/limitation-act/2012.htm.
Education materials for the new Family Law Act
The Family Law Act received Royal Assent on November 24, 2011 and is anticipated to come into force in 2013. To prepare for the transition from the Family Relations Act to the new Act, the government has several resources on its website at www.ag.gov.bc.ca/legislation/family-law/index.htm.
Future harm/public safety exception to disclosure of clients’ confidential information
Lawyers often contact Practice Advisors for confidential ethical advice regarding whether a lawyer can disclose a client’s confidential information without the client’s consent, when the lawyer believes that there is a risk of death or serious bodily harm to the client or another person. The details vary, and advice is given based on the particular facts; however, the scenarios are often in the family law context. The lawyer may be concerned that a client, former client or a client’s current or former spouse will harm the client, the lawyer, law firm staff, or others. Lawyers should be guided by Chapter 5, Rule 12 of the Professional Conduct Handbook and should also consider BC Code of Professional Conduct Rule 2.03(3) (in force on January 1, 2013). One of the few exceptions to the duty of confidentiality is disclosure to prevent a crime involving death or serious bodily harm to any person. Rule 12 states:
12. A lawyer may disclose information received as a result of the solicitor-client relationship if the lawyer has reasonable grounds to believe that the disclosure is necessary to prevent a crime involving death or serious bodily harm to any person.
Rule 12 is permissive in that a lawyer may disclose information but is not required to do so. Also, the disclosure is in relation to preventing a crime involving death or serious bodily harm. Contrast Rule 12 with the upcoming BC Code Rule 2.03(3), which has similar wording but appears to be broader in that the new rule isn’t limited to disclosure to prevent a crime. A lawyer must not disclose more information than necessary to prevent the death or serious bodily harm.
2.03(3) A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.
The commentary to Rule 2.03 compels lawyers to keep detailed notes if disclosure is permitted under this rule. For the full commentary to Rule 2.03(3), refer to the BC Code on the Law Society website.
It’s a big step to disclose a client’s confidential information, and it requires careful consideration. Lawyers are encouraged to contact a Practice Advisor for confidential ethical advice before making disclosure.
Keeping your client and law firm staff safe from relationship violence
On a topic related to when a lawyer may disclose confidential client information to prevent death or serious bodily harm pursuant to Handbook Rule 12 of Chapter 5 or BC Code Rule 2.03(3), the Legal Services Society and the Ending Violence Association of BC, with funding from the Ministry of Justice, have developed a brochure, Is Your Client Safe? A Lawyer’s Guide to Relationship Violence. Five fact sheets, companion pieces to the brochure, highlight the following topics:
- Encouraging Disclosure
- Relationship Violence Client Resources
- Relationship Violence Legal Resources
- Safety Planning for You and Your Staff
- Safety Planning for Your Client
The safety planning fact sheets contain detailed information about creating a safe environment and safety plan for clients and lawyers. For example, one fact sheet suggests finding out what a client wants to happen if she disappears. For more information, see www.legalaid.bc.ca/publications and click on Abuse & family violence to access the brochure and fact sheets.
The profession was recently alerted to a phony real estate conveyance in which a potential client signs a contract of purchase and sale, provides a bad cheque for a deposit amount much larger than required, and then asks for the deposit back because a failed inspection or some other reason allows him to back out of the deal (June 1, 2012 Notice to the Profession). This particular fraudster has been very active, attempting the scam on at least 10 BC lawyers. Lawyers are encouraged to make other lawyers and realtors aware of the scam.
More news on scams follows.
The Little Black Book of Scams, fake websites and lawyers
Canada’s Competition Bureau has recently published The Little Black Book of Scams, a guide to protection against scams (http://www.competitionbureau.gc.ca/). Among other tips, the bureau warns that scammers can easily copy genuine websites and trick people into believing the sites are legitimate. We’ve notified lawyers about this issue before, as scamsters have copied law firm and other business websites and continue to do so. Consider that scamsters may use phony names or may even use your own name and your firm’s name to set up a website or even a phony branch office of your real firm.
I’ve previously suggested that you monitor your name on the Internet to see how and where it’s used (Winter 2011 Practice Watch). Monitoring appears to have taken on more importance. Discuss your options with a professional. You could find someone using your name to advertise legal services with completely different contact information or information that is simply incorrect in order to perpetrate a fraud.
Fraudster pretending he’s been hired to create a law firm’s website
The Lawyers’ Professional Indemnity Company for Ontario lawyers was notified of a fraudster’s bold attempt to access an Ontario law firm’s computers by pretending that he’d been authorized to create a firm website. For more information see avoidaclaim.com/?p=3402.
Lawyers can expect a variety of imaginative attempts to gain access to their computer systems, a rich source of material for criminal activity. Don’t provide confidential information to someone who calls you whom you don’t know. Only share sensitive information with a service company by telephone or over the Internet if you’ve initiated the contact, you’re sure that you’re dealing with a reputable organization that your firm has actually retained, and a confidentiality agreement is in place.
Personal injury settlement claim scam
The fraudster names and documents web page (www.lawsociety.bc.ca/page.cfm?cid=2392) in the bad cheque scam materials on the website includes three types of personal injury settlement claim scams that have appeared in BC. The first was claims to collect on settlements for infliction of a disease. That was followed by requests to collect on settlements between employers and employees.
The latest was a request to collect on a settlement for serious injuries a potential new client claimed to suffer in a motor vehicle accident. She went so far as to provide a phony doctor’s report on her injuries and a copy of the settlement agreement. She averred to be in the UK visiting a relative who was available to speak to the lawyer by phone, claiming she was unable to speak herself due to the hearing difficulties explained in the doctor’s report. The lawyer received a well-made but phony $165,500 CIBC bank cheque made out to the law firm in trust, out of which the lawyer was requested to take his fees and forward the rest to the client. For assistance in following the rules on verifying a client’s identity outside of Canada, see Appendix II of the Client Identification and Verification Procedure Checklist (go to Publications and Resources / Practice Resources, on the Law Society website).
Reporting scams to the Canadian Anti-Fraud Centre
The Canadian Anti-Fraud Centre, jointly managed by the Competition Bureau, the Ontario Provincial Police and the RCMP, is Canada’s central fraud repository and Canadians are encouraged to report confirmed scams to the Centre and to the RCMP or their municipal police force. The Centre reported on May 15, 2012 that its staff, with support from Canadian law enforcement partners, provided vital information that helped Spanish authorities arrest 23 people alleged to have been operating scams intended to convince potential victims (apparently including some Canadians) they were about to receive a lottery prize or an inheritance from an unknown relative. The scamsters made money by asking their targets to pay administration fees and taxes. This type of scam has been attempted on BC lawyers, sometimes by a person posing as a lawyer from the UK or Spain.
Contact the Centre to report a confirmed fraud, or for fraud information:
Reporting scams to the Law Society
If you’ve been targeted, report any potential new scams and fraudsters to Practice Advisor Barbara Buchanan. You can get confidential advice in determining if a new matter may be a potential bad cheque scam or whether you can report information to the police or financial institution without a court order. Reporting allows us to notify the profession, as appropriate, and update the Fraud Alerts names and documents section of the Law Society website about scams targeting BC lawyers. If you discover a scam that has resulted, or is about to result, in a shortage of client funds in your trust account, report immediately to the Lawyers Insurance Fund. Of course if you have an actual trust shortage, you must immediately pay enough funds into the account to eliminate the shortage and comply with your obligations to immediately make a written report to the Executive Director (see Rule 3-66).
Fraud Alerts (www.lawsociety.bc.ca/page.cfm?cid=402) includes the following information:
- Bad cheque scam (including list of ruses);
- Names and documents (includes names and documents used in BC);
- Common characteristics and red flags;
- Twists and developments
- What to do if you suspect a new client may be a scamster
- Steps to manage the risk;
- Report actual or possible trust fund shortages.
Contact Practice Advisor Barbara Buchanan at 604.697.5816 or email@example.com for confidential advice or more information regarding any items in Practice Watch.