Highlights of the new Legal Profession Act
Many amendments made by the new Act are now in effect; others will come into effect on proclamation, which will take place over the next several months. The Benchers will also be adding accompanying Law Society Rules over the coming year. The following represent significant changes by category under the new Act.
The Law Society mandate
- Section 3 of the Act continues to uphold and protect the public interest in the administration of justice; however, instead of being mandated to advance the interests of lawyers, the Society’s obligation to lawyers will be to support and assist them with fulfilling their duties.
Regulation: firms regulated and pro bono work
- The Law Society will have the additional authority to regulate all forms of law firms and to investigate complaints made against a law firm as a whole.
- Lawyers’ and law firms’ pro bono work will explicitly be regulated. Previously, anything lawyers did without pay was not defined as the practice of law, which allowed non-practising and retired lawyers, who were not permitted to practise law, to provide pro bono legal services. However, it also had the effect that practising lawyers had some files in their offices that were outside the Law Society’s mandate to regulate the practice of law, which was not appropriate. Now, when lawyers do pro bono work it will fall under the practice of law.
- The new act changes who can practise law, such that retired and non-practising lawyers will be permitted to conduct pro bono cases, as they currently can – the authority under which they do it within the act is changing, but they will not need to alter what they do.
Investigations: disclosure, suspensions, resignations and medical exams
- The Law Society now has the investigatory powers necessary to regulate lawyers and law firms, including the ability to require lawyers and others to answer questions and produce records.
- Lawyers who are required to disclose information to Law Society investigators are required to do so despite confidentiality and privilege, but the Law Society has the same duty as the lawyers to protect the information.
- The Law Society will be required to provide a process for protecting the privacy of individuals whose personal information is seized or copied incidentally or in error during an investigation.
- When it is necessary to protect the public interest, the Law Society has the authority to suspend a lawyer under investigation, or place conditions on the lawyer’s practice, even before there has been a citation.
- Lawyers who are subject to investigation or discipline are not permitted to resign from the Law Society without permission and complying with any conditions required.
- When it is necessary to protect the public, the Law Society has the authority to require a lawyer to submit to a medical examination before the investigation is complete.
Discipline: fines, enforcement and serious crimes
- Maximum fines for discipline violations are increased from $20,000 to $50,000 for lawyers and from $2,000 to $5,000 for students; maximum fines for law firms will be established at $50,000.
- The Law Society is able to collect fines and costs ordered by filing the order in the Supreme Court, where it can be enforced as if it were an order of the court.
- The Benchers will be able to suspend or disbar a lawyer who is convicted of a serious crime, including outside Canada, without a full hearing.
Hearings and appeals: review boards, Court of Appeal and testimony
- Decisions of Law Society hearing panels, all of which include people who aren’t lawyers, will be subject to review by a review board, also including people who aren’t lawyers.
- A hearing panel can suspend a lawyer who has committed a discipline violation for an indefinite period to enforce compliance with conditions or other requirements.
- A Law Society committee that ordered a hearing on a discipline matter or an application for admission to the legal profession will have the right to appeal the decision of the hearing panel or review board to the Court of Appeal on a question of law.
- A former employee, agent or committee member of the Law Society will not be able to disclose information or to testify as to Law Society functions without the permission of the Law Society.
Trust protection insurance: lawyer theft
- The Special Compensation Fund, initiated in the 1940s to provide, at the discretion of Benchers, compensation to victims of lawyer theft, will officially be replaced by the Part B insurance program, which has been in place since 2004.
Administrative: annual fees and referendums
- The annual fees will be set by the elected and appointed Benchers, not by lawyers in a general meeting. This brings the Law Society in line with other regulatory bodies throughout the country.
- Certain rules that used to require a province-wide referendum to be changed can also be changed following a resolution of a general meeting, such as the Law Society’s annual general meeting.
- The Benchers now have a full year to implement resolutions of general meetings, rather than six months, and a province-wide referendum to compel the Benchers to do so will require a petition of 5% of the members, rather than 100 members.