PRACTICE WATCH, by Barbara Buchanan, Practice Advisor
Marketing, strata conveyances, undue influence, scams and free electronic resources
- Marketing rule about former judges and masters returning to practice
- Parking stalls and storage lockers in strata developments
- Undue influence? How to decide and what to do
- What’s new in scams against BC lawyers?
- Keep non-lawyer staff informed – free electronic subscriptions to Law Society publications
- Practice Checklists Manual – new updates
Law Society Rule 2-54(4) prohibits a lawyer who was formerly a judge or master from using a judicial title or otherwise alluding to the lawyer’s former status in any marketing activity. This includes letterhead, business cards or website marketing. However, subrule (4) doesn’t preclude the lawyer from referring to his or her former status at a judge or master in:
- a public announcement that the lawyer has resumed the practice of law or joined a law firm;
- a public speaking engagement or publication that does not promote the lawyer’s practice or firm; or
- informal conversation or correspondence.
Rule 2-54(6) provides that, for the purpose of this rule, it is not the promotion of a lawyer’s practice or firm to provide, on request, a curriculum vitae or other statement of experience that refers to the lawyer’s former status as a judge or master. See Rule 2-54 for further information about practice restrictions on a reinstated lawyer who was formerly a judge or master.
Purchasers of strata units expect to secure one or more parking stalls and storage lockers when buying a unit. If you act on a strata lot conveyance, your client will want to know that each parking stall and locker forming part of the deal is properly capable of transfer or assignment. Either investigate the issue yourself, or make it clear that it is the client’s responsibility to do so. If you act for a developer client wishing to designate parking stalls and storage lockers for various units, review the proposed structure to ensure that each stall and locker can effectively be transferred or conveyed.
Are you concerned that your client may be vulnerable to undue influence by a relative, friend, caregiver, acquaintance, clergy member, accountant or other person? Are you aware that mentally capable clients can be subject to undue influence, as well as persons whose mental capacity may be impaired? Would you recognize the red flags of undue influence and know what steps to take to deal with it? Refer to the BC Law Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide, which is available on the Law Society website (Practice Support and Resources > Guides: Wills, family law).
The guide is intended to assist lawyers and notaries recognize and deal with situations of potential undue influence when drafting wills, but it can also be applicable when preparing other personal planning documents, such as powers of attorney and representation agreements, and to transfers of property and various other common transactions, including gifts, loans and guarantees between family members and acquaintances. The guide includes red flags and guidelines, as well as a reference summary (checklist, red flags and a flow chart of recommended practices).
Although the guide contemplates the shift in the onus of proof in certain undue influence challenges that the new Wills, Estates and Succession Act (WESA) will introduce, once proclaimed, the contents are relevant to current practice. More information about WESA, the shift in onus and the guide will be published as we move closer to WESA becoming law in BC.
We continue to see fraudulent schemes in BC. Be sure to read the fraud alerts issued over the summer:
- Potential fraudulent investment scheme operating in BC (Notice to the Profession, August 1, 2012)
- Bad cheque scam – real estate purchase by Kin Hang Cheung (Notice to the Profession, June 1, 2012)
Also, it seems as if the bad cheque scam fraudster names and documents page (in the Fraud: Alerts and Risk Management section of the Law Society website) is updated on a weekly basis. Take a look online and see how the list of names has blossomed like a bad case of poison ivy. You wouldn’t be the first lawyer to find your potential new “client” in the names list.
One of the most recent ploys was for a scamster to attempt the bad cheque scam in the wrongful dismissal context. The “dismissed employee” contacts the lawyer to collect on a settlement with the former employer. Like all bad cheque scams, the scamster wants the lawyer to deposit the phony employer’s bad cheque (or certified cheque or bank draft) into trust (with the lawyer taking out fees and disbursements from the amount), and wire the funds to the scamster before the lawyer finds out the cheque is bad.
In most bad cheque scams, the client avers to either reside outside of Canada or to be temporarily outside of Canada. If the client is outside of Canada and you are not physically meeting with the client to verify the client’s identity, the lawyer must retain an agent to verify the client’s identity (Rule-3-95(5) and (6)). Appendix II of the Client Identification and Verification Procedure Checklist provides a sample agreement with an agent for verification of client identity and a sample attestation form. It is not sufficient to accept for verification of identity a scan of a driver’s licence or passport from a new client who may be a potential fraudster.
If you think you’ve been contacted by a potential scamster, please report it to Barbara Buchanan at firstname.lastname@example.org. You can obtain confidential advice in determining if a new matter may be a scam and whether you can report information to the police or your financial institution without a court order. Also, reporting allows the Law Society to notify the profession, as appropriate, and update the Fraud Alerts information. See Fraud Alerts for what to do if you suspect a new client may be a scamster and other important information.
Many times, it’s a smart legal assistant, law firm accountant or bookkeeper who has been alert to a potential issue on a file and who has contacted a practice advisor for help and “saved a lawyer’s bacon.” Non-lawyer staff sometimes lament that they either don’t receive information about rule changes, fraud alerts, etc. from the firm lawyers, or they receive it too late. When they discover they can personally subscribe to Law Society publications at no cost, they are usually surprised (and somewhat gleeful!). You can help your non-lawyer staff get informed, and in turn help yourself, by encouraging them to sign up for free electronic subscriptions to the Benchers’ Bulletin (which also gets you E-Brief and Notices to the Profession) and Member’s Manual amendments. There’s a charge for print copies. To sign up, click on “Subscribe to publications” on the Law Society’s home page.
Check out recent updates to the Law Society’s free Practice Checklists Manual (go to Practice Support and Resources on the Law Society website). Fourteen checklists in the manual (out of 41 checklists in total) have recently been updated to incorporate new developments in the following subject areas:
- Family – Family Practice Interview, Family Law Agreement Procedure, Separation Agreement Drafting, Marriage Agreement Drafting, Family Law Proceeding, and Child, Family and Community Service Act Procedure
- Will and Estates – Wills Procedure, Testator Interview, Will Drafting, Probate and Administration Interview, Probate and Administration Procedure
- Real Estate – Residential Conveyance Procedure, Mortgage Procedure, Mortgage Drafting
Watch for the 2012 updates to the remaining checklists, expected to be published late this fall.
If you have suggestions for improving the content of the manual, please forward them to Barbara Buchanan at email@example.com. The manual has been developed by the Law Society with the assistance of the Continuing Legal Education Society of BC.
Contact Practice Advisor Barbara Buchanan at 604.697.5816 or firstname.lastname@example.org for confidential advice or more information regarding any items in Practice Watch.