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Part 3 out of 11 parts in the Legal Profession Act

 

PART 3 – PROTECTION OF THE PUBLIC


Complaints from the public

26 (1) A person who believes that a lawyer, former lawyer or articled student has practised law incompetently or been guilty of professional misconduct, conduct unbecoming a lawyer or a breach of this Act or the rules may make a complaint to the society.

 

Section 26(1) is amended as follows (unproclaimed):

26 (1) A person who believes that

(a) a lawyer, former lawyer or articled student has practised law incompetently or been guilty of professional misconduct, conduct unbecoming the profession or a breach of this Act or the rules, or

(b) a law firm has been guilty of professional misconduct, conduct unbecoming the profession or a breach of this Act or the rules 

may make a complaint to the society.

[2012-16-15] 


(2) The benchers may make rules authorizing an investigation into the conduct of a law firm or the conduct or competence of a lawyer, former lawyer or articled student, whether or not a complaint has been received under subsection (1).

(3) For the purposes of subsection (4), the benchers may designate an employee of the society or appoint a practising lawyer or a person whose qualifications are satisfactory to the benchers.

(4) For the purposes of an investigation authorized by rules made under subsection (2), an employee designated or person appointed under subsection (3) may make an order requiring a person to do either or both of the following:

(a) attend, in person or by electronic means, before the designated employee or appointed person to answer questions on oath or affirmation, or in any other manner;

(b) produce for the designated employee or appointed person a record or thing in the person’s possession or control.

(5) The society may apply to the Supreme Court for an order

(a) directing a person to comply with an order made under subsection (4), or

(b) directing an officer or governing member of a person to cause the person to comply with an order made under subsection (4).

(6) The failure or refusal of a person subject to an order under subsection (4) to

(a) attend before the designated employee or appointed person,

(b) take an oath or make an affirmation,

(c) answer questions, or

(d) produce records or things in the person’s possession or control

makes the person, on application to the Supreme Court by the society, liable to be committed for contempt as if in breach of an order or judgment of the Supreme Court.

[2012-16-15] 


Suspension during investigation

26.01 (1) The benchers may make rules permitting 3 or more benchers to make the following orders during an investigation, if those benchers are satisfied it is necessary to protect the public:

(a) suspend a lawyer who is the subject of the investigation;

(b) impose conditions or limitations on the practice of a lawyer who is the subject of the investigation;

(c) suspend the enrolment of an articled student who is the subject of the investigation;

(d) impose conditions or limitations on the enrolment of an articled student who is the subject of the investigation.

(2)  Rules made under subsection (1) must

(a) provide for a proceeding to take place before an order is made,

(b) set out the term of a suspension, condition or limitation, and

(c) provide for review of an order made under subsection (1) and for confirmation, variance or rescission of the order.

(3) Rules made under this section and section 26.02 may provide for practice and procedure for a matter referred to in subsection (2)(a) and (c) or section 26.02(3) and may specify that some or all practices and procedures in those proceedings may be determined by the benchers who are present at the proceeding.

[2012-16-16; 2016-5-41]

Medical examination

26.02 (1) The benchers may make rules permitting 3 or more benchers to make an order requiring a lawyer or an articled student to

(a) submit to an examination by a medical practitioner specified by the benchers, and

(b) instruct the medical practitioner to report to the benchers on the ability of the lawyer to practise law or, in the case of an articled student, the ability of the student to complete his or her articles.

(2) Before making an order under subsection (1), the benchers making the order must be of the opinion that the order is likely necessary to protect the public.

(3) Rules made under subsection (1) must

(a) provide for a proceeding to take place before an order is made, and

(b) provide for review of an order under subsection (1) and for confirmation, variation or rescission of the order.

[2012-16-16]  

Written notification to chief judge

26.1  If an investigation is conducted in accordance with the rules established under section 26 (2) of this Act respecting a lawyer or former lawyer who is also a "part time judicial justice", as that term is defined in section 1 of the Provincial Court Act, the society must, as soon as practicable, provide a written notification to the chief judge designated under section 10 of the Provincial Court Act that includes the following information:

(a) the name of the lawyer or former lawyer;

(b) confirmation that an investigation is being conducted with respect to that lawyer or former lawyer.

 [2008-42-34]

Practice standards

27 (1) The benchers may

(a) set standards of practice for lawyers,

(b) establish and maintain a program to assist lawyers in handling or avoiding personal, emotional, medical or substance abuse problems, and

(c) establish and maintain a program to assist lawyers on issues arising from the practice of law.

(2) The benchers may make rules to do any of the following:

(a) establish a practice standards committee and delegate any or all authority and responsibility under this section, other than rule-making authority, to that committee;

(b) permit an investigation into a lawyer's competence to practise law if

(i) there are reasonable grounds to believe that the lawyer is practising law in an incompetent manner, or

(ii) the lawyer consents;

(c) require a lawyer whose competence to practise law is under investigation to answer questions and provide access to information, files or records in the lawyer's possession or control;

(d) provide for a report to the benchers of the findings of an investigation into the competence of a lawyer to practise law;

(d.1) permit the practice standards committee established under paragraph (a) to make orders imposing conditions and limitations on lawyers' practices, and to require lawyers whose competence to practise law has been investigated to comply with those orders;

(e) permit the benchers to order that a lawyer, a former lawyer, an articled student or a law firm pay to the society the costs of an investigation or remedial program under this Part and set and extend the time for payment;

(f) permit the discipline committee established under section 36 (a) to consider

(i) the findings of an investigation into a lawyer’s competence to practise law,

(ii) any remedial program undertaken or recommended,

(iii) any order that imposes conditions or limitations on the practice of a lawyer, and

(iv) any failure to comply with an order that imposes conditions or limitations on the practice of a lawyer.

(3) The amount of costs ordered to be paid by a person under the rules made under subsection (2) (e) may be recovered as a debt owing to the society and, when collected, the amount is the property of the society.

(3.1) For the purpose of recovering a debt under subsection (3), the executive director may

(a) issue a certificate stating that the amount of costs is due, the amount remaining unpaid, including interest, and the name of the person required to pay it, and

(b) file the certificate with the Supreme Court.

(3.2) A certificate filed under subsection (3.1) with the Supreme Court is of the same effect, and proceedings may be taken on it, as if it were a judgment of the Supreme Court for the recovery of a debt in the amount stated against the person named in it.

(4) Rules made under subsection (2) (d.1)

(a) may include rules respecting

(i) the making of orders by the practice standards committee, and

(ii) the conditions and limitations that may be imposed on the practice of a lawyer, and

(b) must not permit the imposition of conditions or limitations on the practice of a lawyer before the lawyer has been notified of the reasons for the proposed order and given a reasonable opportunity to make representations respecting those reasons.

[2007-14-38; 2012-16-17]

Education

28 The benchers may take any steps they consider advisable to promote and improve the standard of practice by lawyers, including but not limited to the following:

(a) establishing and maintaining or otherwise supporting a system of legal education, including but not limited to the following programs:

(i) professional legal training;
(ii) continuing legal education;
(iii) remedial legal education;
(iv) loss prevention;

(b) granting scholarships, bursaries and loans to persons engaged in a program of legal education;

(c) providing funds of the society and other assistance to establish or maintain law libraries in British Columbia;

(d) providing for publication of court and other legal decisions and legal resource materials.


Specialization and restricted practice

29 The benchers may make rules to do any of the following:

(a) provide for the manner and extent to which lawyers or law firms may hold themselves out as engaging in restricted or preferred areas of practice;

(b) provide for the qualification and certification of lawyers as specialists in areas of practice designated under paragraph (c);

(c) designate specialized areas of practice and provide that lawyers must not hold themselves out as restricting their practices to, preferring or specializing in a designated area of practice unless the lawyer has met the qualifications required for certification under a rule made under paragraph (b);

(d) establish qualifications for and conditions under which practising lawyers may practise as mediators.

[2012-16-18]


Insurance

30 (1) In this section, “trust protection insurance” means insurance for lawyers to compensate persons who suffer pecuniary loss as a result of dishonest appropriation of money or other property entrusted to and received by a lawyer in his or her capacity as a barrister and solicitor.

(1.1) The benchers must make rules requiring lawyers to maintain professional liability and trust protection insurance.

(2) The benchers may establish, administer, maintain and operate a professional liability insurance program and may use for that purpose fees set under this section.

(2.1) The benchers

(a) must establish, administer, maintain and operate a trust protection insurance program and may use for that purpose fees set under this section,

(b) may establish conditions and qualifications for a claim against a lawyer under the trust protection insurance program, including time limitations for making a claim, and

(c) may place limitations on the amounts that may be paid out of the insurance fund established under subsection (6) in respect of a claim against a lawyer under the trust protection insurance program.

(3) The benchers may, by resolution, set

(a) the insurance fee, and

(b) the amount to be paid for each class of transaction under subsection (4) (c).

(4) The benchers may make rules to do any of the following:

(a) permit lawyers to pay the insurance fee by instalments on or before the date by which each instalment of that fee is due;

(b) establish classes of membership for insurance purposes and exempt a class of lawyers from the requirement to maintain professional liability insurance or trust protection insurance or from payment of all or part of the insurance fee;

(c) designate classes of transactions for which the lawyer must pay a fee to fund the professional liability or trust protection insurance program.

(5) The benchers may use fees set under this section to act as the agent for the members in obtaining professional liability or trust protection insurance.

(6) The benchers must establish an insurance fund, comprising fees set under this section and other income of the professional liability and trust protection insurance programs, and the fund

(a) must be accounted for separately from other funds,

(b) is not subject to any process of seizure or attachment by a creditor of the society, and

(c) is not subject to a trust in favour of a person who has sustained a loss.

(7) Subject to rules made under section 23 (7), a lawyer must not practise law unless the lawyer has paid the insurance fee when it is due, or is exempted from payment of the fee.

(8) A lawyer must immediately surrender to the executive director his or her practising certificate and any proof of professional liability or trust protection insurance issued by the society, if

(a) the society has, on behalf of the lawyer,

(i) paid a deductible amount under the professional liability insurance program in respect of a claim or potential claim under that program, or

(ii) made an indemnity payment under the trust protection insurance program in respect of a claim under that program, and

(b) the lawyer has not reimbursed the society, at the date that the insurance fee or an instalment of that fee is due.

(9) The benchers may waive or extend the time

(a) to pay all or part of the insurance fee, or

(b) to repay all or part of a deductible amount paid under the professional liability insurance program or an indemnity payment made under the trust protection program on behalf of a lawyer.

(10) If the benchers extend the time for a payment under subsection (9), the later date for payment is the date when payment is due for the purposes of subsections (7) and (8).

(11) A payment made from the insurance fund established under subsection (6) in respect of a claim against a lawyer under the trust protection insurance program

(a) may be recovered from the lawyer or former lawyer on whose account it was paid, or from the estate of that person, as a debt owing to the society, and

(b) if collected, is the property of the society and must be accounted for as part of the fund.

[2012-16-19; 2016-5-44]

 

31 [repealed 2012-16-20]  



Financial responsibility

32 (1) The benchers may establish standards of financial responsibility relating to the integrity and financial viability of the professional practice of a lawyer or law firm.

(2) The benchers may make rules to do any of the following:

(a) provide for the examination of lawyers' books, records and accounts of lawyers and law firms and the answering of questions by lawyers and representatives of law firms to determine whether standards established under this section are being met;

(b) permit the suspension of a lawyer who does not meet the standards established under subsection (1);

(c) permit the imposition of conditions and limitations on a law firm that, or the practice of a lawyer who, does not meet the standards established under subsection (1).

(3) Rules made under subsection (2) (b) and (c) must not permit the suspension of a lawyer or imposition of conditions and limitations on the practice of a lawyer or the imposition of conditions and limitations on a law firm before the lawyer or law firm, as the case may be, has been notified of the reasons for the proposed action and given a reasonable opportunity to make representations respecting those reasons.

[2012-16-21]


Trust accounts

33 (1) The benchers may require a lawyer or law firm to do any of the following:

(a) provide information or an annual report concerning the lawyer's or law firm's books and accounts;

(b) have all or part of the lawyer's or law firm's books and accounts audited or reviewed annually;

(c) provide the executive director with an accountant's report on the lawyer's or law firm's books and accounts.

(2) The benchers may

(a) exempt classes of lawyers or law firms from some or all of the requirements of subsection (1), and

(b) determine the qualifications required of a person performing an audit or review referred to in subsection (1).

(3) The benchers may make rules to do any of the following:

(a) establish standards of accounting for and management of funds held in trust by lawyers or law firms;

(b) designate savings institutions and classes of savings institutions in which lawyers or law firms may deposit money that they hold in trust;

(c) provide for precautions to be taken by lawyers and law firms for the care of funds or property held in trust by them.

(4) The rules referred to in subsection (3) apply despite section 19 of the Trustee Act.

(5) The rules made under subsection (3) may be different for

(a) lawyers and law firms, or

(b) different classes of lawyers and law firms.

[2012-16-22]


Unclaimed trust money

34 (1) A lawyer who has held money in trust on behalf of a person whom the lawyer has been unable to locate for 2 years may pay the money to the society.

(2) On paying money to the society under subsection (1), the liability of the lawyer to pay that money to the person on whose behalf it was held or to that person's legal representative is extinguished.

 

Sections 34(1) and (2) are amended as follows (unproclaimed):

34 (1) A lawyer who or a law firm that has held money in trust on behalf of a person whom the lawyer or law firm has been unable to locate for 2 years may pay the money to the society.

(2) On paying money to the society under subsection (1), the liability of the lawyer or law firm to pay that money to the person on whose behalf it was held or to that person's legal representative is extinguished.

[2012-16-23]


(3) The society must hold in trust any money paid to it under subsection (1).

(4) The society is entitled to retain, for its purposes, interest on any money held by it under subsection (3).

(5) A person or the person's legal representative who, but for subsections (1) and (2), could have claimed money held by a lawyer may claim the money from the society.

 

Section 34(5) is amended as follows (unproclaimed):

34 (5) A person or the person's legal representative who, but for subsections (1) and (2), could have claimed money held by a lawyer or law firm may claim the money from the society.

[2012-16-23]


(6) On being satisfied that the person claiming money under subsection (5) is entitled to it, the society must pay the money to that person together with interest on it at a rate that the benchers consider reflects market rates during the time the society held the money.

(7) If the money is not paid out under subsection (6) within 5 years after its receipt by the society under subsection (1), the society must pay the money, excluding any interest retained under subsection (4), to the foundation for its purposes, but subsections (5) and (6) continue to apply as though the money had not been paid to the foundation.

(8) The foundation must indemnify the society for any claims paid under subsection (6) in respect of money received from the society under subsection (7), including interest paid by the society under subsection (6) for the period when the money was held by the foundation.

(9) A person whose claim against the society under subsection (5) has been refused may apply to the Supreme Court for a review of the decision of the society.

(10) On a claim under subsection (9), the court may allow the claim plus interest in an amount determined by it.

(11) The benchers may make rules to do any of the following:

(a) create and maintain a fund consisting of money paid to the society under subsection (1);

(b) establish procedures for investigating and adjudicating claims made under subsection (5).

(12) [repealed]

[1999-48-28]


Restriction on suspended and disbarred lawyers

35 On application of the society, the Supreme Court may order that a person referred to in section 15 (3) (a) or (b) be prohibited from acting as any or all of the following until the person is a member in good standing of the society or until the court orders otherwise:

(a) a personal representative of a deceased person;

(b) a trustee of the estate of a deceased person;

(c) a statutory property guardian or guardian under the Adult Guardianship Act;

(c.1) an attorney under Part 2 of the Power of Attorney Act;

(d) a representative under the Representation Agreement Act

[1998-9-107; 2007-34-92]


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Part 3 out of 11 parts in the Legal Profession Act