Rule and Handbook amendments

Practice standards

Recent amendments to the Law Society Rules give the Practice Standards Committee the authority to order and enforce conditions and limitations on the practice of a lawyer whose competence has been investigated and who fails or refuses to comply with the committee’s recommendations. To ensure fairness, the Rules require that the lawyer be given notice and an opportunity to make representations concerning the proposed order.

The amended rules are 1 (definition of “professional conduct record,” 3-14(1) (action by the Practice Standards Committee), 3-14.1 (conditions or limitations on practice), 3-16(3.1)-(5) (disclosure of conditions or limitations), and 5-10(1) and (4) (time to fulfil a practice condition).

The changes to the Rules were made pursuant to recent amendments to s. 27 of the Legal Profession Act authorizing the Benchers “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.”

Service of citation

Rule 4-15(1) has been amended to permit the chair of the Discipline Committee, or any other Bencher on the committee, to extend the time for service of a citation. Citations must be served within 90 days of authorization. Prior to the amendments, only the Discipline Committee could extend the time for service. Although requests to extend the time for service of a citation are not common, there can be logistical difficulties in getting the Discipline Committee together to pass the necessary resolution. The new rule will make the process more efficient.

Cross-examination of witnesses

A new section and footnote have been added to Chapter 8 Rule 1 of the Professional Conduct Handbook to provide guidance on permissible conduct in cross-examination. The amendments arise from the Supreme Court of Canada’s decision in R. v. Lyttle [2004] 1 S.C.R. 193, which reviewed the foundation counsel must have before cross-examining a witness on an issue. The court concluded that a lawyer may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition.

Certified cheques

A footnote has been added to Chapter 11 Rule 8 of the Professional Conduct Handbook to clarify the use of certified trust cheques. The Rule states that a lawyer who provides a trust cheque “undertakes that the cheque … is capable of being certified if presented for that purpose.” The new footnote explains that unless funds are paid under an agreement that specifically requires a certified cheque, “a lawyer must not refuse to accept another lawyer’s uncertified cheque.” The footnote also states that it is not improper for a lawyer, at his or her own expense, to have another lawyer’s cheque certified.

The footnote was recommended by the Small Firm Task Force which found that many sole and small firm lawyers objected to other lawyers demanding certified trust cheques. Small firm lawyers said the demands were contrary to the principle of professionalism and created an additional financial and administrative burden.

Other lawyers, however, noted that banks do not clear uncertified cheques — even lawyers’ trust cheques — for several days which can impede closing a transaction. If parties to a transaction want to ensure payment is made by certified cheque, they must agree to that as part of their contract. In the absence of contractual terms, a lawyer may have another lawyer’s cheque certified but at his or her own expense. The Benchers, on the advice of the Ethics Committee, felt it would be valuable to clarify the issue by adding the footnote.

Bencher reviews

A new Rule has been added to allow either party in a Bencher review of a credentials or discipline panel’s decision to apply for dismissal of an inactive review.

Prior to the amendment, an outstanding Bencher review that was not being pursued could not be dismissed without a formal hearing. Under Rule 5-14, a hearing panel’s order for costs is automatically stayed when a review is initiated. As a result, there was concern that some lawyers were not motivated to bring a review to a conclusion if it meant they could be liable for substantial costs.

The new Rule 5-21 is based on existing rules for adjournments and allows the president to dismiss an inactive appeal without a hearing. If no steps have been taken on a review for six months or more, a party may apply to the executive director for a dismissal order. The executive director must notify the parties. The president, or her or his designate, can then decide whether it is in the public interest and fair to the parties to dismiss the review. The new rule is designed to provide a more efficient and cost-effective method of bringing an inactive review to a close.

The Benchers also approved amendments to Rule 5-13 to clarify that the time for requesting a Bencher review begins when the respondent is notified of the penalty decision in a discipline case or the applicant is notified of the panel’s decision in a credentials case.

Small Firm Practice Course

Changes to Rule 3-18.1 are designed to clarify which lawyers must take the Small Firm Practice Course. The original rule said that a lawyer who begins practising in a small firm after not having done so for the “previous three years or more” must take the course. Under the revised rule, a lawyer is excused from taking the course if he or she has practised in a small firm and been a signatory on a trust account for a total of two years in the previous five.