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Part 6 out of 11 parts in the Legal Profession Act

PART 6 – CUSTODIANSHIPS


Definitions

49 In this Part:

"court" means the Supreme Court;

"custodian" means a person appointed by an order under section 50 (2) or 54 (2) (b);

"practice" includes a law practice carried on by a lawyer on behalf of a law corporation whether as an employee of the law corporation or otherwise;

"property" includes books, records, accounts, funds, securities and any other real or personal property, wherever located,

(a) within a lawyer's possession or control, if held or used by the lawyer for the benefit of a client or other person, or otherwise held or used in the lawyer's capacity as a barrister and solicitor,

(b) in the possession or control of a person other than a lawyer if the lawyer has a duty to account to a client or other person for the property, or

(c) referred to in paragraph (a) or (b), if held or used by a corporation, including a law corporation.


Appointment of custodian

50 (1) The society may apply to the court, with or without notice to anyone, for an order appointing a practising lawyer or the society as a custodian of the practice of another lawyer to

(a) take possession of or control over all or part of the property of the lawyer, and

(b) determine the status of, manage, arrange for the conduct of and, if appropriate, terminate the practice of the lawyer.

(2) The court may grant a custodianship order applied for under subsection (1) if, in the opinion of the court, sufficient grounds exist.

(3) Without limiting the discretion of the court to grant an order under subsection (2), sufficient grounds for the appointment of a custodian of a lawyer's practice exist if the lawyer

(a) consents to the appointment of a custodian,

(b) dies, resigns or otherwise terminates membership in the society,

(c) is unable to practise as a lawyer because of physical or mental illness or for any other reason,

(d) disappears or neglects or abandons the practice of law, or

(e) is disbarred or suspended from the practice of law in British Columbia or any other jurisdiction.

(4) When a law corporation carries on the business of providing legal services to the public through a lawyer who is the subject of an application under this section, the court may order the custodian appointed under subsection (2) to

(a) take possession of or control over all or part of the law corporation's property, and

(b) determine the status of, manage, arrange for the conduct of and, if appropriate, terminate the practice of the law corporation.

(5) An order under this section must direct that any person receiving notice of the order must retain all the lawyer's property that is within or comes into that person's possession or control, until directed otherwise by the custodian or by an order of the court.

(6) An order under this section may

(a) direct the sheriff to search for, seize, remove and place into the possession or control of the custodian all or part of the lawyer's property,

(b) authorize the sheriff, for the purpose of paragraph (a), to enter

(i) any building or place other than the lawyer's dwelling house and open any safety deposit box or other receptacle, and

(ii) the lawyer's dwelling house and open any safe or other receptacle, if there are grounds to believe that the lawyer's property may be found there,

(c) direct any savings institution or other person to deal with, hold or dispose of the lawyer's property as the court directs, and to deliver to the custodian or otherwise, as the court directs, one or more of the following:

(i) the lawyer's property;

(ii) a copy of records relating to the lawyer's practice;

(iii) a copy of other records, when it is necessary for the effective conduct of the custodianship to do so,

(d) give directions to the custodian respecting the disposition of the lawyer's property and the manner in which the custodianship should be conducted,

(e) give directions as to the service of an order made or notice required under this Part,

(f) include other orders or give other directions to facilitate the conduct of the custodianship, and

(g) if the lawyer is a person referred to in section 15 (3) (a) or (b), prohibit the lawyer from acting as any or all of the following until the lawyer is a member in good standing of the society or until the court orders otherwise:

(i) a personal representative of a deceased person;

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

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

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

(iv) a representative under the Representation Agreement Act.

(7) Unless otherwise directed by the court, the custodian must cause an order made under this Part to be served promptly on the lawyer.

(8) A sheriff, deputy sheriff or court bailiff executing an order under this Part has the same powers as that person has in the execution of a writ of seizure and sale.

[1998-9-108; 2007-14-41; 2007-34-93]


If society appointed as custodian

50.1 If the society is appointed as a custodian, the executive director must

(a) designate a person who is

(i) an employee of the society, and

(ii) a practising lawyer, or

(b) retain the services of a practising lawyer

to perform the duties and functions and exercise the powers of a custodian on behalf of the society.

[2007-14-42]

 

Powers of custodian

51 A custodian may do any or all of the following:

(a) notify a client of the lawyer, or any other person, of the custodian's appointment, and may communicate with that client or person respecting the conduct of the custodianship;

(b) represent a client of the lawyer, in place of that lawyer, in any cause or matter in respect of which that lawyer was acting at the time a custodian was appointed, to the extent necessary to preserve the interests of the client;

(c) conduct or authorize an investigation of the property of the lawyer;

(d) require from the lawyer or any other person records and information that may be reasonably necessary to facilitate the conduct of the custodianship and, if necessary, apply to the court for an order to enforce the requirement;

(e) report to an insurer any facts of which the custodian becomes aware that indicate that the lawyer in that lawyer's professional capacity may be liable to a client or other person;

(f) cooperate with an insurer respecting any claim arising out of the lawyer's practice, to the extent required by the policy;

(g) advise a client or other person of any facts of which the custodian becomes aware that may give rise to a claim for payment under section 31;

(h) deal with the assets and liabilities of the lawyer's practice to the extent necessary to protect the interests of clients and, subject to the interests of clients,

(i) pay all or part of the expenses and disbursements of and incidental to any acts done or proceedings taken under this Part, and

(ii) preserve the value of the practice;

(i) employ or retain assistance in the conduct of the custodianship.


Society access to property

52 (1) The executive director may at any time examine and make copies of any of the lawyer's property in the possession or control of the custodian.

(2) Copies made under subsection (1) must be made at the society's expense and only for its own use.


Property in the custody of a custodian

53 (1) A custodian may deliver property in the custodian's possession or control to a person claiming it if the custodian is satisfied that

(a) the person is entitled to the property,

(b) no solicitor's lien exists or appears to exist in relation to it, and

(c) the executive director has been given a reasonable opportunity to examine the property under section 52.

(2) A lawyer whose property is in the custody of a custodian under this Part may make a claim for a solicitor's lien in relation to any part of the property by filing notice of a claim for lien with the custodian.

(3) A notice under subsection (2) must

(a) be in writing,

(b) be filed within 30 days after service on the lawyer of the order under section 50 (2), and

(c) give full particulars of the claim.

(4) On receiving a notice under subsection (2), the custodian must promptly give written notice of the claim for lien to the apparent owner of the property on which the lien is claimed, and the rights of the parties must then be determined according to law.

(5) If a lawyer fails to file a claim of lien under this section within the period referred to in subsection (3), the custodian may deliver the property to the person entitled to it if the custodian is otherwise satisfied that it is proper to do so.


Applications to the court

54 (1) A custodian, the society, the lawyer concerned or any other interested person may apply to the court for an order under this section, with or without notice to anyone.

(2) On an application under subsection (1), the court may do one or more of the following:

(a) discharge the custodian, unless the society shows cause why the custodianship should be continued;

(b) appoint another practising lawyer or the society as a custodian;

(c) make any other order provided for in section 50 (4), in which case section 50 (5) and (6) applies;

(d) summarily determine the validity of a claim to a solicitor's lien;

(e) make no order.

(3) Despite anything in this Part, the court may at any time extend or shorten the time within which anything is required to be done or dispense with any of the requirements of this Part.

[2007-14-43]

Custodianship rules

55 The benchers may make rules regarding custodianships, including rules imposing duties on a lawyer whose practice is the subject of a custodianship authorized under this Part.


Liability and costs

56 (1) Section 86 applies to protect a custodian, the society and a person acting for either of them, for anything done or not done by one of them in good faith while acting or purporting to act under this Part.

(2) No costs may be awarded against a custodian, the society or a person acting for either of them, for anything done or not done by any of them in good faith while acting or purporting to act under this Part.

(3) Unless the court otherwise orders, the lawyer or the estate of a deceased lawyer must pay to the society the fees, expenses and disbursements of and incidental to any acts done or proceedings taken under this Part, including the fees, expenses and disbursements of a custodian.

(4) Part 8 applies to payment for fees, expenses and disbursements under subsection (3) of this section.


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Part 6 out of 11 parts in the Legal Profession Act