Practice Watch: Use of Law Society documents in court
by Barbara Buchanan, Practice Advisor
If your client has made a complaint to the Law Society about a lawyer, you may be tempted to include information about the complaint in an affidavit or other document. Please note that, under section 87 of the Legal Profession Act, any letter or document created by the Law Society in the course of investigating a complaint is not admissible in any proceeding except with the written consent of the Executive Director of the Law Society.
Solving disputes between lawyers and physicians
If you have a disagreement with a physician regarding fees for medical-legal reports, production of clinical records or expert testimony, consider using the Medical-Legal Liaison Committee for assistance in resolving your dispute. Representatives from the BC Medical Association, the College of Physicians and Surgeons and the Law Society make up the Committee. The Committee provides its views in writing to the parties. For more information, contact Jack Webster, QC at:
Medical-Legal Liaison Committee
510 – 1040 West Georgia Street
Vancouver, BC V6E 4H1
Attention: Jack Webster, QC, Chair
Tel. 604 682-3488
Family Compensation Act and conflicting interests
A lawyer has drawn the Law Society’s attention to difficulties presented by s. 6 of the Family Compensation Act in light of the general principle that a lawyer has a duty to give undivided loyalty to every client.
Section 6 states that only one action may be brought for the same subject matter. The effect of this provision, in some circumstances, is that the same lawyer must be counsel of record for parties with conflicting interests.
The following example illustrates some difficulties that s. 6 creates:
Father is driving a vehicle in which Mother (wife) and child are passengers. Father’s vehicle is in an accident with a vehicle driven by Smith. Mother is killed in the accident. Father and child survive, although both are injured. Both Father and Smith appear to be negligent in the collision. Lawyer A commences an action on behalf of the child against Father and Smith. Because Father was also injured, he also wishes to commence an action against Smith. Because of s. 6, Father cannot do so except as a party in his child’s action against both himself and Smith. Lawyer A obviously cannot act for Father as plaintiff and against Father as defendant.
Courts have, however, fashioned remedies to deal with s. 6, including:
- permitting one counsel to be counsel of record for parties with conflicting interests, but allowing one of the parties to be exclusively represented by a lawyer who is not counsel of record;
- giving leave to have one consolidated action with one writ on behalf of all claimants, but permitting separate statements of claim to be filed for each of the plaintiffs who are opposed in interest, and permitting each plaintiff to be represented as plaintiff by separate counsel.
See Wiseman et al. v. HMTQ et al . , 2006 BCSC 1708; Smith v. Ross , 2000 BCCA 671; Guss v. Daigle , New Westminster Registry No. C912026, September 23, 1992 (per Master Joyce) and November 10, 1992 (per Josephson, J).
Undertaking to pay hearing fees
A recent BC Supreme Court decision confirms that lawyers signing a Notice of Trial (Form 35) with an undertaking to pay hearing fees are not personally liable for those fees.
In Campbell Inc. v. Towers , 2006 BCSC 1030, the court ruled that a solicitor’s undertaking in a Trial Certificate or Notice of Trial to pay the hearing fees required by Appendix C, Schedule 1, Item 14 of the Rules of Court is not an unconditional promise that the solicitor will personally pay the fees.
Mr. Justice T. Mark McEwan said:
An “undertaking” given by a solicitor in a Trial Certificate or Notice of Trial, is not, and cannot be an unconditional promise that the solicitor will underwrite the government imposed cost of his client’s exercise of his right to a courtroom. A solicitor cannot, by means of a loaded word in a mandatory form, be improperly forced to compromise his ability to represent his client dispassionately. It follows that a solicitor of record, signing such a form, does no more than give a required, if superfluous, promise on behalf of his client.
Mr. Justice McEwan also commented on the practice of having the client sign the undertaking in the Notice of Trial. He noted that it would be absurd for a party who is represented by counsel to sign the form:
The form correctly denotes that one either appears in person or by solicitor of record. The notion that one’s status changes from represented to unrepresented at a whim has never been an accepted part of our practice; formal notices are required to effect such changes. If an otherwise represented party signed this form, he is essentially vouching for his solicitor’s view as to a reasonable time for the hearing, so that for the purpose of setting the matter for trial, he can be said to represent his representative. This is of course, absurd.
Note that the current form of Trial Certificate (Form 37) does not contain an undertaking but the Notice of Trial (Form 35) does contain the undertaking.