Credentials rules amended

Refresher course to assist lawyers returning to practice

The Benchers have approved development of a refresher course for non-practising and former lawyers who wish to return to active practice.

The course was part of a package of recommendations and rule changes proposed by the Law Society’s Credentials Committee to ensure all lawyers returning to practice are competent and to assist them to refresh their skills and knowledge.

Return to practice applications will now focus on what a person has done to keep current with the law in addition to considering whether he or she has been engaged in work that is equivalent to the practice of law. This should make it easier for former and non-practising lawyers who have not been doing legal work (for example, due to family commitments) to satisfy the requirements necessary to return to practice.

Under the former rules, a lawyer who had been away from active practice for more than three of the previous five years typically must write a requalification exam unless the Credentials Committee concludes the lawyer’s activities amounted to “equivalent practice” or the committee concludes the public interest does not require the lawyer to write the exam.

The new rules, as adopted by the Benchers at their June meeting, direct the Committee to consider whether “the lawyer was engaged in activities that have kept the lawyer current with substantive law and practice skills.”

The Credentials Committee believes that focusing on what a person has done to keep current with law and practice is relevant as is the consideration of whether the person has engaged in equivalent practice.

The Benchers also amended the rules to plug a gap that could be used by a small number of lawyers to avoid the requalification requirements.

At present, a lawyer who wishes to leave active practice and to return several years later can avoid triggering the requalification provisions by maintaining full-time practising status while not practising, which requires paying full-time membership, insurance and Special Compensation Fund fees. Conceivably, a lawyer could be away from active practice for several years and return to the profession without first having to demonstrate his or her competence. The Credentials Committee was concerned that this gap in the rules prevented the Law Society from properly discharging its mandate to protect the public interest.

There were also concerns that the gap prevented the Law Society from meeting its obligations under the National Mobility Agreement. This is because there could be BC lawyers who appear to be practising full time with insurance — and therefore qualified for practising membership in other law societies — when, in fact, they haven’t been practising at all.

The new rules require all current and former lawyers to meet the requirements for returning to practice when they move to active practice after more than three years of not practising law regardless of their membership status. To determine whether a lawyer has or has not been practising law, regardless of his or her membership status, all members will be asked to indicate on their Annual Practice Declaration whether they have, in fact, been practising law during the previous year. For this purpose a person is considered to be practising law if he or she was engaged in the practice of BC law for an average of one day per week.

The Equity and Diversity Committee has observed that any rule changes ought not to prejudice women who may have maintained practising status so they could more easily return to practice after raising a family. It is, however, likely that the number of lawyers taking advantage of the gap is very small because the member would have had to be willing to pay almost $10,000 over three years in order to qualify. The Equity and Diversity Committee also noted that any negative impact on women would be reduced by the development of a refresher course to assist those returning to active practice.

While the new rules go into effect immediately, they ensure procedural fairness by allowing lawyers who have not been practising but who have been maintaining practising status to return to active practice without further requirements provided they do so before January 1, 2009.

The refresher course will be available no later than 2008 to assist those returning to active practice.