Protocol between the Provincial Court and the Law Society respecting complaints (2004)

Addendum (2005)

Whereas:

  1. Lawyers, judges and judicial justices of the peace (JJPs) have ethical duties to report misconduct to the appropriate disciplinary body; and
  2. In some cases a lawyer or a judge or JJP may benefit from advice or assistance in making a complaint or deciding whether it is appropriate to do so.

Therefore, the following protocol has been mutually agreed upon between the Chief Judge of the Provincial Court of British Columbia and the President of the Law Society of British Columbia. Nothing in this protocol is intended to discourage complaints or replace existing complaint processes. Specifically, this protocol is intended to complement the protocol adopted by the Law Society in 1997, referred to as the Maclean/Fraser protocol, which pertains to complaints in the case of going proceedings.

Complaints by a judge or JJP about a lawyer

Where it appears to a judge that a complaint about a lawyer may be appropriate, and the judge desires assistance in making a complaint or deciding whether it is appropriate to do so, the judge may bring the matter first to the attention of his/her Administrative Judge before a formal complaint is pursued. After discussing the matter with the judge, the Administrative Judge may then raise the matter with the Chief Judge or an Associate Chief Judge, who will vet the complaint.

Where it appears to a JJP that a complaint about a lawyer may be appropriate, and the JJP desires assistance in making a complaint or deciding whether it is appropriate to do so, the JJP may bring the matter to the attention of an Associate Chief Judge or the Chief Judge before a formal complaint is pursued.

There may be situations where a formal complaint appears premature, does not appear to be necessary, or may not be the most constructive means of proceeding, such as where there are emotional problems or personal crises. In these cases, the Chief Judge or Associate Chief Judge may consider approaching a Bencher or member of the Discipline Committee to discuss how to proceed in the matter to determine, for instance, whether an appropriately placed word of advice might suffice, in the best traditions of the Bar and Bench.

If, after it is vetted through the above process, a complaint appears warranted or appropriate, all relevant materials should be forwarded to the Chief Judge by the judge or JJP, including a court transcript, if available. The Chief Judge will then submit the complaint on behalf of the court, and future communications with the Law Society about the complaint will take place through the Chief Judge.

It is preferable, if possible, that such complaints proceed without the judge or JJP becoming a direct complainant or witness in the matter. The Law Society agrees that, where a formal complaint is advanced by the Chief Judge after this vetting process, it will be given due consideration, if possible without the judge or JJP who brought it becoming a party to the proceedings or indeed being further involved at all.

Unauthorized practice

When a judge or JJP becomes aware of a person who is not a lawyer holding him or herself out to be a member of the Law Society, this may be the subject of an immediate complaint, either directly to the Law Society Unauthorized Practice Committee or through the Administrative or Chief Judge if preferred. Confirmation of whether a person is registered with the Law Society may be obtained through the Law Society website at www.lawsociety. bc.ca or by telephone at 604 669-2533.

Complaints by a lawyer about a judge or JJP

Where it appears to a lawyer that a judge or JJP’s conduct may be in question, and the lawyer desires assistance in making a complaint or deciding whether it is appropriate to do so, the lawyer may raise the matter with a Bencher before lodging a written complaint to the Chief Judge. In such circumstances, the Bencher may consider discussing the matter with the Chief Judge prior to deciding whether a formal complaint should proceed, or whether some other intervention short of a complaint may be appropriate.

If it is determined, after consultation with a Bencher and/or the Chief Judge, that a formal complaint should be made, it should be submitted in writing to the Chief Judge, with a copy of the transcript if one is available. It is preferable that the matter proceed on a transcript or other available written material, rather than placing the lawyer in the position of being a direct complainant or witness.

Lawyers may refer to the Provincial Court website at www.provincial court.bc.ca regarding the procedure for complaints.


Addendum to the Protocol between Provincial Court of British Columbia and the Law Society of British Columbia

Unauthorized Practice

When a Judge or JJP becomes aware of a person who is not a lawyer holding him or herself out to be a member of the Law Society of British Columbia or engaging in the unauthorized practice of law contrary to the Legal Profession Act, this may be the subject of an immediate complaint, either directly to the Law Society Unauthorized Practice Committee, or through the Administrative or Chief Judge if preferred. These complaints allow the Law Society to take action to protect the public from untrained, unregulated, and uninsured legal service providers.

Under s. 15(1)(e) of the Legal Profession Act and Rules 2-10.1 to 2-17.1 of the Law Society Rules and the National Mobility Protocol, members of the law society of another Canadian jurisdiction may be entitled to provide legal services in British Columbia on a limited basis if they are practising members in good standing of that other law society. There is no requirement for such lawyers to confirm their attendance in British Columbia with the Law Society of British Columbia. However, the Law Society of British Columbia can confirm whether the lawyer is entitled to practise law as a visiting lawyer in British Columbia pursuant to the Rules.

Confirmation of whether a person is a practising member of the Law Society of British Columbia may be obtained by checking the Lawyer Look-up on the Law Society’s website at www.lawsociety.bc.ca or by telephone at (604) 669-2533. Confirmation of whether a person is a lawyer in another jurisdiction in Canada and entitled to practise law in British Columbia on a limited basis may be obtained by contacting the Unauthorized Practice Department of the Law Society of British Columbia by telephone at (604) 669-2533 or by sending an email to: uap@lsbc.org.

The relevant Legal Profession Act provisions include:

Definitions

1 (1) In this Act:

"practice of law" includes

(a) appearing as counsel or advocate,

(b) drawing, revising or settling. . .

(ii) a document for use in a proceeding, judicial or extrajudicial,

(iv) a document relating in any way to a proceeding under a statute of Canada or British Columbia. . .

(c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,

(e) giving legal advice,

(f) making an offer to do anything referred to in paragraphs (a) to (e), and

(g) making a representation by a person that he or she is qualified or entitled to do anything referred to in paragraphs (a) to (e),

but does not include

(h) any of those acts if not performed for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the acts are performed. . .

Authority to practise law

15 (1) No person, other than a practising lawyer, is permitted to engage in the practice of law, except

(a) a person who is an individual party to a proceeding acting without counsel solely on his or her own behalf,

(b) as permitted by the Court Agent Act,

(c) an articled student, to the extent permitted by the benchers,

(d) an individual or articled student referred to in section 12 of the Legal Services Society Act, to the extent permitted under that Act,

(e) a lawyer of another jurisdiction permitted to practise law in British Columbia under section 16 (2) (a), to the extent permitted under that section, and

(f) a practitioner of foreign law holding a permit under section 17 (1) (a), to the extent permitted under that section.

(2) A person who is employed by a practising lawyer, a law firm, a law corporation or the government and who acts under the supervision of a practising lawyer does not contravene subsection (1).

(3) A person must not do any act described in paragraphs (a) to (g) of the definition of "practice of law" in section 1 (1), even though the act is not performed for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the acts are performed, if

(a) the person is a member or former member of the society who is suspended or has been disbarred, or who, as a result of disciplinary proceedings, has resigned from membership in the society or otherwise ceased to be a member as a result of disciplinary proceedings, or

(b) the person is suspended or prohibited for disciplinary reasons from practising law in another jurisdiction.

(4) A person must not falsely represent himself, herself or any other person as being

(a) a lawyer,

(b) an articled student, a student-at-law or a law clerk, or

(c) a person referred to in subsection (1) (e) or (f).

(5) Except as permitted in subsection (1), a person must not commence, prosecute or defend a proceeding in any court, in the person's own name or in the name of another person. . .

Enforcement

85 (1) A person commits an offence if the person

(a) contravenes section 15. . .

In referring a matter of unauthorized practice or falsely holding out as a lawyer to the Law Society, the Judge or JJP may include with the complaint information regarding, or a copy of the transcript of, evidence given by the party, or the representative, as to the nature of their relationship and the amount of fees charged or paid, if any. They may also include copies of court documents prepared by the representative, together with any documents relevant to the representative holding out as a lawyer or engaging in the unauthorized practice of law. If there is a tape of any of the representations made, or of the evidence given, a copy may be provided to the Law Society with the complaint. This evidence is important for the Law Society to establish the breach of the Legal Profession Act.

Original signed by :

Hugh C. Stansfield
Chief Judge
Provincial Court of British Columbia

Ralston S. Alexander, Q.C.
President
The Law Society of British Columbia