Highlights of amendments to the Rules
Rule 4-43 (Investigation of books and accounts) is updated to specifically refer to electronic records and require that an order provide for the protection of the privacy of any person in records unrelated to the investigation; the procedure for initiating a Bencher review of a hearing panel decision is made consistent with that for prehearing questions in the citation rules (Rule 5-13).
The Credentials Committee may require a returning lawyer to take a course such as the Small Firm Practice Course or the Practice Refresher course (Rule 2-59(1.1), (1.2), (1.3) and (2)).
Extensive changes to the discipline rules are intended to make the process of ordering and issuing a citation and running a hearing more efficient and effective. The various changes, which are largely procedural in nature, include the following:
- summary hearing procedure is now available when breach of any order made under the Act or Rules is in issue (Rules 3-6(4), 3-12(3.1), 3-14(6.1) and 4-24.1(1));
- the Discipline Committee will authorize citations, and the chair may act alone in urgent situations (Rules 4-3(2), 4-4(1), 4-4.1(2), 4-9(6) and 4-13(1), (1.1) and (2));
- the confidentiality that applies to complaints considered by the Discipline Committee is extended to cover the chair’s consideration (Rule 4-6(1));
- terminology more closely reflects that used in the Legal Profession Act , rather than the language of criminal law (Rules 4-6(4), 4-24.1(4), 4-25(2) and (3),4-34, 4-35, 4-38, 4-38.1, 5-9 and 5-13);
- issuing a citation will proceed before setting the date of the hearing, with a notice of hearing issued separately, usually to follow (Rules 4-15(1), 4-24 and 4-29(7));
- before a hearing, a party may apply for severance of allegations in a single citation or joinder of two or more citations, or for the determination of other questions (Rules 4-16.1, 4-16.2, 4-17(1) and (1.19), 4-26.1, 4-27(6), 4-29(5), 4-31, 5-2(2) and 5-18(6));
- notice must be given, but a respondent or his or her counsel are not required to attend a prehearing or prereview conference (Rules 4-24.1(2), 4-26(1), (2) and (5), 4-27, 4-29(1) to (5), 5-18 and 5-19);
- panels may review agreed facts in advance of hearing (Rules 4-30(3) and 4-32);
- miscellaneous procedural updates (Rules 4-36(1) and (4), 4-43(1), 5-4, 5-5(2));
- panel membership is open to non-lawyers (Rule 5-2(4) to (6));
- the list of forms of evidence that a panel may consider expressly includes oral and affidavit evidence (Rule 5-5(6));
- electronic service of documents is permitted (Rule 10-1).
For more information, see the Fall 2010 Benchers' Bulletin.
With the lawyer's consent, the Law Society may now disclose the complaints history of a lawyer for purposes other than judicial appointments (Rule 3-3(2)).
The application process for multi-disciplinary practice is clarified, and fees are set (Rule 2-23.3(1) and Schedule 1 L); court and statutory references are updated (Rule 2-43(1)).
Effective July 1, 2010, new and amended rules give effect to the Québec Mobility Agreement, which includes establishing a special category of membership called the Canadian legal advisor (Rules 2-1, 2-5, 2-22.1, 2-22.2, 2-49.3, 2-51 and 3-25).
The Law Society may suspend or impose conditions on a lawyer before the issuance of a citation if 3 or more Benchers are satisfied extraordinary action is necessary to protect the public (Rules 2-2, 3-7.1 and 4-17); hearing panels may impose a penalty based on the ungovernability of the respondent (Rule 4-35(5) to (7)).
The rules are amended to give effect to the member referenda on Bencher terms of office and term limits (Rules 1-1(1) and (1.1), 1-1.1, 1-2 and 1-21(2)); Benchers will take an oath of office (Rule 1-1.2); the process of electing an Appointed Bencher to the Executive Committee will more closely parallel that of elected Benchers (Rule 1-39(7) to (9) and (12); lawyers returning to practice are required to make up any outstanding CPD credits (Rule 3-18.3(6.1) and (7)); an allegation of breach of a hearing panel order may proceed to a summary hearing (Rule 4-24.1(1)); anonymous publication of discipline decisions is permitted only when identification would cause harm to an individual other than the respondent (Rules 4-38(1) and (2) and 4-38.1(2) to (5), (7) and (8)); consequential amendments are made to Rules 2-26.1(5) and 2-32(4).
Multi-disciplinary practice (effective July 1, 2010): The Benchers also amended the Law Society Rules and the Professional Conduct Handbook to permit lawyers to form partnerships with non-lawyers in limited circumstances. Lawyers must have actual control over the delivery of legal services and the services provided by non-lawyers must support or supplement the delivery of legal services to clients of the law partnership. The new rules are effective on July 1, 2010, following development by the Credentials Committee of the necessary forms by which partners of a firm may apply to become a multi-disciplinary partnership. (See Rules 1 (definitions of "firm," "multi-disciplinary practice" and "professional corporation," 2-10(1), 2-23.1 to 2-23.12, 3-44(2), 3-57(1), 9-15(2.11) and Schedule 1 L.)
Full-time lecturers at Canadian law schools may postpone articles until they leave teaching and go into practice, and may apply for admission in the first year of appointment to a law school faculty (Rule 2-35 rescinded; Rule 2-48.1 new); mentoring may qualify for credit towards Continuing Professional Development (Rules 3-18.1 and 3-18.31); any ambiguity about "receiving" rather than accepting cash is removed (Rule 3-51.1(3) and (3.1)); the refund-in-cash provision applies even when a cash retainer has been received incrementally (Rule 3-51.1(3.1)); if a lawyer receives cash, there is no breach of the prohibition if the lawyer makes no use of the cash, takes steps to return the money in cash, reports the incident to the Law Society and complies with other trust accounting rules (Rule 3-51.1(3.2) and (3.3) and Rule 3-56(1.3)); references to Professional Conduct Handbook rules are updated (Rules 9-1 and 9-14).
Lay Benchers are now referred to as "appointed Benchers" (Rules 1, 1-1(1), 1-5, 1-39(8)-(10), 1-48, 3-8(2), 3-9(4) and 4-7(2)); a saving provision will ensure a general meeting would not be invalidated by reason alone of a technical failure (Rule 1-7(7)); to ensure fairness, the order of candidates on a Bencher election ballot will be determined by lot, rather than alphabetically (Rules 1-26(1), 1-26.1 and 1-31).
Some wording from the insurance policy relevant to Special Compensation Fund claims is now spelled out in the Rules, rather than simply referring to the policy (Rule 3-33); electronic transfers from trust of sums less than $25,000,000 are now permitted, but the same conditions apply as previously did for sums over $25,000,000 (Rule 3-56(3.1)).
Marketing rules respecting former judges or masters and family law mediators are moved from the Professional Conduct Handbook to the Law Society Rules (Rules 2-54(4) to (6) and 3-20(3)).
The defined term "statement of agreed facts" is changed to "agreed statement of facts" (Rules 1, 4-19(11), 4-24.1(3) and 5-5(6)); a complainant must be notified when an adjournment of a hearing is granted, but not necessarily when it is applied for (Rule 4-29(2) and (6)); an applicant or respondent need not attend a pre-review conference in person when represented by counsel (Rule 5-18(3)).
A statutory reference is updated (Rule 3-91).
The new client identification and verification rules are amended as follows: the definition of “control” is replaced with the broader provisions in new subsection (2), a definition of “interjurisdictional lawyer” is added and the definition of “public company” is replaced with that of “reporting issuer” (Rules 3-91, 3-92(2) and 3-93(1)); exemptions now include clients that are financial institutions, public authorities and reporting issuers and certain electronic funds transfers (Rule 3-94); the list of guarantors is expanded (Rule 3-97(4)); the standard for withdrawing from representation is now if the lawyer “knows or ought to know” about criminal activity (Rule 3-102(1)); more precise language is used (Rule 3-95(2)).
The new client identification and verification rules will take effect on December 31, 2008 (Rules 3-91 to 3-102). The definition of "professional conduct record" is updated.
The Executive Director or designate is the head of the Law Society for the purposes of the Freedom of Information and Protection of Privacy Act (Rule 1-45);
Starting January 1, 2009, practising members must take 12 hours of continuing professional development each year (Rules 2-2, 3-18.1, 3-18.11, 3-18.2(1), 3-18.3 to 3-18.5, 5-11(1) and Schedule 1(K); Rule 10-3 is rescinded.
A panel making an order against a lawyer or articled student under section 38(5) or (6) of the Act, must include any additional orders and declarations or imposed conditions in its written decision, and that forms part of the lawyer's professional conduct record (definition of "professional conduct record" and Rule 4-35(1)); when the Discipline Committee rescinds a citation, it must substitute a decision it is entitled to make under Rule 4-4(1) (Rule 4-13(2)).
The three at-large members of the Executive Committee are to be elected at the end of the preceding year, rather than in January (Rule 1-39(2)-(5), (8) and (11)); a lawyer suspended for disciplinary reasons must notify clients or prospective clients of the suspension if they may be affected by it, unless the panel relieves the lawyer of the obligation (Rule 4-37(3) and (4)); 2008 fees and assessments are set out in Schedules 1, 2 and 3.
- Small Firm Practice Course: A lawyer otherwise required to take the Small Firm Practice Course is excused 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 (Rule 3-18.1(2) and (3)); in order to prepare for work in a small firm, a lawyer may take the course up to 12 months before required to do so (Rule 3-18.2(1)).
- Bencher reviews: Either party in a Bencher review of a credentials or discipline panel’s decision may apply for dismissal of an inactive review (Rule 5-12 and new Rule 5-21); the time for requesting a 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 (Rules 5-13 and 5-15); more precise language is used in Rules 5-16(1), 5-17(1) and 5-19(1)-(3) and (5) and 10-1(4).
- Minor housekeeping amendments are made to Rules 2-65(2), 3-7(1), 3-9(6), 3-17, 4-9(8), 4-21(4), 4-22(5) and 4-29(2)-(3).
The Practice Standards Committee now has the authority, when a lawyer whose competence has been investigated fails or refuses to comply with the Committee's recommendations, to order conditions and limitations on the lawyer's practice, and to require the lawyer to comply with that order. To ensure fairness, the lawyer will be given an opportunity to make representations concerning the proposed order. (Rules 1, definition of "professional conduct record"), 3-14(1), (5) and (6), 3-14.1, 3-16(3.1)-(5), and 5-10(1) and (4)). The Chair or other Bencher on the Discipline Committee, in addition to the Committee itself, may extend the time for service of a citation (Rule 4-15(1)).
- A new summary hearing process for certain disciplinary matters will provide an efficient, timely and cost-effective mechanism for dealing with lawyers who fail to observe their regulatory obligations (Rules 1-3(8), 3-6(4), 3-12(3.1) and (4), 3-14(6.1) and (7), 3-18.2(2), 3-44(4), 4-2(4), 4-3, 4-4.1, 4-5, 4-24.1, 4-38(1) and 5-2(2));
- Written reasons are required for decisions of all hearing panels and Bencher reviews (Rules 2-68(3)-(5), 4-34(2), 4-35(1), 5-12(1) and (3), 5-13(1), 5-16(1), 5-17(1) and 5-20);
- Rule 3-3(2) is amended to implement a protocol with the Provincial Court of BC to allow the sharing of complaints information about Judicial Justices who are also lawyers. The lawyer concerned will be required to consent to the disclosure.
The requirements to notify the Law Society of criminal charges have been clarified and now cover practitioners of foreign law (Rule 3-90); a respondent to a citation may apply for an extension of time to pay a fine (Rule 5-10(1)); the Society must withhold the membership certificate of any non-practising or retired member who remains in default after December 31 regarding any payment or practice condition under Rule 5-10(4) (Rules 5-9(7) and 5-10).
The Credentials Committee may require students initially exempted from the Professional Legal Training Course, but who fail the admission examination, to attend some or all of the course and to complete some or all of the assessments (Rule 2-45).
Publication of suspensions under the financial rules is no longer mandatory, but may be undertaken in the Executive Director's discretion (Rule 4-37); the maximum remuneration in contingency fee agreements applies to trial only, and not to appeals (Rule 8-2), and the notice required in contingent fee agreements is modified to ensure that clients are notified of that fact (Rule 8-4).
The Law Society has signed on to the Territorial Mobility Agreement, which extends the National Mobility Agreement of the Federation of Law Societies to the territories, as it relates the permanent transfer of lawyers (Rules 2-10.1 and 2-49.2); 2007 fees and assessments are set out in Schedules 1, 2 and 3.
- Small Firm Practice Course – New rules require all lawyers who commence practice in a "small firm" to successfully complete the "small firm course," and to certify to the Executive Director that the lawyer has done so within 6 months of the application of the rule to the lawyer. Breach of the requirements means the lawyer has failed to meet a minimum standard of practice and may result in a referral to the Discipline Committee. (Definition of "firm" in Rule 1, and Rules 3-18.1 and 3-18.2.)
- Section 39 interim suspensions – The process under which three Benchers may suspend a member, set conditions on a member's practice or require a medical examination pursuant to s.39 of the Legal Profession Act and Rule 4-17 is clarified. Also, policy decisions made previously with respect to disclosure and privacy in relation to interim suspensions are implemented. (Definition of "professional conduct record" in Rule 1, and Rules 2-2, 4-17(0.1), (1), (1.11) to (1.19) and (2) to (4), 4-18.1, 4-19(1), (3), (4), (12) and (14), 4-29(1), 4-37, 4-38(1) and (2) and 4-38.1(8).)
Rules concerning standards of financial responsibility are consolidated in new Rule 3-43.1. Rules have been amended to implement the new trust assurance program. The program has two main features. The first is to conduct "compliance audits" to review the books, records and accounts of lawyers. The second is to replace the current Trust Report, signed by an accountant, with a report signed by the lawyer alone. Consequently, lawyers will not be required to file a report signed by an accountant, unless required by the Executive Director to do so. (Rules 3-44, 3-45, 3-47, 3-74.1, 3-75 and 3-79 are amended and Rule 3-79.1 is added.)
A lawyer or former lawyer must reimburse the Society for payments made under Part B of the professional liability insurance policy (Rules 2-77(1) and 3-26(2)); a new rule governs disclosure of information about claims under Part A and Part B of the professional liability insurance policy (Rule 3-27.1); amendments to Rules governing LLPs permit law corporations operating in other jurisdictions to be partners in an LLP (Rule 9-15(2.1)) and correct an inconsistency in the Rules concerning non-lawyer partners in other jurisdictions (Rule 9-16(2)).
No member or former member who has not practised law for a defined period of time may return to the practice of law without passing the qualification examinations or obtaining the permission of the Credentials Committee. This now includes a member who had continued to pay as a "practising member" with full-time insured status, but who had not been actively practising law. However, any lawyer who is not now practising law, but who continues to pay full membership and insurance, has until January 1, 2009 to start practising law again without having to meet the requirements to return to practice. (Rule 2-4.1 is added; definition of "qualification examination" and Rules 2-49(2), (3), (5) and (6), 2-52(2), 2-55, 2-57, 2-58, 2-59(1), (2) and (4) and 3-27 are amended; definition of "requalification" and Rules 2-56 (Application for requalification) and 2-60 (Fees on requalification) are rescinded.)
A consequential change is made to Rule 3-65(2), following the February 2006 amendments to Rule 3-51.
The definition of "trust funds" now includes funds received by a lawyer as a joint personal representative; insurance-exempt practising members, non-practising members and retired members are all excused from the requirement to file a trust report, provided they have not received or withdrawn trust funds during the preceding 12-month reporting period (Rule 3-72(1), (4) and (6) and rescission of Rule 3-73); a trust report will not be considered complete until all exceptions have been explained satisfactorily (Rule 3-74.1(2.1)); a lawyer who withdraws from practice or becomes a non-practising or retired member must notify all clients for whom the lawyer is a personal representative, executor or trustee of the withdrawal or change in practising status (Rule 3-80(2)); consequential amendments and housekeeping changes are made to Rules 2-10(3), 2-52(5.1), 3-51(1) to (3), 3-58(3), 3-74(1) to (3), 3-74.1(1) and (2) and 3-78.
2006 fees and assessments are set out in Schedules 1, 2 and 3.
The Special Compensation Fund Committee must not authorize any payment of a claim made after May 1, 2004, unless a claim for Part B coverage has been denied in whole because the annual, profession-wide limit of the coverage in the policy has been exhausted — under the current policy, that would mean that a total of $17.5 million has been paid under the Part B coverage in a single year (Rule 3-33).
In limited circumstances and at the President's discretion, a hearing panel may consist of one Bencher, instead of three panel members (Rule 5-2(2)); Life Benchers, including former Lay Benchers who have become Life Benchers, are eligible to serve on a panel (Rule 5-2(4)).
The Discipline Committee may refer relatively minor conduct matters to a "conduct meeting," which is a new and less formal option than a conduct review and does not form part of a lawyer's professional conduct record (Rules 4-1(3), 4-4(1)(a.2) and 4-6.2); the practice of the Discipline Committee Chair in sending a letter to remind a lawyer of his or her professional obligations, known as a "conduct letter from the Chair," is formalized in the Rules (Rules 4-4(1)(a.1) and 4-6.1); the Discipline Committee may rescind the requirement that a lawyer appear before a Conduct Review Subcommittee at any time before the Committee makes a decision on the report of the Subcommittee (Rules 4-4(4) and 4-9(6)); privilege and confidentiality of third parties applies to the entire conduct review process (Rule 4-10).
Disclosure: The Law Society may disclose restrictions and conditions of practice that are imposed on lawyers in credentials or disciplinary hearings, and may continue to disclose restrictions or conditions concerning areas of law limitations, even if they result from non-public processes (Rules 2-26.1(1), (5) and (6), 3-3(2) and (3.1), 3-16(1), (4) and (5), 3-46(7) and (8), 4-38.2 and 9-11(7) and (8)).
Financial responsibility: Provisions of the model rule proposed by the Federation of Law Societies Money Laundering Task Force are incorporated into these Rules: definitions are revised to conform (Rule 3-47); a lawyer may not receive in cash $7,500 or more (the previous threshold was $10,000 or more) in any one client matter or transaction, a provision that remains subject to certain exceptions (Rule 3-51.1(3)); a lawyer may receive cash in any amount from a savings institution or public body or to pay a fine or penalty (Rule 3-51.1(2)); lawyers acting in the capacity of estate executors or administrators are not subject to Rule 3-51.1(3) and a previous reference to them has been rescinded as unnecessary (Rule 3-51.1(2)); a lawyer who receives cash of $7,500 or more for fees, disbursements, expenses or bail must make any refund over $1,000 in cash (Rule 3-51.1(3.1)); the paragraph deeming two cash transactions in the same 24-hour period to be a single transaction is rescinded (Rule 3-51.1(4)); Rule 3-56(1.3) is amended to permit withdrawal of cash from a trust account to comply with Rule 3-51.1(3.1); a lawyer must record the form in which all trust funds are received (Rule 3-60); a new rule sets requirements for lawyers to record cash received in trust (Rule 3-61.1).
A solvent lawyer has the same obligations as an insolvent lawyer, when reporting an unpaid judgment, to provide a proposal for satisfying the judgment (Rules 3-44(4) and 3-46(3)); the Discipline Committee is authorized to make any investigation it considers desirable when a matter is referred to it under Division 6 ("Financial Responsibility"), including matters involving a financially solvent lawyer (Rule 3-46(1) and (6)); the Executive Director has discretion to publish a notice of a custodianship order and the reasons for it if publication is in the public interest (Rule 6-5).
A consequential change is made to Rule 2-30(2), following the March, 2005 amendments to the rules governing principals for articled students; law corporations may practise law through LLPs, in the same way that lawyers can (Rule 9-13); the LLP rules are further revised to take into account that the partners of a firm from outside BC may include individuals or entities that are not lawyers but permitted to be partners in the other jurisdiction (Rule 9-15(2) to (2.3)).
A lawyer must be in active practice for 7 of the preceding 10 years, and in full-time active practice for 3 of the preceding 5 years, to qualify as a principal to an articled student (Rule 2-30(1) and (1.1)); a lawyer found to have misappropriated funds or property must reimburse the Society for all payments made in this regard (Rule 3-26(2) and (3)); money received from a lawyer must be applied towards reimbursement of a Part B insurance (Trust Protection Coverage) claim before being applied to unpaid fees and assessments (Rule 2-77(1)); the Special Compensation Fund Committee may not authorize payment from the Fund until a claimant has applied for and been denied compensation under Part B insurance (Rule 3-33); Rule 3-40 is rescinded as spent, as it applies only to claims before February 7, 1997 (Rules 3-40 and 3-41); a hearing panel can proceed to the penalty stage immediately upon giving oral reasons for its decision on facts and verdict, without having to first give written reasons (Rule 4-35(1), (1.1) and (2)); a minor text change is made for consistency within the Rules (Rule 2-29(1)).
A consequential change is made to Rule 9-5(2), following the September, 2004 Rule amendments removing the requirement for law corporations to renew their permits annually; a law corporation must deliver to the Law Society its Articles and Notice of Articles and amendments to its Articles and Notice of Articles, but is no longer required to file its annual report with the Society (Rule 9-8); revisions were made to the notice required to be sent to existing clients of a firm that registers as an LLP (Rule 9-17(3)); 2005 fees and assessments are set out in Schedules 1, 2 and 3.
October 29, 2004 A lawyer's practice history may be disclosed on request (Rule 2-9.1); beginning March 1, 2005, BC lawyers will be required to remit to the Law Society a $10 trust administration fee for each client matter in connection with which the lawyer receives any money in trust, not including fees and retainers (Rules 2-72.1 to 2-72.5).
- A definition of "advertising" is moved to Rule 1 from Rule 9-7; a law corporation is no longer required to renew its permit annually, but must file certain documents with the Law Society (Rules 9-8 and Rule 9-9(2) and Schedule 1).
- The following Rule changes are effective on proclamation of Partnership Amendment Act, 2004, to be proclaimed on January 17, 2005: The Partnership Amendment Act, 2004 permits the formation of limited liability partnerships, establishes their effect and obligations and amends the Legal Profession Act to allow the Benchers to make Rules authorizing lawyers to practise through LLPs (Rule 1, definitions of "firm" and "limited liability partnership" or "LLP" added ro amended, Rules 9-1 and 9-9(1), Division 2 of Part 9 (Rules 9-12 to 9-20) and Schedule 1).
The Executive Committee is permitted to appoint persons to sign Law Society certificates (Rule 1-43(1)); the payment date for the fees of retired and non-practising members, as well as for the first instalment of insurance, is changed from December 31 to November 30, to be consistent with the fee payment date for practising members (Rules 2-3(2), 2-4(3) and 3-23(1)); the age limit for becoming a retired member is reduced from 65 to 55, and the required number of years in practice is reduced from 25 consecutive years to 20 of the previous 25 years (Rule 2-4(1)); the Benchers may waive a retired member's fee (Rule 2-4(4)); an eligible lawyer who transfers from another province to practise as in-house counsel may apply to the Credentials Committee to be relieved of the restriction on practice by completing the reading requirement of the National Mobility Agreement (Rule 2-49.1(2)-(4)); if an individual applies to be reinstated in order to become a retired member, the Credentials Committee may waive all or part of the reinstatement fee (Rule 2-52(2.1)).
References to the Company Act are changed to Business Corporations Act (Rule 1, definition of "company" and Rules 3-45(5), 9-5(3) and 9-6(3)); the due date for fee payment is changed from December 31 to November 30 (Rules 2-70(2) and 2-72(1)); the Executive Director has the discretion to extend the time for fee payment and waive late payment fees (Rule 2-72(2) and (7)); in cases of judicial appointment, death or total incapacity, a member is entitled to a fully prorated refund of the practice fee and insurance, less the CBA component of the practice fee and an administrative fee (Rule 2-75(2) and (3) and Schedule 1 (A. Annual fee)); a record of an electronic transfer of trust funds does not have to be retained in print form (Rule 3-56(3.2)); "monthly" bank statements is amended to "periodic" bank statements, to conform with Rule 3-52 (Rule 3-59(4)); the phrase "books and records" is changed to "account records" to conform with the trust accounting rules (Rule 3-63(2)); incorrect pronoun is corrected (Rule 3-83(3)).
April 2004 (effective May 7, 2004)
Lawyers are prohibited from accepting $10,000 or more in cash other than from a law enforcement agency, pursuant to a court order, in the lawyer's capacity as executor of a will or administrator of an estate, or as professional fees, disbursements or bail (definition of "currency" in Rule 3-47 and Rule 3-51.1).
A student who has failed PLTC is prohibited from re-enrolling in the admission program for one year, rather than two, and the Credentials Committee's discretion to set a different date is eliminated (Rule 2-28); if a student fails part of PLTC, the Executive Director may allow the student one further attempt to pass the examination or assessment concerned (Rule 2-44(5.1)); a student who has already failed in three attempts to pass PLTC may not make an application to the Credentials Committee for a review of his or her failed standing (Rule 2-45(1) and (1.1)); the Property Transfer Tax may be paid by electronic transfer of funds from trust (Rule 3-56).
The Law Society may disclose if a person has applied for membership and the status of that application (Rule 2-26.1(1)-(2)); the contents of an applicant's file may be disclosed to other law societies on request, with the assurance that the applicant's privacy will be protected (Rule 2-26.1(1) and (3)); the Society may provide to a law enforcement agency information or documents related to an application for admission that the Credentials Committee reasonably believes may disclose evidence of an offence (Rule 2-26.1(4)); pre-hearing conferences are authorized in credentials hearings (Rule 2-63.1); panel decisions on credentials hearings may be published (Rules 2-69.1 and 2-69.2); the Society may provide to a law enforcement agency evidence of an offence related to a complaint or discipline matter, if the Discipline Committee or Practice Standards Committee consents (Rules 3-3(2)(c), 3-16(3) and 4-6(5)); if a matter referred to the Practice Standards Committee is known to the public, the existence of the matter and its status may be disclosed, as well as additional information necessary to correct inaccuracies (Rule 3-16(2)); when a discipline hearing panel delivers oral reasons, the time period for an applicant to apply for anonymous publication is 7 days after delivery of the oral reasons (Rule 4-38.1(4)).
Trust accounting rules: all accounting records, wherever located, must be made available on demand to the Law Society (Rule 2-23(1)); the new form of report is called "trust report" instead of "accountant's report" (Rule 2-52(5.1) and subsequent Rules); any certificate, final order or other requirement under a statute falls within the definition of "monetary judgment" (Rule 3-44(2)); a lawyer must take reasonable steps to obtain a discharge from bankruptcy within a reasonable time, and failure to do so may be conduct unbecoming (Rule 3-45(2)-(3)); an insolvent lawyer may be referred to the Discipline Committee if he or she fails to deliver an adequate payment proposal (Rule 3-46(1)); a definition of "valuables" is added, recognizing that lawyers may hold in trust assets other than funds (Rule 3-47); lawyers must account to clients for those valuables (Rules 3-48(1) and 3-65(2)); a financial institution must have a physical presence in BC, accept demand deposits and be insured to be a "designated savings institution" (Rules 3-49 and 3-51(4)); cancelled cheques and bank statements may be received periodically, instead of monthly, and may be received and retained electronically (Rule 3-52(1)-(1.1)); "books, records and accounts" is changed to "accounting records," and supporting documents for bank accounts are listed (Rule 3-59); rules are modernized to reflect the electronic reality of lawyer's accounting transactions and records (Rules 3-60 and 3-61); bills for any charges to clients or others must be kept by the lawyer (Rule 3-62); a new subrule takes into account the fact that a lawyer may not receive notice of interest being credited to an account until he or she receives the statement (Rule 3-63(3)-(4)); Rule 3-64 is rescinded, as adequately covered in Rule 3-65; Rule 3-67 is rescinded and incorporated into Rule 3-66(2); a new subrule clarifies what constitutes a trust shortage (Rule 3-66(3)); on-site retention of records is reduced to 3 years from 5, there must be adequate security measures in place for records and the Society must be notified immediately if a lawyer loses records (Rule 3-68); the Executive Director may modify the storage requirements of a firm's records (Rule 3-69(1)); a lawyer retains a right to a lien to valuables, as well as funds, held in trust (Rule 3-71); Rule 3-76 is rescinded as adequately covered in Rule 3-72(5)(b); a report is now due within 30 days, not 3 months, of withdrawing from practice, a law corporation has 30 days to confirm it is ceasing to practise and the Executive Director may amend any of the requirement under this rule, upon request (Rule 3-80(2)-(4)).
- Miscellaneous: any money received by the Society from a lawyer or former lawyer must first be applied to fines, costs, penalties and also to deductibles (Rule 2-77); the minimum number of signatures needed to requisition a special general meeting is changed to 5% of the profession from 150 members (Rule 1-9(2)); language is tidied up (Rule 1, definition of "costs" and Rule 5-11).
Disclosure and privacy: When another law society is investigating the conduct of a BC lawyer, or is initiating discipline proceedings, the Law Society may inform clients if relevant information concerning them is sent to that other law society (Rules 2-15(1)-(2) and 4-36.1(4) and (6)); if a complaint is known to the public, the existence, subject matter and status of the complaint may be disclosed, as well as additional information necessary to correct inaccuracies, subject to solicitor-client privilege (Rule 3-3(2)-(4)); all or part of minutes of the Complainants' Review Committee respecting a complaint may be released to the complainant or lawyer concerned (Rule 3-9(7)); if a complaint giving rise to a conduct review is known to the public, the fact of the conduct review and its disposition by the Discipline Committee may be disclosed, subject to solicitor-client privilege (Rule 4-11(3)-(5)).
- Annual Practice Declaration: An annual practice declaration must be completed, signed and delivered by a practising lawyer by the date set by the Executive Director. (Note: The due date for insured practising lawyers to file the declaration has changed from September 30 to the date on which firms become required to file a new form of accountant's report. That new form of accountant's report is expected to be introduced late in 2003. For insurance-exempt practising lawyers, the due date for filing the practice declaration remained September 30 this year.) (Rule 2-6(2)-(3)).
- Business address: A lawyer must inform the Executive Director of his or her place of business, including the place of business and registered and records office of a law corporation of which the lawyer is a voting shareholder (Rule 2-8(2)).
A credentials hearing will be adjourned if security for costs is not deposited by 15 days before the hearing; however, the Credentials Committee may extend the time allowed (Rule 2-62); the Executive Director has discretion to reduce the period in which a lawyer is ineligible for part-time insurance by reason of a prior paid indemnity claim (Rule 3-22).
- National Mobility Agreement (effective July 1, 2003): Under this agreement with other law societies, lawyers from reciprocating provinces will generally be entitled to practise law in BC for 100 business days in each calendar year, provided they do not establish an economic nexus with the province (Rules 2-10.1 to 2-17.1); lawyers from reciprocating jurisdictions may be called in BC without writing transfer exams, by reading and understanding prescribed materials (Rules 2-49 and 2-49.2); a lawyer who is fully insured in a reciprocating jurisdiction may apply for exemption from BC insurance requirements (Rule 3-25); a visiting lawyer's home jurisdiction will normally conduct any discipline of the lawyer, although it may be agreed that the host jurisdiction will assume this responsibility (Rule 4-36.1).
Accountant's Report (effective August 1, 2003): Late filing of Accountant's Report will result in an assessment of $400 per month, which can only be waived in "special circumstances" (Rule 3-74), but failure to file within 60 days can result in suspension (Rule 3-74.1(2)); as well, the Law Society may assign an accountant to complete the Accountant's Report at the lawyer's expense (Rule 1, definition of "costs" and Rule 3-74.1(5)-(8)).
- Disclosure and privacy: In an effort to make the discipline process more transparent while better protecting privileged and confidential information, the Law Society website will contain discipline citations (Rule 4-16) and the full text of panel decisions and admission summaries (Rule 4-38(4)); pre-hearing conferences will consider privilege issues (Rules 4-27 and 5-18); all decisions must be published, and a lawyer found guilty must be named, unless there is no suspension or disbarment and publication will cause grievous harm, outweighing the public interest in publication, in which case a panel has discretion to order anonymous publication (Rule 4-38.1); cameras and recording devices in the hearing room will be at the discretion of the panel (Rule 5-6(4)); exhibits will be available on the same basis as transcripts (Rule 5-7); decisions must exclude privileged and confidential information (Rule 5-8).
- Criminal charges (effective July 1, 2003): A lawyer charged with an offence, except when served with a ticket, must report the charge to the Law Society (Rule 3-90).
- Articled students and principals must file an articling agreement, a mid-term progress report and a final report to certify completion of their respective obligations (Note: The profession will be notified shortly on the effective start date for the new articling agreement and reporting requirements: see definition of "articling agreement" and Rules 2-27(3), 2-32.1, 2-33(1) and 2-48(1));
- if a student does not live up to his or her obligations, the Credentials Committee may extend the student's articling term for up to two years (Rule 2-32(5));
- the Credentials Committee may exercise greater discretion to exempt an articled student from PLTC (Rule 2-44(6));
- changes to Rule 2-30(1) and (2) will increase from four to seven years the practice experience necessary to become a principal to an articled student and limit principals to two students at a time (Note: This requirement will not come into effect until May 1, 2004);
- minor text changes reflect PLTC moving in-house (Rules 2-26(1), 2-44(4) and (5), 2-44.1(1) and 2-45(1), (4), (6) and (8)) and temporary articles being available to students from outside BC (Rule 2-42(3))
- Rule 3-56 has been amended to allow lawyers to make trust withdrawals of $25 million or more electronically under specified conditions. Rule 3-56 previously required that lawyers make all trust withdrawals by cheque;
- new Rules 3-88 and 3-89 (which come into effect respecting transactions that close on or after March 1, 2003) require a lawyer to report to the Law Society the failure of a mortgagee to provide a registrable discharge of mortgage within 60 days of the closing date of the transaction. The rules also require a lawyer to report to the Law Society the failure of another lawyer or a notary to provide satisfactory evidence that he or she has filed a registrable discharge as a pending application within the same 60-day period;
- Rules 4-16, 4-21 and 4-23 are amended to provide that a Rule 4-21 conditional admission is a disposition of a citation, rather than a rescission of the citation. Also, new subrule 4-21(5) states that an admission and undertaking to leave the profession is to be treated as the equivalent to disbarment or suspension under section 15(3) of the Legal Profession Act.
2003 fees and assessments are set out in Schedules 1, 2 and 3.
The Benchers have rescinded Law Society Rule 3-33, removing the $17.5 million cap on Special Compensation Fund claims that can be authorized in a calendar year by the Special Compensation Fund Committee. The rule previously read:
3.33 Despite any other provision of these Rules, the Special Compensation Fund Committee is not permitted to authorize total payments from the Fund in any calendar year exceeding the sum of the available purchased insurance, the deductible and any co-insured amount.
The rescission of this rule means that the Special Compensation Fund Committee now has discretion to approve claims without the restriction of a pre-determined cap.
An articled student whose enrolment is subject to a Bencher review cannot be called and admitted before the Benchers have issued a decision on the review (Rule 2-48(4)); new rules for Bencher reviews of credentials and discipline decisions require the party initiating a review to set out the issues in a Notice of Review, provide that the panel's decision is automatically stayed in the case of call and admission or reinstatement or on application in other cases, and allow for a pre-review conference, with the presiding Bencher empowered to order exchanges of arguments and authorities (Rules 5-1 and 5-12 to 5-19).
Under a change to Rule 3-57(3), lawyers may now send bills to clients by electronic mail (but should note that, because provisions of the Legal Profession Act require a lawyer's signature on a bill or letter accompanying a bill for the purpose of fee review, lawyers may need to include an electronic signature on a bill sent by email).
Rule 5-3(4) is added to provide that a person who has served as a Bencher or as a hearing panel member is disqualified for three years from appearing as counsel for any party in a hearing. It was previously the Benchers' policy that Life Benchers should never appear as counsel in hearings and other former Benchers should not appear for three years.
2002 fees and assessments are set out (Schedules 1, 2 and 3).
An incorrect term is amended (Rule 1-38(2)); the three Benchers who make an interim order of suspension must not include the Chair of the Discipline Committee (Rule 4-17(1.1)).
Minor changes are made to rules affecting admissions (Rule 2-27(4)), leaves of absence from articles (Rule 2-41(8) and (9)) and temporary articles (Rule 2-42(2)).
The term "interprovincial practice" is changed to "inter-jurisdictional practice" for consistency with other law societies (see definition of "inter-jurisdictional practice" and Rules 3-28 and 4-36); a visiting lawyer from a Canadian jurisdiction that has adopted similar provisions may practise without an inter-jurisdictional practice permit for up to six months during any 12-month period (Rule 2-10.2); a lawyer who is subject to practice restrictions or conditions in another jurisdiction must apply for a permit to practise in B.C. (Rule 2-10.2(3)); a visiting lawyer who is denied a permit by staff may have the matter reviewed by the Credentials Committee (Rule 2-10.2(4.1)); the language on inter-jurisdictional rules is amended to comply with the new permit provisions (Rules 2-11, 2-15, 2-16); a visiting lawyer must be a practising lawyer in at least one law society while practising in B.C. (Rule 2-14).
The priorities of the PLTC Academic Support Instructor are set out (Rule 2.44.1).
2001 fees and assessments are set out (Schedules 1, 2 and 3).
Law students may use the services of the Discrimination Ombudsperson (definition of "Ombudsperson" in Rule 1); the Credentials Committee has been granted the discretion to permit lawyers to requalify in some circumstances without passing the qualification examination (Rules 2-56 and 2-57); a practising lawyer who fails to pay the second insurance fee instalment must immediately cease the practice of law (Rule 3-23).
Reference to the Public Trustee is amended consequential to proclamation of the Public Guardian and Trustee Act (Rule 4-37).
A Lay Bencher may continue in office until a successor is appointed by the provincial Cabinet (Rule 1-1).
The Rules are amended to implement provisions of the Inter-jurisdictional Practice Protocol of the Federation of Law Societies and allow the temporary mobility of lawyers and transfer of in-house counsel (definition of "visiting lawyer" and Rules 2-5, 2-10.1, 2-10.2, 2-10.3, 2-11, 2-12(1) and (2), 2-13, 2-14, 2-15(3) and (4), 2-16, 2-23(3), 2-49(2), 2-49.1, 3-1, 3-21(3), 3-43 and 4-1(1)); practising certificates may be issued to applicants who meet the qualifications for call and admission, on the condition that they attend a call ceremony within a specified period of time (Rules 2-26(1), 2-27(1) to (3), 2-29(2) and (3), 2-46(4), 2-48(2), 2-51(1), (2) and (4) to (6), 2-57(1.1) and 2-76); 2000 fees and assessments are set out (Schedules 1, 2 and 3).
Definitions are amended for consistency with the Legal Profession Act ("conduct unbecoming a lawyer" and "discipline violation") and for clarity ("professional conduct record"); information received about a lawyer’s conduct that may constitute a discipline violation must be treated as a complaint at all stages (Rule 3-4(2)); incorrect cross-ces (Rules 4-8(2) and 4-25(3)) and typographical errors (Rules 4-29(1) and 4-36(1)) are corrected; Benchers have discretion to allow an appropriate form of substitutional service of a citation (Rule 4-15); reviews on interim suspensions are open to the public, subject to reasonable exceptions (Rule 4-19(6) and (6.1)); specific provision is made to allow Benchers to award costs on reviews of credentials and discipline hearings (Rule 5-9(0.2), (1) and (3)); procedures on reviews of credentials and discipline hearings are clarified (Rules 5-13(2.1), (4) and (5) and 5-14(2.1), (4) and (5)); a time reference is changed from 90 days to 3 months for consistency with the Legal Profession Act (Rule 8-3); law corporation permit fees are not prorated, as they cover direct administrative expense (Rule 9-4 and Schedule 1).
A hearing panel has jurisdiction to award costs to a respondent when a citation is rescinded after a hearing has commenced, but prior to completion of the hearing (Rule 5-9(3)); Rule 4-27 on pre-hearing conferences applies to a review of disciplinary action (Rule 5-14(5)).
The defined term "disbarred lawyer" is used in Rule 4-37 to be consistent with the Legal Profession Act; Rule 5-9(0.1) is added to expressly give panels a discretion to award costs; a cross-reference is corrected in Rule 9-8(6); Tables of Concordance cross-reference the new and former Rules.
Schedule 1 is amended to include a late filing fee for the Accountant’s Report.
In November, 1998 the Benchers adopted a new set of Rules to accompany the Legal Profession Act, S.B.C. 1998 c. 9, passed by the B.C. Legislature in 1998. The new Act and Rules took effect on December 31, 1998.