Part 3 – Protection of the Public

Division 1 – Complaints

Application

3-1 This division applies to the following as it does to a lawyer, with the necessary changes and so far as it is applicable:

(a) a former lawyer;

(b) an articled student;

(c) a visiting lawyer permitted to practise law in British Columbia under Rules 2-16 to 2-20;

(d) a practitioner of foreign law;

(e) a law corporation.

Complaints

3-2 Any person may deliver a written complaint against a lawyer to the Executive Director.

Confidentiality of complaints

3-3 (1) No one is permitted to disclose any information or records that form part of the investigation of a complaint or the review of a complaint by the Complainants’ Review Committee except for the purpose of complying with the objectives of the Act or with these rules.

(2) Despite subrule (1), the Executive Director may do any of the following:

(a) disclose information referred to in subrule (1), with the consent of the lawyer who is the subject of the complaint;

(b) if a complaint has become known to the public, disclose

(i) the existence of the complaint,

(ii) its subject matter,

(iii) its status, including, if the complaint is closed, the general basis on which it was closed; and

(iv) any additional information necessary to correct inaccurate information;

(c) if, in the course of the investigation of a complaint, a lawyer has given an undertaking to the Society that restricts, limits or prohibits the lawyer’s practice of law, disclose the fact that the undertaking was given and its effect on the lawyer’s practice. 

(3) For the purpose of subrule (2) (b), the status of a complaint is its stage of progress through the complaints handling process, including, but not limited to the following:

(a) opened;

(b) under investigation;

(c) referred to a Committee;

(d) closed.

(4) If the Executive Director discloses the existence of an undertaking under subrule (2) (c) by means of the Society’s website, the information must be removed from the website within a reasonable time after the undertaking ceases to be in force.

(5) Despite subrule (1), with the consent of the Discipline Committee, the Executive Director may deliver to a law enforcement agency any information or documents that the Committee reasonably believes may be evidence of an offence.

(6) This division must not be interpreted to permit the disclosure of any information subject to solicitor and client privilege or confidentiality.

Consideration of complaints and other information

3-4 (1) The Executive Director must consider every complaint received under Rule 3-2 [Complaints]. 

(2) Information received from any source that indicates that a lawyer’s conduct may constitute a discipline violation must be treated as a complaint under these rules.

Investigation of complaints

3-5 (1) Subject to subrule (3), the Executive Director may, and on the instruction of the Discipline Committee must, investigate a complaint to determine its validity.

(2) For the purpose of conducting an investigation under this division and section 26 [Complaints from the public], the Executive Director may designate an employee of the Society or appoint a practising lawyer or a person whose qualifications are satisfactory to the Executive Director.

(3) The Executive Director may decline to investigate a complaint if the Executive Director is satisfied that the complaint

(a) is outside the jurisdiction of the Society,

(b) is frivolous, vexatious or an abuse of process, or

(c) does not allege facts that, if proven, would constitute a discipline violation.

(4) The Executive Director must deliver to the lawyer who is the subject of a complaint a copy of the complaint or, if that is not practicable, a summary of it.

(5) Despite subrule (4), if the Executive Director considers it necessary for the effective investigation of the complaint, the Executive Director may delay notification of the lawyer.

(6) When acting under subrule (4), the Executive Director may decline to identify the complainant or the source of the complaint.

(7) A lawyer must co-operate fully in an investigation under this division by all available means including, but not limited to, responding fully and substantively, in the form specified by the Executive Director

(a) to the complaint, and

(b) to all requests made by the Executive Director in the course of an investigation.

(8) When conducting an investigation of a complaint, the Executive Director may

(a) require production of files, documents and other records for examination or copying,

(b) require a lawyer to

(i) attend an interview,

(ii) answer questions and provide information relating to matters under investigation, or

(iii) cause an employee or agent of the lawyer to answer questions and provide information relating to the investigation,

(c) enter the business premises of a lawyer

(i) during business hours, or

(ii) at another time by agreement with the lawyer.

(9) Any written response under subrule (7) must be signed by

(a) the lawyer personally, or

(b) a director of the law corporation, if the complaint is about a law corporation.

(10) The Executive Director may deliver to the complainant a copy or a summary of a response received from the lawyer, subject to solicitor and client privilege and confidentiality.

(11) A lawyer who is required to produce files, documents and other records, provide information or attend an interview under this rule must comply with the requirement

(a) even if the information or files, documents and other records are privileged or confidential, and

(b) as soon as practicable and, in any event, by the time and date set by the Executive Director. 

Failure to produce records on complaint investigation

3-6 (1) Subject to subrules (2) and (3), a lawyer who is required under Rule 3-5 [Investigation of complaints] or 4-55 [Investigation of books and accounts] to produce and permit the copying of files, documents and other records, provide information or attend an interview and answer questions and who fails or refuses to do so is suspended until he or she has complied with the requirement to the satisfaction of the Executive Director.

(2) When there are special circumstances, the Discipline Committee may, in its discretion, order that

(a) a lawyer not be suspended under subrule (1), or

(b) a suspension under this rule be delayed for a specified period of time.

(3) At least 7 days before a suspension under this rule can take effect, the Executive Director must deliver to the lawyer notice of the following:

(a) the date on which the suspension will take effect;

(b) the reasons for the suspension;

(c) the means by which the lawyer may apply to the Discipline Committee for an order under subrule (2) and the deadline for making such an application before the suspension is to take effect.

Resolution by informal means

3-7 The Executive Director may, at any time, attempt to resolve a complaint through mediation or other informal means.

Action after investigation

3-8 (1) After investigating a complaint, the Executive Director must take no further action if the Executive Director is satisfied that the complaint

(a) is not valid or its validity cannot be proven, or

(b) does not disclose conduct serious enough to warrant further action.

(2) The Executive Director may take no further action on a complaint if the Executive Director is satisfied that the matter giving rise to the complaint has been resolved.

(3) Unless subrule (1) applies or the Executive Director takes no further action under subrule (2), the Executive Director must refer the complaint to the Practice Standards Committee or to the Discipline Committee. 

(4) Despite subrule (3), the Executive Director may refer a complaint to the chair of the Discipline Committee if the complaint concerns only allegations that the lawyer has done one or more of the following:

(a) breached a rule;

(b) breached an undertaking given to the Society;

(c) failed to respond to a communication from the Society;

(d) breached an order made under the Act or these rules.  

Notifying the parties

3-9 (1) When a decision has been made under Rule 3-8 [Action after investigation], the Executive Director must notify the complainant and the lawyer in writing of the disposition.

(2) When the Executive Director takes no further action on a complaint under Rule 3-8 (1) [Action after investigation], notice to the complainant under subrule (1) must include

(a) the reason for the decision, and

(b) instructions on how to apply for a review of the decision under Rule 3-14 [Review by Complainants’ Review Committee].

Extraordinary action to protect public

3-10 (1) An order may be made under this rule with respect to a lawyer or articled student who is

(a) the subject of an investigation or intended investigation under Rule 3-5 [Investigation of complaints], and

(b) not the subject of a citation in connection with the matter under investigation or intended to be under investigation.

(2) If they are satisfied, on reasonable grounds, that extraordinary action is necessary to protect the public, 3 or more Benchers may

(a) impose conditions or limitations on the practice of a lawyer or on the enrolment of an articled student, or

(b) suspend a lawyer or the enrolment of an articled student.

(3) An order made under this rule or varied under Rule 3-12 [Procedure] is effective until the first of

(a) final disposition of any citation authorized under Part 4 arising from the investigation, or

(b) rescission, variation or further variation under Rule 3-12. 

Medical examination

3-11 (1) This rule applies to a lawyer or articled student who is the subject of

(a) an investigation or intended investigation under Rule 3-5 [Investigation of complaints], or

(b) a citation under Part 4 [Discipline].

(2) If they are of the opinion, on reasonable grounds, that the order is likely necessary to protect the public, 3 or more Benchers may make an order requiring a lawyer or articled student to

(a) submit to an examination by a medical practitioner specified by those Benchers, and

(b) instruct the medical practitioner to report to the Executive Director on the ability of the lawyer to practise law or, in the case of an articled student, the ability of the student to complete his or her articles.

(3) The Executive Director may deliver a copy of the report of a medical practitioner under this rule to the Discipline Committee or the Practice Standards Committee.

(4) The report of a medical practitioner under this rule

(a) may be used for any purpose consistent with the Act and these rules, and

(b) is admissible in any hearing or proceeding under the Act and these rules.

Procedure

3-12 (1) The Benchers referred to in Rules 3-10 to 3-12 must not include a member of the Discipline Committee.

(2) Before Benchers take action under Rule 3-10 [Extraordinary action to protect public] or 3-11 [Medical examination], there must be a proceeding at which 3 or more Benchers and discipline counsel are present.

(3) The proceeding referred to in subrule (2)

(a) must be initiated by one of the following:

(i) the Discipline Committee;

(ii) the Practice Standards Committee;

(iii) the Executive Director, and

(b) may take place without notice to the lawyer or articled student if the majority of Benchers present are satisfied, on reasonable grounds, that notice would not be in the public interest.

(4) The lawyer or articled student and his or her counsel may be present at a proceeding under this rule.

(5) All proceedings under this rule must be recorded by a court reporter. 

(6) Subject to the Act and these rules, the Benchers present at a proceeding may determine the practice and procedure to be followed.

(7) Unless the Benchers present order otherwise, the proceeding is not open to the public.

(8) The lawyer or articled student or discipline counsel may request an adjournment of a proceeding conducted under this rule.

(9) Rule 4-40 [Adjournment] applies to an application for an adjournment made before the commencement of the proceeding as if it were a hearing.

(10) Despite subrule (9), the Executive Director is not required to notify a complainant of a request made under subrule (8).

(11) After a proceeding has commenced, the Benchers present may adjourn the proceeding, with or without conditions, generally or to a specified date, time and place.

(12) On the application of the lawyer or articled student or discipline counsel, the Benchers who made the order, or a majority of them, may rescind or vary an order made or previously varied under this rule.

(13) On an application under subrule (12) to vary or rescind an order,

(a) both the lawyer or articled student and discipline counsel must be given a reasonable opportunity to make submissions in writing, and

(b) the Benchers present may allow oral submissions if, in their discretion, it is appropriate to do so.

(14) If, for any reason, any of the Benchers who made an order under this rule is unable to participate in the decision on an application under subrule (12), the President may assign another Bencher who is not a member of the Discipline Committee to participate in the decision in the place of each Bencher unable to participate.

Appointment of Complainants’ Review Committee

3-13 (1) For each calendar year, the President must appoint a Complainants’ Review Committee.

(2) If one or more Benchers have been appointed under section 5 [Appointed benchers], the President must appoint at least one of the appointed Benchers to the Complainants’ Review Committee. 

Review by Complainants’ Review Committee

3-14 (1) A complainant may apply to the Complainants’ Review Committee for a review of a decision by the Executive Director under Rule 3-8 [Action after investigation] to take no further action after investigating a complaint.

(2) To initiate a review under subrule (1), the complainant must apply to the Complainants’ Review Committee within 30 days after the decision is communicated to the complainant.

(3) The chair of the Complainants’ Review Committee may extend the time for applying for a review under subrule (2) in extraordinary circumstances beyond the control of the complainant.

(4) The Complainants’ Review Committee must

(a) review the documents obtained, collected or produced by the Executive Director under Rules 3-4 to 3-9, and

(b) on the direction of an appointed Bencher member of the Committee, make enquiries of the complainant, the lawyer or any other person.

(5) After its review and enquiries, the Complainants’ Review Committee must do one of the following:

(a) confirm the Executive Director’s decision to take no further action;

(b) refer the complaint to the Practice Standards Committee or to the Discipline Committee with or without recommendation.

(6) The chair of the Complainants’ Review Committee must notify the complainant, the lawyer and the Executive Director, in writing, of the Committee’s decision under subrule (5) and the reasons for that decision.

(7) If the Complainants’ Review Committee keeps minutes of its consideration of a complaint, the Executive Director may disclose all or part of the minutes to the complainant or the lawyer concerned.

Division 2 – Practice Standards

Practice Standards Committee

3-15 (1) For each calendar year, the President must appoint a Practice Standards Committee, including a chair and vice chair, both of whom must be Benchers

(2) The President may remove any person appointed under subrule (1).

(3) At any time, the President may appoint a person to the Practice Standards Committee to replace a Committee member who resigns or otherwise ceases membership in the Committee, or to increase the number of members of the Committee.

Objectives

3-16 The objectives of the Practice Standards Committee are to

(a) recommend standards of practice for lawyers,

(b) develop programs that will assist all lawyers to practise law competently, and

(c) identify lawyers who do not meet accepted standards in the practice of law, and recommend remedial measures to assist them to improve their legal practices.

Consideration of complaints

3-17 (1) The Practice Standards Committee must consider any complaint referred to it by the Executive Director, the Complainants’ Review Committee or any other Committee, and may instruct the Executive Director to make or authorize any further investigation that the Practice Standards Committee considers desirable.

(2) While considering a complaint, the Practice Standards Committee may also consider any other matter arising out of the lawyer’s practice of law.

(3) When considering a complaint, the Practice Standards Committee may do one or more of the following:

(a) decide that no further action be taken on the complaint;

(b) make recommendations to the lawyer, if it considers that the carrying out of the recommendations will improve the lawyer’s practice of law;

(c) require the lawyer to meet and discuss the circumstances of the complaint with a lawyer or Bencher designated by the Practice Standards Committee, who must then report to the Committee;

(d) find that there are reasonable grounds to believe that the lawyer is practising law in an incompetent manner and order a practice review in respect of the lawyer’s practice;

(e) refer the complaint to the Discipline Committee.

(4) Despite subrule (3) (e), the Practice Standards Committee may refer a complaint to the chair of the Discipline Committee if the complaint concerns only allegations that the lawyer has done one or more of the following:

(a) breached a rule;

(b) breached an undertaking given to the Society;

(c) failed to respond to a communication from the Society;

(d) breached an order made under the Act or these rules.  

(5) The Practice Standards Committee is not precluded from taking any of the steps in subrule (3) or (4) because it has previously taken another of those steps in the same matter.

Practice review

3-18 (1) The Practice Standards Committee may order a practice review of the practice of a lawyer under Rule 3-17 (3) (d) [Consideration of complaints] or if the lawyer consents to the review.

(2) When a practice review is ordered, the Executive Director must name one or more qualified persons to conduct the review.

(3) After consultation with the lawyer and the practice reviewers, the Executive Director must set a date, time and place for the practice review.

(4) A lawyer whose practice is being reviewed under subrule (1) must answer any inquiries and provide the practice reviewers with any information, files or records in the lawyer’s possession or control as reasonably requested.

(5) After completing a practice review, the practice reviewers must deliver to the Practice Standards Committee and to the lawyer a written report of their findings and recommendations.

(6) A lawyer who is the subject of a practice review may not resign from membership in the Society without the consent of the Practice Standards Committee.

(7) The Practice Standards Committee may, by resolution, direct that a lawyer who is subject to a practice review and would otherwise cease to be a member of the Society for failure to pay the annual fee or a special assessment continue as a member not in good standing and not permitted to practise law.

(8) A direction under subrule (7) may be made to continue in effect until stated conditions are fulfilled.

(9) When a direction under subrule (7) expires on the fulfillment of all stated conditions or if the Practice Standards Committee rescinds the direction,

(a) the lawyer concerned ceases to be a member of the Society,

(b) if the rescission is in response to a request of the lawyer concerned, the Committee may impose conditions on the rescission.

Action by Practice Standards Committee

3-19 (1) After its consideration of a report received under Rule 3-17 (3) (c) [Consideration of complaints] or 3-18 (5) [Practice review], the Practice Standards Committee must

(a) decide that no further action be taken, or

(b) recommend that the lawyer do one or more of the following:

(i) undertake not to practise in specified areas of law;

(ii) complete a remedial program to the satisfaction of the Committee;

(iii) complete, to the satisfaction of the Committee, an examination approved by the Committee or its designate;

(iv) obtain a psychiatric or psychological assessment or counselling, or both, and, if the Committee requests, provide a report on that assessment or counselling to the Committee;

(v) obtain a medical assessment or assistance, or both, and if the Committee requests, provide a report on that assessment or assistance to the Committee;

(vi) practise in a setting approved by the Committee, including under the supervision of a lawyer approved by the Committee;

(vii) take other steps intended to improve the lawyer’s practice of law or otherwise protect the public interest.

(2) When making recommendations under subrule (1) (b), the Practice Standards Committee may set one or more dates by which the lawyer is to complete the recommendations.

(3) On application by the lawyer or the Executive Director, the Practice Standards Committee may extend the date by which the lawyer is to complete a recommendation.

(4) The Executive Director must reduce the Practice Standards Committee’s recommendations to writing and deliver a copy to the lawyer.

(5) The Practice Standards Committee is not precluded from making a recommendation under subrule (1) because it has previously made a recommendation with respect to the same matter.

Conditions or limitations on practice

3-20 (1) If a lawyer refuses or fails to comply with a recommendation under Rule 3-19 (1) (b) [Action by Practice Standards Committee] by the time set by the Practice Standards Committee under Rule 3-19 (2), the Committee may make an order imposing conditions and limitations on the lawyer’s practice, including but not limited to the following:

(a) specifying areas of law in which the lawyer must not practise;

(b) requiring that the lawyer satisfactorily complete a remedial program;

(c) requiring that the lawyer satisfactorily complete an examination approved by the Committee or its designate;

(d) requiring that the lawyer obtain a psychiatric or psychological assessment or counselling, or both, and, if the Committee requests, provide a report on that assessment or counselling to the Committee;

(e) requiring that the lawyer obtain a medical assessment or assistance, or both, and if the Committee requests, provide a report on that assessment or assistance to the Committee;

(f) requiring that the lawyer practise in a setting approved by the Committee, including under the supervision of a lawyer approved by the Committee;

(g) requiring that the lawyer take other steps intended to improve the lawyer’s practice of law or otherwise protect the public interest.

(2) At least 30 days before the Practice Standards Committee is to make an order under subrule (1), the Executive Director must deliver to the lawyer notice of the following:

(a) the terms of the proposed order;

(b) the date on which the proposed order is to take effect;

(c) the reasons for the proposed order;

(d) the means by which the lawyer may make submissions to the Practice Standards Committee concerning the proposed order and the deadline for making such submissions before the order is to be considered by the Committee.

(3) A lawyer must comply with an order made under this rule. 

(4) On the written application of the lawyer, the Practice Standards Committee may vary or rescind an order made under this rule.

Referral to Discipline Committee

3-21 (1) The Practice Standards Committee may, at any stage, refer to the Discipline Committee any of the following:

(a) all or any part of a practice review report delivered under Rule 3-18 (5) [Practice review];

(b) a report on the manner in which the lawyer has carried out or followed any recommendations or has failed or refused to do so;

(c) an order made under Rule 3-20 [Conditions or limitations on practice];

(d) a report on the failure to comply with an order made under Rule 3-20.

(2) Despite subrule (1), the Practice Standards Committee may refer a report to the chair of the Discipline Committee with respect to allegations that the lawyer has done one or more of the following:

(a) breached a rule;

(b) breached an undertaking given to the Society;

(c) failed to respond to a communication from the Society;

(d) breached an order made under the Act or these rules.  

(3) The Practice Standards Committee is not precluded from making a referral under this rule because it has previously made a referral with respect to the same matter.

Remedial program

3-22 (1) A remedial program under this Division may include any program intended to improve the lawyer’s knowledge and skill in the practice of law, including, but not limited to, one or more of the following:

(a) a continuing legal education course;

(b) a remedial course;

(c) a course offered by an educational institution;

(d) a program of mentoring or supervision by a practising lawyer approved by the Practice Standards Committee.

(2) To form part of a remedial program, a course or program must be approved by the Practice Standards Committee or its designate.

Confidentiality of Practice Standards Committee deliberations

3-23 (1) Subject to subrules (2) to (6) and Rule 3-24 [Report to complainant], the following must be treated as confidential and must not be disclosed except for the purpose of complying with the objects of the Act:

(a) all of the information and documents that form part of the Practice Standards Committee’s consideration of a complaint;

(b) any action taken or decision made by the Committee;

(c) any report prepared for or on behalf of the Committee.

(2) If a matter referred to or considered by the Practice Standards Committee has become known to the public, the Executive Director may disclose

(a) the fact that the matter is or has been before the Committee,

(b) the status of the matter, including, if the matter is concluded, the general basis on which it was concluded, and

(c) any additional information necessary to correct inaccurate information.

(3) With the consent of the Practice Standards Committee, the Executive Director may deliver to a law enforcement agency any information or documents that the Committee reasonably believes may be evidence of an offence.

(4) With the consent of the lawyer concerned, the Executive Director may disclose the matters referred to in subrule (1) in responding to an enquiry made for the purpose of a potential judicial appointment.

(5) Subrules (6) and (7) apply to

(a) an undertaking under this division that restricts, limits or prohibits the lawyer’s practice of law, and

(b) a condition or limitation of a lawyer’s practice imposed under Rule 3-20 [Conditions or limitations on practice].

(6) The Executive Director may disclose the fact that a lawyer has given an undertaking or that the Practice Standards Committee has imposed a condition or limitation and the effect on the lawyer’s practice.

(7) If the Executive Director discloses the existence of an undertaking, condition or limitation under subrule (6) by means of the Society’s website, the Executive Director must remove the information from the website within a reasonable time when the undertaking, condition or limitation is no longer in force.

Report to complainant

3-24 The Executive Director must notify the complainant in writing of the Practice Standards Committee’s decision under Rule 3-17 [Consideration of complaints], but must not deliver to the complainant a copy of any report or the Committee’s recommendations about the lawyer’s practice.

Costs

3-25 (1) The Practice Standards Committee may order that a lawyer pay to the Society the cost of a practice review, action or remedial program ordered or allowed under this Division, and may set and extend the date for payment.

(2) A lawyer who is ordered by the Practice Standards Committee, under subrule (1), to pay costs must pay those costs in full by the date set or extended by the Committee.

(3) If any part of the amount owing under subrule (1) remains unpaid by the date set in Rule 2-105 [Annual practising fees], the lawyer concerned must not engage in the practice of law unless the Benchers order otherwise.

Division 3 – Education

Definitions

3-26 In this division

“continuing education” means activities approved by the Executive Director for credit as professional development;

“credit as a mentor” means a credit of a specified maximum number of hours of continuing education for participation in a mentoring relationship under Rule 3-30 [Mentoring];

“required professional development” means a minimum number of hours of continuing education determined by the Benchers under Rule 3-29 (1) [Professional development];

“small firm” includes

(a) a firm in which not more than 4 lawyers practise law together, and

(b) a lawyer in an arrangement to share expenses with other lawyers who otherwise practises as an independent practitioner, except when the lawyer relies on a firm that is not a small firm to maintain trust accounting and other financial records on the lawyer’s behalf,

but does not include

(c) a public body such as government or a Crown corporation, or

(d) a corporation other than a law corporation, or other private body.

“small firm course” means a course of study designated as such and administered by the Society or its agents and includes any assignment, examinations and remedial work taken during or after the course of study.

Application

3-27 Rule 3-28 [Small firm course] applies to a lawyer when

(a) the lawyer begins practice in a small firm or, while practising in a small firm, becomes a signatory on a trust account, unless the lawyer has done both of the following in a Canadian jurisdiction for a total of 2 years or more in the preceding 5 years:

(i) engaged in the practice of law in a small firm;

(ii) been a signatory on a trust account, or

(b) the Practice Standards Committee, by resolution, so orders.

Small firm course

3-28 (1) Within 6 months after and not more than 12 months before the date on which this Rule applies to a lawyer, the lawyer must

(a) successfully complete the small firm course, and

(b) certify to the Executive Director in a form approved by the Executive Director that the lawyer has successfully completed the small firm course.

(2) A lawyer who is in breach of subrule (1) has failed to meet a minimum standard of practice, and the Executive Director may refer the matter to the Discipline Committee or the chair of the Discipline Committee.

Professional development

3-29 (1) The Benchers may determine by resolution the minimum number of hours of continuing education that is required of a practising lawyer in each calendar year.

(2) The Benchers may prescribe circumstances in which a class of practising lawyer may be excused from completing all or part of the required professional development. 

(3) In each calendar year, a practising lawyer must

(a) complete the required professional development, and

(b) certify to the Executive Director in a form approved by the Executive Director that the lawyer has completed the required professional development.

(4) Despite subrule (3), a practising lawyer need not complete the required professional development in a calendar year in which the lawyer has successfully completed the admission program or the equivalent in another Canadian jurisdiction.

(5) On written application by a practising lawyer who has refrained from the practice of law for a minimum of 60 consecutive days in a calendar year, the Executive Director may reduce the required professional development for that lawyer.

(6) The Executive Director must not reduce the amount of required professional development under subrule (5)

(a) by an amount greater than that proportionate to the part of the calendar year in which the lawyer refrained from the practice of law

(b) by any amount if the lawyer refrained from the practice of law as a result of suspension, disbarment or other disciplinary proceedings.

(7) A lawyer who ceases to be a practising lawyer without completing all required professional development must complete the uncompleted portion in the next calendar year in which the lawyer is a practising lawyer, in addition to the required professional development for that calendar year.

(8) A practising lawyer who is in breach of this Rule has failed to meet a minimum standard of practice, and the Executive Director may refer the matter to the Discipline Committee or the chair of the Discipline Committee.

Mentoring

3-30 (1) The Benchers may allow credit as a mentor, subject to any conditions or limitations that the Benchers consider appropriate.

(2) To qualify to receive credit as a mentor, a lawyer must

(a) have engaged in the active practice of law in Canada for 7 of the 10 years immediately preceding the calendar year, and

(b) not be the subject of an order of the Credentials Committee under subrule (4) (c). 

(3) On a referral by the Executive Director or on the recommendation of the Discipline Committee or the Practice Standards Committee, or on its own motion, the Credentials Committee may inquire into a lawyer’s suitability to receive credit as a mentor and may do any of the following:

(a) conduct or authorize any person to conduct an investigation concerning the fitness of the lawyer to act as a mentor;

(b) require the lawyer to appear before the Credentials Committee and to respond to questions of the Committee;

(c) order the lawyer to produce any documents, records or files that the Credentials Committee may reasonably require.

(4) After allowing the lawyer to make submissions, the Credentials Committee may do any of the following:

(a) permit the lawyer to receive credit as a mentor;

(b) permit the lawyer to receive credit as a mentor subject to conditions or limitations;

(c) order that the lawyer not receive credit as a mentor.

(5) The onus is on the lawyer to show cause why an order should not be made under subrule (4) (b) or (c).

Late completion of professional development

3-31 (1) A practising lawyer who fails to comply with Rule 3-29 [Professional development] by December 31 is deemed to have been in compliance with the Rules during the calendar year if the lawyer does all of the following before April 1 of the following year:

(a) completes the remainder of the required professional development;

(b) certifies the completion of the required professional development as required in Rule 3-29 (3) (b);

(c) pays the late completion fee specified in Schedule 1.

(2) Required professional development completed before April 1 that is applied to the requirement for the previous year cannot be applied to the requirement for the calendar year in which it is completed.

(3) A practising lawyer who complies with Rule 3-29 (3) (a) [Professional development] by December 31 but fails to comply with Rule 3-29 (3) (b) by December 31 is deemed to have been in compliance with the Rules during the calendar year if the lawyer does both of the following before April 1 of the following year:

(a) certifies the completion of the required professional development as required in Rule 3-29 (3) (b);

(b) pays the late reporting fee specified in Schedule 1.

Failure to complete professional development

3-32 (1) Subject to subrules (2) and (3), a practising lawyer who fails to comply with Rule 3-29 [Professional development] by April 1 of the following year is suspended until all required professional development is completed and completion is certified to the Executive Director as required by Rule 3-29.

(2) When there are special circumstances, the Practice Standards Committee may, in its discretion, order that

(a) the lawyer not be suspended under subrule (1), or

(b) a suspension under subrule (1) be delayed for a specified period of time.

(3) At least 60 days before a suspension under subrule (1) can take effect, the Executive Director must deliver to the lawyer notice of the following:

(a) the date on which the suspension will take effect;

(b) the reasons for the suspension;

(c) the means by which the lawyer may apply to the Practice Standards Committee for an order under subrule (2) and the deadline for making such an application before the suspension is to take effect. 

Division 4 – Specialization and Restricted Practice

Definitions

3-33 In this division

“course of study” means an educational program consisting of activities approved by the Executive Director for the purpose of qualifying as a family law mediator, arbitrator or parenting coordinator;

“professional development” means activities approved by the Executive Director for credit as professional development for family law mediators, arbitrators or parenting coordinators.

Advertising

3-34 A lawyer must not advertise any specialization, restricted practice or preferred area of practice except as permitted in the Code of Professional Conduct, section 4.3 [Advertising nature of practice].

[amended 03/2017]

Family law mediators

3-35 (1) A lawyer may act as a family law mediator only if the lawyer

(a) possesses sufficient knowledge, skills and experience relevant to family law to carry out the function of a mediator in a fair and competent manner,  

(b) has completed a course of study in family law mediation approved by the Credentials Committee, and

(c) is in compliance with Rule 3-38 (3) [Professional development for family law neutrals].

(2) A lawyer who has been accredited by the Society as a family law mediator may so state in any marketing activity.

(3) The Credentials Committee may allow a lawyer previously accredited by the Society as a family law mediator time in which to comply with any changes to the requirements under subrule (1) (b).

Family law arbitrators

3-36 (1) A lawyer may act as a family law arbitrator only if the lawyer

(a) possesses sufficient knowledge, skills and experience relevant to family law to carry out the function of an arbitrator in a fair and competent manner,

(b) has, for a total of at least 10 years, engaged in the full-time practice of law or the equivalent in part-time practice or sat as a judge or master,

(c) has completed a course of study in family law arbitration approved by the Credentials Committee, and

(d) is in compliance with Rule 3-38 (3) [Professional development for family law neutrals].

(2) A lawyer who has been accredited by the Society as a family law arbitrator may so state in any marketing activity.

(3) The Credentials Committee may allow a lawyer who has previously acted as a family law arbitrator time in which to comply with any changes to the requirements under subrule (1) (c).

Parenting coordinators

3-37 (1) A lawyer may act as a parenting coordinator only if the lawyer

(a) possesses sufficient knowledge, skills and experience relevant to family law to carry out the function of a parenting coordinator in a fair and competent manner,

(b) has, for a total of at least 10 years, engaged in the full-time practice of law or the equivalent in part-time practice or sat as a judge or master, including considerable family law experience dealing with high conflict families with children,

(c) has completed a course of study in parenting coordination approved by the Credentials Committee, and

(d) is in compliance with Rule 3-38 (3) [Professional development for family law neutrals]

(2) A lawyer who has been accredited by the Society as a parenting coordinator may so state in any marketing activity.

(3) The Credentials Committee may allow a lawyer who has previously acted as a parenting coordinator time in which to comply with any changes to the requirements under subrule (1) (c).

Professional development for family law neutrals

3-38 (1) The Credentials Committee may determine the minimum number of hours of professional development that is required of a family law mediator, arbitrator or parenting coordinator in each calendar year.

(2) The requirements under subrule (1) may be different for each of family law mediators, arbitrators or parenting coordinators.

(3) In each calendar year, a family law mediator, arbitrator or parenting coordinator must

(a) complete the required professional development, and

(b) certify to the Executive Director in a form approved by the Executive Director that the lawyer has completed the professional development required under this rule.

(4) Professional development completed under this rule may also be reported under Rule 3-29 [Professional development] if it meets the requirements of that rule.

(5) Despite subrule (3), a family law mediator, arbitrator or parenting coordinator need not complete the required professional development in a calendar year in which the lawyer has successfully completed the course of study required under Rules 3-35 to 3-37.

Division 5 – Insurance

Compulsory professional liability insurance

3-39 (1) A lawyer must maintain professional liability insurance on the terms and conditions offered by the Society through the Lawyers Insurance Fund and pay the insurance fee under Rule 3-40 [Annual insurance fee], unless the lawyer is exempt or ineligible under Rule 3-43 [Exemption from professional liability insurance].

(2) A lawyer is bound by and must comply with the terms and conditions of professional liability insurance maintained under subrule (1).

(3) As soon as practicable, the Executive Director must notify all governing bodies of any change to professional liability insurance under this division that affects the limits of liability or scope of coverage.

[heading and (3) amended 04/2017]

Compulsory trust protection insurance

3-39.1 (1) A lawyer must maintain trust protection insurance on the terms and conditions offered by the Society through the Lawyers Insurance Fund and pay any fee for trust protection insurance set under Rule 3-40 [Annual insurance fee].

(2) A lawyer is bound by and must comply with the terms and conditions of trust protection insurance maintained under subrule (1).

[added 04/2017]

Annual insurance fee

3-40 (1) The insurance fee to be paid under section 23 (1) (c) [Annual fees and practising certificate] is calculated as follows:

(a) the appropriate base assessment as specified in Schedule 1; plus

(b) any surcharge for which the lawyer is liable under Rule 3-44 [Deductible, surcharge and reimbursement]; minus

(c) any credit to which the lawyer is entitled under Rule 3-42 [Insurance fee credit].

(2) If a lawyer undertakes, in a form approved by the Executive Committee, to engage in the practice of law and associated activities for an average of 25 hours or less per week, the applicable base assessment is the part-time insurance fee specified in Schedule 1.

(3) Subject to subrule (6), a lawyer is not eligible to pay the part-time insurance fee under subrule (2) for 5 years in practice after the Society pays an indemnity claim in respect of the lawyer.

(4) For a lawyer who does not give the undertaking referred to in subrule (2), the appropriate base assessment is the full-time insurance fee specified in Schedule 1.

(5) For the purpose of this rule,

(a) the average number of hours per week that a lawyer engages in the practice of law and associated activities is calculated over successive 6 months periods, beginning on the effective date of the undertaking referred to in subrule (2), and

(b) “associated activities” includes practice management, administration and promotion and voluntary activities associated with the practice of law.

(6) The Executive Director may, in the Executive Director’s discretion, reduce the time that a lawyer is not eligible under subrule (3) to pay the part-time insurance fee or, in extraordinary circumstances, allow the lawyer to pay the part-time insurance fee despite subrule (3).

Payment of annual insurance fee by instalments

3-41 (1) A lawyer must pay the insurance fee in two equal annual instalments as follows:

(a) the first instalment on or before November 30 of the year preceding the year for which it is paid;

(b) the second instalment on or before June 30 of the year for which it is paid.

(2) A lawyer who fails to pay the second instalment by the date prescribed in subrule (1) must immediately cease the practice of law in accordance with section 30 (7) [Insurance] and surrender to the Executive Director his or her practising certificate and any proof of professional liability insurance issued by the Society.

Insurance fee credit

3-42 (1) The Benchers may approve an annual insurance fee credit and set the conditions that a lawyer must meet to be entitled to the credit.

(2) When a lawyer is entitled to an annual insurance fee credit, the first instalment of the insurance fee payable by the lawyer is reduced by the amount of the credit.

Exemption from professional liability insurance

3-43 (1) A lawyer is exempt from the requirement to maintain professional liability insurance and pay the insurance fee if the lawyer is

(a) not engaged in the practice of law, other than pro bono legal services, anywhere in his or her capacity as a member of the Society, or

(b) employed by one of the following and is not engaged in the practice of law, other than pro bono legal services, except in the course of that employment:

(i) a government department;

(ii) a corporation other than a law corporation;

(iii) a society, trade union or a similar organization.

(2) A lawyer is not exempt under subrule (1) (b) if the lawyer engages in the practice of law, other than pro bono legal services, in any way other than as described in those provisions.

(3) Subrule (4) applies to a lawyer who is entitled to practise law in the jurisdiction of a reciprocating governing body of which the lawyer is a member.

(4) A lawyer may apply to the Executive Director for exemption from the requirement to maintain professional liability insurance and pay the insurance fee, if, in another Canadian jurisdiction in which the governing body allows a similar exemption for members of the Society, the lawyer

(a) is resident or is deemed resident under the National Mobility Agreement, and

(b) maintains the full mandatory professional liability insurance coverage required in the other jurisdiction that is reasonably comparable in coverage and limits to that required of lawyers in British Columbia and extends to the lawyer’s practice in British Columbia.

(5) A Canadian legal advisor may apply to the Executive Director for exemption from the requirement to maintain professional liability insurance and pay the insurance fee.

(6) On an application under subrule (5), the Executive Director must grant the exemption, provided the Canadian legal advisor maintains the full mandatory professional liability insurance coverage required by the Chambre that extends to the Canadian legal advisor’s practice in British Columbia.

[heading amended 04/2017]

Deductible, surcharge and reimbursement

3-44 (1) On demand, a lawyer must pay in full to the Society any of the following amounts paid under the Society’s insurance program on behalf of the lawyer:

(a) a deductible amount;

(b) any other amount that the lawyer is required to repay or reimburse the insurer under professional liability insurance.

(2) If indemnity has been paid under the Society’s insurance program, the lawyer on whose behalf it is paid must

(a) pay the insurance surcharge specified in Schedule 1 for each of the next 5 years in which the lawyer is a member of the Society and not exempt from the insurance fee, and

(b) if the payment was made under trust protection insurance, reimburse the Society in full on demand, for all amounts paid.

(3) The Executive Director may, in the Executive Director’s discretion, extend the time for a lawyer to reimburse the Society under subrule (1) or (2), or pay a surcharge under subrule (2) or, in extraordinary circumstances, waive payment altogether.

[(1) amended 04/2016; (1) and (2) amended 04/2017]

Application for insurance coverage

3-45 (1) A lawyer may apply for insurance coverage by delivering to the Executive Director

(a) an application for insurance coverage, and

(b) the prorated insurance fee as specified in Schedule 2.

(2) A lawyer who is insured for part-time practice may apply for insurance coverage for full-time practice by delivering to the Executive Director

(a) an application for full-time insurance coverage, and

(b) the difference between the prorated full-time insurance fee specified in Schedule 2 and any payment made for part-time insurance coverage for the current year.

(3) The Executive Director must not grant the insurance coverage applied for under subrule (1) or (2) unless satisfied that the lawyer is not prohibited from practising law under Rule 2-89 [Returning to practice after an absence].

Confidentiality of insurance claims

3-46 (1) In this rule, “claim” means a claim or potential claim reported under the policy of professional liability and trust protection insurance.

(2) Unless permitted by this rule, no one is permitted to disclose any information or records associated with a claim.

(3) The Executive Director may do any of the following:

(a) disclose information about a claim with the consent of the lawyer;

(b) if a claim has become known to the public, disclose

(i) the existence of the claim,

(ii) its subject matter,

(iii) its status, including, if the claim is closed, the general basis on which it was closed, and

(iv) any additional information necessary to correct inaccurate information.

(4) For the purpose of subrule (3) (b) (iii), the status of a claim is its stage of progress through the claims handling process, including, but not limited to the following:

(a) opened;

(b) under investigation;

(c) the stage of any litigation commenced;

(d) closed.

(5) In the case of a claim under trust protection insurance, the Executive Director may do any of the following:

(a) publish the name of a lawyer or former lawyer and the circumstances of a claim when a panel or the Benchers acting under Part 4 [Discipline] or 5 [Hearings and Appeals] or a court has found that the lawyer or former lawyer has misappropriated property of a claimant;

(b) disclose the name of a lawyer or former lawyer and the circumstances of a claim when

(i) the lawyer’s misappropriation is known to the public,

(ii) the claim arises from part of a scheme considered by a panel or the Benchers or a court in the written reasons for a decision, or

(iii) the facts are not disputed or are admitted by the lawyer or former lawyer;

(c) with the consent of the Discipline Committee, deliver to a law enforcement agency any information or documents that the Committee reasonably believes may be evidence of an offence.

(6) This rule must not be interpreted to permit the disclosure of any information subject to solicitor and client privilege or confidentiality.

[(1) to (3) and (5) amended 04/2017]

Division 6 – Financial Responsibility

Definitions

3-47 In this Division:

“insolvent lawyer” means a lawyer who

(a) is the respondent to an application for a bankruptcy order under section 43,

(b) has made an assignment of all his or her property for the general benefit of the lawyer’s creditors under section 49,

(c) has made a proposal under section 50 or 66.12,

(d) has filed a notice of intention to make a proposal under section 50.4, or

(e) has applied for a consolidation order under section 219

of the Bankruptcy and Insolvency Act, RSC 1985, c. B-3;

“monetary judgment” includes

(a) an order nisi of foreclosure,

(b) any certificate, final order or other requirement under a statute that requires payment of money to any party,

(c) a garnishment order under the Income Tax Act (Canada) if a lawyer is the tax debtor, and

(d) a judgment of any kind against an MDP in which the lawyer has an ownership interest.

Application

3-48 This Division applies to the following as it does to a lawyer, with the necessary changes and so far as it is applicable:

(a) a non-practising member;

(b) a retired member;

(c) an articled student;

(d) a practitioner of foreign law;

(e) a visiting lawyer permitted to practise law in British Columbia under Rules 2-16 to 2-20;

(f) a law corporation.

Standards of financial responsibility

3-49 Instances in which a lawyer has failed to meet a minimum standard of financial responsibility include, but are not limited to, the following:

(a) a monetary judgment is entered against a lawyer who does not satisfy the judgment within 7 days after the date of entry;

(b) a lawyer is an insolvent lawyer;

(c) a lawyer does not produce and permit the copying of records and other evidence or provide explanations as required under Rule 3-85 (2) (b) [Compliance audit of books, records and accounts];

(d) a lawyer does not deliver a trust report as required under Rule 3-79 [Trust report] or 3-82 (5) [Accountant’s report];

(e) a lawyer does not report and pay the trust administration fee to the Society as required under Rule 2-110 [Trust administration fee];

(f) a lawyer does not produce electronic accounting records when required under the Act or these rules in a form required under Rule 10-3 (2) [Records]. 

Failure to satisfy judgment

3-50 (1) A lawyer against whom a monetary judgment is entered and who does not satisfy the judgment within 7 days after the date of entry must immediately notify the Executive Director in writing of

(a) the circumstances of the judgment, including whether the judgment creditor is a client or former client of the lawyer, and

(b) his or her proposal for satisfying the judgment.

(2) Subrule (1) applies whether or not any party has commenced an appeal from the judgment.

(3) If a lawyer fails to deliver a proposal under subrule (1) (b) that is adequate in the discretion of the Executive Director, the Executive Director may refer the matter to the Discipline Committee or the chair of the Discipline Committee.

Insolvent lawyer

3-51 (1) A lawyer who becomes an insolvent lawyer must immediately

(a) notify the Executive Director in writing that he or she has become an insolvent lawyer, and

(b) deliver to the Executive Director

(i) a copy of all material filed in the proceedings referred to in the definition,

(ii) all information about any debts to a creditor who is or has been a client of the lawyer,

(iii) all information about any debt that arose from the lawyer’s practice of law, and

(iv) any other information, including copies of any books, records, accounts and other documents and information in his or her possession that are relevant to the proceedings referred to in the definition that the Executive Director may request.

(2) An insolvent lawyer who becomes bankrupt has conducted himself or herself in a manner unbecoming a lawyer in either of the following circumstances:

(a) the lawyer’s wilful neglect of creditors, financial irresponsibility or personal extravagance contributed to the bankruptcy;

(b) the lawyer fails or refuses to take reasonable steps to obtain a discharge from the bankruptcy within a reasonable time. 

(3) An insolvent lawyer must not operate a trust account except with

(a) the permission of the Executive Director, and

(b) a second signatory who is a practising lawyer, not an insolvent lawyer and approved by the Executive Director.

(4) Any lawyer who becomes an undischarged bankrupt must resign any directorships in corporations, including law corporations.

Consideration by Discipline Committee

3-52 (1) After receiving the information and material required under Rule 3-51 (1) [Insolvent lawyer], the Executive Director may refer an insolvent lawyer to the Discipline Committee.

(2) The Executive Director may refer any matter for decision under this Division to the Discipline Committee.

(3) When the Executive Director refers a matter to the Discipline Committee under this Division, the Committee may make or authorize any investigations it considers desirable.

(4) The Discipline Committee may suspend or impose conditions and limitations on the practice of a lawyer that it considers does not meet the standards of financial responsibility established under section 32 [Financial responsibility].

(5) The Discipline Committee must not suspend a lawyer or impose conditions and limitations on the practice of a lawyer under subrule (4) until it has notified the lawyer of the reasons for the proposed action and given the lawyer a reasonable opportunity to make representations about those reasons.

(6) The Discipline Committee may rescind the suspension or vary or remove conditions and limitations imposed under subrule (4).

(7) When the Discipline Committee imposes conditions or limitations on the practice of a lawyer under subrule (4), the Executive Director may disclose the fact that the conditions or limitations apply and the nature of the conditions or limitations.

(8) If the Executive Director discloses the existence of conditions or limitations under subrule (7) by means of the Society’s website, the Executive Director must remove the information from the website within a reasonable time after the conditions or limitations cease to be in force. 

Division 7 – Trust Accounts and Other Client Property

Definitions

3-53 In this division,

“cash” means

(a) coins referred to in section 7 of the Currency Act (Canada),

(b) notes intended for circulation in Canada issued by the Bank of Canada under the Bank of Canada Act, and

(c) coins or bank notes of countries other than Canada;

“cash receipt book” means the book of duplicate receipts referred to in Rule 3-70 (1) [Records of cash transactions];

“client” includes any beneficial owner of funds or valuables received by a lawyer in connection with the lawyer’s practice;

“compliance audit” means an examination of a lawyer’s books, records and accounts and the answering of questions by lawyers ordered under Rule 3-85 [Compliance audit of books, records and accounts];

“public body” means

(a) a ministry or department of the government of Canada or of a province or territory, or

(b) a local public body as defined in paragraphs (a) to (c) of the definition in Schedule 1 to the Freedom of Information and Protection of Privacy Act.

Personal responsibility

3-54 (1) A lawyer must account in writing to a client for all funds and valuables received on behalf of the client.

(2) In this division, the responsibilities of a lawyer may be fulfilled by the lawyer’s firm.

(3) A lawyer is personally responsible to ensure that the duties and responsibilities under this division are carried out, including when the lawyer

(a) is authorized by the firm or lawyer through which the lawyer practises law to open, maintain, or deal with funds in a trust or general account, or

(b) delegates to another person any of the duties or responsibilities assigned to a lawyer under this division.

Fiduciary property

3-55 (1) In addition to any other obligations required by law or equity, this rule applies to lawyers who are responsible for fiduciary property.

(2) A lawyer must make all reasonable efforts to determine the extent of the fiduciary property for which the lawyer is responsible and must maintain a list of that fiduciary property.

(3) A lawyer must produce on demand the following records for any period for which the lawyer is responsible for fiduciary property:

(a) a current list of valuables, with a reasonable estimate of the value of each;

(b) accounts and other records respecting the fiduciary property;

(c) all invoices, bank statements, cancelled cheques or images, and other records necessary to create a full accounting of the receipt or disbursement of the fiduciary property and any capital or income associated with the fiduciary property. 

(4) The records required under subrule (3) form part of the books, records and accounts of a lawyer, and the lawyer must produce them and permit them to be copied as required under these rules.

(5) Subrules (3) and (4) continue to apply for 10 years from the final accounting transaction or disposition of valuables.

(6) A lawyer may deposit funds that are fiduciary property to a pooled or separate trust account, provided that the lawyer complies with the rules pertaining to trust funds with respect to the fiduciary property.

[(6) added 06/2016]

Designated savings institutions

3-56 Subject to Rule 3-57 [Removal of designation], a savings institution is a designated savings institution within the meaning of section 33 (3) (b) [Trust accounts] if it has an office in British Columbia accepting demand deposits and is insured by

(a) the Canada Deposit Insurance Corporation, or

(b) the Credit Union Deposit Insurance Corporation of British Columbia.

Removal of designation

3-57 (1) The Executive Committee may declare, by resolution, that a savings institution is not or ceases to be a designated savings institution within the meaning of section 33 (3) (b) [Trust accounts].

(2) A lawyer who holds trust funds in a savings institution that is not or ceases to be a designated savings institution must immediately transfer those funds into a designated savings institution.

(3) Subrule (2) does not apply if the lawyer has written instructions from the client to the contrary.

Deposit of trust funds

3-58 (1) Subject to subrule (2) and Rule 3-62 [Cheque endorsed over], a lawyer who receives trust funds must deposit the funds in a pooled trust account as soon as practicable.

(2) Despite subrule (1), a lawyer who receives trust funds with instructions to place the funds otherwise than in a pooled trust account may place the funds in a separate trust account in accordance with section 62 (5) [Interest on trust accounts] and Rule 3-61 [Separate trust account]

(3) Unless the client instructs otherwise in writing, a lawyer must deposit all trust funds in an account in a designated savings institution.

(4) As soon as it is practicable, a lawyer who deposits into a trust account funds that belong partly to a client and partly to the lawyer or the lawyer’s firm must withdraw the lawyer’s or firm’s funds from the trust account.

Cash transactions

3-59 (1) This rule applies to a lawyer when engaged in any of the following activities on behalf of a client, including giving instructions on behalf of a client in respect of those activities:

(a) receiving or paying funds;

(b) purchasing or selling securities, real property or business assets or entities;

(c) transferring funds or securities by any means.

(2) This rule does not apply to a lawyer when

(a) engaged in activities referred to in subrule (1) on behalf of his employer, or

(b) receiving or accepting cash

(i) from a peace officer, law enforcement agency or other agent of the Crown acting in an official capacity,

(ii) pursuant to the order of a court or other tribunal,

(iii) to pay a fine or penalty, or

(iv) from a savings institution or public body.

(3) While engaged in an activity referred to in subrule (1), a lawyer must not accept an aggregate amount in cash of $7,500 or more in respect of any one client matter or transaction.

(4) Despite subrule (3), a lawyer may accept an aggregate amount in cash of $7,500 or more in respect of a client matter or transaction for professional fees, disbursements, expenses or bail.

(5) A lawyer who accepts an aggregate amount in cash of $7,500 or more under subrule (4) must make any refund greater than $1,000 out of such money in cash.

(6) A lawyer who receives cash, unless permitted under this rule to accept it, must

(a) make no use of the cash,

(b) return the cash, or if that is not possible, the same amount in cash, to the payer immediately,

(c) make a written report of the details of the transaction to the Executive Director within 7 days of receipt of the cash, and

(d) comply with all other rules pertaining to the receipt of trust funds. 

(7) For the purposes of this rule, foreign currency is to be converted into Canadian dollars based on

(a) the official conversion rate of the Bank of Canada for that currency as published in the Bank of Canada’s Daily Memorandum of Exchange Rates in effect at the relevant time, or

(b) if no official conversion rate is published as set out in paragraph (a), the conversion rate that the client would use for that currency in the normal course of business at the relevant time.

Pooled trust account

3-60 (1) The following provisions apply to a pooled trust account:

(a) the account must be kept in a designated savings institution;

(b) the account must be readily available for the lawyer to draw on;

(c) the lawyer must periodically receive

(i) cancelled cheques, and

(ii) bank statements for the account covering all transactions on the account;

(d) the savings institution must agree with the lawyer to pay interest to the Foundation in accordance with subrule (3);

(e) the account must be kept in the name of

(i) the lawyer, or

(ii) the firm of which the lawyer is a partner, employee, member or voting shareholder;

(f) the account must be designated as a “trust” account on the records of the savings institution and of the lawyer.

(2) The cancelled cheques and bank statements referred to in subrule (1) (c) may be received or retained by the lawyer in an electronic form acceptable to the Executive Director.

(3) A lawyer who opens or maintains a pooled trust account must

(a) instruct the savings institution in writing to remit the net interest earned on the account to the Foundation at least quarterly, and

(b) if the lawyer opens or maintains the account at a bank or trust company, notify the institution in writing that the account is a trust account containing the funds of more than one client.

(4) Subject to subrule (5) and Rule 3-74 [Trust shortage], a lawyer must not deposit to a pooled trust account any funds other than trust funds or funds that are fiduciary property.

(5) A lawyer may maintain in a pooled trust account up to $300 of the lawyer’s own funds.

[(4) amended 06/2016]

Separate trust account

3-61 (1) A separate trust account must be

(a) an interest-bearing trust account or a savings, deposit, investment or similar form of account in a savings institution in British Columbia, and

(b) designated as a “trust” account on the records of the savings institution and of the lawyer.

(2) An account referred to in subrule (1) must be

(a) in the name of

(i) the lawyer,

(ii) the firm of which the lawyer is a partner, employee, member or voting shareholder, or

(iii) the trust, or

(b) identified by a number that identifies the client on inspection of the lawyer’s books and accounts.

(3) Subject to Rule 3-74 [Trust shortage], a lawyer must not deposit to a separate trust account any funds other than trust funds or funds that are fiduciary property.

[(3) amended 06/2016]

Cheque endorsed over

3-62 If a lawyer receives a cheque payable to the lawyer in trust and, in the ordinary course of business, pays the cheque to a client, or to a third party on behalf of the client, in the form in which it was received, the lawyer must keep a written record of the transaction and retain a copy of the cheque.

Trust account balance

3-63 A lawyer must at all times maintain sufficient funds on deposit in each pooled or separate trust account to meet the lawyer’s obligations with respect to funds held in trust for clients.

Withdrawal from trust

3-64 (1) A lawyer must not withdraw or authorize the withdrawal of any trust funds unless the funds are

(a) properly required for payment to or on behalf of a client or to satisfy a court order,

(b) the property of the lawyer,

(c) in the account as the result of a mistake,

(d) paid to the lawyer to pay a debt of that client to the lawyer,

(e) transferred between trust accounts,

(f) due to the Foundation under section 62 (2) (b) [Interest on trust accounts], or

(g) unclaimed trust funds remitted to the Society under Division 8 [Unclaimed Trust Money].

(2) The Executive Director may authorize a lawyer to withdraw trust funds for a purpose not specified in subrule (1).

(3) No payment from trust funds may be made unless

(a) trust accounting records are current, and

(b) there are sufficient funds held to the credit of the client on whose behalf the funds are to be paid.

(4) A lawyer must not make or authorize the withdrawal of funds from a pooled or separate trust account, except

(a) by cheque as permitted by subrule (5) or (6),

(b) by electronic transfer as permitted by subrule (7) or (8),

(c) by instruction to a savings institution as permitted by subrule (9), or

(d) in cash if required under Rule 3-59 (5) or (6) [Cash transactions].

(5) A lawyer who makes or authorizes the withdrawal of funds from a pooled or separate trust account by cheque must

(a) withdraw the funds with a cheque marked “Trust,”

(b) not make the cheque payable to “Cash” or “Bearer,” and

(c) ensure that the cheque is signed by a practising lawyer.

(6) A lawyer who withdraws or authorizes the withdrawal of trust funds for the payment of fees must withdraw the funds with a cheque payable to the lawyer’s general account.

(7) A lawyer may make or authorize the withdrawal of funds from a pooled or separate trust account by electronic transfer, provided all of the following conditions are met:

(a) the transfer system is one that will produce, not later than the next banking day, a confirmation form from the financial institution confirming the details of the transfer, which should include the following:

(i) the date of the transfer;

(ii) source trust account information, including account name, financial institution and account number;

(iii) destination account information, including account name, financial institution, financial institution address and account number;

(iv) the name of the person authorizing the transfer;

(v) amount of the transfer; 

(b) the lawyer must

(i) complete and personally sign a requisition for the transfer in a form approved by the Discipline Committee,

(ii) submit the original requisition to the appropriate financial institution,

(iii) retain a copy of the requisition in the lawyer’s records,

(iv) obtain the confirmation referred to in paragraph (a) from the financial institution,

(v) retain a hard copy of the confirmation in the lawyer’s records, and

(vi) immediately on receipt of the confirmation, verify that the money was drawn from the trust account as specified in the requisition.

(8) A lawyer may make or authorize the withdrawal of funds from a pooled or separate trust account by electronic transfer using the Electronic Filing System of the Land Title Branch for the purpose of the payment of Property Transfer Tax on behalf of a client, provided that the lawyer

(a) retains in the lawyer’s records a copy of

(i) all Electronic Payment Authorization forms submitted to the Electronic Filing System,

(ii) the Property Transfer Tax return, and

(iii) the transaction receipt provided by the Electronic Filing System,

(b) digitally signs the Property Transfer Tax return in accordance with the requirements of the Electronic Filing System, and

(c) verifies that the money was drawn from the trust account as specified in the Property Transfer Tax return.

(9) A lawyer may instruct a savings institution to pay to the Foundation under Rule 3-60 [Pooled trust account] the net interest earned on a pooled trust account.

(10) A transfer of funds from a pooled trust account to a separate trust account must be authorized by the client and approved in writing signed by a lawyer.

Payment of fees from trust

3-65 (1) In this rule, “fees” means fees for services performed by a lawyer or a non-lawyer member of the lawyer’s MDP, and taxes on those fees.

(2) A lawyer who withdraws or authorizes the withdrawal of trust funds under Rule 3-64 [Withdrawal from trust] in payment for the lawyer’s fees must first prepare a bill for those fees and immediately deliver the bill to the client. 

(3) A bill or letter is delivered within the meaning of this rule if it is

(a) mailed to the client at the client’s last known address,

(b) delivered personally to the client,

(c) transmitted by electronic facsimile to the client at the client’s last known electronic facsimile number,

(d) transmitted by electronic mail to the client at the client’s last known electronic mail address, or

(e) made available to the client by other means agreed to in writing by the client.

(4) As an exception to subrule (2), a lawyer need not deliver a bill if the client instructs the lawyer otherwise in writing.

(5) A lawyer must not take fees from trust funds when the lawyer knows that the client disputes the right of the lawyer to receive payment from trust funds, unless

(a) the client has agreed that the lawyer may take funds from trust to satisfy the lawyer’s account and the client has acknowledged that agreement in writing or the lawyer has confirmed the client’s agreement in a letter delivered to the client,

(b) a bill has been delivered under subrule (3), whether or not the client has directed otherwise under subrule (4),

(c) the lawyer has given the client written notice that the fees will be taken from trust unless, within one month, the client commences a fee review under section 70 [Review of a lawyer’s bill] or an action disputing the lawyer’s right to the funds, and

(d) the client has not commenced a fee review under section 70 or an action at least one month after written notice is given under paragraph (c).

(6) Despite subrule (5), if a lawyer knows that the client disputes a part of the lawyer’s account, the lawyer may take from trust funds fees that are not disputed.

(7) A lawyer must not take fees from trust funds impressed with a specific purpose, if the object of the trust has not been fulfilled, without the express consent of the client or another person authorized to give direction on the application of the trust funds.

Withdrawal from separate trust account

3-66 (1) A lawyer who makes or authorizes the withdrawal of funds from a separate trust account in respect of which cancelled cheques and bank statements are not received from the savings institution monthly and kept in the lawyer’s records must first transfer the funds into his or her pooled trust account.

(2) Rules 3-64 [Withdrawal from trust] and 3-65 [Payment of fees from trust] apply to funds that have been transferred into a pooled trust account in accordance with subrule (1).

(3) A lawyer who disburses trust funds received with instructions under Rule 3-58 (2) [Deposit of trust funds] must keep a written record of the transaction.

[(3) amended 2015/09]

Accounting records

3-67 (1) In this rule, “supporting document” includes

(a) validated deposit receipts,

(b) periodic bank statements,

(c) passbooks,

(d) cancelled and voided cheques,

(e) bank vouchers and similar documents,

(f) vendor invoices, and

(g) bills for fees, charges and disbursements. 

(2) A lawyer must record all funds received and disbursed in connection with his or her law practice by maintaining the records required under this division.

(3) A lawyer must maintain accounting records, including supporting documents, in

(a) legibly handwritten form, in ink or other duplicated or permanent form,

(b) printed form, or

(c) an electronic form in compliance with subrule (4).

(4) A lawyer who maintains accounting records, including supporting documents, in electronic form, must ensure that

(a) all records and documents are maintained in a way that will allow compliance with Rule 10-3 (2) [Records],

(b) copies of both sides of all paper records and documents, including any blank pages, are retained in a manner that indicates that they are two sides of the same document, and

(c) there is a clear indication, with respect to each financial transaction, of

(i) the date of the transaction,

(ii) the individual who performed the transaction, and

(iii) all additions, deletions or modifications to the accounting record and the individual who made each of them.

(5) A lawyer must record transactions in accounting records in chronological order and in an easily traceable form.

(6) A lawyer must retain all supporting documents for both trust and general accounts. 

Trust account records

3-68 A lawyer must maintain at least the following trust account records:

(a) a book of entry or data source showing all trust transactions, including the following:

(i) the date and amount of receipt or disbursements of all funds;

(ii) the source and form of the funds received;

(iii) the identity of the client on whose behalf trust funds are received or disbursed;

(iv) the cheque or voucher number for each payment out of trust;

(v) the name of each recipient of money out of trust;

(b) a trust ledger, or other suitable system, showing separately for each client on whose behalf trust funds have been received, all trust funds received and disbursed, and the unexpended balance;

(c) records

(i) showing each transfer of funds between clients’ trust ledgers, including the name and number of both the source file and the destination file,

(ii) containing an explanation of the purpose for which each transfer is made, and

(iii) containing the lawyer’s written approval of the transfer;

(d) the monthly trust reconciliations required under Rule 3-73 [Monthly trust reconciliation], and any documents prepared in support of the reconciliations;

(e) a current listing of all valuables held in trust for each client.

General account records

3-69 (1) A lawyer must maintain at least the following general account records:

(a) a book of original entry or data source showing

(i) the amount, date of receipt and the source of all general funds received, and

(ii) the cheque or voucher number, the amount, date and the name of each recipient of each disbursement;

(b) an accounts receivable ledger or other suitable system to record, for each client, showing all transactions including

(i) transfers from a trust account,

(ii) other receipts from or on behalf of the client, and

(iii) the balance owed by the client.

(2) As an exception to subrule (1) (b), a lawyer may enter the information required under that subrule on the trust ledger or other suitable system referred to in Rule 3-68 [Trust account records], provided that the entry is clearly identified and distinct from trust account information.

Records of cash transactions

3-70 (1) A lawyer who receives any amount of cash for a client that is not the lawyer’s employer must maintain a cash receipt book of duplicate receipts and make a receipt in the cash receipt book for any amount of cash received.

(2) Each receipt in the cash receipt book must

(a) be signed by

(i) the lawyer who receives the cash or an individual authorized by that lawyer to sign the receipt on the lawyer’s behalf, and

(ii) the person from whom the cash is received,

(b) identify each of the following:

(i) the date on which cash is received;

(ii) the person from whom cash is received;

(iii) the amount of cash received;

(iv) the client for whom cash is received;

(v) the number of the file in respect of which cash is received, and

(c) indicate all dates on which the receipt was created or modified.

(3) A lawyer who withdraws funds in cash from a pooled or separate trust account must make a record of the transaction signed by the person to whom the cash was paid and identifying:

(a) the date on which the cash was withdrawn,

(b) the amount of cash withdrawn,

(c) the name of the client in respect of whom the cash was withdrawn,

(d) the number of the file in respect of which the cash was withdrawn, and

(e) the name of the person to whom the cash was paid, and

(f) all dates on which the record was created or modified.

(4) The cash receipt book must be kept current at all times.

(5) A lawyer is not in breach of this rule if a receipt is not signed by the person from whom the cash is received if the lawyer makes reasonable efforts to obtain the signature of that person. 

Billing records

3-71 (1) A lawyer must keep file copies of all bills delivered to clients or persons charged

(a) showing the amounts and the dates charges are made,

(b) indicating all dates on which the bill was created or modified,

(c) identifying the client or person charged, and

(d) filed in chronological, alphabetical or numerical order.

(2) For the purpose of subrule (1), a bill includes a receipt issued under Rule 3-72 (3) [Recording transactions].

Recording transactions

3-72 (1) A lawyer must record each trust or general transaction promptly, and in any event not more than

(a) 7 days after a trust transaction, or

(b) 30 days after a general transaction.

(2) A lawyer must record in his or her general account records all funds

(a) received by the lawyer expressly on account of fees earned and billed or disbursements made by the day the funds are received,

(b) subject to a specific agreement with the client allowing the lawyer to treat them as his or her own funds, or

(c) that the lawyer is entitled to keep whether or not the lawyer renders any services to or makes any disbursements on behalf of that client.

(3) A lawyer who receives funds to which subrule (2) applies must immediately deliver a bill or issue to the client a receipt for the funds received, containing sufficient particulars to identify the services performed and disbursements incurred.

(4) As an exception to subrule (1), a lawyer must record the receipt of interest on a separate trust account within 30 days of payment or of notice that funds have been credited to the account.

Monthly trust reconciliation

3-73 (1) A lawyer must prepare a monthly trust reconciliation of the total of all unexpended balances of funds held in trust for clients as they appear in the trust ledgers, with the total of balances held in the trust bank account or accounts, together with the reasons for any differences between the totals.

(2) The monthly trust reconciliation must be supported by

(a) a detailed monthly listing showing the unexpended balance of trust funds held for each client, and identifying each client for whom trust funds are held,

(b) a detailed monthly bank reconciliation for each pooled trust account,

(c) a listing of balances of each separate trust account or savings, deposit, investment or similar form of account, identifying the client for whom each is held,

(d) a listing of balances of all other trust funds received pursuant to Rule 3-58 (2) [Deposit of trust funds], and

(e) a listing of valuables received and delivered and the undelivered portion of valuables held for each client.

(3) Each monthly trust reconciliation prepared under subrule (1) must include the date on which it was prepared.

(4) A lawyer must retain for at least 10 years

(a) each monthly trust reconciliation prepared under subrule (1), and

(b) the detailed listings described in subrule (2) as records supporting the monthly trust reconciliations.

(5) A lawyer must make the trust reconciliation required by this rule not more than 30 days after the effective date of the reconciliation.

Trust shortage

3-74 (1) A lawyer who discovers a trust shortage must immediately pay enough funds into the account to eliminate the shortage.

(2) A lawyer must immediately make a written report to the Executive Director, including all relevant facts and circumstances, if the lawyer

(a) discovers a trust shortage greater than $2,500, or

(b) is or will be unable to deliver up, when due, any trust funds held by the lawyer.

(3) A trust shortage referred to in this rule includes a shortage caused by service charges, credit card discounts and bank errors.

Retention of records

3-75 (1) In this rule, “records” means the records referred to in Rules 3-67 to 3-71.

(2) A lawyer must keep his or her records for as long as the records apply to money held as trust funds or to valuables held in trust for a client and for at least 10 years from the final accounting transaction or disposition of valuables.

(3) A lawyer must keep his or her records, other than electronic records, at his or her chief place of practice in British Columbia for at least 3 years from the final accounting transaction or disposition of valuables. 

Executive Director’s modification

3-76 (1) Having regard to the accounting and storage systems employed by a specific lawyer, the Executive Director may modify the requirements of that lawyer under Rules 3-68 to 3-71 or 3-75 [Retention of records].

(2) The Executive Director may, at any time, cancel or amend a modification under subrule (1).

(3) The Executive Director must make a modification under subrule (1) or a cancellation or amendment of a modification under subrule (2) in writing.

(4) A lawyer who receives a written modification from the Executive Director under subrule (1) must retain it and any amendment under subrule (2) for as long as

(a) the books, records and accounts to which it relates are retained, or

(b) the lawyer would have been required to retain the books, records and accounts to which it relates, but for the modification and any amendment.

Annual CDIC report

3-77 A lawyer who holds pooled trusts funds in a designated savings institution insured by the Canada Deposit Insurance Corporation must file an annual report for each account maintained by the lawyer with that institution in accordance with section 3 (3) of the Schedule to the Canada Deposit Insurance Corporation Act, so that each client’s funds, rather than the account itself, are insured up to the limit of CDIC insurance.

Lawyer’s right to claim funds

3-78 Nothing in this division deprives a lawyer of any recourse or right, whether by way of lien, set-off, counterclaim, charge or otherwise, against

(a) funds standing to the credit of a client in a trust account, or

(b) valuables held for a client.

Trust report

3-79 (1) Subject to subrules (4) and (6), a lawyer must deliver to the Executive Director completed trust reports for reporting periods of 12 months covering all the time that the lawyer is a member of the Society.

(2) The date on which a firm ceases to practise law is the end of a reporting period.

(3) A lawyer must deliver a completed trust report to the Executive Director within 3 months of the end of each reporting period.

(4) On a written request made before the due date of a trust report, the Executive Director may allow a lawyer to submit a trust report covering a time period other than 12 months. 

(5) A trust report delivered to the Executive Director under this rule must

(a) be in a form approved by the Discipline Committee,

(b) be complete to the satisfaction of the Executive Director, and

(c) include all signatures required in the form.

(6) A non-practising or retired lawyer or a practising lawyer who is exempt under Rule 3-43 [Exemption from professional liability insurance] from the requirement to maintain professional liability insurance and pay the insurance fee, is not required to file a trust report for a reporting period of 12 months during which the lawyer has

(a) not received any funds in trust,

(b) not withdrawn any funds held in trust, and

(c) complied with this division.

Late filing of trust report

3-80 (1) A lawyer who does not deliver a trust report as required under Rule 3-79 [Trust report] or 3-82 (5) [Accountant’s report] is in breach of these rules.

(2) A lawyer who fails to deliver a trust report by the date required under Rule 3-79 [Trust report] or 3-82 (5) [Accountant’s report] is deemed to have been in compliance with the rules during the period of time that the lawyer was late in delivering the report if the lawyer delivers the following to the Executive Director within 30 days of the due date:

(a) the required report;

(b) the late fee specified in Schedule 1.

(3) A lawyer who does not deliver a trust report for 30 days after it is required under Rule 3-79 [Trust report] or 3-82 (5) [Accountant’s report] is liable to an assessment of $400 per month or part of a month until the report is delivered.

(4) When there are special circumstances, the Discipline Committee may, in its discretion, waive payment of all or part of an assessment made under this rule.

Failure to file trust report

3-81 (1) Subject to subrules (3) and (4), a lawyer who does not deliver a trust report under Rule 3-79 [Trust report] or 3-82 (5) [Accountant’s report] for 60 days after it is required, is suspended until the report is completed to the satisfaction of the Executive Director and delivered as required.

(2) A trust report is not delivered for the purposes of subrules (1) unless all explanations of exceptions required by the Executive Director are delivered to the Executive Director. 

(3) When there are special circumstances, the Discipline Committee may, in its discretion, order that

(a) a lawyer not be suspended under subrule (1), or

(b) a suspension under subrule (1) be delayed for a specified period of time.

(4) At least 30 days before a suspension under subrule (1) can take effect, the Executive Director must deliver to the lawyer notice of the following:

(a) the date on which the suspension will take effect;

(b) the reasons for the suspension;

(c) the means by which the lawyer may apply to the Discipline Committee for an order under subrule (3) and the deadline for making such an application before the suspension is to take effect.

(5) If a lawyer has not delivered a trust report after it is required, the Executive Director may do either or both of the following:

(a) engage or assign a qualified CPA to complete the trust report;

(b) order an examination of the lawyer’s books, records and accounts under Rule 3-85 [Compliance audit of books, records and accounts].

(6) The Discipline Committee may order that a lawyer pay to the Society all or part of the costs associated with the trust report referred to in subrule (5) (a).

(7) A lawyer who is ordered by the Discipline Committee, under subrule (6), to pay costs must pay those costs in full by the date set or extended by the Committee.

(8) If any part of the amount owing under subrule (6) remains unpaid by the date set in Rule 2-105 [Annual practising fee], the lawyer concerned must not engage in the practice of law unless the Benchers order otherwise.

[(5) amended 2015/05, effective 2015/07]

Accountant’s report

3-82 (1) The Executive Director may require a lawyer who is required to deliver a trust report under Rule 3-79 [Trust report] or a lawyer or former lawyer who is required to deliver a trust report under Rule 3-84 [Former lawyers] to deliver as part of the report required under the relevant rule, an accountant’s report completed and signed by a qualified CPA.

(2) The Executive Director must specify the matters to be included in the accountant’s report referred to in subrule (1) and the time within which it must be delivered to the Executive Director.

(3) Despite subrule (1), an accountant’s report must not be completed and signed by any person determined by the Executive Director to be ineligible to do so.

(4) Despite subrule (1), on application by the lawyer, the Executive Director may allow a person without the credentials referred to in subrule (1) to complete and sign an accountant’s report if the Executive Director is satisfied that

(a) the person has adequate accounting credentials, and

(b) no person qualified under subrule (1) is reasonably available to the lawyer.

(5) The Executive Director may at any time require a lawyer to deliver a new accountant’s report completed and signed by a person who has the qualifications specified by the Executive Director if the lawyer’s accountant’s report was completed and signed by a person

(a) without the credentials referred to in subrule (1), or

(b) ineligible under subrule (3).

(6) If the Executive Director requires a new accountant’s report under subrule (5), the lawyer must deliver the report within 3 months of notice of the requirement being sent by the Executive Director.

[(1) amended 2015/05, effective 2015/07]

Exceptions and qualifications

3-83 (1) The trust report of a lawyer who has not complied with this division must state the exceptions and qualifications, together with an explanation of the circumstances of and reasons for them.

(2) The Executive Director may, following a review of a trust report with exceptions and qualifications, accept the lawyer’s explanation and reasons

(a) without condition, in which case the lawyer is deemed to have complied with Rule 3-79 [Trust report], or

(b) subject to the lawyer fulfilling accounting conditions specified by the Executive Director, in which case, on fulfillment of those conditions, the lawyer is deemed to have complied with Rule 3-79.

Former lawyers

3-84 (1) A former lawyer must deliver a trust report as required under Rule 3-79 [Trust report] for any period during which the former lawyer was a member of the Society.

(2) If a former lawyer does not deliver a trust report as required under subrule (1), an assessment under Rule 3-80 [Late filing of trust report] applies.

Compliance audit of books, records and accounts

3-85 (1) The Executive Director may at any time order a compliance audit of the books, records and accounts of a lawyer for the purpose of determining whether the lawyer meets standards of financial responsibility established under this Part, including but not limited to maintaining books, records and accounts in accordance with this division.

(2) When an order is made under subrule (1),

(a) the Executive Director must designate one or more persons to conduct the compliance audit, and

(b) on notification of the order, the lawyer concerned must immediately produce and permit the copying of all files, vouchers, records, accounts, books and any other evidence and must provide any explanations required by the person designated under paragraph (a) for the purpose of completing the compliance audit.

Failure to produce records on compliance audit

3-86 (1) Subject to subrules (2) and (3), a lawyer who does not produce and permit the copying of records and other evidence or provide explanations as required under Rule 3-85 (2) (b) [Compliance audit of books, records and accounts] is suspended until the records are produced, copying is permitted and explanations are provided to the satisfaction of the Executive Director.

(2) When there are special circumstances, the Discipline Committee may, in its discretion, order that

(a) a lawyer not be suspended under subrule (1), or

(b) a suspension under this rule be delayed for a specified period of time.

(3) At least 7 days before a suspension under this rule can take effect, the Executive Director must deliver to the lawyer notice of the following:

(a) the date on which the suspension will take effect;

(b) the reasons for the suspension;

(c) the means by which the lawyer may apply to the Discipline Committee for an order under subrule (2) and the deadline for making such an application before the suspension is to take effect.

Disposition of files, trust money and other documents and valuables

3-87 (1) Before leaving a firm in British Columbia, a lawyer must advise the Executive Director in writing of his or her intended disposition of all of the following that relate to the lawyer’s practice in British Columbia and are in the lawyer’s possession or control:

(a) open and closed files;

(b) wills and wills indices;

(c) titles and other important documents and records;

(d) other valuables;

(e) trust accounts and trust funds;

(f) fiduciary property. 

(2) Within 30 days after withdrawing from the practice of law in British Columbia, a lawyer or former lawyer must confirm to the Executive Director in writing that

(a) the documents and property referred to in subrule (1) (a) to (d) have been disposed of, and any way in which the disposition differs from that reported under subrule (1),

(b) all trust accounts referred to in subrule (1) (e) have been closed and that

(i) all the balances have been

(A) remitted to the clients or other persons on whose behalf they were held,

(B) transferred to another lawyer with written instructions concerning the conditions attaching to them, or

(C) paid to the Society under Rule 3-89 [Payment of unclaimed trust money to the Society], and

(ii) any net interest earned on a pooled trust account has been remitted to the Foundation in accordance with this division, and

(c) the lawyer or former lawyer has notified all clients and other persons for whom the lawyer is or potentially may become a personal representative, executor, trustee or other fiduciary regarding the lawyer or former lawyer’s withdrawal from practice and any change in his or her membership status.

(3) A law corporation must confirm to the Executive Director as required under subrule (2) within 30 days of

(a) cancellation of its permit under Part 9 [Incorporation and Limited Liability Partnerships], and

(b) ceasing to provide legal services.

(4) The Executive Director may, on application in writing by the lawyer, former lawyer or law corporation, extend the time limit referred to in subrule (1), (2) or (3) or, if in the opinion of the Executive Director it is in the public interest, relieve the lawyer, former lawyer or law corporation of any of the requirements of those subrules.

(5) On an enquiry, the Executive Director may disclose information collected under this rule if satisfied that

(a) the person enquiring has a bona fide reason to obtain the information, and

(b) disclosure of the information would not be an unreasonable invasion of anyone’s privacy. 

Division 8 – Unclaimed Trust Money

Definition

3-88 In this division, “efforts to locate” means steps that are reasonable and adequate in all the circumstances, including the amount of money involved.

Payment of unclaimed trust money to the Society

3-89 (1) A lawyer who has held money in trust on behalf of a person whom the lawyer has been unable to locate for 2 years may apply to the Executive Director to pay those funds to the Society under section 34 [Unclaimed trust money].

(2) A lawyer must make the application referred to in subrule (1) in writing containing all of the following information that is available to the lawyer:

(a) the full name and last known mailing address of each person on whose behalf the lawyer held the money;

(b) the exact amount to be paid to the Society in respect of each such person;

(c) the efforts made by the lawyer to locate each such person;

(d) any unfulfilled undertakings given by the lawyer in relation to the money;

(e) the details of the transaction in respect of which the money was deposited with the lawyer.

(3) A lawyer who cannot provide all the information described in subrule (2) must advise the Executive Director of the reasons why the lawyer does not have that information and deliver to the Executive Director copies of all records in the lawyer’s power or possession that relate to the ownership and source of the money.

(4) If the Executive Director is satisfied that the lawyer has made appropriate efforts to locate the owner of the money, the Executive Director may accept the money under section 34 [Unclaimed trust money].

(5) The Executive Director must account for money received by the Society under subrule (4) separately from the other funds of the Society.

Investigation of claims

3-90 (1) A person may make a claim under section 34 [Unclaimed trust money] in writing, in the form approved by the Executive Committee by delivering it to the Executive Director.

(2) A claimant must provide the Executive Director with information and documents that the Executive Director reasonably requires.

(3) In order to determine the validity of a claim, the Executive Director may make or authorize inquiries or further investigations that he or she considers desirable. 

Adjudication of claims

3-91 (1) The Executive Director may

(a) approve a claim if satisfied that the claim is valid, or

(b) refer the claim to the Executive Committee.

(2) When the Executive Director refers a claim to the Executive Committee, the Committee may, in its discretion

(a) approve or reject a claim based on the information received under Rule 3-90 [Investigation of claims], or

(b) order a hearing to determine the validity of a claim.

(3) If a hearing is ordered, the Executive Director must give the claimant reasonable notice in writing of the date, time and place of the hearing.

(4) The Executive Director must serve the notice referred to in subrule (3) in accordance with Rule 10-1 [Service and notice].

(5) The Executive Committee must conduct every hearing under this rule in private unless the Committee determines, in the public interest, that a specific individual or the public generally may be present at part or all of the hearing.

(6) Subject to the Act and these rules, the Executive Committee may determine the practice and procedure to be followed at a hearing.

(7) The claimant or the Society may call a witness to testify, who

(a) if competent to do so, must take an oath or make a solemn affirmation before testifying, and

(b) is subject to cross-examination.

(8) Following completion of the evidence, the Executive Committee must invite the claimant and the Society to make submissions on the issues to be decided by the Committee.

(9) Following the hearing of the evidence and submissions, the Executive Committee must determine whether the claimant is entitled to the money held in trust by the Society.

(10) If the claim is approved under subrule (1) (a) or (9), the Executive Director must

(a) calculate the exact amount owing to the claimant,

(b) calculate, in accordance with Rule 3-92 [Calculation of interest], the interest owing to the claimant on that amount, and

(c) pay to the claimant the total of the amounts calculated under paragraphs (a) and (b). 

Calculation of interest

3-92 (1) In calculating the interest owing to a claimant under Rule 3-91 [Adjudication of claims], the Executive Committee must allow interest, for each 3-month period, at 2% below the prime lending rate of the Society’s banker on March 31, June 30, September 30 and December 31 respectively, in each year, with interest to be compounded on June 30 and December 31 in each year.

(2) Interest calculated under subrule (1) is payable from the first day of the month following receipt of the unclaimed money by the Society, until the last day of the month before payment out by the Society.

Efforts to locate the owner of funds

3-93 From time to time, the Executive Director must conduct or authorize efforts to locate the owner of money held under this Part.

Payment to the Law Foundation

3-94 Before paying the principal amount received under Rule 3-89 [Payment of unclaimed trust money to the Society] to the Foundation under section 34 [Unclaimed trust money], the Executive Director must be satisfied that the owner of the money cannot be located following efforts to locate the owner.

Division 9 – Real Estate Practice

Definitions

3-95 In this division,

“closing date” means the date upon which the documents to effect a transaction are filed as a pending application in the appropriate land title office;

“discharge of mortgage” means any discharge of mortgage that releases any portion of the land or interest in land charged by the mortgage;

“mortgage” means one of the following registered in a land title office in British Columbia:

(a) a mortgage of land or an interest in land;

(b) a debenture or trust deed containing a fixed charge on land or an interest in land;

“mortgagee” includes the holder of a fixed charge under a debenture or trust deed that is a mortgage;

“notary” means a member of the Society of Notaries Public of British Columbia. 

Report of failure to cancel mortgage

3-96 A lawyer must deliver to the Executive Director within 5 business days a report in a form approved by the Executive Committee when

(a) the lawyer delivers funds to

(i) a mortgagee to obtain a registrable discharge of mortgage, or

(ii) another lawyer or a notary on the undertaking of the other lawyer or notary to obtain and register a discharge of mortgage, and

(b) 60 days after the closing date of the transaction giving rise to the delivery of such funds, the lawyer has not received

(i) a registrable discharge of mortgage from the mortgagee, or

(ii) satisfactory evidence of the filing of a registrable discharge of mortgage as a pending application in the appropriate land title office from the other lawyer or notary.

Division 10 – Criminal Charges

Reporting criminal charges

3-97 (1) This rule applies to lawyers, articled students, practitioners of foreign law and applicants.

(2) Subject to subrule (4), a person who is charged with an offence under a federal or provincial statute, or an equivalent offence in another jurisdiction, must immediately provide to the Executive Director written notice of the charge.

(3) [rescinded]

(4) No notification is required under subrule (2) if a person is issued or served with a ticket as defined in the Contraventions Act (Canada) or a violation ticket as defined in the Offence Act. 

[(2) amended, (3) rescinded 01/2017] 

Division 11 – Client Identification and Verification

Definitions

3-98 (1) In this division,

“client” includes

(a) another party that a lawyer’s client represents or on whose behalf the client otherwise acts in relation to obtaining legal services from the lawyer, and

(b) in Rules 3-102 to 3-105, an individual who instructs the lawyer on behalf of a client in relation to a financial transaction;

“financial institution” means

(a) an authorized foreign bank within the meaning of section 2 [Definitions] of the Bank Act (Canada) in respect of its business in Canada or a bank to which the Bank Act applies,

(b) a co-operative credit society, savings and credit union or caisse populaire that is regulated by a provincial Act,

(c) an association that is regulated by the Cooperative Credit Associations Act (Canada),

(d) a company to which the Trust and Loan Companies Act (Canada) applies,

(e) a trust company or loan company regulated by a provincial Act,

(f) a department or agent of Her Majesty in right of Canada or of a province where the department or agent accepts deposit liabilities in the course of providing financial services to the public, or

(g) an organization controlled by a financial institution;

“financial transaction” means the receipt, payment or transfer of money on behalf of a client or giving instructions on behalf of a client in respect of the receipt, payment or transfer of money;

“interjurisdictional lawyer” means a member of a governing body who is authorized to practise law in another Canadian jurisdiction;

“money” means cash, currency, securities and negotiable instruments or other financial instruments that indicate the person’s title or interest in them;

“organization” means a body corporate, partnership, fund, trust, co-operative or an unincorporated association;

“public authority” means

(a) a department or agent of Her Majesty in right of Canada or of a province or territory,

(b) a municipality or regional district or a municipal body incorporated under the law of another province or a territory, or an agent of any of them,

(c) a college, institute, university or school district,

(d) an organization that operates a public hospital and that is designated by the Minister of National Revenue as a hospital authority under the Excise Tax Act (Canada) or an agent of the organization,

(e) an organization established or continued under an Act of Canada or of a province or territory for a public purpose, or

(f) an organization controlled by a public authority;

“reporting issuer” means an organization that is

(a) a reporting issuer within the meaning of the securities law of any province or territory of Canada,

(b) a corporation whose shares are traded on a stock exchange that is prescribed by the Income Tax Act (Canada) and operates in a country that is a member of the Financial Action Task Force on Money Laundering, or

(c) controlled by a reporting issuer;

“securities dealer” means a person or entity that is authorized under provincial legislation to engage in the business of dealing in securities or any other financial instruments or to provide portfolio management or investment advising services.

(2) In this division, a person controls an organization if the person, directly or indirectly, has the power to elect a majority of the directors or equivalent body of the organization by virtue of

(a) ownership or direction over voting securities of the organization,

(b) being or controlling the general partner of a limited partnership, or

(c) being a trustee of or occupying a similar position in the organization.

Application

3-99 (1) Subject to subrule (2), this division applies to a lawyer who is retained by a client to provide legal services.

(2) Rules 3-100 to 3-108 do not apply when a lawyer provides legal services

(a) on behalf of his or her employer,

(b) that do not involve a financial transaction in the following circumstances:

(i) as part of a duty counsel program sponsored by a non-profit organization;

(ii) in the form of pro bono summary advice, or

(c) if another lawyer or an interjurisdictional lawyer who has complied with Rules 3-100 to 3-108 or the equivalent provisions of a governing body

(i) engages the lawyer to provide legal services to the client as an agent, or

(ii) refers a matter to the lawyer for the provision of legal services.

(3) In this division, the responsibilities of a lawyer may be fulfilled by the lawyer’s firm, including members or employees of the firm conducting business in another Canadian jurisdiction.

Client identification

3-100 (1) A lawyer who is retained by a client to provide legal services must make reasonable efforts to obtain and, if obtained, record all of the following information that is applicable:

(a) the client’s full name, business address and business telephone number;

(b) if the client is an individual, the client’s home address, home telephone number and occupation;

(c) if the client is an organization, the name, position and contact information for individuals who give instructions with respect to the matter for which the lawyer is retained;

(d) if the client is an organization other than a financial institution, public authority or reporting issuer,

(i) the general nature of the type of business or activity engaged in by the client, and

(ii) the organization’s incorporation or business identification number and the place of issue of its incorporation or business identification number.

(2) When a lawyer has obtained and recorded the information concerning the identity of a client under subrule (1), the lawyer is not required subsequently to obtain and record that information about the same individual or organization.

Exemptions

3-101 Rules 3-102 to 3-106 do not apply

(a) if the client is

(i) a financial institution,

(ii) a public authority,

(iii) a reporting issuer, or

(iv) an individual who instructs the lawyer on behalf of a client described in sub­paragraph (i) to (iii),

(b) when a lawyer

(i) pays money to or receives money from any of the following acting as a principal:

(A) a financial institution;

(B) a public authority;

(C) a reporting issuer,

(ii) receives money paid from the trust account of another lawyer or an interjurisdictional lawyer,

(iii) receives money from a peace officer, law enforcement agency or other public official acting in an official capacity, or 

(iv) pays or receives money

(A) pursuant to the order of a court or other tribunal,

(B) to pay a fine or penalty,

(C) as a settlement of any legal or administrative proceeding, or

(D) for professional fees, disbursements, expenses or bail, or

(c) to a transaction in which all funds involved are transferred by electronic transmission, provided

(i) the transfer occurs between financial institutions or financial entities headquartered in and operating in countries that are members of the Financial Action Task Force,

(ii) neither the sending nor the receiving account holders handle or transfer the funds, and

(iii) the transmission record contains

(A) a reference number,

(B) the date,

(C) the transfer amount,

(D) the currency, and

(E) the names of the sending and receiving account holders and the sending and receiving entities.

Verification

3-102 (1) When a lawyer provides legal services in respect of a financial transaction, including a non-face-to-face transaction, the lawyer must take reasonable steps to verify the identity of the client using what the lawyer reasonably considers to be reliable, independent source documents, data or information.

(2) For the purposes of subrule (1), independent source documents may include

(a) if the client is an individual, valid original government-issued identification, including a driver’s licence, birth certificate, provincial or territorial health insurance card, passport or similar record,

(b) if the client is an organization such as a corporation or society that is created or registered pursuant to legislative authority, a written confirmation from a government registry as to the existence, name and address of the organization, including the names of its directors where applicable, such as

(i) a certificate of corporate status issued by a public authority,

(ii) a copy obtained from a public authority of a record that the organization is required to file annually under applicable legislation, or

(iii) a copy of a similar record obtained from a public authority that confirms the organization’s existence, and 

(c) if the client is an organization that is not registered in any government registry, such as a trust or partnership, a copy of the organization’s constating documents, such as a trust or partnership agreement, articles of association, or any other similar record that confirms its existence as an organization.

Identifying directors, shareholders and owners

3-103 When a lawyer provides legal services in respect of a financial transaction for a client that is an organization referred to in Rule 3-102 (2) (b) or (c) [Verification], the lawyer must make reasonable efforts to obtain, and if obtained, record

(a) the name and occupation of all directors of the organization, other than an organization that is a securities dealer, and

(b) the name, address and occupation of all persons who own 25 per cent or more of the organization or of the shares of the organization.

Client identification and verification in non-face-to-face transactions

3-104 (1) This rule applies when a lawyer provides legal services in respect of a financial transaction for a client who is an individual not physically present before the lawyer.

(2) If the client is present elsewhere in Canada, the lawyer must verify the client’s identity by obtaining an attestation from a commissioner of oaths for a jurisdiction in Canada, or a guarantor in Canada, that the commissioner or guarantor has seen one of the documents referred to in Rule 3-102 (2) (a) [Verification].

(3) For the purpose of subrule (2), an attestation must be produced on a legible photocopy of the document and must include

(a) the name, profession and address of the person providing the attestation,

(b) the signature of the person providing the attestation, and

(c) the type and number of the identifying document provided by the client.

(4) For the purpose of subrule (2), a guarantor must be a person engaged in one of the following occupations in Canada:

(a) dentist;

(b) medical doctor;

(c) chiropractor;

(d) judge;

(e) magistrate;

(f) lawyer;

(g) notary (in Quebec);

(h) notary public; 

(i) optometrist;

(j) pharmacist;

(k) professional accountant (Chartered Professional Accountant, Accredited Public Accountant, Public Accountant or Registered Public Accountant);

(l) professional engineer;

(m) veterinarian.

(n) architect;

(o) peace officer;

(p) paralegal licensee in Ontario;

(q) registered nurse;

(r) school principal.

(5) If the client is not present in Canada, the lawyer must rely on an agent to obtain the information required to verify the identity of the client under Rule 3-102 [Verification], which may be attested to in a form similar to that described in this Rule, provided the lawyer and the agent have an agreement or arrangement in writing for this purpose.

(6) A lawyer who enters into an agreement or arrangement referred to in subrule (5) must obtain from the agent the information obtained by the agent under that agreement or arrangement.

[(4) amended 2015/05, effective 2015/07]

Timing of verification for individuals

3-105 (1) At the time that a lawyer provides legal services in respect of a financial transaction, the lawyer must verify the identity of a client who is an individual.

(2) When a lawyer has verified the identity of an individual, the lawyer is not required subsequently to verify that same identity if the lawyer recognizes that person.

Timing of verification for organizations

3-106 (1) A lawyer must verify the identity of a client that is an organization within 60 days of engaging in a financial transaction.

(2) When a lawyer has verified the identity of a client that is an organization and obtained and recorded information under Rule 3-103 [Identifying directors, shareholders and owners], the lawyer is not required subsequently to verify that identity or obtain and record that information. 

Record keeping and retention

3-107 (1) A lawyer must obtain and retain a copy of every document used to verify the identity of any individual or organization for the purposes of Rule 3-102 (1) [Verification]. 

(2) The documents referred to in subrule (1) may be kept in a machine-readable or electronic form, if a paper copy can be readily produced from it.

(3) A lawyer must retain a record of the information and any documents obtained for the purposes of Rules 3-100 [Client identification] and 3-103 [Identifying directors, shareholders and owners] and copies of all documents received for the purposes of Rule 3-102 (2) [Verification] for the longer of

(a) the duration of the lawyer and client relationship and for as long as is necessary for the purpose of providing services to the client, and

(b) a period of at least 6 years following completion of the work for which the lawyer was retained.

Existing matters

3-108 Rules 3-99 to 3-107 do not apply to matters for which a lawyer was retained before December 31, 2008, but they do apply to all matters for which he or she is retained after that time, regardless of whether the client is a new or existing client.

Criminal activity

3-109 (1) If, in the course of obtaining the information and taking the steps required in Rule 3-100 [Client identification], 3-102 (2) [Verification] or 3-103 [Identifying directors, shareholders and owners], or while retained by a client, a lawyer knows or ought to know that he or she is or would be assisting a client in fraud or other illegal conduct, the lawyer must withdraw from representation of the client.

(2) This rule applies to all matters for which a lawyer is retained before or after this division comes into force.