CAUTION Professional Legal Training Course Professional Legal Training Course Professional Legal Training Course

Transcription

1 CAUTION The Professional Legal Training Course provides the Practice Material to users as an aid to developing entry level competence, with the understanding that neither the contributors nor the Professional Legal Training Course are providing legal or other professional advice. Practice Material users must exercise their professional judgment about the accuracy, utility and applicability of the material. In addition, the users must refer to the relevant legislation, case law, administrative guidelines, rules, and other primary sources. Forms and precedents are provided throughout the Practice Material. The users also must consider carefully their applicability to the client s circumstances and their consistency with the client s instructions. The Law Society of British Columbia and the Professional Legal Training Course can accept no responsibility for any errors or omissions in the Practice Material and expressly disclaim such responsibility.

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3 Professional Legal Training Course 2017 Practice Material contributors: Margrett George, Ruth Long and Jaia Rai: Law Society of British Columbia Dirk J. Sigalet, QC: Sigalet & Co practice material editor: Katie McConchie Printed September 2017 A requirement for admission to the bar of British Columbia, the Professional Legal Training Course is supported by grants from the Law Society of British Columbia and the Law Foundation of British Columbia The Law Society of British Columbia. See lawsociety.bc.ca >Terms of use.

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5 PROFESSIONALISM: ETHICS CONTENTS ETHICS [ 1.01] Introduction 1 COMPETENCE [ 2.01] Role of the Law Society 2 1. Credentials Committee 3 2. Practice Standards Committee 3 3. Ethics Committee 4 4. Practice Advisors 5 5. Counselling and Help 5 6. Practice Support and Resources 5 [ 2.02] Duty to be Competent 6 1. Components of Competence 6 2. Knowledge and Skill 6 3. Quality of Service 6 4. Health and Emotional Conditions 7 5. Detection of Incompetence 7 DISCIPLINE AND PROFESSIONAL CONDUCT [ 3.01] Introduction 8 [ 3.02] The Law Society s Role in Reviewing Conduct 8 1. The Law Society s Statutory Mandate 8 2. The Professional Conduct Department s Approach to Complaints 8 3. Jurisdiction 8 [ 3.03] Complaints Investigation 9 1. Making a Complaint 9 2. Lawyer-Initiated Complaints 9 3. Number and Type of Complaints Received Investigating Complaints The Decision to Take No Further Action and the Complainant s Right to Review 14 [ 3.04] The Discipline Committee Process Structure of the Discipline Committee Initial Consideration by the Discipline Committee Conduct Letter and Conduct Meeting Conduct Review Subcommittee Practice Standards Committee The Citation Interim Suspension/Conditions Summary Hearing Process 16

6 (ii) [ 3.05] Hearing Procedure Consent Dispositions of Citations Pre-Hearing Procedure The Hearing 17 [ 3.06] Appeal from the Hearing Panel Decision 17 [ 3.07] Standard of Financial Responsibility 18 [ 3.08] Convictions 19 [ 3.09] Appointment of a Custodian 19 [ 3.10] Adverse Determinations under the Legal Profession Act Professional Misconduct Conduct Unbecoming Breach of the Act or Rules Incompetence 30 PROFESSIONAL LIABILITY [ 4.01] Basis of Liability 32 [ 4.02] Evolution of Liability in Negligence The Relationship of Proximity Reliance on Special Skill or Knowledge The Test of Neighbourliness 33 [ 4.03] Scope of the Lawyer s Liability in Negligence 33 [ 4.04] Limitation Period 33 [ 4.05] Standard of Care 33 [ 4.06] Fiduciary Duty 34 [ 4.07] Causation 34 [ 4.08] Conclusion 35 BC LAWYERS PROFESSIONAL LIABILITY INSURANCE [ 5.01] Introduction 36 [ 5.02] Coverage Who is covered? What is covered? What is not covered? What are the limits of coverage? 37 [ 5.03] Exempt Lawyers and Part-Time Practice Exempt Lawyers Part-Time Practice 38 [ 5.04] Excess Insurance and Other Commercial Liability Insurance Products 38 [ 5.05] Reporting a Claim or Potential Claim When to Report How to Report and other Reporting Information Obligations to Client Confidentiality After a Report 39

7 (iii) [ 5.06] Consequences of a Paid Indemnity Claim 40 [ 5.07] Optional Business Innocent Insured Coverage ( BIIC ) 40 [ 5.08] Additional Resources 40 APPENDICES Appendix A Who to Call at the Lawyers Insurance Fund 41 Appendix B Limitations and Deadlines Quick Reference List 43 SPECIFIC ISSUES [ 6.01] Making Legal Services Available Excerpt from the BC Code, rule 2.1-3(f) Excerpt from Rondel v. Worsley Excerpt from H.H.A. Cooper, Representation of the Unpopular Access to Legal Services Advisory Committee Access Pro Bono Society of BC 46 [ 6.02] Civil Disobedience and the Legal Profession The Legal Problem The Problem of Professional Discipline 50 [ 6.03] The Authority of a Lawyer to Act on a Client s Behalf 50 [ 6.04] Authority to Settle 50 [ 6.05] Duty to the Court Generally 52 [ 6.06] Accuracy in Pleadings 52 [ 6.07] Abuse of Process 53 [ 6.08] Evidence and Argument 53 [ 6.09] Manufacturing Evidence 55 [ 6.10] Respect for Counsel 56 [ 6.11] Contempt of Court Failure to Appear in Court Withdrawal during Trial 56 [ 6.12] Costs against Lawyers 57 [ 6.13] Proceeds of Crime Legislation, Client Identification and Verification, and Cash Transactions 58 [ 6.14] Avoiding Conflicts of Interest Introduction Categories of Conflict of Interest Sources of Law on Conflicts of Interest 61 [ 6.15] Conflicts of Interests Acting Against a Former Client 62 [ 6.16] Transactions between Lawyers and Clients 63 [ 6.17] Gifts to Solicitors 64

8 (iv) [ 6.18] Unrepresented Parties 64 [ 6.19] Giving Independent Legal Advice 65 [ 6.20] Confidentiality Introduction BC Code Duties Criminal Code Sections to [ 6.21] Without Prejudice Communications 68 [ 6.22] Retaining a Diverse Profession Keeping Women Lawyers in the Profession Supporting Aboriginal Lawyers 69 [ 6.23] Equity Ombudsperson 70 [ 6.24] Law Society Advisory Committees and Taskforces 71 [ 6.25] Other Issues 71 APPENDICES NOT AVAILABLE IN ONLINE VERSION Appendix 1 Sample Non-Engagement Letter (Conflict of Interest) Appendix 2 Sample Independent Legal Advice Checklist 73 72

9 Chapter 1 Ethics 1 [ 1.01] Introduction A lawyer needs more than a knowledge of substantive law and a facility with skills and procedures to guide his or her actions when representing a client. A lawyer s life is complicated by questions of professional responsibility, which the lawyer must consider and resolve daily. The legal profession has codified its expectations of practitioners to some extent. The authority commonly consulted in British Columbia to help resolve ethical dilemmas is the Code of Professional Conduct for British Columbia (the BC Code or the Code ). The BC Code is published by the Law Society of British Columbia as part of the Member s Manual. The BC Code is based on the Model Code of Professional Conduct (the Model Code ) developed by the Federation of Law Societies of Canada, with a number of changes from the Model Code that the Benchers of the Law Society considered to be appropriate for practice in British Columbia. The BC Code became effective on January 1, 2013, replacing the Professional Conduct Handbook. The online version of the BC Code is available on the Law Society website and includes annotations that refer to past Law Society of BC Ethics Committee opinions, discipline decisions and relevant court decisions. The rules of professional conduct set out in the BC Code are binding on all lawyers who practice in British Columbia. The Canadian Bar Association s Code of Professional Conduct also contains a set of ethical rules that can be used to guide lawyers conduct. Where particular conduct is addressed in the CBA Code but not by the BC Code, the CBA Code should be regarded as highly persuasive. Where there is a conflict between the two Codes, the BC Code must take precedence. 1 Chapter 2 of the BC Code incorporates the Canons of Legal Ethics. The Law Society adopted the Canons in 1921 and the Benchers revised them in The Canons are an exceptionally well-crafted statement of enduring truths about the duties and responsibilities of lawyers; they review some of the basic duties lawyers owe to the state, to courts and tribunals, to clients, to other lawyers and to themselves. Although the principles referred to in many of the Canons are expanded in other parts of the BC Code, it is often helpful to refer to both the Canon and the rule of conduct in analyzing an ethical issue. The BC Code does not provide an exhaustive codification of the rules of professional conduct. It is an indispensable reference tool but does not render all ethical dilemmas in practice easily resolvable. For example, it is not always possible to fully serve the various duties expressed in the Canons simultaneously. The Code does not attempt to specify all of the kinds of conduct that will subject a lawyer to discipline or remediation, nor does it try to evaluate the relative importance of the various rules or the gravity of a breach of any of them. Those functions are the responsibilities of the Benchers. The Code is designed to assist lawyers and the public in determining whether in a given case the lawyer s conduct is acceptable, and to represent the Benchers views about proper conduct. Although many ethical questions can be answered by referring to the rules of conduct set out in the Code, many other issues are ambiguous or may not be addressed in the Code at all. Ethical issues are often best resolved by discussion with others. The Law Society s Ethics Committee is charged expressly with giving advice to lawyers on ethical issues. The Law Society Practice Advisors have long experience with ethics problems and are available to give confidential advice to lawyers on practice and ethical issues. Practice Advisors will often refer the most difficult ethical problems to the Ethics Committee. The BC Code provides guidance with respect to many common issues that lawyers face, by reference to lawyers duties to relate to clients, the courts, other lawyers and the public, generally, with the utmost probity and good faith. There is also an aspirational aspect to the BC Code: it encourages lawyers to aspire to the most honourable conduct of which they are capable. That conduct may not always be identified by specific rules, but awareness of it and a commitment to practice according to it is an important element of a lawyer s calling. 1 Prepared originally by Jeffrey G. Hoskins, General Counsel for Policy and Planning, the Law Society of British Columbia, and others, for PLTC. Jack Olsen, Ethics Advisor, the Law Society of British Columbia, assisted with revisions to this chapter in December 2012.

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11 Chapter 2 Competence 1 [ 2.01] Role of the Law Society The Law Society regulates lawyers in the public interest. The Law Society sets the criteria for admission into the profession, including pre-call legal education. In addition, the Law Society sets and enforces standards of competency for lawyers. It does so following the legislated mandate under the Legal Profession Act, S.B.C. 1998, c. 9 (the Act ), which outlines the Law Society s authority, and through the Law Society Rules, which specify policy and procedure. In addition, the BC Code provides the rules for lawyer conduct when delivering legal services in the public interest. Past President Gordon Turiff, QC, had the following to say about the Law Society shortly after becoming President (Benchers Bulletin 2009: No. 1 April). What people should know about law and the legal profession I discovered when I became a Bencher that I knew a lot less about what the Law Society and the Benchers did than I thought I knew. Until then, I had been pretty cynical about the Benchers work, tending to side with those who considered the society to be an organization that had grown beyond what it needed to be. I knew that it oversaw credentialing; that it had a disciplinary function; that it ran a Professional Legal Training Course; that it occasionally told us about changes to the Professional Conduct Handbook; and that it funded a scholarship for graduate law studies. I had pretty much let the society take care of itself and, like many of us, I was happy that our paths had not crossed. But in August 2001, just by chance, I went for a long run with the then President, Richard Margetts, QC, beside the river in Saskatoon. It was an invigorating run in more than one sense. As some may know, Richard is quite competitive. So we were probably doing six-minute miles. He was very keen to tell me everything the Benchers were doing and what he had in mind for them, even though his term as President was winding down. By the end of the run, I was intrigued, if not hooked, and that fall I was elected as one of the Benchers from Vancouver County. So here I am, as cynical as I may then have been. Now I know more about the Law Society and the Benchers than is probably healthy. 1 This chapter was prepared and is regularly reviewed by staff lawyers of the Law Society of British Columbia and was most recently updated in May My pre-bencher cynicism evaporated within a few months of my taking up my new responsibilities. I learned quickly that everything the Law Society did was done in the public interest, something I may have understood in a vague way but had never really thought about. I also learned very soon that the Benchers and all the society staff took the public interest mandate very seriously and that every decision the Benchers made was tested against the public interest standard. Soon the rule of law, independence of lawyers, self-governance and solicitorclient privilege were matters with which I had constant contact. They were and are the canopy over the daily work of the Benchers and Law Society staff. For me, as one lawyer in the community of lawyers, those concepts had been of academic interest. For Benchers, they are matters of central importance. But I knew so little about them. It was a steep learning curve. I climbed it chiefly with the help of Michael Lucas, now the Law Society s policy manager. It would not be right to say that these subjects consumed me, but it would be right to say that I came to see that they were matters that must not be ignored or even undervalued. I learned by interviewing articled students that they knew as little as I had known and when I spoke about these topics to people in the community I raised polite smiles or got blank stares. I could see that there was work to be done. I could see that public confidence in the Law Society and the Benchers required public education. I could see that people in the community needed to learn that they depended on the rule of law; that the rule of law was only as secure as lawyers allowed it to be; that lawyers were independent because the public interest demanded it; that self-governance was a necessary condition of independence of lawyers; and that independence was illusory if solicitor-client privilege was not vigorously defended. What to do? As a start, while I was Chair of the Independence and Self-Governance Committee, I prompted the development of a unit on lawyer independence for high school law and civics classes. The Benchers quickly signed on to that initiative. They also endorsed public education as one of their chief priorities. This was an opening for me. I proposed a speaking tour, to occur during the celebration of the society s 125th anniversary of its incorporation. Happily the Benchers supported the idea and the Law Foundation provided some funding. In the result, I will travel the province this year delivering the public interest, rule of law, independence of lawyers, self-governance message to all who will hear me. My hosts will include high school and college classes, local libraries, historical societies and business clubs. I will speak to anyone who will have me. When I can, I will take with me the resident Bencher or Benchers and I will bring along one of the Lay Benchers whenever the arrangements can be made. I am looking forward to taking the profession s message into the community and I look forward to seeing local lawyers as members of the audiences I will address.

12 Regulating in the public interest is achieved by the Benchers serving on a number of Committees and Taskforces and through organization at the staff level. 1. Credentials Committee The Credentials Committee of the Law Society has responsibility for all pre-call qualifications and training of lawyers. Under its mandate, the Credentials Committee enrolls articling students; supervises the articling program; and screens applicants for call and admission, reinstatement, and transfer from other jurisdictions. The Committee is also responsible for reviewing applications relating to a student s failed standing in PLTC and for considering any matters arising from the articling system. 2. Practice Standards Committee The Practice Standards Committee has primary authority over competency-related matters and all aspects of post-call lawyer education. The Committee s objectives under Rule 3-16 are to: (a) recommend standards of practice for lawyers; (b) develop programs that will assist 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. The function of the Practice Standards Committee is set out in s. 27 of the Legal Profession Act and Rules 3-15 to 3-25 of the Law Society Rules (the Rules ). Section 27 reads: Practice standards 27 (1) The benchers may (a) set standards of practice for lawyers, (b) establish and maintain a program to assist lawyers in handling or avoiding personal, emotional, medical or substance abuse problems, and (c) establish and maintain a program to assist lawyers on issues arising from the practice of law. (2) The benchers may make rules to do any of the following: (a) establish a practice standards committee and delegate any or all authority and responsibility under this section, other than rulemaking authority, to that committee; 3 (b) permit an investigation into a lawyer s competence to practise law if (i) there are reasonable grounds to believe that the lawyer is practising law in an incompetent manner, or (ii) the lawyer consents; (c) require a lawyer whose competence to practise law is under investigation to answer questions and provide access to information, files or records in the lawyer s possession or control; (d) provide for a report to the benchers of the findings of an investigation into the competence of a lawyer to practise law; (d.1) permit the practice standards committee established under paragraph (a) to make orders imposing conditions and limitations on lawyers practices, and to require lawyers whose competence to practise law has been investigated to comply with those orders; (e) permit the benchers to order that a lawyer pay to the society the costs of an investigation or remedial program under this Part and set and extend the time for payment; (f) permit the discipline committee established under s. 36 (a) to consider (i) the findings of an investigation into a lawyer s competence to practise law, (ii) any remedial program undertaken or recommended, (iii) any order that imposes conditions or limitations on the practice of a lawyer, and (iv) any failure to comply with an order that imposes conditions or limitations on the practice of a lawyer. (3) The amount of costs ordered to be paid by a lawyer under the rules made under subsection (2) (e) may be recovered as a debt owing to the society and, when collected, the amount is the property of the society. (4) Rules made under subsection (2)(d.1) (a) may include rules respecting (i) the making of orders by the practice standards committee, and (ii) the conditions and limitations that may be imposed on the practice of a lawyer, and (b) must not permit the imposition of conditions or limitations on the practice of a lawyer

13 before the lawyer has been notified of the reasons for the proposed order and given a reasonable opportunity to make representations respecting those reasons. To help lawyers deliver consistently high-quality legal services and comply with the objectives under Rule 3-16, the Practice Standards Committee has established remedial and other programs, as well as practice and ethics resources. The Committee is responsible for dealing with competency concerns that arise with respect to particular lawyers. Lawyers are referred to the Practice Standards Committee from a number of sources the Professional Conduct Department staff, the Complainants Review Committee, or the Discipline Committee. The most common source of referral is from Professional Conduct staff. One of the options the Professional Conduct staff have once they have completed an investigation of a complaint is to refer the complaint to the Practice Standards Committee. When complaints are referred to the Practice Standards Committee, the Committee must decide whether the information indicates sufficient evidence of competency problems and, if so, what further action the Committee should take to assist the lawyer. The Practice Standards Committee does not often consider a single complaint as sufficient to satisfy the reasonable grounds for incompetence required under s. 27. Once the Practice Standards Committee has identified a competency problem, the Committee has several options under the Act and Rules. For example, under Rule 3-17, the Committee has the power to make all inquiries and investigations that it considers desirable. Sometimes, the Committee orders an informal competency complaint review, or a limited form of practice review. When a competency complaint review is ordered, a Bencher, or member of the Committee, meets with the lawyer to discuss the complaint(s) and related practice matters. This discussion usually occurs when the lawyer has one complaint (or relatively few) but concerns exist that require follow-up. The Bencher or Committee member then makes a report to the Committee with his or her recommendations. When the Committee decides there is sufficient evidence of incompetence (refer to 2.02 for a discussion of the components of incompetence), the Committee has usually ordered an investigation in the nature of a practice review. The primary purpose of the review is educational: to assist the lawyer to recognize and constructively address 4 practice problems. The review is normally conducted by a Law Society staff lawyer and by a practising lawyer. A practice review generally takes one day. It takes place in the lawyer s office. The lawyer is interviewed about office systems and practice. His or her files are randomly reviewed. Once the review is completed, a copy of the reviewers report, together with recommendations, goes to the lawyer for a response. The lawyer often volunteers to take a number of remedial steps based on recommendations by the reviewing lawyers. The Committee then reviews the report and the response. The Committee may accept, reject or alter the recommendations of the reviewers. The recommendations by the Committee, and the reviewers report if it is endorsed by the Committee, form part of the lawyer s personal record. The intent of all the recommendations in practice review reports is remedial. The reviewers have seen specific problems in the practice and have made suggestions to remedy those problems. The staff lawyer to the Practice Standards Committee administers any remedial work the Committee recommends and the lawyer agrees to. Some of the remedial programs administered by the Law Society have been formalized into specific online courses with a follow-up review. In rare circumstances, the practice review reveals other difficulties, or the lawyer is unable or unwilling to respond to remedial recommendations. Under Rule 3-20(1), the Practice Standards Committee can impose conditions and limitations on a lawyer s practice when the lawyer has refused or failed to respond to recommendations the Committee has made under Rule 3-19(2). Alternatively, these concerns may be referred to the Discipline Committee of the Law Society for sanctions pursuant to Rule 3-21 (see Practice Material:, Chapter 3). 3. Ethics Committee The Ethics Committee provides ethical guidance to lawyers through the interpretation of the BC Code. The Ethics Committee also identifies current professional responsibility issues and recommends changes to the BC Code to the Benchers. The Ethics Committee publishes opinions and guidelines on substantive matters of professional responsibility, and publishes special bulletins concerning matters of professional responsibility.

14 4. Practice Advisors The Practice Advisors at the Law Society are available by phone or to give advice to lawyers and articled students. All communications between the Practice Advisors and lawyers or articled students are strictly confidential, except in cases of trust fund shortages. Practice Advisors will answer your questions and advise you on a variety of ethical or practice topics and refer you to helpful resources. Their advice covers: undertakings, confidentiality, privilege, conflicts, and other ethical issues; professional conduct, responsibility in the courtroom or tribunal and withdrawal; client relationships and verification, lawyer lawyer relationships; and practice management issues, GST and PST, technology that can increase lawyer efficiency, effectiveness and personal satisfaction in the practice of law. To contact a Practice Advisor, refer to the Law Society s website for current contact information ( When requesting practice advice, the department offers the following suggestions (Benchers Bulletin 2010: No. 4 Winter): Requesting Practice Advice? Use Practice Advisors Effectively The Practice Advice Department fulfilled 6,122 requests for advice in It s a busy little department. If you require advice from a Practice Advisor, please consider the following suggestions to help us help you: 1. Ask your question of one Practice Advisor only. If you have contacted more than one advisor, let the advisor know so that only one person is handling your request. If you telephone or more than one person, it can actually take longer to receive a reply as the advisors have to sort out who will respond. 2. Ask your question at the beginning of your call. You can fill in background details as necessary. 3. Call us yourself. Too often lawyers ask an assistant or a student to call for help, and the caller does not understand the lawyer s question or have sufficient information. 4. If a complaint has been made against you, it is too late to call a Practice Advisor for help. The appropriate time to call an advisor for help is before a complaint is made If you leave a voic message, provide the following information: your full name, including the spelling of your surname; your phone number and local (saying it twice is helpful); the name of your law firm; the subject matter and your question; and whether the matter is time-sensitive. Above all, please speak clearly and slowly. We cannot return your call if we do not understand who is calling and your telephone number. We want to hear from you and we re here to help. 5. Counselling and Help (a) The Law Society funds personal counselling and referral services through LifeWorks Canada Ltd. Services are confidential and available at no cost to individual BC lawyers and articled students and their immediate families. LifeWorks can help with life s questions, issues and concerns handling stress, maintaining relationships, challenges at work, parenting and childcare, managing money, caring for an older relative, or health issues. For more information or assistance, contact LifeWorks 24/7 toll-free at (b) The Lawyers Assistance Program (24-hour confidential line: ) is an independent peer-counselling program funded by the Law Society. The Program is outside of the disciplinary process. It supports lawyers and immediate family members who seek skilled professional counselling services for marriage, relationship and family concerns; alcohol and drug dependencies; career and work-related concerns; life transitions; stressrelated problems; anger management; grief and bereavement; sexuality; anxiety and depression; family violence; trauma response and critical incident stress debriefing; and resource information and referral for financial and legal concerns. 6. Practice Support and Resources The Law Society makes a number of written resources and precedent material available to lawyers and articled students. These can be accessed on the Law Society s website ( and include: educational programs; materials on practice management issues;

15 articles on technology that can increase lawyers efficiency, effectiveness, and personal satisfaction in the practice of law; and checklists for various areas of practice. [ 2.02] Duty to be Competent 1. Components of Competence The lawyer owes the client a duty to competently perform any legal services undertaken on the client s behalf. Incompetence may involve a lack of substantive or procedural knowledge, lack of skill, inability to apply knowledge or skills, or an inability to deliver legal services in a way that is consistent with proper professional practice. In addition, lawyers must function in a practice setting that allows for the timely, organized, professional and cost-effective delivery of legal services to clients. The Practice Standards Committee has adopted the following six components of competent practice: (a) knowledge of substantive and procedural law in the areas practised, how they relate to a client s affairs and the ability to determine when the problems exceed the lawyer s ability; (b) legal skills, including reading, drafting, negotiation, advocacy, research and problemsolving; (c) practice methods, including office management and file organization; (d) delivery of legal services, including client communications, interpersonal skills and time management; (e) professional responsibility and ethics; and (f) the intellectual, emotional and physical capacity to carry out all of the above. The BC Code, section 3.1 sets out guidelines concerning the competence of lawyers and the quality of service to be provided by lawyers; some of these guidelines are discussed below. 2. Knowledge and Skill Rule of the BC Code defines a competent lawyer as a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer s engagement Lack of legal knowledge and skills is a common problem when new laws are enacted and old laws are repealed frequently. Most lawyers have 6 difficulty keeping current in all areas of practice. The best most can do is maintain high levels of skill and knowledge in certain areas and when requested to do work outside those areas, either take the time to attain the requisite level, work with a specialist, or advise the client to go elsewhere for the needed service. This kind of advice may be difficult for some practitioners to follow for fear of losing valuable clients, but the alternative may result in the loss of professional reputation, negligence claims, and remedial action required by the Law Society for failing to render competent service. The lawyer must be alert to the fact that the lawyer might lack competence for a particular task. In these circumstances, if consulted, such a lawyer must decline to act, or obtain the client s instructions either to bring in a lawyer who is competent in that area of law or, where appropriate, an expert in non-legal matters: BC Code, rule 3.1-2, commentary [6] and [7]. Before accepting a retainer, the lawyer must be honestly satisfied that he or she has the ability to handle the matter: rule 3.1-2, commentary [5]. In deciding whether a lawyer has employed the necessary degree of knowledge and skill in a matter, relevant factors include the complexity and specialized nature of the matter; the lawyer s general experience; the lawyer s training and experience in the field in question; the preparation and study the lawyer is able to give the matter; and whether it is appropriate to involve a lawyer of established competence in the field in question: BC Code, rule 3.1-2, commentary [3]. 3. Quality of Service A lawyer must serve each client in a competent, conscientious, diligent and efficient manner so as to provide a quality of service at least equal to that which would be expected of a competent lawyer in a similar situation: BC Code, rule and commentary [2]. Rule 3.2-1, commentary [5] provides a list of relevant factors for measuring quality of service. Lack of efficient management of law offices gives rise to many complaints to the Law Society and insurance claims against lawyers. The main types of mistakes and complaints are reviewed in the Practice Material: Professionalism: Practice Management. When handling complaints caused by practice management errors, the Law Society normally distinguishes between an isolated slip and the generally sloppy conduct of affairs; a number of minor complaints about a lawyer may raise questions about the lawyer s competence. The Law Society also deals seriously with the few practitioners who take chances by lowering standards of practice

16 in order to minimize cost or effort and maximize monetary returns Health and Emotional Conditions Competency may be adversely affected by stress, mental illness, alcohol and drug addiction, physical health, spousal or family problems. These personal difficulties easily lead into other problems affecting competency. For example, a marriage breakdown or death in the family could cause severe emotional problems, which might lead a lawyer to consume too much alcohol and to neglect office administration by failing to keep up correspondence and respond to telephone calls. Those who because of personal or family problems are unable to carry out their duties must address their problems for the good of the public, the profession and themselves. They should take remedial steps through Life- Works, the Lawyers Assistance Program or other services, before the Law Society enters the picture. Lawyers who detect these problems in others should encourage them to seek help quickly. Early identification followed by prompt treatment offer the best hope of recovery. 5. Detection of Incompetence In many areas of practice, it is easy to distinguish good from bad legal work. If a lawyer detects a pattern in another lawyer s conduct or practice that raises a substantial question of the lawyer s competency, the lawyer may have to consider approaching the lawyer or that lawyer s partners, if any, with his or her concerns. Alternatively, the lawyer may choose to discuss his or her concerns with a Bencher or with the Practice Standards Advisor or the Ethics Staff Lawyer. As a last resort, there is the option of filing a complaint with the Law Society. To some extent, the profession and the public depend on lawyers to identify incompetence because the public lacks the expertise. Note that a lawyer must not threaten to report another lawyer s past conduct to the Law Society (see BC Code, rule 3.2-5) or use the Law Society s complaints procedures vexatiously or solely to aid a client s civil claim (see Chapter 13, rule 4). The BC Code, rule 7.8-1, commentary [1] draws a distinction between the ethical and contractual obligations to report errors to one s client and to the professional liability insurer respectively (see Practice Material:, Chapter 5).

17 Chapter 3 Discipline and Professional Conduct 1 [ 3.01] Introduction This chapter provides information about the complaints investigation process of the Law Society and discipline proceedings initiated by the Law Society s Discipline Committee. The Legal Profession Act, S.B.C. 1998, c. 9 (the Act ) provides the Law Society s statutory mandate and sets out the powers of the Law Society. The Law Society Rules specify policy and procedure in a number of areas, including discipline. [ 3.02] The Law Society s Role in Reviewing Conduct 1. The Law Society s Statutory Mandate While this chapter details the role and function of the Discipline Committee, it should be noted that a number of other committees, including the Practice Standards Committee, Credentials Committee, Ethics Committee, and the Complainants Review Committee, may consider matters of professional conduct from time to time. All of the committees function within the object and duty of the Law Society set out in s. 3 of the Act, namely: (3) It is the object and duty of the society to uphold and protect the public interest in the administration of justice by: (a) preserving and protecting the rights and freedoms of all persons; (b) ensuring the independence, integrity, honour and competence of lawyers and of applicants for call and admission; (c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission; (d) regulating the practice of law; and (e) supporting and assisting lawyers, articled students and lawyers of other jurisdictions 1 Staff lawyers of the Law Society of BC regularly review and revise this chapter. This chapter was last updated in July who are permitted to practice law in British Columbia in fulfilling their duties in the practice of law. Thus, in investigating complaints and exercising its discipline function, the Law Society has a duty to protect the public and satisfy the public that a selfregulating profession holds its members accountable for their actions. At the same time, the Law Society must protect lawyers from unfounded allegations, and resolve complaints fairly and as quickly as possible. 2. The Professional Conduct Department s Approach to Complaints The Professional Conduct Department of the Law Society consists of staff lawyers, investigators, and paralegals. This team investigates and assesses complaints against lawyers in British Columbia (see 3.03). Although complaints can be categorized or identified by a variety of features (for example, serious versus minor), each complaint is unique and must be looked at in light of all the circumstances. The lawyers and paralegals in the Professional Conduct Department make every effort to respond to every complaint effectively and efficiently. In essence, the staff lawyers in the Professional Conduct Department aim to investigate and refer serious and provable instances of misconduct (about 10% of all complaints received) for disciplinary or remedial action within one year, and to resolve or close the remaining 90% of complaints as quickly as possible. A successful resolution can include persuading a lawyer to: apologize to an offended client, opposing party or lawyer; fulfill an undertaking or other professional obligation; pay an outstanding practice debt; respond to an ignored communication; or, attend to a delayed or neglected task. The Law Society considers it a positive outcome if the complainant is satisfied that their concerns have been heard and considered fairly, and the lawyer gains insight into managing client expectations, improving communications, and avoiding unnecessary complaints in the future. Of course, bringing satisfaction to both sides is not always possible. Staff lawyers are skilled in dealing with conflict and will take hard positions with the lawyer involved, or the complainant, if the circumstances dictate. 3. Jurisdiction The Law Society may inquire into the conduct or competence of a lawyer or articled student in British Columbia. Conduct that amounts to professional misconduct, conduct unbecoming a lawyer (as defined in s. 1 of the Act), incompetent performance of duties, or

18 contravention of the Act or a rule made under it, may result in disciplinary penalties. These penalties are detailed in s. 38(5) and include a reprimand, a fine not exceeding $50,000, conditions on the lawyer s practice, suspension, or disbarment. An articled student who contravenes the Act or conducts him or herself in a manner that would be professional misconduct or conduct unbecoming a lawyer is also subject to penalties including a reprimand, fine, a lengthened articling period or the setting aside of his or her enrollment (s. 38(6)). Under the National Mobility Agreement, lawyers from reciprocating provinces generally are entitled to practice law in BC for 100 business days in each calendar year, provided they do not establish an economic nexus in the province (Rules 2-15 to 2-27). Rules 4-45 and 4-46 govern the disciplining of visiting lawyers and BC lawyers practicing out-ofprovince. [ 3.03] Complaints Investigation 1. Making a Complaint Under Rule 3-2 of the Law Society Rules, [a]ny person may deliver a written complaint against a lawyer to the Executive Director. Under Rule 3-4(1), the Executive Director must consider every complaint received. In addition, Rule 3-4(2) states that [i]nformation received from any source that indicates a lawyer s conduct may constitute a discipline violation must be treated as a complaint under these Rules. As provided in Rule 3-1, the Professional Conduct Department investigates complaints made about practicing lawyers and former lawyers, articled students, visiting lawyers, practitioners of foreign law and law corporations. The Law Society receives complaints in a variety of ways including the Law Society website online form, mail, facsimile, and telephone. Complaints come from a variety of sources including clients, opposing parties, third parties, lawyers (including self-reports), the Attorney General, court decisions, judges, newspaper articles, and lawyers marketing activities. In addition, matters are referred to the Professional Conduct Department for investigation from other departments at the Law Society. For example, the Trust Assurance Department, which is responsible for the Law Society s compliance audit program, refers matters that raise professional conduct concerns. Some examples of such referred conduct are breaches of the no-cash rule (Rule 3-59), misappropriation of funds, non-payment of TAF, and serious accounting breaches Lawyer-Initiated Complaints A lawyer is required to report misconduct of other lawyers in several circumstances. Rule of the BC Code states: Unless to do so would involve a breach of solicitor-client confidentiality or privilege, a lawyer must report to the Society: (a) shortage of trust monies; (a.1) a breach of undertaking or trust condition that has not been consented to or waived; (b) the abandonment of a law practice; (c) participation in criminal activity related to a lawyer s practice; (d) the mental instability of a lawyer of such a nature that the lawyer s clients are likely to be materially prejudiced; (e) conduct that raises a substantial question as to another lawyer s honesty, trustworthiness, or competency as a lawyer; and (f) any other situation in which a lawyer s clients are likely to be materially prejudiced. A lawyer must not threaten to report another lawyer s past illegal or unprofessional conduct to the Law Society. It is important to distinguish between a lawyer s duty to report another lawyer s misconduct under Rule 7.1-3, and threatening to report another s past misconduct. The latter is prohibited because of the risk that the threat will be used, or will be perceived by the threatened lawyer to be used, for the purpose of gaining an advantage for the threatening lawyer or his or her client. There is nothing wrong in forewarning another lawyer that it is improper to act in a certain way, if the misconduct has not yet occurred, and that the lawyer will be reported to the Law Society if the misconduct occurs. When there are complaints or problems between two lawyers, lawyers should consider whether it is appropriate to have a third party mediate (such as a local Bencher or a senior practitioner) before a call is made to the Law Society. Law Society staff will also assist in arranging mediation. If asked to do so, Law Society staff can often assist lawyers in conflict with one another to view the problem objectively or can recruit the assistance of a Bencher.

19 3. Number and Type of Complaints Received In the last few years, the Law Society has received about 1200 complaints each year. Despite the large number of complaints received, the majority have not revealed serious lawyer misconduct. In 2012, 12% of the complaints fell outside the Law Society s jurisdiction (fee disputes, for example); 36% were determined to be unfounded, unproven or unprovable; 1% were withdrawn; and 1% were reconciled either with or without the assistance of the Law Society. Of the remaining complaints closed in 2012, 23% involved some minor error or misconduct that could be addressed without referral to the Discipline Committee or the Practice Standards Committee. The remaining 18% of complaints resulted in a referral to either the Practice Standards Committee or the Discipline Committee. Complaints by non-clients such as other lawyers, judges, opposing parties in litigation, creditors, regulatory agencies, witnesses, and doctors and other professionals make up many of the complaints. A significant number of complaints received are about lawyers with previous complaints. The most common themes in complaints are: (a) inadequate or poor communication with clients, other lawyers or the Law Society. (This remains the most frequent complaint levelled against lawyers by their clients); (b) delay in taking action on a file; (c) breaches of professional responsibility, such as breach of an undertaking, rudeness, etc.; (d) disputes over fees and accounts; (e) conflicts of interest; and (f) failure to pay practice debts. Staff advise complainants that fee disputes are outside of the Society s jurisdiction, encourage clients to discuss fee disputes with their lawyers, and inform them of fee reviews conducted by the Supreme Court registrar. The BC Supreme Court has a useful description of the process for reviewing a lawyer s fee on the website, see: gov.bc.ca/supremecourt/about_the_supreme_court/r egistrars_office/. Complainants are also informed of the fee mediation program that is offered by the Law Society. The fact that many complaints concern breaches of professional responsibility demonstrates the need for lawyers to review the rules of professional responsibility found in the BC Code on a regular basis, not just in law school and at PLTC. A lawyer needs to be aware of the red flag areas (most of which are reviewed in Chapter 6), and to 10 seek advice if there is a problem or potential problem. The Lawyers Assistance Program ( LAP ) provides confidential outreach, support, education and referrals to members of the legal community, including lawyers and their families, articled students, and support staff. In addition, advice may be sought from the Law Society staff, including the Practice Advisors, the Benchers, senior practitioners, and the CBA Practice Advisory Panels. It is interesting to note that family and civil litigation (excluding motor vehicle) consistently attract the greatest number of complaints. Real estate, wills and estates, and criminal law represent a smaller, but significant, source of complaints. In 2012, complaints in these areas, expressed as a percentage of total complaints, were as follows: (i) family law 23% (ii) civil litigation (no motor vehicle) 22% (iii) real estate 8% (iv) wills and estates 8% (v) criminal law 8% Regardless of the area of law, however, 90% of all complaints had a communication or quality of service root to the complaint. 4. Investigating Complaints Rules 3-5(1) to 3-7 of the Law Society Rules provide the Executive Director with discretion in investigating a complaint. In practice the investigation is delegated to the staff of the Professional Conduct Department. After a complaint is received, the Executive Director may authorize an investigation into the validity of the complaint by seeking further information and particulars (substantiation). Rule 3-5(3) provides that if the complaint: does not allege facts that, if proven, would constitute a discipline violation; is frivolous, vexatious or an abuse of process; or does not fall within the Law Society s jurisdiction or should have been made to some other body, (for example, the Registrar, Legal Services Society, the Ombudsperson, Executive Director (Securities Commission), Judicial Council, etc.), the Executive Director may decline to investigate and the complainant and the lawyer are so advised. Most complaint investigations start by providing a copy or summary of the complaint to the lawyer about whom the complaint has been made.

20 Sometimes, however, investigations are conducted by telephone. Either way, the lawyer is informed of the complaint, asked for an explanation, and the explanation is then communicated to the complainant. A lawyer must cooperate fully in an investigation (Rule 3-5(7) of the Law Society Rules and rule of the BC Code). The Law Society can require a lawyer to produce files and records, attend an interview, and provide written responses (Rule 3-5(8)). The lawyer must provide the information sought even if it is privileged or confidential (s. 88 of the Act, Rule 3-5(11)). At the conclusion of the investigation, Professional Conduct staff make an assessment of the complaint to determine whether further action is warranted. If the evidence gathered in the investigation supports an allegation of misconduct or incompetency, the complaint will be referred to the Discipline Committee or the Practice Standards Committee to consider what further action should be taken. The Executive Director notifies the lawyer and complainant in writing of any action taken. It is sometimes difficult for a lawyer who is the subject of a complaint to respond objectively. Even if the complaint involves a relatively minor matter, it is often a good idea to seek independent advice or retain another lawyer to assist in addressing the complaint. In the following article, Christopher E. Hinkson (now the Honourable Chief Justice Hinkson, as he was appointed Chief Justice of the Supreme Court of British Columbia in November 2013) provides very useful advice about what a lawyer should do after receiving a letter from the Law Society of British Columbia. 11

21 (4) continued A Letter From the Law Society? This time it's serious w^m - A -f m ^ 1L: - rv ;-. \Cr'- m*;.? letter from the Law Society evokes a variety of reactions by members of our profession. Some of the material emanating from the Law Society is informational and thus welcomed by the :Vci Christopher E. Hinkson, QC Harper Grey Easton, who recipients. Some of the correspondence requires the completion of forms or the provision of a cheque; an inevitable event that most of us accept with resignation, and some often acts as counsel for with grace. Chris Hinkson is a Vancouver lawyer with lawyers who have received a Then there are the letters to advise of a complaint received by the Law Society or a concern that might lead to credentialling or disciplinary action on the part of the Law letter from the Law Society. Society. Such letters raise annoyance, indignation, fear and even paralysis in their recipients but cannot and should not be ignored. Given the volume of complaints reviewed each year by the Law Society, there exists a assistance and counsel to members of the Society for reduced, nominal, or even pro bono rates. Where your professional livelihood is at stake, one is hard pressed to justify economization as a reason for acting without counsel. It has been my experience that where the Law Society lawyer handling a complaint is advised that counsel are consulted, they will be accommodating in terms of extensions of time and willing to cooperate in the disclosure of information. It is my suspicion that they would sooner discuss these sometimes delicate matters with counsel rather than with the member of the Law Society directly involved. Once the Law Society has received the member's response to a complaint, it can pursue other avenues of investigation but ultimately must decide to either take no action on the complaint, to require the lawyer to reasonable prospect that an early response to the Law Society may result in Such letters raise annoyance, less indignation, fear and even something far appear before a Conduct Review Subcommittee, or recommend that a citation be issued against the member. In addition to choosing one of those options the member can unpleasant than a citation. paralysis in their recipients... Clearly the letter should be carefully reviewed to also be referred to the Practice Standards determine the nature and extent of the Committee. requested is complaint. Often a response within a specific timeframe, and while most of From the member's standpoint, an appearance the staff lawyers are prepared to provide before a Conduct Review Subcommittee is a not should it I extensions of time for a response, far less unpleasant experience than becoming so. do will they i be universally assumed that subject of a citation and effective counsel the Conduct Chapter 13(3) of the Professional on the member's behalf may be work Law the of Handbook obliges members I Society of BC to reply promptly to any communication from the Law Society. In determining whether or how to do so, consideration should be given to consulting with a colleague or retaining counsel to assist in the response. There are any number of good reasons why you should not reply without objective advice, and little to be lost in seeking such advice. There are, in BC, a number of senior counsel who are experienced in dealing with the Law Society and who provide persuading the Discipline Committee to refer the matter to a Conduct Review Subcommittee. This does not foreclose the possibility of a citation, but with the successful in assistance of experienced counsel, may see the matter ended before such a Subcommittee. Some of our members attempt to deal directly with the complaint process up to the time when a citation is issued. It is difficult as counsel for such an individual to have a * Christopher E. Hinkson, QC, A Letter From the Law Society? This time it's serious (December 2001) BarTalk Vol. 13. No. 6, 4-5. Reprinted here with permission of the author and the Canadian Bar Association, BC Branch. BarTalk Vol. 13/No. 6

22 13 citation withdrawn, but Rule 4-13 of the Law Society Rules does provide a mechanism for so doing. If a citation is authorized it must give the member sufficient detail of the circumstances of the alleged misconduct. As soon as the citation is served the Executive Director of the Law Society may disclose the fact of the citation to the public and the subsequent withdrawal or rescission on the citation will be of little comfort to the member if the original issuance has attracted adverse publicity. and receptive to the conditional admission process set out in Rule 4-21 of the Law Society Rules or the consent to disciplinary action process set out in Rule 4-22 of the Law Society Rules. Jerry Ziskrout toiled for years as counsel at the Law Society and once provided me with sage advice as to how to handle a member who was unlikely to successfully navigate through the hearing of a citation. His expressed view was that one should bear in mind the three C's: Candor, Cooperation and Contrition. I As soon as a citation is served a demand for disclosure of evidence pursuant to Rule 4-25 of the Law Society Rules should be made. This disclosure is, in my experience, as broad as that required of any professional discipline body and should always be the subject of a demand. In the case of a citation issued against George Thomas McNabb by the Law Society of BC (date of hearing December 12, 1998), the Hearing Panel dealt with the issue of costs and found:...it is our opinion that the approach of the present-day benchers of the Law Society is towards full costs recovered, within the limits of our rules. The costs have been incurred; it is only a question of attributing the payment to one party or the other. In this case, either Mr. McNabb must pay them or they will be borne by the Columbia British of lawyers that plain is It collectively. Mr. McNabb is at fault in causing this proceeding while other lawyers in British Columbia are blameless. Whether one agrees or disagrees with this statement of principle, it has clearly been articulated by a panel of Benchers and remains a reality for those facing the discipline process. In the result, it is best, where possible, to work to shorten the hearing process. It has been my experience that counsel instructed by the Law Society are, in almost all cases, amenable to the preparation of an agreed statement of facts commend his advice to those who face citations. Section 3 of the Legal Profession Act places as paramount in the objects and duties of the Law Society of British Columbia the protection of the public interest. The practice of law in this province remains a privilege as opposed to a right and, as such, demands of each of us conduct which is in keeping with our legal and ethical responsibilities. The adoption of an attitude of defiance, intransigence or procrastination when dealing with the Society is unlikely to engender a spirit of compromise where a member's conduct has fallen short. None of us can expect to be proficient in all areas of practice and would do well, in my view, to consult those who are considered to be proficient in Law Society matters, if called upon to answer to a complaint, however unjustified we might feel it is. I think that many of the unpleasant experiences that the members feel they' have had with the Law Society could have been avoided or rendered less unpleasant by reasoned and objective responses to complaints, or a less antagonistic approach to those investigating the complaints, or a less adversarial stance on many of the issues, in the event a citation must be faced. The objectivity of independent counsel should assist this process and, in all likelihood, will reduce your anxiety level and the distractions that will invade the other areas of your practice if you try to handle the matter alone. This is probably advice that you have given your own clients in one form or another and which you would do well to consider, should you get that "letter from the Law Society." 3 5 December 2001