Benchers’Bulletin

A publication of the Law Society of British Columbia

2002: No. 2 March-April

President’s View – No guts, no allegory: page 2

NewsLawyers … staying at the forefront of propertytransactions: page 4

Special General Meeting reset for May 22: page 8

Should family law cases be removed from theinternet?: page 9

Chief Judge and Attorney General discuss courthouseclosures: page 9

New rule allows lawyers to send electronic bills: page10

Practice & EthicsPractice Watch – The Calderbank letter: page 11

Practice Tips – The art of document management:page 12

The Pacific Legal Technology Conference: page 14

Ethics Committee opinions: page 15

Articling offers: page 16

The Discrimination Ombudsperson: page 17

Regulatory decisionsSpecial Compensation Fund claims: page 18

Inside

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President’s View

Benchers’ BulletinThe Benchers’ Bulletin and related bulle-tins are published by the Law Societyof British Columbia to update B.C. law-yers and articled students on policyand regulatory decisions of theBenchers, on committee and task forcework and on Law Society programsand activities.

The publications sport a fresh newlook in 2002. This look will also be re-flected online as the Law Society intro-duces email update bulletins later thisyear. The views of the profession onfuture improvements are always wel-come – please contact the editor.

Additional subscriptions to Law Societybulletins may be ordered at a cost of$50.00 (plus GST) per year, prorated at$12.50 per quarter, by contacting thesubscriptions assistant. To review cur-rent and archived issues of the Bulletinonline, please check out the “ResourceLibrary” at www.lawsociety.bc.ca.

Editor: Denise Palmerdpalmer@lsbc.org; Tel. (604) 443-5706

Editorial Assistant: Denise Findlaydfindlay@lsbc.org; Tel. (604) 443-5788

Subscriptions: Donna Kokotdkokot@lsbc.org; Tel. (604) 443-5768

© 2002 The Law Society of BritishColumbia

Malaysia. Constitutional monarchy.Parliamentary democracy. Federalstate. An Executive responsible to Par-liament. Heavy influence of British le-gal tradit ion. An independentjudiciary. The Barisan Nasional, thegoverning coalition of political parties,has consistently held in excess oftwo-thirds of the seats in Parliament, amajority that allows for amendmentsto the Merdeka (Freedom) Constitu-tion. The Prime Minister, Dr. MahatirMohamad, a doctor by training, hasbeen in power since 1981. Dr. Mahatirwrote of Parliament:

In the main, Parliamentary sittingswere regarded as a pleasant for-mality … which would have no ef-fect on the course of thegovernment. The sittings were aconcession to a superfluous demo-cratic practice. Its main value lay inthe opportunity to flaunt the Gov-ernment’s strength. Off and on, thisstrength was used to change theconstitution. The manner, the fre-quency and the trivial reasons foraltering the constitution reducedthis supreme law of the nation to auseless scrap of paper.

Between 1957 and 1993 there were 34amendments to the constitution. It isthe most-amended constitution of anyknown democracy.

What laws has an unchallengeableParliamentary majority bequeathed toMalaysia?

A 1988 constitutional amendment al-lowed Parliament to abolish judicialreview of federal law by a majorityvote. Let’s look at some of the laws thathave been put beyond judicial reach:

The Internal Security Act (ISA)This is a preventive detention statuteaimed at anyone “acting in any man-ner prejudicial to the security ofMalaysia or to any part thereof or tothe maintenance of essential servicestherein or to the economic life thereof”

[section 8(1)]. The Home Minister maymake an order detaining any such per-son for two years, renewable indefi-nitely.

By a 1989 amendment, section 8B(1)was added:

There shall be no judicial review inany court of, and no court shallhave or exercise any jurisdiction inrespect of, an act done or decisionmade by … the Minister in the exer-cise of [his] discretionary power inaccordance with this Act, save inregard to any question on compli-ance with any procedural require-ment in this Act governing such actor decision.

Dr. Mahatir again:

It is not appropriate for us to followthe practice in other countrieswhere courts play an intervention-ist role in substituting the decisionsof the Executive as this is againstthe concept of “separation of pow-ers” between the Executive and theJudiciary.

By section 8(5) the Minister may im-pose a restriction order on any person,prohibiting him or her from being outof doors between specified hours, re-quiring him or her to notify authoritiesof his or her movements, prohibitinghim or her from addressing publicmeetings or taking part in political ac-tivities, or from travelling outside thecountry or any part thereof specifiedin the order. As with detention orders,there is no judicial review of the Minis-ter’s decision.

Section 22(1) permits the Minister toban publications that are prejudicial tothe national interest, public order orsecurity of Malaysia.

Essential (Security Cases)Regulations (ESCAR)

The Attorney General can designateany offence as an ESCAR prosecution.These procedures directly indict the

Editorial

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accused to trial by a High Court Justicewithout a jury. Witnesses need notidentify themselves when they testify.Hearsay is admissible and given thesame weight as direct evidence. Uponconviction, the maximum permissiblesentence must be imposed. The deathsentence thereby becomes mandatoryfor some of the ESCAR prosecutions.

Sedition Act, 1948Sedition, in Malaysia, is anything thathas a seditious tendency. A seditioustendency includes exciting disaffec-tion against the government, raisingdiscontent or disaffection among theinhabitants of Malaysia, or promotingfeelings of ill-will or hostility betweendifferent races or classes of the popula-tion of Malaysia. Conviction bringsthe possibility of a substantial fine orimprisonment up to three years, orboth.

By section 3(3):

The Minister may in his absolutediscretion grant to any person a li-cense to keep for use or use a print-ing press for such a period as maybe specified in the license and hemay in his absolute discretion re-fuse any application for such li-cense or may at any time revoke orsuspend such license for any pe-riod he considers desirable.

By section 7(1):

If the Minister is satisfied that anypublication contains any article, re-port, caricature … which is in anymanner prejudicial … to public or-der, morality, security … is likely toalarm public opinion … or is likelyto be prejudicial to public interestor national interest, he may in hisabsolute discretion … prohibit …the printing, importation … circu-lation, distribution or possession ofthat publication…

By section 8A(1):

Where in any publication there ismaliciously published any falsenews, the printer, publisher, editorand writer thereof shall be guilty ofan offence…

Since 1987, the Home Minister’s PPPAdiscretion has been beyond judicial re-view.

Publications banned at one time or an-other under the PPPA include Time,the International Herald Tribune ,Asiaweek and the Far Eastern EconomicReview.

Under section 48 of the constitution,anyone fined more than a smallamount or jailed for more than a yearis disentitled to sit in Parliament.

* * *I travelled to Malaysia in January, 2002to observe the sedition trial of KarpalSingh, a prominent lawyer and politi-cian who was charged for words spo-ken in open court in the defence of hisclient. In October, 1987 Mr. Singh, thenan Opposition Member of Parliamentfor the Democratic Action Party, hadbeen detained under the Internal Secu-rity Act. I had the pleasure of diningjust off Merdeka Square with KarpalSingh and Lim Kit Siang, anotherleader of the Democratic Action Party.Mr. Lim had been detained under theInternal Security Act in 1970 and againin 1987. I also had the honour of meet-ing the United Nations Special Rap-porteur on the Independence ofLawyers and Judges in Malaysia,Dato' Param Cumaraswamy, a formerVice-Chair of the Malaysian Bar Coun-cil. He had been prosecuted in 1985 forsedition for criticizing the PardonsBoard for failing to commute a deathsentence.

My personal assessment: KarpalSingh, Lim Kit Siang and Dato' ParamCumaraswamy are wonderful, kind,intelligent, educated and conscien-tious human beings — a credit to anybeach they may wash up on. Yet each

had felt the wrath of Malaysian soci-ety’s sanctions.

Malaysia, taken in allegory, may causeus to reflect on unbalanced govern-ment: an independent MalaysianJudiciary, but one not entrusted withsufficient constitutional authority tocounterbalance Executive and Legisla-tive abuses of fundamental freedoms.Freedom of the person, freedom of as-sociation and freedom of the press re-duced to the subjective whim of theExecutive in the ISA and the PPPA.Too much law and order; not enoughregard for human rights.

When folks raise the Charter to rail atour independent judiciary for makinglaw and overriding the will of Parlia-ment, consider the alternative andthank your lucky stars that the Cana-dian balance has been struck differ-ently.

The Law Society of British Columbia issuing the federal government over in-cursions of the Proceeds of Crime(Money Laundering and Terrorist Fi-nancing) Act into the confidential rela-tionship between solicitors and theirclients, recruiting lawyers as secretagents of the state to surreptitiouslyinform on their clients. The Law Soci-ety is suing the Government of BritishColumbia to establish that it is not justthe Executive’s decision to close lawcourts.

Be patient with the Benchers; we havenot lost our minds, nor have we devel-oped an insatiable appetite forlitigation. We just have a vision of anappropriate line between the branchesof government: the independent Ca-nadian judiciary (enabled by an inde-pendent bar), differentiated from thelegislative and executive branches.There are changes in the topographyof the Canadian legal landscape ofwhich an independent bar cannot ap-prove. We grouse have some struttingand pecking to do. No guts, no alle-gory.�

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News

Lawyers … staying at the forefront of property transactionsMike Seaborn and Jeff Jones have practisedlaw on northern Vancouver Island fornearly 20 years, and now oversee offices inPort McNeill, Port Hardy and Alert Bay.Almost two years ago, the lawyers en-hanced their general practice through ex-panded legal services in the real estatefield. Jones Seaborn is now a “one-stop”service centre for clients wishing to takeadvantage of solicitor residential propertysales — from assisting in marketing andshowing a vendor’s property, to negotiat-ing purchase contracts, to completing theconveyance. It’s brought them closer totheir clients and the community.

Elsewhere, another initiative is underway.Dale Janowsky, QC is one of several law-yers who have envisioned a formal networkof lawyers across the province to promotetheir clients’ business interests, includingthe sale and leasing of commercial proper-ties and assets, through a shared databaseof client interests. It is a vision that has ledto creation of the Lawyers Business andProperty Network launched this April,joining together 36 lawyers to date, fromKamloops, the Okanagan, the Kootenays,Vancouver Island and the Fraser Valley.

The Benchers have encouraged the in-volvement of lawyers in the expanded pro-vision of legal services and are committedto keeping the profession updated on cur-rent initiatives. The initiatives profiledhere show different approaches, yet theyshare a common thread — they put law-yers at the forefront of property transac-tions to ensure clients benefit fromprofessional legal guidance, from start tofinish.

There are certainly issues for lawyers towatch on the horizon. Following thelaunch of an expanded legal practice byJones Seaborn, the Superintendent of RealEstate raised some objections and appearsto be construing very narrowly the sectionof the Real Estate Act that exempts law-yers from registration as real estate agents.The Law Society, however, views a law-yer’s representation of clients in these

initiatives as constituting the practice oflaw and in the public interest. For more onthe respective positions of the Law Societyand the Superintendent, see the sidebar“Are property sales the practice oflaw?”

In its strategic plan (onl ine atwww.lawsociety.bc.ca), the Law Soci-ety has recognized that client expectationsare driving change in the marketplace, andthat lawyers need the flexibility to re-spond. The Law Society is committed to re-viewing its regulatory framework toensure the rules protect the core values ofthe profession without unnecessarily hin-dering innovations by lawyers. The pri-mary value that lawyers bring isprofessional legal advice, offering greaterprotection and a more complete service forclients.

Solicitor property sales … theJones Seaborn story

For people selling a home on northernVancouver Island, there is an alterna-tive to using a real estate agent or go-ing it alone in a private sale. For almosttwo years, Jones Seaborn, a two-law-yer practice based in Port McNeill, hasoffered vendor clients more extensivelegal services in the real estate field,from initial listing, to sale to convey-ance. It’s a service that fits well withtheir general practice, especially in thissmall community where there is noresident real estate agent.

Jones Seaborn takes transactions fromstart to finish for vendors: conductingrecent title searches; examining titleand advising on encumbrances,mortgages, easements and rights of

B.C. lawyers are finding creative ways to renew their role in real estate and business —guiding more clients through transactions, from beginning to end. Michael Seaborn andJeff Jones, whose general practice on Northern Vancouver Island now features assistanceto vendors with residential property sales, have found their full service firm has struck achord with clients, and given them a new opportunity.

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Are property sales the practice of law?

The Real Estate Act requires the li-censing of people falling within thedefinition of “agent,” subject to alimited number of exemptions, in-cluding one for lawyers. Section2(a)(f) of the Act provides:

This Part does not apply: … to abarrister or solicitor whose nameis inscribed on the rolls of barris-ters or solicitors in British Co-lumbia, or to a person employedby him or her, in respect of trans-actions in the course of his or herpractice.

Following on a complaint from theB.C. Real Estate Association a yearago, the office of the Superintendentof Real Estate questioned whetherlawyers can rely on this exemptionfor solicitor property sales withoutbeing licensed under the Real EstateAct.

The Law Society has taken the viewthat the Real Estate Act and Legal Pro-fession Act do not, with respect to thesale of real estate, define exclusivefields of practice. Rather, they defineexclusive fields of regulatory au-thority. Under the Real Estate Act,the Superintendent of Real Estatehas exclusive authority to regulatenon-lawyers in real estate sales. TheLaw Society has exclusive authorityunder the Legal Profession Act to reg-ulate lawyers in the practice of law.

The Law Society imposes higherstandards of education, conduct andaccountability on lawyers than areimposed on real estate agents andsalespersons and maintains insur-ance and special fund programs thatare better than the security providedto clients of real estate agents. Ac-cordingly, the Law Society haspointed out that requiring lawyersto be licensed under the Real EstateAct would be redundant and wouldnot increase public protection.

An opinion from counsel concludedthat, while the exemption would notapply if the lawyer performed no le-gal services for a client, legal ser-vices in connection with a real estatetransaction includes negotiating thepurchase or sale, includingevaluating factors going to the nego-tiation such as appraisals, develop-ment or redevelopment possibilitiesand financing. In the view of coun-sel, the wording of the Real Estate Actexemption does not support a limi-tation — either on the means bywhich a lawyer obtains a client orthe context of the transaction in thelawyer’s overall practice of law.

Counsel distinguished a 1995 deci-sion of the New Zealand Court ofAppeal. That Court held that NewZealand lawyers could not rely on asimilar exemption to operatefreestanding property centres in

coordination with their practice aslawyers: Real Estate Institute of NewZealand v. Lewis and Callanan CA242/94 31.8.95. The dividing line ac-ceptable to the Court in that casewas between a transaction that wasincidental to an existing lawyer-cli-ent relationship and one that in-volved active marketing of propertywhere it could be said that the pri-mary service was selling propertyrather than negotiating and convey-ing property. In that case, for exam-ple, the clients were not required touse the lawyers for the actualconveyancing. That is not the modelof service that has been offered byB.C. lawyers.

Despite that fact, the Superinten-dent of Real Estate is pursuing the is-sue further and has advised the LawSociety that, rather than seek a courtdetermination of the scope of the ex-emption for lawyers, he would seeka legislative amendment to removethe exemption. Law Society repre-sentatives met with the Minister ofFinance in March to oppose anyamendment that would precludelawyers from engaging in this fieldof practice, noting that there hasbeen no harm to the public in all theyears the exemption has been inplace, nor have there been publiccomplaints or demand for legisla-tive change.�

way; obtaining values from the B.C.Assessment Authority; obtaining ap-praisals and advising on market value;preparing sale particulars and adver-tising in local newspapers and on thefirm’s website; erecting property sign-age; presenting information packageson the property to potential purchas-ers; showing the property; reviewingand advising on any purchase offers;negotiating agreements and preparing

legal documentation and discharges.The cornerstone of this service, as withall of the firm’s work, is professionallegal advice.

Mike Seaborn notes that lawyers havealways been involved in real estatesales, but usually near the completionof a transaction, when it is more diffi-cult to solve problems that may arise.“We are now involved at an earlier

stage in that process than we were pre-viously,” he told lawyers at a Law So-ciety workshop last year. “Thebumper sticker version is that we domore for less, and offer one-stop shop-ping.”

Jeff Jones sees the services lawyers

continued on page 6

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News

offer in real property salestransactions as very different fromthose of realtors who list properties forvendors but then work for purchasersfor a split of a commission. “Lawyersact for clients, provide professionalservices to the client and always havetheir clients’ best interests at heart,” hesays, noting that his firm makes it veryclear to a vendor client and to potentialpurchasers looking at a property thatthe firm acts only for the vendor.“We’ve found that clients are very ap-preciative of that.”

In Jones’ experience, clients like hav-ing a choice and also look favourablyat the contingency fees charged by thefirm.

The firm provides its vendor clientswith exclusive representation, legaladvice and marketing services on acontingency fee basis: typically, for aresidential property, 4% of the sellingprice up to $100,000 and 1% on anyamount over $100,000. Jones Seabornuses a contingency fee agreement thathas been reviewed and approved bythe Law Society Ethics Committee.

To reach potential purchasers for theirclients’ properties, the firm relies pri-marily on its website, property signs,advertising and information pack-ages.

Mr. Seaborn notes that he and his lawpartner have found a way to offer legalservices in the real property field in away that works for their firm. They arealso always willing to talk to lawyerswho might wish to offer expanded ser-vices in their own conveyancing prac-tices.

For lawyers who might be intimidatedby the prospect, Jones says that, com-pared to a chambers application or abuy-sell agreement, “it’s extremelysimple.” Lawyers can start with onefile and don’t need any additional sys-tems. Jones Seaborn now helps 10 to 15vendor clients in offering properties at

any given time.

If lawyers hesitate to take up this op-portunity, Jones says it may befounded on a misperception that thisis similar to the realtor model, when infact it is very different. “If anything isconsistent with our historical legal ser-vices, this is,” he says. “It’s involvingtitle, real estate, title searches, negoti-ating and assessing value, all of whichwe do on a regular basis. If there isanything that lawyers can do, this isabsolutely on all fours.”

Lawyers interested in more informa-tion on the Jones Seaborn experiencemay wish to visit the firm’s website atwww.island.net/~js-co or contactMike Seaborn or Jeff Jones.

The Lawyers Business andProperty Network … makingconnections

A new initiative underway in April isthe Lawyers Business and PropertyNetwork. The Network is a non-profitassociation, open to all B.C. lawyers,

that helps lawyers assist clients —both buyers and sellers — with busi-ness, property and financial interests,including the purchase, sale and fi-nancing of commercial properties andbusinesses.

Now with 36 founding members, theNetwork is a forum for lawyers to pooltheir collective client and businesscontacts, to further client interests. AsPresident and a primary organizer ofthe Network, Dale Janowsky, QC ofKamloops, says that cooperative ef-forts in the profession are important.

Mr. Janowsky sees great potential forlawyers, through the Network, to tapinto a pool of contacts. “You can pickup the lawyers directory, multiply thenumber of lawyers by the number ofclients they may have,” he said.“When we share information amongthe members in an organized and pro-fessional manner, it’s just head andshoulders above whatever is beingoffered out there.”

The Network is intended to help

Property transactions … from page 5

Dale Janowsky, QC is one of 36 lawyers who have come together from different corners ofB.C. as part of a non-profit association, the Lawyers Business and Property Network. TheNetwork is developing a database of business and property interests for lawyers to betterfacilitate the buy-sell transactions of their clients.

7

lawyers represent clients throughoutbusiness and property transactions,and to receive fees commensuratewith the value of their services. Asnoted by Mr. Janowsky, clientsregularly pay real estate agentscommissions of between 4% and 7%,while lawyers currently receiveconveyancing fees worth theone-tenth the value of those commis-sions.

He sees great potential in a network

providing opportunities to lawyersand giving clients greater choice. “Theprogram will support the public inter-est by providing a one-stop service forclients of lawyers who want marketexposure for their business or prop-erty in addition to legal advice on thepurchase or sale,” he says.

A client has several advantages inchoosing a lawyer, including thepromise of strict confidentiality,which can be critical in commercial

transactions. “Some clients don’t wantit known that their business is for salebecause someone may try to take itaway from them,” notes Mr.Janowsky. “If you have, for example, aclient list that is an integral part of thebusiness, you can provide it to theother lawyer on the basis that he doesnot disclose it to anyone, and the fi-nancial records that go along withthat. Our rules of conduct and ethics(as lawyers) are so much stronger andonerous than in the real estate world,and that’s why we provide a better ser-vice.”

The Lawyers Business and PropertyNetwork will feature several key ser-vices:

� A public website (www.thenet-work.ca): This website will pro-vide general information forlawyers and clients.

� A “B.C. lawyers-only” intranet(www.lbpn.intranets.com): Mem-bers of the Network can post clientproperties, businesses or other in-terests in a central database. Theycan use this database to negotiateand conclude transactions on be-half of clients. All B.C. lawyers canbrowse this database by first regis-tering for access (see page 10).

� Information and template pack-ages: Members of the Networkwill receive — via email and a webforum — standard forms for list-ings, templates for retainer agree-ments and guidelines on how tohandle an initial set of transac-tions.

� Package of support services: Onbehalf of clients, members of theNetwork can purchase an op-tional service from an outside sup-plier that manages and providessigns, valuations, property de-scriptions, photos and other re-lated materials.

News

Mandatory liability insurance coverage

The coverage provided by the LawSociety’s mandatory liability insur-ance policy includes coverage forerrors made by lawyers in actingfor buyers and sellers in the pur-chase and sale of property andgoods. As always, the extent of anycoverage under the policy de-pends, in part, on the exact natureof the activities undertaken.

The Lawyers Insurance Fund hasalready provided some assurancesto the members of the LawyersBusiness and Property Network oncoverage under the policy for theservices described in the Net-work’s retainer agreements. Otherlawyers considering embarking ontheir own property initiatives areencouraged to contact the LawyersInsurance Fund directly for an “ad-vance ruling.” The ruling will con-firm whether the specific activitiesin which the lawyer intends to en-gage fall within coverage, and willprovide information on limita-tions, if any, on coverage.

If it is ultimately determined thatlawyers are precluded from engag-ing in these activities without sepa-rate licensing, such as a licenceunder the Real Estate Act (see Areproperty sales the practice of law? onpage 5), any services for which law-yers are required to be licensed

would no longer fall within cover-age.

The Lawyers Insurance Fund re-minds lawyers that this area ofpractice, as with any others, posespotential liability risks for lawyers.The highest risk faced by lawyers isthe exposure to claims for negli-gent misrepresentation. As soon asone side to the transaction, usuallythe purchaser, alleges that misin-formation was given to them abouta matter of particular importance,lawyers will quickly find them-selves embroiled in the dispute.

Like all risks, the risk of liability formisrepresentation can, with care-ful practice and management, beminimized. For instance, when ap-propriate, lawyers will want toclearly communicate to the partiesthat the lawyers are not responsiblefor the accuracy of specific infor-mation. Further, when a lawyerdoes provide information aboutthe property, that informationshould be confirmed in writing,along with any appropriate dis-claimers or warnings.

For more information on any ofthese matters, please contactMargrett George at the LawyersInsurance Fund by telephone at(604) 443-5761 or by e-mail atmgeorge@lsbc.org.� continued on page 10

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News

Special General Meeting reset for May 22The Law Society Special GeneralMeeting — adjourned from April 12because of overflow crowds in severallocations — has been reset for May 22,beginning at 1:30 p.m. The VancouverTrade and Convention Centre will bethe main site, and the meeting will joinother sites across B.C. by audioconfer-ence.

Lawyers should consult the April 26Notice of Special General Meeting for fulldetails of the meeting, includingaudioconference locations. The Soci-ety is requesting that lawyers sendback an email RSVP to assist in regis-tration and set-up at the meeting (seeNotice for details of where to send yourRSVP). Registration will be availableearly on the day of the meeting in thosesites where highest turnout is ex-pected and will remain open at all sitesthroughout the meeting.

Over 2,000 lawyers attended the

meeting on April 12, a record numberand far more than the Vancouver ho-tels and a number of other sites couldaccommodate. Because the meetingcould not be adjourned to a specificdate, the Law Society is providing

members with at least 21 days advancenotice of the meeting.

The Special General Meeting was con-vened by the Benchers by a petition ofmembers under the Law SocietyRules.�

AppointmentsB.C. Courthouse Library Society —Robert McDiarmid, QC and PatriciaSchmit, QC have been reappointed asLaw Society representatives on theBoard of Directors for three-year termscommencing January 1, 2002 and end-ing December 31, 2004. Jeffrey Hayeshas been reappointed as the Presi-dent’s nominee to the Board for a fur-ther one-year term ending December31, 2002.

B.C. Medical Services Foundation —The Benchers have appointed MarkSkorah to the Board of Directors for afour-year term commencing February1, 2002 and ending December 31, 2005.

CBA (B.C.) Benevolent Society — TheBenchers have appointed JaneShackell, QC as the Law Society’s rep-resentative on the Board for a one-yearterm commencing February 1, 2002

and ending February 1, 2003.

Canadian Bar Association, NationalCouncil — The Executive Committeehas reappointed Jane Shackell, QC asthe Bencher representatives on the Na-tional Council.

Continuing Legal Education Society— James Baird has been reappointedand Timothy Schober appointed tothe Board of Directors for three-yearterms commencing January 1, 2002and ending December 31, 2004.

Hamber Foundation — The Benchershave appointed Gerald Lecovin, QCto the Board of Governors for athree-year term commencing March 8,2002 and ending February 28, 2005.

Law Foundation — The ExecutiveCommittee has appointed BarbaraCromarty and Christine Elliott, andhas reappointed Paul Love, to the

Board of Governors for three-yearterms commencing January 1, 2002and ending December 31, 2004.

Pro Bono Society — The ExecutiveCommittee has appointed Mr. JusticeBryan Ralph, Peter Keighley, QC andAnita Olsen as interim Directors.

Provincial Judicial Council — PeterWilson, QC has been reappointed asthe President’s nominee to the Councilfor a further one-year term commenc-ing January 1, 2002 and ending De-cember 31, 2002.

UBC Faculty of Law CurriculumCommittee — The Executive Commit-tee has appointed Law Society Direc-tor of Education and Practice AlanTreleaven to the Curriculum Commit-tee for a two-year term commencingJanuary, 2002 and ending January,2004.�

Chief Judge and Attorney General discuss courthouse closuresOn April 19 the Chief Judge of the Pro-vincial Court, Carol Baird Ellan, andAttorney General Geoff Plant, QC laidthe groundwork to discuss provincialcourthouse closures and other issues.

A memorandum of understandingand protocol (www.provincialcourt.bc.ca/newsandreferences/newsre-leases/index.html) recognize the re-spective roles of government and thejudiciary and open the door to recon-sidering the fate of some of the 24courthouses now slated for closure.The MOU reflects an intention by theAttorney General and the ProvincialCourt to work cooperatively, to main-tain reasonable and adequate access tothe Court and to consider cost reduc-tions, such as through the use of circuitcourts and videoconferencing of somepre-trial appearances.

The Attorney General announced the

decision to close the courthouses in aletter to the Chief Judge of the Provin-cial Court on January 17, 2002. The de-cision affected matters of judicialadministration (including the assign-ment of judges, the sittings of thecourt, court lists, related matters ofcourtroom allocation and the provi-sion for public access to the ProvincialCourt) and was made without the au-thority of the Provincial Court judi-ciary.

The Law Society began a constitu-tional challenge of the government de-cision to close courthouses in March. Ahearing of the case, set for April 23, hasbeen adjourned to May 6, with theagreement of all parties, in light of thenew discussions.

For updates on this issue, see the LawSociety website at www.lawsociety.bc.ca.�

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Comments invited from lawyers

Should family law cases be removed from the internet?The Chief Justice of the B.C. Su-preme Court has advised the LawSociety that the Court may discon-tinue publication of family law caseson the superior courts website. TheCourt has postponed a final decisionon this issue to July to allow for con-sultation.

The Chief Justice notes the Court’sview that family law judgmentsought not to be published on the su-perior courts website because of theease with which members of thepublic can search out and reviewsuch judgments, coupled with thesensitive nature of the subject matter

and the findings of fact that judgesare required to make in family cases.

The Chief Justice says that the Courthas experienced a relatively steadystream of complaints about familylaw cases on the internet site. As anexample, the school acquaintancesof children whose families are in-volved in family litigation havesearched the site and obtained par-ticulars.

It is the intention of the Court thatjudgments would continue to beavailable to the profession and toin-person lit igants at courtregistries, through conventional

publishers, both in paper and elec-tronic form, and through the Con-tinuing Legal Education Society.

To assist the Court in its consulta-tion, the Law Society invites lawyersto comment on this proposedchange and how it may impact onthe profession or the public. If youhave views, please relay them byJune 3 to:

Peter J. Keighley, QC, BencherLaw Society of British Columbia845 Cambie StreetVancouver, BC V6B 4Z9Email: pkeighley@rosborough.com.

Residents of Maple Ridge stage a proteston March 20 against the provincial gov-ernment’s plan to close the local court-house, one of the busiest in the province.Local lawyers Gordon Kehler, Rob Germelland Michael Ritzker were among a numberof speakers who addressed the gathering of150 people, explaining the negative impacton local justice, policing and the youth di-version program. Photo compliments of theMaple Ridge News.

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Law Foundation strikes new agreement with the Bank of Nova ScotiaThe Bank of Nova Scotia has ad-dressed Law Foundation concernsover its interest rate agreement, andthe severe overall impact of low inter-est rates on Foundation revenues, andhas come forward with a very compet-itive rate of return on lawyers’ pooledtrust accounts.

As of April 1, 2002, interest paid to theFoundation on lawyers’ pooled trustaccounts will be at a rate of prime less3%, with no service charges. Law

Foundation Chair Don Silversides, QCthanks Mike Pugh, Director, andMaryAnne Galey, Manager, ofScotiabank Enterprise Solutions forthe leadership shown in making thisnew agreement possible.

Increased revenues enable the LawFoundation to fund programs thatmake the justice system accessible toBritish Columbians, particularly thosepeople who have the greatest accessproblems. Funded programs include

professional legal education, public le-gal education, law reform, legal re-search, legal aid and law libraries.

The Law Society, Law Foundation andCanadian Bar Association (B.C.Branch) encourage lawyers to con-sider which financial institutions pro-vide the best support to the LawFoundation when deciding where toplace their trust accounts.�

New rule allows lawyers to send electronic billsIn March the Benchers amended LawSociety Rule 3-57 to allow lawyers totransmit a bill, and a letter accompany-ing a bill, to a client at the client’s lastknown email address.

Rule 3-57(3), as amended by the addi-tion of (d), now reads:

A bill or letter is delivered withinthe meaning of this Rule if it is …

(d) transmitted by electronic mailto the client at the client’s last

known electronic mail address.

The change reflects the legal recogni-tion accorded to records in electronicform under the Electronic TransactionsAct SBC 2001, c. 10.

Lawyers will wish to consider, how-ever, that section 69 of the Legal Profes-sion Act on “Lawyers Bills” requiresthat bills be signed by or on behalf ofthe lawyer or accompanied by asigned letter. Section 11 of the Elec-tronic Transactions Act provides that, if

there is a requirement under law forthe signature of a person, that require-ment is satisfied by an electronic sig-nature.

Lawyers interested in learning moreabout how to use electronic signaturesin this context are welcome to contactRon Usher, Staff Lawyer, Practice Op-portunities, at rusher@lsbc.org.

The revised text of Rule 3-57 will be in-cluded in the next Members’ Manualamendment package.�

The Lawyers Business and PropertyNetwork offers members feeagreement templates (either a fixed feeor contingency basis) when represent-ing buyers or sellers. Fee negotiationsand arrangements are left entirely tothe individual lawyer and client.

What professional conduct consider-ations have been canvassed in relationto the template agreements? The LawSociety Ethics Committee reviewedcertain aspects of the agreements forthe Network last December, specifi-cally in relation to lawyers chargingplacement fees to buyers and accept-ing finders’ fees for financing. TheCommittee was satisfied that theagreements would not violate Chapter

6, Rule 8 of the Professional ConductHandbook (Finders’ fees), given that allfinders’ fees and brokerage fees aredisclosed to and approved by a client,and paid to the client’s credit. In theCommittee’s view, a buyer’s agree-ment could properly allow for thebuyer to pay a fee to his or her lawyerbased on a percentage of the purchaseprice without violating Chapter 7,Rule 1 of the Handbook (Acting whenthe lawyer has an interest in the mat-ter) as a lawyer is always under an ob-ligation to minimize costs for a client.

* * *Mr. Janowsky invites all lawyers tovisit the Lawyers Business and Prop-erty Network information site(www.thenetwork.ca). To register foraccess to the private intranet, firstregister at the Juricert website

(www.juricert.ca), click on “Productsand Services” and submit a request toapply to the Network. Once your LawSociety membership has been con-firmed by Juricert, the Law Society’sonline authentication service, you willbe given a password to www.lbpn.intranets.com.

If a lawyer wishes to do more thanbrowse the intranet — to post a listingor conclude a transaction for a client —he or she can do so by joining the Net-work, paying the annual fee and anyapplicable posting or transaction fees.The annual membership fee is $250.

For more information, you can alsocontact Mr. Janowsky by email atdale.janowsky@thenetwork.ca, bytelephone at (250) 372-2022 or by fax at(250) 372-0087.�

Property transactions … from page 7

11

Practice Watch, by Felicia S. Folk, Practice Advisor

The Calderbank letter (andsuing jointly)

Two interesting decisions dealingwith costs and Calderbank letters havebeen handed down recently. In Brownv. Lowe, 2002 BCCA 7, Madam JusticeSouthin for the Court of Appeal saidthat “Calderbank v. Calderbank shouldnot be considered law in this provincetoday.” Madam Justice Ryan agreedwith the reasons of Southin, J.A. oncosts, while Chief Justice Finch dis-sented. The majority said that, whenthe Court of Appeal decidedCalderbank in 1975, it was attemptingto fill a gap in the Rules on costs, andthat the 1993 revision to Rule 37 is acomplete code and there is no room forany judicial discretion save that givenby it.

In Pacific Hunter Resources v. MossManagement Inc., 2002 BCSC 396, a de-cision that followed immediately onBrown v. Lowe, Madam JusticeMartinson discussed whether the de-cision of the majority in Brown v. Loweon the use of the Calderbank letters asthe basis of an order for costs, was

binding on her. She decided it was notbinding.

Martinson, J. noted that the decision inBrown v. Lowe was obiter, and made thedistinction that Brown v. Lowe dealtwith an application for double costswhile in the Pacific Hunter Resources v.Moss Management case before her, the“defendant asks, strictly speaking, for‘increased costs,’ though in an amounttantamount to double costs. The obiterdecision is contrary to previous deci-sions of the Court of Appeal.”Martinson, J. exercised her discretionto award costs on the basis of aCalderbank letter.

I recommend to all litigators that youread these two decisions carefully, notonly for the discussion about theCalderbank letter, but also for Southin,J.A.’s comments about the meaning ofbeing sued “jointly.” She notes thattortfeasors can only be said to be sued“jointly” if they have joined togetherin committing the tort and the liabilityof one is the liability of the other. Inother words, liability may be joint, butunless defendants are joint tortfeasors,they are not sued “jointly.”

Negligence claims againstmunicipalities

In its February Alert!, the Lawyers In-surance Fund reported on the BritishColumbia Court of Appeal decision inGringmuth v. The Corporation of the Dis-trict of North Vancouver, a decision thatresolved that negligence claimsbrought against municipalities for abreach of a duty of care in tort are gov-erned by the two-year limitation in theLimitation Act. Claims brought againstmunicipalities for an unlawful act con-trary to statute are governed by thesix-month limitation in section 285 ofthe Local Government Act.

However, please remember that thetwo-month notice provision in section286(1) of the Local Government Act con-tinues to apply to any claims broughtagainst a municipality, includingclaims in negligence. Lawyers intend-ing to claim damages against a munici-pali ty must comply with thetwo-month notice requirement, re-gardless of the nature of the claim theyintend to advance.�

Practice resources on the webFor practice resource articles, checkthe Law Society website at www.l a w s o c i e t y . b c . c a / s e r v i c e s /frame_practice.html . Recentlyposted resources include:

� Opening and Maintaining Cli-ent Files

� Getting Started: Trust Account-ing

� Getting Started: Opening YourLaw Office

� Winding up a Sole Practice

� Remitting Interest to the LawFoundation

� CDIC reports

New materials are prepared or se-lected for the site by the Practice Ad-visor and Practice ManagementAdvisor, so watch for updates.

Also available, at no cost and whilequantities last, are copies of Lawyerto Lawyer: The 1997 Loss PreventionVideo — covering conflict of interest,client relations and communica-tions, limitations, client identifica-tion and emotional detachment.

The Practice Advice program hashad a tremendous response fromlawyers for the free CD-Rom GettingStarted: Opening your Law Office and

Trust Accounting, published in 2001.Copies are still available. The CD ex-plains the decisions to make andsteps to take before opening yourown law office, how to organize theoffice, find help with your practiceand understand the fundamentals oftrust accounting.

If you are interested in a copy of thevideo or the CD-ROM, please con-tact Joanne Hudder, Assistant to thePractice Advisor by telephone at(604) 669-2533, by fax at (604) 646-5902 or by e-mail at jhudder@lsbc.org.�

Practice & Ethics

12

Practice Tips, by Dave Bilinsky, Practice Management Advisor

The art of document managementPart Two of “Building an automated practice”

The first part of this article appeared in theNovember-December, 2001 Benchers’Bulletin and featured the core automatedsystems for a law office. This second partexplains how to go beyond the basics. Thefull paper, first presented by Dave Bilinskyat LegalTech Toronto in November, isavailable in the Practice & Ethics page ofthe Law Society website under “Servicesfor Lawyers” at www.lawsociety.bc.ca.

Once you have the core automatedsystems operating in your firm (finan-cial management, case management,word processing, research softwareand communications software), youare ready to take it to the next level.Where you go from here depends onthe type of practice that you have, thestrategic direction you wish to take(which of “Better, Faster, Cheaper” doyou wish to pursue?), the time and

resources that you have available andthe climate in which you operate. Thislast factor is ultimately the most im-portant.

Many lawyers have called me to say, “Iwould like to introduce some newtechnology around here, but I don’tknow about so-and-so — they justwon’t change their ways.” It is a sadfact that lawyers are like mules —there ain’t no way you are going to getthem to move unless and until they aredarn well ready and willing to move.Building a system that won’t be usedby everyone is simply not an efficientuse of time and resources since youwill then be maintaining dual systems— unless you foresee that the hold-out(s) will be pressured into changingif the entire office around themchanges.

Assuming that you have all the per-sonal factors, office politics and thestars in alignment to take the next step,what would that be?

Document assembly

Whether yours is a litigation practice ora solicitor’s practice, in all likelihoodthere are at least a handful of docu-ments that you must create time andagain (mortgages, statements of claim,affidavits, reporting letters and so on).There are a number of ways to auto-mate this process — from using themerge facility in Word or WordPerfectto sophisticated document assemblyprograms such as HotDocs(www.capsoft.com) or Ghostfill(www.ghostfill.com) or a databaseprogram such as Microsoft Access withMS Word — all of these programs cancreate documents from a standardword processing precedent library.

Case Management software (such asAmicus Attorney, Time Matters andProLaw) can generate documents suchas standard retainer letters, pleadings,fax cover sheets and the like using theinformation stored in their contact da-tabases. Amicus Attorney can also gen-erate documents using HotDocs andWord or WordPerfect’s merge facility.

A somewhat less sophisticated ap-proach is to use a program such asActiveWords (www.activewords.com) that is akin to autocorrect inWord, but on steroids. ActiveWords al-lows you to create keyboard shortcutsfor the insertion of standard wording,such as contact information, into a let-ter form.

To see how HotDocs works, go towww.lexisone.com/store and try anyone of the free forms that are inHotDocs format (such as the Californiawill under the estate planning area).

Practice & Ethics

13

about an issue — quickly — and beingable to tap into that wisdom.

The International Standards Organi-zation is developing ISO 9000 stan-dards for KM.

Knowledge Management tools rangefar and wide — from expert systems(that assist someone to “think” usingthe judgement of others that has beencaptured in a sophisticated decisiontree-like analysis) to email “filter” sys-tems that discern who in an organiza-tion knows about certain things based

on their email history. These tools arechanging as we speak.

I would place Document Managementalong the “Faster” and “Cheaper”axes, if it results in your finding docu-ments in less time as compared to yourpaper-based system (which it should).Knowledge Management is one that Iwould place along the “Better” and“Faster” axes.

To see Ghostfill in action, go to theirwebsite (www.ghostfill.com) and takethe 15-minute tour.

To try ActiveWords, go to theirwebsite and download the full version— you receive a 30-day free trial(www.activewords.com).

Document assembly falls along the“Better” and “Faster” axes, in myopinion, since you are building a stan-dard set of precedents and no longerrelying on the “search and replace”method of document creation.

Document managementFinding the proverbial needle in a hay-stack is the purpose of documentmanagement software. The leadingproducts here are Worldox(www.worldox.com), DocsOpen(www.hummingbird.com) andiManage (www.imanage.com). It istrue that they do things such as archiv-ing, document version control,full-text searching and indexing, butthe heart of these programs is theirability to find a document that existssomewhere on the LAN, deep in theheart of someone’s hard drive, thatyou recall having seen at some inde-terminate time in the past.

Document management has in a sensespawned, or at least been a forerunnerfor, a new area of study entitled“Knowledge Management.” What isKM? Good question. Dr. YogeshMalhotra defines KM as follows:

Knowledge Management caters tothe critical issues of organizationaladaptation, survival, and compe-tence in face of increasingly discon-tinuous environmental change.Essentially, it embodies organiza-tional processes that seek synergis-t ic combination of data andinformation-processing capacity ofinformation technologies, and thecreative and innovative capacity ofhuman beings.

In a nutshell, Knowledge Manage-ment means being able to find the per-son in your organization who knows

Practice management advice

David J. (Dave) Bilinsky is the Law Soci-ety’s Practice Management Advisor. Hisfocus is to develop educational programsand materials on practice managementissues, with a special emphasis on tech-nology, to increase lawyers’ efficiency, ef-fectiveness and personal satisfaction inthe practice of law. His preferred way tobe reached is by email to daveb@lsbc.org(no telephone tag). Alternatively, you cancall him at (604) 605-5331 (toll-free inB.C. 1-800-903- 5300).

Practice advice

Felicia S. Folk, the Law Society’s PracticeAdvisor, is available to give advice inconfidence about professional conduct,including questions about undertakings,confidentiality and privilege, conflicts,courtroom and tribunal conduct and re-sponsibility, withdrawal, solicitors’ liens,client relationships, lawyer-lawyer rela-tionships and other ethical and practicequestions. All communications betweenMs. Folk and lawyers are strictly confi-

dential, except in cases of trust fundshortages. You are invited to call her at(604) 669-2533 (toll-free in B.C.1-800-903- 5300) or email her atadvisor@lsbc.org.

Ethical advice

Jack Olsen is the staff lawyer for the Eth-ics Committee. In addition to fieldingpractice advice questions, Mr. Olsen isavailable for questions or concerns aboutethical issues or interpretation of the Pro-fessional Conduct Handbook. He can bereached at (604) 443-5711 (toll-free inB.C. 1-800- 903-5300) or by email atjolsen@lsbc.org. When additional guid-ance appears necessary, Mr. Olsen canalso help direct enquiries to the EthicsCommittee.

You can also reach Mr. Bilinsky, Ms. Folkor Mr. Olsen by writing to them at:

The Law Society of BC8th Floor – 845 Cambie StreetVancouver, BC V6B 4Z9Fax: (604) 646-5902.

Practice Advice

Dave Bilinsky Jack OlsenFelicia S. Folk

Practice & Ethics

continued on page 14

14

Specialized packagesThere are software packages that arecontinually being developed to sup-port lawyers in specific practice areas.These range from:

Corporate records management, realestate, estates, family law and othersoftware: www.cakeware.com �

www.dyedurhambc.com � www.doprocess.com � www.highlander.ca �www.data-care.com �www.e-incorp.ca � www.divorcemate.com � www.childview.ca � www.infoware.ca �www.jls.ca �www.teranet.ca.

Document precedents: www.dyedurhambc.com � www.thomforms.ca� www.ucdocuments.com � www.nereosoft.com/lexwrite.htm � www.findlaw.com �www.lexisone.com.

Specialized personal injury case man-agement software: www.needpins.com �www.denovosys.com.

Litigation softwareLitigation software is an especially im-portant and comprehensive tool —

probably since litigators are willing togo to almost any length if it assiststhem in winning their case.

Accordingly, litigation software canstart at the case management stage, toorganize the file, the parties, the wit-nesses, the BF and limitation dates andall the disparate bits of information,including documents, telephone calls,emails and notes.

From here, a litigator can image allhard copy evidence (documents, pho-tographs, hand-written notes etc),OCR them (optical character recogni-tion) and store both the graphic im-ages and the OCR files in a database.Then the litigator can use an evidenceanalysis package such as: Searchlight(www.searchlight.ca), Summation(www.summation.com), Almost Pa-per (www.almostpaper.com) or Con-cordance (www.dataflight.com) toeither search by keyword or to build adatabase of issues, facts, people andthe like and associate the evidencewith the issues.

From here a litigator can use litigationstrategy products, such as CaseMap,TimeMap and NoteMap (www.casesoft.com) to strategize, build

timelines and outline and brainstormtheir case as well as trial preparationsoftware (www.redianalysis.com).

In discoveries and in trial, the lawyerneed not take notes while a witness isgiving evidence if the lawyer has ac-quired LiveNote (www.livenote.com), which is real-time transcriptionsoftware delivering a full transcrip-tion of all evidence as it is given.

There are other products, such as JFSLitigator’s Notebook, which is an elec-tronic version of the traditional litiga-tor’s three-ring, tabbed and indexedtrial notebook (www.bowne.com).Version 7 of this product now extendsits capabilities to workgroup settings.

Last, you will be required to take thecase to trial. There are several productsthat can assist you in conducting yourtrial, from a jury summation using aPowerPoint presentation all the wayto a full digital trial using such prod-ucts as the Director’s Suite Trial Pre-sentation Software (www.trialdirector.com), Sanction (www.verdictsystems.com) TrialPro II (www.trialpro.com) and Visionary (www.vision-arylegaltechnologies.com), which al-low you to easily organize, display

This Fall the Law Society of British Columbia – in conjunction with the Continuing Legal Education Society of B.C. and theCanadian Bar Association (B.C. Branch) – presents

The Pacific Legal Technology ConferenceTechnology that Works and Pays for ItselfOctober 18, 2002Vancouver Trade and ConventionCentre

Mark your calendars now for thisunique event — a full day of multi-stream legal technology sessionspresented by internationallyacclaimed speakers who will focuson the practical results of technologyfor litigators, solicitors, office

administrators, legal researchersand IT professionals.

This program will concentrate onwhat practical legal technologies arenow available, what they can do foryou, how you go about implement-ing them in your busy office, how toovercome hurdles and how tomaximize benefits. This programwill also explore legal and ethical is-sues of the technologies, practical

and legal steps to using them incourt and the ways they can makeyour practice “better, faster andcheaper.” Find out what your com-petition will be using!

For further information, watch the“Events” section of the Law Soci-ety’s website at www.lawsociety.bc.ca or email Dave Bilinsky atdaveb@lsbc.org.�

Practice & Ethics

Practice Tips … from page 13

15

Practice & Ethics

and control your demonstrative ex-hibit presentations for trial. You candisplay two exhibits side-by-side, or-der your exhibits for quick presenta-t ion and display a document,photograph or other image immedi-ately in front of the jury, the judge and

counsel. The time saved using thismethod can be substantial as com-pared to referencing multiple docu-ment books and placing an exhibitbefore the judge, the witness, the juryand counsel.

This is just a small selection of the vast

array of legal and general softwarethat can be used by lawyers to auto-mate their practices. But, as noted inthe first part of this article, the secret topiecing together the picture is to startwith a vision of what you arebuilding.�

Ethics Committee seeks views on joint retainers in divorce actionsIn 1989 the Ethics Committee (thencalled the Professional StandardsCommittee) published an opinion inthe Benchers’ Bulletin that lawyersshould not act for both spouses inbringing a joint action for divorceunder then Rule 9.1 of the DivorceRules. In 2000, after consultationwith the CBA Family Law Section,the Ethics Committee reaffirmedthat opinion: see the October-No-vember, 2000 Benchers’ Bulletin.

The rationale for the Committee’sopinion was that the potential fordisagreement to emerge betweenthe parties in family law matters,even after both spouses have re-ceived independent legal advice,made it unsafe for one lawyer to actfor both parties. The Committee wasof this view, notwithstanding that

section 8 of the Divorce Act and Rule60(11) of the Supreme Court Rulescontemplate the filing of joint ac-tions in some circumstances, al-though not necessarily by lawyers.

Section 8 of the Divorce Act provides:

8. (1) A court of competent juris-diction may, on application byeither or both spouses, grant a di-vorce to the spouse or spouses onthe ground that there has been abreakdown of their marriage.

Rule 60(11) of the Supreme CourtRules states:

(11) Joint Action for divorce —Spouses may commence a familylaw proceeding jointly, withoutnaming a defendant, if theyclaim an order for divorce and noother orders except by consent.

Since the opinion of the Ethics Com-mittee on joint retainers in divorceactions was published in 2000, theCommittee has received a number ofrepresentations from lawyers thatthe opinion is unnecessarily restric-tive and ought to be reconsidered forsome circumstances. Before it re-views this issue, the Ethics Com-mittee invites comment from theprofession.

Lawyers who wish to commentshould contact:

Jack OlsenStaff Lawyer — EthicsLaw Society of British Columbia8th Floor, 845 Cambie StreetVancouver, BC V6B 4Z9Tel. (604) 443-5711 or 1-800-903-5300 (toll-free in B.C.)E-mail: jolsen@lsbc.org�

Ethics Committee opinionThe Ethics Committee has approved forpublication this opinion from the past year— as guidance for the profession as awhole.

Whether FOI requests can be made topublic body represented by a lawyerChapter 4, Rule 1.1 of the ProfessionalConduct Handbook(Ethics Committee: March, 2001)

A lawyer asked whether she is re-quired to make freedom of informa-tion requests to a public body throughanother lawyer in relation to a matter

in which the other lawyer is acting forthe public body.

The Committee noted that Chapter 4,Rule 1.1 of the Professional ConductHandbook prevents a lawyer from com-municating directly with a client whois represented by another lawyer in amatter. On the other hand, section 5 ofthe Freedom of Information And Protec-tion of Privacy Act (“the FIPP Act”) con-templates that, to obtain access to arecord, an applicant must make a writ-ten request to the public body that the

applicant believes has custody or con-trol of the record. Section 79 of theFIPP Act states that, if a provision ofthat Act is inconsistent or in conflictwith a provision of another Act, theprovision of the FIPP Act prevails.

It was the Committee’s view that Rule1.1 must be read as subject to section 5of the FIPP Act. For that reason, it isproper for lawyers to make freedom ofinformation requests directly to a pub-lic body in a matter where the publicbody is represented by a lawyer.�

16

Practice & Ethics

CBA considers revisions to Code of Professional ConductThe CBA (National) Ethics and Profes-sional Issues Committee invites theviews of Canadian lawyers on a con-sultation paper called Modernizing theCBA’s Code of Professional Conduct : seewww.cba.org/EPIIgram/february2002/default.asp

The CBA Committee will draw oncomments from the profession in for-mulating recommendations for revi-sion, to be submitted to the CBA

membership for a vote.

Please send your comments by May31, 2002 or by fax, email or regular mailto:

Kathryn Berge, Q.C., ChairEthics and Professional IssuesCommitteec/o Richard Ellis, Legal PolicyAnalystCanadian Bar Association

902 – 50 O’Connor StreetOttawa, Ontario K1P 6L2Fax: (613) 237-0185E-mail: richarde@cba.org

The Benchers in 1988 acknowledgedthe CBA Code of Professional Conduct asa professional conduct text of particu-lar value in B.C., although the Law So-ciety Professional Conduct Handbookgoverns if there is any discrepancy be-tween the Handbook and the Code.�

UVic moot team capturesSopinka Cup

UVic law students Timothy Livingstonand Almira Esmail (left) accept congrat-ulations from Attorney General GeoffPlant, QC for their accomplishment in2002 in winning both the McIntyre Cup— a western regional moot competition —and the Sopinka Cup — the highest na-tional honour for moot trial advocacy.Sharing in the moment are coaches NilsJensen, counsel in the Ministry of Attor-ney General, and Adrian Brooks, a lawyerwith Brooks and Marshall in Victoria(right), who are both sessional instructorsat the University of Victoria law school.

Downtown Vancouver firms to keep articling offers open to August 19The Credentials Committee has an-nounced that law firms with an officein the downtown core of Vancouver(west of Carrall Street and north ofFalse Creek) must keep open all offersof articling positions they make this

year until at least 12:00 noon on Mon-day, August 19, 2002.

This date is set each year pursuant toRule 2-31 to ensure students have anopportunity to consider more than onefirm’s offer in interviewing for articles.

The rule applies to offers made to sec-ond-year law students or first-yearlaw students, but not to offers tothird-year law students or offers ofsummer positions (temporary arti-cles).�

17

Practice & Ethics

The Discrimination Ombudsperson: here to helpLaw firms have aduty to foster aprofessional workenvironment thatpromotes equal op-portunities and pro-hibits discriminatorypract ices . Whenfirms do not live upto that duty, there

can be costly consequences for everyone.

The Law Society of B.C. wants to help stopworkplace discrimination by providinglaw firms with the services of a Discrimi-nation Ombudsperson. The Ombuds-person, Anne Bhanu Chopra,confidentially assists anyone in a B.C. lawfirm who asks for help in resolving a dis-crimination or harassment complaintagainst a lawyer, and also assists law firmsin preventing discrimination.

Ms. Chopra is independent of the Law So-ciety and reports only anonymous statisti-cal data to the Society.

Whether you are a law firm employer oremployee, you can look for informationand assistance from Ms. Chopra byemailing her at achopra@novus-tele.net or leaving her a confidential voicemailmessage at (604) 687-2344 Ms. Chopra isthe only person with access to her mes-sages and will return calls promptly.

What is discrimination?Discrimination in the workplace in-volves unwelcome comments or ac-tions that relate to a person’s race,colour, ancestry, place of origin, politi-cal belief, religion, marital or familystatus, physical or mental disability,age, sex or sexual orientation.

Discrimination is illegal — contrary to

both the B.C. Human Rights Act and theCanadian Human Rights Act. It is theimpact of the behaviour — not the in-tention behind it — that determines ifthe behaviour is discriminatory. TheLaw Society’s Professional ConductHandbook also makes discriminatoryconduct a disciplinary offence for law-yers.

What is sexual harassment?Sexual harassment is a form of dis-crimination based on sex. It is a seriousabuse of power. Harassment can be ademand for a sexual favour in ex-change for a benefit, or an unwelcomeaction or comment of a sexual nature.This may include:

� unwanted touching, sexual flirta-tion, advances or propositions

� leering

� the display of offensive materialof a sexual nature

� suggestive comments or jokes

� gestures or comments about a per-son’s sexuality or sexual orienta-tion

� unwanted questions about a per-son’s sex life

� persistent unwanted contact or at-tention after the end of a consen-sual relationship

What is the impact of discrimi-nation?

Whether a racial slur, an unwantedsexual advance or denial of a promo-tion because of pregnancy, discrimina-tion poisons the workplace. Law firmssuffer when humiliation, anxiety andtension permeate the office, whenworking relationships break down,

when work quality and productivitydrop, when valuable employees areabsent or quit and when reputationsare put on the line.

That’s not all. Lawyers or employeeswho discriminate against or harassothers in the firm may face a humanrights complaint or a civil action, andthese can result in serious damageawards. As well, lawyers may face acomplaint to the Law Society.

How can discrimination bestopped?

There are formal and informal ways toredress discrimination problems. Theformal options include a complaint tothe B.C. Human Rights Council or acivil action, which offer a range of rem-edies including compensation. Any-one considering these routes shouldseek legal advice early to meet timelimits.

Discrimination by a lawyer can also bethe basis of a complaint to the Law So-ciety. The Society will review the com-plaint as a professional conduct issuefor the lawyer, but cannot offer thecomplainant compensation.

There are also informal approaches toresolving a complaint that can be ex-plored and may prove most helpful inpreserving a working relationship.

Perhaps most importantly, imple-menting an equitable workplace ha-rassment policy and educationalprogram may ensure that a complain-ant comes forward and does not take acomplaint outside the law firm.

The Discrimination Ombudspersoncan help with an approach that meetsyour unique circumstances. And helpis just a call away.�

New District Registrars appointedChief Justice Brenner has announcedthat Murray Blok was appointed theDistrict Registar in Vancouver,

effective March 25, 2002 and CarolynBouck was appointed the District

Registrar in Victoria, effective April 2,2002.�

18

Regulatory

Special Compensation Fund claimsThe Special Compensation Fund,funded by all practising lawyers inB.C., is available to compensate per-sons who suffer loss through the mis-appropriation or wrongful conversionof money or property by a B.C. lawyeracting in that capacity. Although in-stances of misappropriation in theprofession are rare, the Special Com-pensation Fund is a public protectionthe profession takes seriously.

The Special Compensation FundCommittee makes decisions on claimsfor payment from the Fund, in accor-dance with section 31 of the Legal Pro-fession Act and Law Society Rules 3-28to 3-42.

Rule 3-39 1(b) allows for publication tothe profession of a summary of thewritten reasons for decisions of theCommittee.

Claimant: MPayment approved: $586.01Decision date: February 28, 2000Report issued: April 25, 2000

While representing the vendor in amobile home sale in 1998, Mr. Haynesreceived funds from the purchaser (M)in trust, on his undertaking to payproperty taxes, interest and penalties.Mr. Haynes failed to pay the taxes.

The Committee found that Mr.Haynes had misappropriated orwrongfully converted the funds, not-ing that he offered no response or sub-mission in this regard. The Committeeordered payment of $586.01, repre-

senting the unpaid taxes. It exercisedits discretion not to pay interest, not-ing that the claimant had not beenasked to exhaust his civil remedies.

Claimants: D and RPayment approved: $1,278.15Decision: July 24, 2000Report issued: October 11, 2000

While representing D and R in the saleof their home, Mr. Haynes received intrust from the purchasers’ lawyer$157,983.23, representing the net saleproceeds. The funds were sent to Mr.Haynes on certain undertakings, in-cluding an undertaking to pay the1998 gross property taxes, arrears, in-terest and penalties to July 31, 1998.Mr. Haynes did not in fact do so, eventhough he prepared a statement ofmonies received and disbursed indi-cating that the taxes had been paid.

There were no funds left in trust to paythe taxes and arrears, and Mr. Haynesoffered no explanation. The Commit-tee concluded that he had misappro-priated or wrongfully converted thefunds.

The Committee approved payment of$1,278.15, representing unpaid taxesand penalties to July 31, 1998, but didnot award interest.

Claimant: PPayment approved: $1,376.10Decision: February 28, 2000Report issued: June 26, 2000

In June, 1998 P retained Mr. Haynes torepresent him in the sale of his homeand the purchase of a new property.Mr. Haynes was to pay the outstand-ing property taxes on the new prop-erty from funds held in trust. He senthis client a statement of monies re-ceived and disbursed indicating thathe had paid the outstanding taxes of$1,376.10, although he had not. P sub-sequently received notice that thetaxes were in arrears and he was as-sessed a forfeiture fee, interest andother penalties.

The Committee concluded that, in thecircumstances and with no explana-tion offered by Mr. Haynes, he hadmisappropriated or wrongfully con-verted the funds. The Committee ap-proved payment of $1,376.10 anddeclined to pay the penalties or awardinterest on the claim.

Claimant: SPayment approved: $800Decision: February 28, 2000Report issued: June 26, 2000

In October, 1998 Mr. Haynes receivedan $800 retainer from S whom he rep-resented in a matrimonial proceeding.A custodian who was later appointedto wind up Mr. Haynes’ practice foundno file materials for S or any record of adeposit of the funds. Mr. Haynes toldthe custodian he would deal with thematter directly with S, but he did not.

In the absence of a trust deposit, or atransfer of the funds from the trust tothe general account, the Committeewas satisfied that Mr. Haynes wrong-fully converted the funds and that Shad suffered a loss. The Committee or-dered compensation of $800 and de-clined to pay interest. Given the smallsize of the claim and the unlikelihoodof recovery from Mr. Haynes, theCommittee did not require the claim-ant to obtain a judgment.

Claimants: T and MPayment approved: $1,482Decision: July 24, 2000Report issued: October 29, 2000

In 1998 Mr. Haynes represented T andM in the sale of their business. On Sep-tember 2 Mr. Haynes received a trustcheque for $43,806.32, representingthe sale proceeds. Mr. H deposited thefunds to trust and then disbursedthem. On September 3 he paid $1,482and $687.21 to himself without render-ing a bill for services. While the claim-ants allowed the $687.21 forreasonable fees and disbursements,they sought to recover the $1,482 from

Kelowna, B.C.

Called to the Bar: August 30, 1991

Undertook not to practise law: No-vember 27, 1998

Custodian appointed: November 27,1998

Ceased membership: January 1, 1999

19

Regulatory

ReinstatementsThe following people have been rein-stated to membership in the Law Soci-ety. These reinstatements do not relateto discipline proceedings.

As of January, 2002: Linda MicheleAngela Slang, of Duncan. As of

February, 2002: Herbert SamuelGroberman, of Vancouver; Lindi Es-ther Hain, of Vancouver. As of March,2002: Bradford Herbert Cowburn, ofEdmonton; Crawford Grant Edwards,of Surrey; Maureen Fay Fitzgerald, of

Vancouver; Clarence Herbert Larson,of Kelowna; David Munroe Levis, ofFort St. John; Valerie Lynn Osborne, ofWest Vancouver. As of April, 2002:Adrienne Mary Murray, of Vancou-ver. �

the Fund.

The Committee was satisfied that thefunds had been misappropriated orwrongfully converted, noting thatthere was no apparent justification forthe withdrawal, no bill and no expla-nation offered by Mr. Haynes. Theclaim was approved, without interest,and the claimants were relieved of therequirement of seeking a judgment.

Claimant: RPayment approved: $7,327.35Decision: March 27, 2000Report issued: June 26, 2000

In 1998 the firm in which Mr. Grahampractised held $17,097.36 in trust forthe claimant. Mr. Graham was on anundertaking to use the funds to obtainrelease of a builder’s lien, which in factwas removed by consent. In Februaryhe paid out $10,600.09 of the funds onbehalf of another client, without R’sconsent or knowledge.

In October Mr. Graham paid himself$4,971.26 from trust money held for R.

The custodian of Mr. Graham’s prac-tice returned to R the $1,526.01 still intrust and Mr. Graham repaid $8,500.After these repayments, $7,071.35 re-mained owing to R. The Committeefound misappropriation or wrongfulconversion and ordered that R be com-pensated for her loss and $256 as thecosts of obtaining a Small Claims judg-ment against Mr. Graham, a total$7,327.35. The Committee declined toaward interest.

Claimant: BPayment approved: $51,008.27Decision: January 29, 2001Report issued: March 15, 2001

In 1998 Mr. Graham acted as solicitorfor the executor of an estate (B). B wasto receive a $15,000 bequest. A charityof her choice was to receive the estateresidue.

B received from Mr. Graham a $15,000cheque, which she deposited. She thenissued back a $7,500 cheque to Mr.Graham, which he deposited to hispersonal account. Mr. Graham later in-formed B that the balance of her inheri-tance ($7,500) was available. They metat a bank and Mr. Graham had a trustcheque for $42,935.20 payable to her.He explained the amount as a clericalerror. He proposed rectifying themix-up by B depositing the trustcheque and then giving Mr. Graham acheque for the difference. B obliged.Mr. Graham received from her acheque for $35,435.20 with which hepurchased a bank draft and depositedthose funds to his personal account. Asa result of Mr. Graham’s actions, theresidual beneficiary received none ofthe estate funds.

The custodian of Mr. Graham’s prac-tice discovered that Mr. Graham hadalso withdrawn $8,073.07 for legal feesbut without rendering accounts.

The Committee determined that Mr.Graham’s misappropriation throughthe deposit of estate funds to his ownaccount was a purposely devisedscheme to deceive B as executor andfalsify his accounting records. Hiswithdrawal of funds for professionalservices without B’s knowledge, au-thorization or consent was also misap-propriation or wrongful conversion offunds.

Claimant: SPayment approved: $10,700.92Decision: May 28, 2000Report issued: July 17, 2001

In late 1996 Mr. Graham began actingfor S who had purchased a businessfor $30,000, but who was in a disputewith the seller over $10,000 of the pur-chase price. Mr. Graham received$10,000 from S to hold in trust pendingresolution of the dispute. Mr. Grahamtook steps to settle the dispute andpaid out the $10,000 from trust with-out the knowledge, authorization orconsent of S. At least $5,000 of thisamount he paid to himself without is-suing a bill or providing an explana-tion.

The Committee found that Mr.Graham had misappropriated orwrongfully converted the funds in hiscapacity as a lawyer and accordinglyapproved payment of $10,700.92,which included $700.92 for fees anddisbursements incurred by S in obtain-ing a judgment.�

William John GrahamVernon, B.C.

Called to the Bar: May 17, 1996

Suspended: January 25, 1999

Custodian appointed: January 15,1999

Resigned: October 22, 1999

Discipline: See December, 1999 Dis-cipline Digest

Previous claims: See January-Febru-ary, 2000 Benchers’ Bulletin

Contact

ELECTED BENCHERS

PresidentRichard C. Gibbs, QC

First Vice-PresidentHoward R. Berge, Q.C

Second Vice-PresidentWilliam M. Everett, QC

* * *Ralston S. Alexander, QCRobert D. Diebolt, QCIan Donaldson, QCAnna K. Fung, QCDavid W. Gibbons, QCRobert W. Gourlay, QCJohn J.L. Hunter, QCGerald J. Kambeitz, QCPeter J. Keighley, QCRobert W. McDiarmid, QCMargaret Ostrowski, QCG. Glen Ridgway, QCPatricia L. Schmit, QCWilliam J. Sullivan, QCGrant C. TaylorG. Ronald Toews, QCRussell S. Tretiak, QCRoss D. TunnicliffeGordon N. TurriffJames D. Vilvang, QCAnne K. WallaceDavid A. Zacks

LAY BENCHERS*

Jaynie ClarkAnn HowardMarjorie MartinAnita OlsenJune Preston

* The Law Society is currently awaitingthe appointment of Lay Benchers for the2002-2003 term. There is provision in theLegal Profession Act for Lay Benchers tooverhold until new appointments or re-appointments are made by the provincialCabinet.

EX OFFICIO BENCHERAttorney GeneralGeoff Plant, QC

LIFE BENCHERSR. Paul Beckmann, QCP. Michael Bolton, QCRobert W. Bonner, QCDarrell T.B. Braidwood, QCMr. Justice Thomas R. BraidwoodCecil O.D. Branson, QCTrudi L. Brown, QCMr. Justice Grant D. BurnyeatA. Brian B. Carrothers, QCMr. Justice Bruce I. CohenRobert M. Dick, QCUjjal Dosanjh, QCLeonard T. Doust, QCJack L.T. Edwards, QCDr. James J. Gow, QCArthur M. Harper, QCDavid B. Hinds, QCJohn M. Hogg, QCH. Allan Hope, QCHenry E. Hutcheon, QCRobert T.C. Johnston, QCPeter Leask, QCGerald J. Lecovin, QCHugh P. Legg, QCCharles C. Locke, QCJames M. MacIntyre, QCRichard S. Margetts, QCAllan D. McEachernMeredith M. McFarlane, QCLloyd G. McKenzie, QCBrian W.F. McLoughlin, QCColin D. McQuarrie, QCKenneth E. MeredithPeter J. Millward, QCDennis J. Mitchell, QCKaren F. Nordlinger, QCRichard C.C. Peck, QCEmily M. Reid, QCNorman Severide, QCJane S. Shackell, QCDonald A. Silversides, QCGary L.F. Somers, QC

Madam Justice Mary F. SouthinMarvin R.V. Storrow, QCBenjamin B. Trevino, QCWilliam M. Trotter, QCAlan E. Vanderburgh, QCBrian J. Wallace, QCKarl F. Warner, QCWarren T. Wilson, QC

MANAGEMENT BOARD

Executive DirectorJames G. Matkin, QC

Deputy Executive DirectorJean P. Whittow, QCDirector, Discipline and ProfessionalConduct

* * *Brad DaisleyPublic Affairs ManagerSusan ForbesDirector, Lawyers Insurance FundJeffrey G. HoskinsGeneral CounselSusan JamesHuman Resources ManagerDavid NewellCorporate SecretaryNeil StajkowskiChief Financial OfficerAlan TreleavenDirector, Education and PracticeAdam WhitcombeChief Information Officer

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