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As we begin settling back into our work routines after the holiday season,
I wanted to take some time to reflect on what our priorities will be in the
year ahead.
At the AGM in December, during what was certainly a hectic,
pre-Christmas weekend for most people, I was impressed with how many
of you made time to attend and bring your perspective to the issues
arising from the business of running a self-regulating profession. Your
input is invaluable. Self-regulation is a huge responsibility that rests with
each of us, not just the Executive. I encourage each of you to remain
involved throughout the year, and volunteer your time, energy and
creativity to committee work in order to address the never-ending challenges of the profession.
Many of you are already stalwart volunteers, reliably signing up each year for one or more
committees. Your dedication is noticed and appreciated. I know that it is hard to find the time
when you are busy balancing practice, home life, and community involvement. But as a small
jurisdiction, we depend on our volunteers, and I especially encourage those of you who have
not had the opportunity previously to consider volunteering this year. After attending a few
Federation of Law Societies meetings across the country, I‘ve noticed that in larger
jurisdictions, Law Society work is something usually performed by the more senior members of
the bar. This is not the case here. Some of our most active volunteers can be found among
recent calls. Quite apart from the obligations of professional responsibility, volunteering is a
wonderful chance to meet colleagues who might otherwise never be more than a name on
letterhead to you.
Communications was another theme at the AGM. You want to be more informed about what
the Law Society is doing, and it‘s clear that this instrument can be a big part of that. So, starting
with this issue, Arctic Obiter will now come out six times a year. Apart from the usual columns
and updates, we will also include in each issue a feature article dealing with a specific issue
members have identified as a concern. We begin in this issue with an article on the discipline
process, and we welcome feedback about topics you‘d like covered in future issues. At its core,
communications is a dialogue. Don‘t wait until the AGM to bring forward your questions,
issues or concerns. We cannot work on solutions or answers if we don‘t know about the issue.
Of course, identifying areas needing work means we‘ll need people to do that work. It does
none of us any good to merely complain about how matters are run without stepping forward to
propose solutions or to shoulder some of the committee work that can develop responses to
these issues. And so I return to the need for volunteers. Without you, we would truly be
nowhere.
In closing, I would just like to say that I look forward to serving as your President during 2008,
and I welcome your comments and suggestions.
L aw S o c i e ty P re s i d en t : K a r e n L a j o i e Office Hours:
Monday – Friday
8:30 am – 4:30 pm
Closed
Statutory and
Civic Holidays
Main Floor
Centre 50 Mini Mall
5004 – 50th Avenue
Box 1298
Yellowknife, NT X1A 2N9
Tel: 867-873-3828
Fax: 867-873-6344
Executive Director/
Deputy Secretary Treasurer:
Linda Whitford
E-Mail:
Administrative Assistant &
Membership Inquiries:
Amy LeBlanc
E-mail:
CLE/Communications/
Meetings Coordinator:
Shirley Prescott
E-Mail:
January/ February 2008
Arctic Obiter
2
CBA P re s i de nt : T e r r i N g u y e n
Links to CBA National
Section Newsletters:
http://
www.lawsociety.nt.ca/
NewsandImportantNo-
tices/
ArcticObiterOnlineNews-
letter/tabid/238/
Default.aspx
Leveraging the Media to
Help Grow Your Practice
Linked in or Left Out:
„Supercharge‟ Your In-
teractions Through Social
Networking.
Screen Test: How to Tell
Good Clients From Poor
Ones Before Signing the
Retainer.
www.lawsociety.nt.ca
Check it now.
Check it often.
Are you listed?
www.lawsociety.nt.ca
For Your Info
New on
Practice Link
Law Society
Website
Lawyer Referral
Service
It is a very exciting time for our branch. We are in the
home-stretch toward the 2008 Mid-Winter Meeting and CLE
being held here in Yellowknife February 21st - 23rd. I take
this opportunity to again thank our organizing committee for
their endless energy and creativity. Thanks to their efforts, I
have every confidence that participants will indeed leave
Yellowknife "with a tale to tell". To everyone who is hosting
an at home dinner, we also extend our thanks and know that
you will greatly enjoy hosting our visiting friends and colleagues.
Another cause for anticipation is the election of the national 2nd Vice President,
who in 4 years will become the National President of the CBA. The candidates are
our own Paul Smith and Rod Snow, from Davis & Company in Whitehorse. The
commitment to the national executive is an enormous undertaking. Long before
assuming the presidency, the successful candidate will represent the CBA at
numerous national and international events, will respond to developments in the
law that affect the public and our members and will work on a variety of complex
issues within the mandate of our organization. The presidency is a full time
endeavour involving very long hours. In the end, our past Presidents each agree
that it was worth it.
We wonder what inspires anyone to seek out such an undertaking. Catching up
with our candidate, Paul Smith, he had the following to say about the CBA, the
national executive, and why he is running for the job:
"Since joining the CBA early in my legal career, I have always believed in
its importance to the profession generally, and to lawyers individually. My
personal experience within the CBA family has been nothing but positive. From
meeting like-minded colleagues from across the country, learning about practice
and substantive legal issues of importance, and comparing notes with lawyers
from across the country on issues of mutual concern, I have always been struck by
how effective the CBA, at whatever level, is at bringing those in our
profession together and providing helpful information and tools to us all in our
day to day practices.
"This experience motivated me to become active in our own Branch, as a
member of the executive and Branch President. As Branch President, I had a
conversation with the Ontario Branch President, Susan McGrath, about the
rotation for national 2nd Vice President. Susan, who went on to become
National President said then that there was really no mechanism for a northern
candidate to run nationally, save for entering the race in one of the five southern
regions (the Atlantic provinces, Quebec, Ontario, the Prairies or British
Columbia). I did not think that right or fair and as a result worked with our
Branch (and the two other territorial Branches) to sponsor a resolution to change
that rotation to create a sixth region, the sixth being the North. To its credit, the
CBA passed that resolution at the mid-winter meeting in Whitehorse, the
compromise being that the North would have its spot only every other rotation,
effectively every eleven years. Con‘t, Page 4
3
Exec ut iv e D i re c tor ‟s Re po r t : L i n d a W h i t f o r d
Resident:
Roger T. Shepard Dep‘t of Justice -GNWT
Giselle Marion Inactive Member
Non-Resident:
K. Alan Blair
Lawson Lundell, Vancouver
Member Statistics
as of February 5, 2008
Active Residents: 128
Insured: 64
Non-Insured: 64
Active Non-Residents: 199
Inactive: 82
Total: 409
Welcome:
Farewell:
Stephen Hinkley
Halifax, NS
Sandra Benson
Victoria, BC
It‘s that time again, and membership renewal documents went out the
middle of January. They are also available on the Law Society‘s Web
Site. Click here to be redirected. Deadline for the return of the
documents is March 31, 2008. If you are not maintaining a trust account,
the Statutory Declaration is due September 1, 2008. Documents sworn out
side of the Northwest Territories must be executed under seal.
Karen talked about ―volunteers‖ and so will I. Committee appointments have been made for
those who have submitted volunteers sheets. As our ―thank you”, those who volunteered
last year, were invited to a special lunch on January 18th where Betty-Lou McIlmoyle
received the ―Eager Beaver‖ Award for being the first in with her 2008 sheet. Terri Nguyen,
current President of the NWT Branch of the Canadian Bar Association was recognized for
participating on the most committees. Thanks to all our volunteers, your contribution is
appreciated. Miss the first go around – no problem – volunteers are welcome to signup
anytime.
At the AGM, a more detailed report was requested from the Discipline Committee. We
have added an additional field to the database and are now tracking the source of
complaints. Statistics for 2007 show a total of 10 complaints. Of those 10, 3 were made by
clients; 5 were 3rd party; and 2 were complaints by another member. The matters included:
Issues relating to a real estate file
Failing to comply with trust conditions
Making racial comments
Failing to appear in court
Conduct unbecoming a barrister and solicitor; and
Professional misconduct.
Four of the matters were resolved before being sent for investigation and are now closed.
The rest remain open at various stages of response and investigation.
Of the three hearings held last year, two were before a Committee of Inquiry and one before
a Sole Inquirer. One of the matters before a Committee was adjourned to February 25th,
2008 and will continue at that time.
2008 is not off to a great start. To date we have had 8 complaints, 2 of which have been
resolved without requiring further action by the Committee. To assist members in under-
standing the complaints process, Glenn Tait has provided an excellent article for this edition
of the newsletter. (Page 7.)
In closing, hats off to the 2008 Host Committee for the CBA‘s Mid-Winter Meeting of
Council. The Committee has been burning the midnight oil and working closely with
Stephanie and Marlene at the National Office to make sure that we live up to our reputation
for hosting a great event. We want everyone to feel welcome and enjoy their visit. If you
have some free time, volunteers are needed for a couple of hours here and there to roll out
the red carpet!
BTW – if you have not visited our websites recently, check out the Law Society as well as
both the Branch and National CBA websites. Use the RSS Feeds to keep yourself up to
date!
Donna Valgardson
Edmonton
Judicial
Appointment:
4
Eugene Meehan, Q.C. is an Ottawa S.C.C. Agent who helps
lawyers take cases to the S.C.C., and will be providing very
short summaries of cases of practical significance to lawyers.
The summaries are deliberately kept very short, but in each case,
he has added in the electronic hyperlink to the full text of each
case, if you want to read the full decision. Eugene would be
happy to send directly to you the electronic version of this, with
the cases already hyperlinked, for ready and easy access:
S.C.C. Report: Fall/Winter 2007
Here‘s a summary of all appeals and all leave to appeals (ones granted – so you know
what areas of law the S.C.C. will soon be dealing with – in case any may be an area of
law you‘re litigating/advising/managing). For leaves I‘ve specifically added in both the
date the S.C.C. granted leave and the date of the C.A. judgment below, in case you
want to track and check out the C.A. judgment.
This summary covers November 30, 2007 – January 23, 2008. The prior summaries
covered October 4, 2007 – November 29, 2007. For all appeal judgments I‘ve listed
the hyperlink for the text of the full case.
If you‘d like an electronic copy of this report by email (with each link hyperlinked so
you can clink-n-go) email me at: [email protected]. If you‘d also like
previous reports so you‘re right-up-to-date, let me know, and I‘ll email them to you.
…. Con‘t P.5
Supreme Court of Canada Update:
CLIA Loss Prevention
Bulletins
www.clia.ca/lpb.htm
Summer 2007 Issue #40
Bulletin # 167—A Handsome
High Bridge Quickly Crossed
Bulletin # 168—Sharpening
Your Tools: The Value of
Continuing Professional De-
velopment
Bulletin # 169—Slow Law?
Winter 2007 Issue #39
Bulletin #163 - The World at
Your Fingertips
Bulletin #164 – No Thanks
Bulletin #165 – Helping
Lawyers at Risk
Bulletin #166 – 1st Rule of
Loss Prevention: Document!
Quote...
Check it out!
―And so, this year it‘s the North's turn. As I have said to many in my travels
around the country these past months attending various Branch meetings, I am
pleased and proud to have the opportunity to run for this position. It is also a credit
to our region that we will have an election for the position, and that Rod Snow (the
other candidate running from Yukon) and I have been able to discuss and debate our
respective visions of the CBA and its leadership role in our profession, with CBA
members from across the country.
"I am working hard to that end, and am enjoying the "race" in the meantime.
Either way though, the North will have demonstrated its ability to field a candidate
who can lead our Association.‖
As Paul so aptly describes, this is a tremendous and historical step for the northern
branches.
Our intrepid presidential candidate made a significant point that I would emphasize -
it is something that we all know well - our small size, our isolation, and our location
north of the 60th parallel are no barrier to a real ability to participate in the CBA.
Good luck to Paul, I hope to see everyone out and about for the Mid-Winter & CLE,
and I look forward to greeting you again in April!
“I appreciate people who
are civil, whether they
mean it or not. I think: Be
civil. Do not cherish your
opinion over my feelings.
There's a vanity to candor
that isn't really worth it.
Be kind.”
Richard Greenberg
http://www.cra-arc.gc.ca/newsroom/alerts/menu-e.html
Media Alert!
Canada Revenue Agency
CBA President Con‘t...
5
SCC Update, con‘t
APPEAL JUDGMENTS
CRIMINAL LAW: PRESENCE AT SCENE
R. v. Jackson (Ont.)(31847) Dec. 6, 2007
The accused was arrested with four others at a marijuana ―plantation‖ in a remote area
of a forest and was convicted of illegal production of marijuana. The C.A. upheld the
c o n v i c t i o n , a s d i d t h e S . C . C .
http://scc.lexum.umontreal.ca/en/2007/2007scc52/2007scc52.html
CRIMINAL LAW: JURY INSTRUCTIONS RE INTOXICATION
Daley v. R. (Sask.)(31616) Dec. 13, 2007
The accused was charged with homicide of his common law wife. At trial he testified
that due to his alcohol consumption on the night in question, he was unable to
remember what happened after he arrived home. The jury found him guilty of second
degree murder, and this was upheld by the C.A. and the S.C.C. At paragraphs 27 - 53,
Justice Bastarache dealt with the following: legal principles of jury charges, trial
judges‘ instructions on the relevant legal issues where intoxication is a defence, the
development of the defence of voluntary intoxication, legally relevant degrees of
intoxication, when trial judges must instruct on intoxication, the elements of an
a d e q u a t e j u r y c h a r g e o n i n t o x i c a t i o n .
http://scc.lexum.umontreal.ca/en/2007/2007scc53/2007scc53.html
FAMILY LAW: JEWISH DIVORCE
Bruker v. Marcovitz (Que.)(31212) Dec. 14, 2007
In a consent to corollary relief a husband agreed to provide his spouse with a get
(Jewish religious divorce). When he refused, the spouse sued and obtained damages.
The S.C.C. confirmed that the obligation was justiciable, met the requirements of
Québec law, and did not unjustifiably violate the husband‘s Charter religious rights.
http://scc.lexum.umontreal.ca/en/2007/2007scc54/2007scc54.html
CONTRACTS: JOINT VENTURE AGREEMENTS
Jedfro Investments (U.S.A.) Ltd. v. Jacyk (Ont.)(31561) Dec. 20, 2007
This case concerned a joint venture to hold and develop a property interest near
Denver, Colorado. The S.C.C. concluded that the joint venture agreement remained in
effect and was not breached (by the Respondents), and that the Respondents were not
l i a b l e f o r t h e m o n i e s a d v a n c e d . T h e S . C . C . h e l d :
- that the investment made, was just that, an investment, and if the
investment was lost , i t need not be returned
- the investment should not be returned on the basis of unjust enrichment.
http://scc.lexum.umontreal.ca/en/2007/2007scc55/2007scc55.html
…. Con‘t P. 6
The Practice Advisors
from the Law Society of
Alberta are available to
discuss legal, ethical and
practice concerns, and per-
sonal matters such as
stress and addiction.
Members are invited to
c o n t a c t t h e
Practice Advisors at any
time:
Ross McLeod (Edmonton)
Tel: 780-412-2301
or 1-800-661-2135
Fax: 780-424-1620
E-mail: ross.mcleod@lawsocietyalber
ta.com
Nancy Carruthers
(Calgary)
Tel: 403-229-4714
or 1-866-440-4640
Fax: 403-228-1728
E-mail:
nancy.carruthers@lawsociet
yalberta.com
Members from Northwest
Territories and Nunavut
are invited to call the
office of the Practice
A d v i s o r a t
1-888-272-8839 and ask
for the Mentor Program.
Please be advised that not
all of the mentors may be
totally familiar with NT
statutes and practice.
There is no cost.
Practice Advisors
Law Society of
Alberta
Mentor Program
6
SCC Update, Con‘t
LEAVES TO APPEAL GRANTED
CLASS ACTIONS IN QUEBEC
Marcotte v. City of Longueuil (Que.)(32213) Dec. 13, 2007
Can a class action in Québec be used to challenge municipal tax rates after amalgamation.
CLASS ACTIONS IN QUEBEC
Usinage Pouliot Inc. v. City of Longueuil (Que.)(32214) Dec. 13, 2007
Same summary as above.
CRIMINAL LAW: VETROVEC WARNING
J. S. v. Her Majesty The Queen (B.C.)(32325) Dec. 18, 2007
There is a publication ban in this case, but the issues include whether the C.A. erred in failing
to: find that the learned trial judge‘s Vetrovec instructions were in error; find that the learned
trial judge‘s "proven facts" error was prejudicial to the Applicant.
CRIMINAL LAW: VETROVEC WARNING
Smith v. R. (N.S.)(32323) Dec. 18, 2007
Was the Vetrovec caution sufficient.
CONSTITUTIONAL LAW: DIVISION OF POWERS
Chatterjee v. Attorney General of Ontario (Ont.)(32204) Dec. 20, 2007
Does provincial jurisdiction include the ability to enact legislation to forfeit cash and
materials used in grow-ops, where no federal criminal charges are laid.
Check this site regularly
for new additions to the
M.M. DeWeerdt Court
House Library.
New journals, legislation
and reports are made
available as they come in.
http://
www.justice.gov.nt.ca/
dbtw-wpd/nwtjqbe.htm
New on the Shelf:
Canadian
Lawyer‟s
Insurance
Association:
www.clia.ca
For information on
Practice Aids, LAWPRO
Magazine, Education,
Wellness, Technology
and the Online Coaching
Centre – helping you
navigate the demands of
the legal profession.
www.practicepro.ca
Practice Pro
Links of Interest
The NWT Labour Standards
Board Decisions from 1999
to 2007 are now available on
CanLii. . Follow the link:
2008...can’t wait.... as the Northwest Territories Branch of
the Canadian Bar Association prepares to host the CBA Mid-
Winter Meeting of Council, February 21-24th, 2008.
Click Here for more information and updates. You‘ll love
our early bird special and leave with a tale to tell.
A note for local members of the Bar: Sheila and Sarah are
organizing the at-home dinners on Friday Night. Showcase
your own brand of northern hospitality – contact them today
about hosting some of our out of town visitors.
Labour Standards
Board Decisions
7
CBA Task
Force
on
Conflicts of
Interest
Consultation Paper
can be found here:
h t t p : / /
w w w . c b a . o r g /
C B A / g r o u p s /
c o n f l i c t s /
consultation.aspx
Glenn Tait
This article provides a summary of the discipline process under the Legal Profession Act and
the Law Society Rules.
The Law Society is a self governing society. We are all responsible for ensuring that the high
standards of the legal profession are upheld. It is our responsibility to make sure that each
and every one of us continues to uphold the independence, integrity and honour of the legal
profession.
In the Northwest Territories, the disciplinary process is managed by the Disciplinary
Committee, its Chair, Vice Chair and Members. The Chair, Vice Chair and Members
volunteer their services to the Committee. In other jurisdictions, many of these same
responsibilities are performed by full time paid staff of the law society.
Section 24(1) of the Act engages the disciplinary process. It requires the Discipline Chair to
―investigate every matter that comes to his or her attention in respect of the conduct of a
member or student-at-law.‖ Rule 68 supports that provision.
Often, but not always, matters to come to the attention of the Chair through a complaint. The
complaint may be from a client or former client, from the other party, from a third party, or
from another member of the Law Society. But the Act provides that no matter how matters
come to the attention of the Discipline Chair, the Chair has to investigate them.
If there is a complaint, the Chair has to determine whether or not the complaint is one which
could be either professional misconduct, or conduct unbecoming a barrister and solicitor
(conduct unbecoming) – the only two types of conduct which the Discipline Committee can
investigate.
In their article, “The Disciplinary Process of the Law Society of Upper Canada”,
The Advocates‘ Quarterly, May 1987, Iggers & Twohig provide this description of
―professional misconduct‖:
It is submitted that, in accordance with current practice
‗professional misconduct‘ includes conduct within the following
categories:
(a) dishonest and criminal conduct including fraud and
misappropriation in the nature of theft;
(b) other willful, unethical conduct which evidences breach of
duty to clients, colleagues and the courts, including conflict of
interest and borrowing from clients, misleading courts, other
lawyers and client, failure to protect clients and the Society from
the consequences of potential negligence, failing to meet financial
obligations arising out of practice, and failing to defend civil
actions or pay judgments arising out of practice;
(c) ‗bookkeeping offences‘ including misapplication of funds and
failure to maintain appropriate books and records;
(d) ungovernability‘ in terms of failure or refusal to co-operate
with the Society in its investigation of complaints and refusal to be
governed by the Society‘s rules and regulations including failure
to co-operate with the Society, and practising while under
suspension; and
(e) gross negligence, failure and inability to serve clients in a
competent and efficient manner and other conduct which is
detrimental to clients or the profession. . ….Con‘t P.8
The Discipline Process
8
In general, ‗professional misconduct‘ must consist of conduct in the context of a member‘s profession and
generally will involve the member in his role as a barrister and solicitor in dealing with clients, other
members, the courts or the Law Society.
Conduct unbecoming is defined in section 22(2) of the Act as:
Any act or conduct that in the judgment of a Sole Inquirer or a Committee of Inquiry or the Court of Appeal, as the case
may be,
(a) is such as to be harmful to the best interests of the public or the members of the Society, or
(b) tends to harm the standing of the legal profession generally.
The next step is to advise the member of the complaint or matter. If there is a complaint, the member will be sent by the Chair a
letter enclosing a copy of the complaint, along with a copy of the relevant extracts from the Act and the Rules. If there is no
complaint, the member will be advised of the matter that has come to the attention of the Disciplinary Chair, again with a copy of
the relevant provisions of the Act and Rules.
At this point, there have been no ―charges‖ – the member involved has not been accused of anything by the Chair of Discipline.
The member is being advised of the complaint, and asked for an explanation.
If the member receives such a letter, the member should respond to the complaint or the matter of concern. Rule 62(6) provides
that if the member fails to respond to the Disciplinary Chair within a reasonable time, the failure to respond may itself be
conduct worthy of discipline.
The next step in the disciplinary process is to have the matter or complaint assigned to an investigator. In rare instances, the Chair
may take the role of investigator. In most, a member of the Disciplinary Committee will be asked to volunteer to
investigate.
The Investigator will typically speak to the member, and to any other person the investigator considers necessary to determine
whether or not there is a reasonable prospect of a finding of either professional misconduct, or conduct unbecoming. Section 24(2)
of the Act requires the member to respond to questions and provide records that may be relevant to the investigation.
The investigator is given all the material that was provided to the member, along with the member‘s response. The investigator is
also given a Threshold Guide, a document prepared by the Committee, to assist the investigator in determining whether there is a
reasonable prospect of a conviction of either professional misconduct or conduct unbecoming.
While there are no time limits on the investigator, investigators are asked to complete their investigation within 60 days and report
his or her conclusions to the Chair.
The investigator‘s advice is of assistance, as is advice from counsel, but the decision on the next step is, by statute, solely made by
the Chair.
There are four possible outcomes:
1. If the investigation does not show that there is a reasonable prospect that there was either professional misconduct, or
conduct unbecoming, the Chair may determine that the complaint goes no further.
2. The Chair may direct that the member meet with another member, who may or may not be a member of the
Disciplinary Committee. This happens in circumstances where, while the member‘s conduct might not be professional
misconduct or conduct unbecoming, nevertheless the member‘s activities call for advice and direction in respect of
conduct that may not be in the interest of the public or the profession. These ―fireside chats‖ are with senior resident
members of the Law Society, who volunteer to meet with the member and discuss matters concerning the members
conduct which have come to light during the investigation.
3. If there is a reasonable prospect of a finding of professional misconduct or conduct unbecoming, then the Chair shall
direct the matter or complaint to proceed to either a Sole Inquirer or Committee of Inquiry. If the Chair determines that a
finding of guilt would not likely result in disbarment, suspension or fine in excess of $2,000 and the public interest does
not require a hearing by Committee of Inquiry, then the matter should proceed before a Sole Inquirer.
4 All other matters must proceed before a Committee of Inquiry.
...Con‘t P. 9
9
Section 25 of the Act sets out the powers of a Sole Inquirer and Committee of Inquiry. Section 29 creates a duty on a
member to attend before the Sole Inquirer or Committee. It also provides that the hearing can proceed in the absence of
the member, if the member has been notified properly of the hearing.
Committees of Inquiry and Sole Inquirers are selected from members, both resident and non-resident, of the Disciplinary
Committee. Rule 65 require that where practical, Committees and Sole Inquirers will be resident members of the
Disciplinary Committee.
Chairs of Committees of Inquiry and Sole Inquirers are generally members with previous experience on Committees of
Inquiry. The Committee is working on a Hearing Guide which, when completed will be of assistance to Committees of
Inquiry and Sole Inquirers.
If the matter or complaint proceeds before a Committees of Inquiry or Sole Inquirer, the member will be formally advised
of the allegations against him or her. In advance of the hearing, counsel for the Disciplinary Committee will disclose to
the member, or the member‘s counsel, all relevant information. As well, counsel for the Disciplinary Committee will
endeavor to secure an Agreed Statement of Facts to present before the Committee or Sole Inquirer.
Section 32 of the Act requires the Sole Inquirer or Committee of Inquiry to provide the Executive of the Law Society and
the Chair of the Disciplinary Committee with a report detailing its findings and the action to be taken. Once the Sole
Inquirer or Committee of Inquiry issues its report, the Executive is required to act upon that report.
Appeals from the determinations of a Sole Inquirer or Committee of Inquiry proceed to the Court of Appeal, in accordance
with section 33 of the Act.
We have been given the responsibility to police ourselves. If we do not uphold that responsibility, we may well lose the
ability to govern ourselves, as has happened to our colleagues in other jurisdictions. I believe that would be a mistake.
There is no one better able to understand the pressures, stresses and demands of a legal practice than another lawyer.
If we want to maintain the practice of law as a self-regulating profession, we have to demonstrate that we are capable of
doing so. We have to maintain the public‘s confidence in our ability to do so. Our disciplinary process must be seen to be
legitimate and effective. We do not ever want to provide any opportunity for anyone to say that we do anything other than
enforce our rules consistently deliberately and impartially. Our colleagues, and more importantly the public, deserve
nothing less.
The Internet Stress Coach
LPAC and the Canadian Bar Association
invite our members to Get Stress Hardy!
10
SIGNING COURT ORDERS
Lawyers owe a duty to the court to sign orders to which they have
agreed or which have been granted by the court. In the absence of a valid
objection to the form of the order, lawyers must sign them on behalf of
the client even though the client later develops a change of heart. This
may be so even after ceasing to act or being fired from the retainer.
Have you ever concluded an agreement for your client that is intended to
be reflected in an order or judgment only to have the client change her
mind? Typically, the other lawyer sends the form of order for consent
and, although it looks appropriate, the client says, ―Things have
changed. He was late picking up the kids. Don‘t sign the order!‖
The dilemma arises from the inherent conflict between the duty of a
lawyer to obtain instructions from the client and the duty not to carry out
instructions that are contrary to professional ethics. A lawyer as agent
for the client may have concluded an enforceable agreement on behalf of
that client. If the lawyer followed the subsequent contrary instruction not
to sign the order then, in enforcement proceedings the client might suffer
costs or other penalties for failing to implement it. It is also a good way
for a lawyer to make herself a witness.
Before the case of Martin v. Busenius, 1999 ABQB 100, ethical thought
favoured a client centered approach, binding a lawyer to act on the
client‘s instructions. In the absence of an undertaking by the lawyer, no
ethical obligation should require the court order to be signed. Compare
the conflict between the duties of giving a reasonable time extension to
another lawyer and of implementing the client‘s instructions to give no
quarter.
But case law defined a duty to sign orders and trumped mere ethics. In
Martin v. Busenius, the Alberta court enforced an agreement that was to
be reduced to court order, where the client had later instructed counsel
not to sign it. The lawyer had authority to make the deal and the order
mirrored it. Veit, J. commented further:
After lawyers agree on the terms of an order, in the absence of
exceptional circumstances there is a professional obligation to
sign the order which reflects the agreement. (para.4)
In this case, Ms. Martin, through her lawyer, had agreed to the
terms of the order that were faxed to her lawyer on December
11, 1998. She was obliged to sign the order reflecting that
agreement. (para.25)
The failure to sign an order that had been agreed on is an
egregious failure to properly conduct legal proceedings.
(para.27)
The notion that lawyers owed a higher duty to the court than to respect
client autonomy was reinforced several years later by the Ontario Court
of Appeal in Folkes v. Greensleeves Publishing Ltd., [2002] 159 O.A.C.
99. In that case an order granted by the court was approved as to form by
the lawyer for a party who later wanted to challenge it. Simmons, J.A.
said:
Mr. Folkes indicates that counsel for the respondents acted
improperly in endorsing the approval of Mr. Folkes‘ counsel
on the formal order of this court at a time when Mr. Folkes
had indicated he intended to proceed on his own behalf. I
reject this submission. In Chrysler Credit Canada Ltd. v.
734925 Ontario Ltd. (1991), 5 O.R. (3d) 65 Master Peppiatt
noted that counsel have a professional obligation to the court
and other counsel to approve an order to which there is no
valid objection even after ceasing to act. I agree with his
conclusion. To hold otherwise would create an inappropriate
impediment to the proper processing of orders of the court.
(para.47)
It appears that the duty to sign orders is linked to the role of lawyers as
officers of the court.
Still, that feels somewhat unsatisfactory as an answer. Martin cited no
precedent for the proposition and Folkes cited only Chrysler Credit, an
equally unsupported case of an Ontario Master. Why then should the
proper ―conduct of legal proceedings‖ or the proper ―processing of
orders of the court‖ take precedence over the obligation of the lawyer to
zealously represent the client? The client centered approach makes it
seem that client autonomy is diminished and that, in this context, a
lawyer is made a servant of the state rather than of the client.
An answer is partly found in the Rules of Court. Northwest Territories
Rule 407(3) and Alberta Rule 322(2) both provide that orders and
judgments of the court speak from the moment of pronouncement.
Historically, this is probably the oldest rule in the book and explains the
immediacy of ―Off with his head!‖ in the time of court scribes. In
Folkes, the appellant alleged that the court order was fraudulently back
dated when in fact it only referred to the date of pronouncement.
Chrysler Credit does rely on the Ontario equivalent Rule. A court order
becomes the law from that day forward, whether signed or not.
The pronouncement rule rationalizes the duty to sign orders already
granted. However, the duty expressed by the courts draws no distinction
between orders granted and orders merely agreed to by counsel. Former
Practice Advisor Barry Vogel mused doubtfully in 2000 that a principle
of ethics should perhaps prevail over the law of agency in this context
but surmised that judgments of the court carried more weight than
opinions of the Practice Advisor.
In the result, lawyers appear to have a positive duty to sign court orders
which have been granted or agreed, in the absence of a valid objection
and notwithstanding the subsequent instructions of the client. In the face
of persistent instructions by the client to implement instructions contrary
to professional ethics, a lawyer must consider whether to withdraw from
the representation. In Folkes moreover, the duty extended beyond the
retainer and would be owed even after ceasing to act but, in this respect
alone, there may a real distinction from Martin and orders merely agreed
to by counsel.
Practice Advisor:
Ross McLeod, Q.C.
Law Society of Alberta
12
P
H
O
T
O
S
Those of you in attendance at the AGM will recall the discussion on the Model Rule on Client Identity which is being crafted by the
Federation with input from the Law Societies. Feedback had been requested from the membership so as to provide input into the
content. It was agreed that barring any significant changes, the Executive would proceed with the implementation of the rule when
required, and it would be ratified by the members at the next opportunity.
We are now moving forward. The Federation Council has an updated draft before them with this motion:
WHEREAS the Federation and its member law societies, as regulators of the legal profession in the public interest, take seriously
the need to combat money laundering and terrorist financing and to safeguard against members of the legal profession being used
unwittingly for such purposes;
WHEREAS the Federation‘s member law societies have been proactive regulators in this regard by enacting regulations prohibiting
members of the legal profession from accepting cash from clients in excess of $7,500;
and
WHEREAS it is now desirable for member law societies to enact regulations which are consistent across Canada with respect to
client identification, verification and record-keeping;
RESOLVED THAT: the Federation adopt as a model rule on client identification, verification and record-keeping, the draft model
rule attached hereto as Appendix ―A‖, subject to such non-substantive changes as the Federation Executive may deem advisable after
consultation with member law societies.
The revised document is posted on our web site on the AGM Page. Click HERE to review. You will be notified when the rule is
implemented.
MODEL RULE ON CLIENT IDENTITY
Eager
Beavers
Above: Betty Lou receives the
Eager Beaver Award for being the
first to return her Volunteer
Sign-up sheet!
Terri is an Eager Beaver for
participating on the most
committees last year.
Congratulations!
Past
Executive
Betty Lou and Paul
were presented with framed
pictures, in recognition of
their serving on the
Executive of the
Law Society.
13
Alberta Law Conference 2008 - March 13 & 14, 2008 at the Westin Hotel Calgary Alberta Law Conference 2008
If you are an Alberta Law Conference veteran, then you know that year after year the ALC organizing
committee manages to pull off an amazing CLE package with something for everyone. If you have never
attended a conference, why not make this your year?
This year's offerings - like all years -- will amaze. We are excited and fortunate to be able to offer the voices of
senior, knowledgeable practitioners and members from the bench to assist us in treating you to a conference
loaded with full-day and half-day sessions.
This is an excellent professional development program right in our own backyard ... well almost. Check out
the program and register before February 12th, to take advantage of the Early Bird Registration price.
14
LPAC Services
Wellness - Recognition is growing among lawyers that practising law is exacting and can take
a heavy toll emotionally, mentally and physically and sometimes financially. As well as
providing assistance when lawyers experience distress, professional counselling can help
before a personal problem has a negative impact on one's personal and professional life.
Commencing in 1989, LPAC has helped establish lawyers assistance programs in every
Province ranging from fully funded professional programs to volunteer organizations. LPAC
provides expertise, guidance and research resources to these Programs and assists both paid
p e r s o n n e l a n d v o l u n t e e r s i n d e v e l o p i n g t h e i r s k i l l s .
You can access LPAC's Health, Wellness & Recovery Education Series on this website at
Education Programs. Feel free to browse through the sample material and order any of the
courses. For some real fun, try out The On-Line Coaching Clinic.
2 4 H o u r H e l p l i n e - 1 . 8 0 0 . 6 6 7 . L PA C
Lawyers, judges, law students and their families, staff, and friends can phone our 24 Hour
Helpline at 1.800.667.5722 for confidential help, assistance, guidance and professional
referrals.
