Keeping Trouble from the Door - NSBS Homensbs.org/sites/default/files/cms/publications/society-record/sr... · ineffective letter writing campaign, gone through an internal complaint

1 The Society Record July 2008 1

Photo by Lisa Neily/NSBS

the SOCIETYRECORDVOLUME 26 | NO. 3 | JULY 2008

NOVA SCOTIA BARRISTERS’ SOCIETY

w w w . n s b s . o r g

VISION, LEADERSHIP, EXCELLENCE – THE LEGAL PROFESSION IN NOVA SCOTIA

Keeping Trouble from the Door:The importance of planning for the unexpected

2 The Society Record 2 The Society Record July 2008 3

23 Roslyn Dr., Dartmouth, Nova Scotia, Canada B2W 2M2Tel: (902) 435-4939Fax: (902) 435-5840E-mail: [email protected]

Eric Jorden, M.Sc., P.Eng.Forensic Engineer

ConsultingProfessional Engineer

Geotechnology Ltd.Forensic EngineersCivil, Geotechnical, Foundation and Environmental Engineers

Geotechnology Ltd. is a consulting engineering firm that provides forensic civil engineering, geotechnical, foundationand environmental engineering services to civil litigation lawyers and insurance personnel.

Forensic Engineering Experience

Geotechnology has 36 years engineering investigative experience in Atlantic Canada, western and northern Canada,offshore, and overseas in the UK, Australia and the Caribbean.

We have investigated and determined the cause, and assisted in establishing fault, for the six main types of problems anddamage experienced by buildings, civil engineering structures, and property: 1. Structural Collapse and Failure; 2.Architectural Finish; 3. Functional and Serviceability; 4. Hidden Damage; 5. Monetary Losses, Construction Delays and CostOverruns; and, 6. Environmental Contamination.

Engineering and environmental investigations have been completed for most types of civil engineering structures: Buildings;Bridges; Wharves and Harbour Works; Towers, Storage Tanks; Dams; Pipelines; Drainage Works; Embankments andEarthworks; Tunnels; Highways; and Motor Vehicle and Industrial Accidents.

Professional Qualifications

Eric Jorden, M.Sc., P.Eng., president of Geotechnology Ltd., has a Master’s degree in geotechnical and foundationengineering from the University of Birmingham, England. He has a first degree in civil engineering from the University ofNew Brunswick, and a diploma in land surveying from the College of Geographic Sciences, NS.

Mr. Jorden writes impartial, unbiased reports and opinions based on the facts. His reports are clear, concise and easilyunderstood by non-technical readers. He has published a number of engineering papers and co-authored a book on soils,groundwater and foundation investigation. Mr. Jorden has been qualified by the courts as an expert witness. He is credibleand composed when giving expert testimony, and under cross-examination.

Forensic Engineering Services

(Case management follows project management principles to ensure thorough, cost effective forensic engineeringinvestigations).

1. Preliminary Forensic Engineering Services

• Assess the technical strengths, weaknesses and merits of a claim for damages based on existing data andinformation. Outline the scope of a thorough investigation of the problem, if justified by the initial assessment.

2. Main Forensic Engineering Services

• Carry out field work and laboratory testing to investigate the cause of the problem, the damage to a building orcivil engineering structure, or the reason for the contaminated soil and groundwater. Review engineeringdrawings, and applicable engineering and environmental regulations, codes and standards of good practice.

• Analyze, interpret and evaluate the data and investigation findings. Develop conclusions and formulate opinion.

• Determine the cause of the damage, or the reason for the contamination.

• Recommend and design repair and remedial work. Evaluate repair and remedial costs.

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• Assist counsel finalize evaluation of the strengths and weaknesses of the damage claim based on the findings ofthe forensic engineering investigation.

• Help develop litigation strategy for discovery and trial; litigation support.

• Develop lines of questioning for testimony and cross-examination, including questions not to ask.

• Attend discovery and trial, assist counsel by listening to opposing witnesses and experts, identify flaws and errors,and the strengths and weaknesses of opposing testimony, develop additional lines of questioning.

• Testify as an expert witness at discovery and trial

• Review and audit engineering investigations and environmental assessments and reports by others; dispute resolution.

More Information

Contact Eric Jorden, M.Sc., P.Eng. at Geotechnology Ltd. for more information: Curriculum vitae;fees; publications and major reports; list of forensic engineering and major investigations; typicalengineering investigations for design and construction, and environmental assessments for siteremediation; professional activities; technical associations.

Forensic Engineering Servicesfor Civil Litigation Lawyers


I N S I D E

C O N T E N T SVOLUME 26 | NO.3 | JULY 2008

4 Letter to the Editor

5 President’s View

6 Briefs

12 Society News

15 Taking Care of Business – John Rafferty, Q.C.

Pullout section — VOL. 33, NO. 3 NOVA SCOTIA LAw NEwS

17 Planning for the Great Unstoppable – donnalee Moulton

18 Succession Planning at Boyne Clarke – Diane Norris

19 And the File Goes to... – Heather Totton

21 LIANS

22 Taxing Business – Daren Baxter

25 The Straight Goods

27 Catching that Curve Ball – Mark Bolton

30 Summation – Donald Murray, Q.C.

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Justice Denied? Rick Woodburn, President NSCAA

in an era of work place equality it is disheartening to imagine a government penalizing female lawyers for having children. it sounds unbelievable but that is the status of female crown attorneys here in Nova Scotia.

Following our much publicized strike in 1998, the Nova Scotia crown attorneys’ association began to represent the interests of more than 80 crown attorneys employed by the Public Prosecution Service.

one of the most important issues for our organization has become workplace equality. about six years ago we began to notice that our female crown attorneys were being denied the maternity benefits that are provided to other civil servants employed by the Province of Nova Scotia. Under the current policy, our female crowns lose one year of seniority for each year they are off on maternity leave.

Since our pay is directly linked to seniority, our crown attorneys are penalized both financially and professionally for having children. a female crown can return to work, making less

than when they left for maternity leave. in one case, a Senior crown attorney was penalized two years relevant experience for choosing to have children. While losing the benefit of her seniority, she further calculated a financial loss of $30,000 - 35,000 over her career. She has since resigned her position with the P.P.S. to work with the Federal Prosecution Service. The Federal Government immediately restored her years of seniority and her appropriate pay level.

While fully supported by our management, the association has attempted in vain to correct the policy. We have engaged in an ineffective letter writing campaign, gone through an internal complaint procedure, and even attempted to meet with the Minister of Justice in May of 2006.

as a result of our failed attempts, the association staged a picket of Province House on June 6, 2006.This initiative was widely supported by our own management, the N.S.G.e.U., Public Professional institute of the Public Service canada, Nova Scotia Legal aid, local defence lawyers, department of Justice lawyers, the Police Union, and the canadian association of crown counsel. Since that time we have launched a complaint with the Nova Scotia Human Rights commission. Part of that complaint is proceeding and while the other is currently under review.

it is clear to us that the Nova Scotia Government engages in discriminatory practices that are not present in the Nova Scotia civil Service, the Federal government, or in any other crown attorney office in canada. it should be obvious that when you penalize women for having children, the government fails to recognize and encourage the significant societal contribution of families caring for and raising their children.

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thepresident’s

view

in this, my first column in the Society Record as President, i would like to weigh in on the issue of communication in our profession.

during the past two years i have had the opportunity to travel the province and discuss issues with lawyers whom i met. i am amazed to learn how little our members know about our Society.

Shortly after becoming a table officer i had the privilege of attending an “onsite” at the Society’s office where the table officers, staff, and directors were asked a number of questions about the Society. To my amazement i had very little, if any, knowledge and was unable to answer many of the questions posed. For example:

Q. what is the purpose of the Nova Scotia Barristers’ Society?a. The answer is in Section 4 of the Legal Professions Act states:

(1) The purpose of the Society is to uphold and protect the public interest in the practice of law (please see the Act for the complete description)

Q. How many members do we have in the Barristers’ Society? a. approximately 2,690Q. How big is our annual budget?a. approximately five million dollars, 26 per cent for adminis-

tration, 44 per cent to regulatory responsibility, and 30 per cent to enhancing members’ competence.

Q. How many volunteers does it take to run our self-regulated profession?

a. approximately 300Q. How many staff does the Society have?a. approximately 29, excluding those who work for LiaNS,

which employs approximately seven staff members.Q. How much do we spend on professional responsibility?a. approximately one million dollars, which includes investi-

gations, audits, practice reviews, and hearings.Q. what is the role of the Executive?a. The Governance Policy approved by council during the

past year sets out the role of the executive.Q. what is the role of Council?a. The Governance Policy approved by council during the year

2008 sets out specifically what the role of council is.

as part of a communication initiative, the Society recently dis-tributed a survey asking the following question: How could the Nova Scotia Bar Society improve its communications? Here are some of the answers.

1. More conferences and public meetings.2. it seems to me that the focus of communication is elec-

tronic. i recognize that necessity, however print remains a great way to get the message out.

3. cannot think of any.

4. Inforum is excellent.5. i don’t know. information is available in great detail in

the online communications. Whenever i call staff they are friendly and helpful.

6. it is doing a satisfactory job in communicating with mem-bers – at least those who use email.

7. The NSBS is doing a great job in this regard and i can’t imagine stronger communications to the members. More promotional work of the profession to the general public would be good.

8. i am satisfied with the current methods.9. No need for improvement. darrel and the President recently

came to my firm and updated the lawyers about current is-sues. i found the meeting to be invaluable. i read the maga-zine and Inforum but found that the meeting was an excellent way to communicate information about a number of issues.

over the next year it my intention to continue the path followed by my two predecessors. your executive will travel the province to meet you in person or come to your county Bar meetings to answer any questions or concerns that you may have. Feel free to write to me at the Society if there are matters that you would like to have addressed. Remember, communicating is a two-way street.

Joel E. Pink, Q.C.


BrieFs

M E M B E R S O N T H E E D G E

iMaGiNe yoU’ve BeeN LeGaLLy WoRkiNG in canada for a number of years, developed ties in your community, started a family and are living a contented life while paying your taxes and other bills. Then comes a knock at the door. immigration officials are there to tell you about your forthcoming deportation, in two weeks. Where do you turn? For many people, they’ll end up meeting with this month’s Member on the edge, Lori Hill.

Lori is driven by a search for justice and fairness for people forced to the margins. as an advocate for refugees, Lori has dedicated much of her legal career to representing people who would otherwise have no voice. She has been volunteering at the Halifax Refugee clinic since her second year of law school and now includes refugee claimants as her clients in her private practice.

Lori Hill

Lori articled at Mcinnes cooper after completing law school in 2003. once called to the Bar in 2004, Lori chose to work at the Refugee clinic as its staff lawyer. in 2007 she began her private practice in immigration law. She recently joined Beveridge, MacPherson & Buckle as an associate and continues to expand her immigration practice.

Lori is currently involved with the atlantic Refugee and immigrant Services Society (aRiSS), a new organization dedicated to providing legal and settlement services to refugees, immigrants and displaced persons who cannot afford lawyers. as a member of the aRiSS legal team, Lori feels very fortunate to be one of several volunteer lawyers who are representing a number of people in various stages of the refugee process and who are also helping train and guide new aRiSS volunteers.

Lori’s colleague at BMB, Liz Wozniak, describes Lori’s commitment, “i have seen Lori put her heart and soul into cases others would consider a lost cause. She helps families wrenched apart by the process and ensures others never reach that point. She goes beyond to make sure their stories are articulated, heard and put into a context canadian officials can understand.”

congratulations Lori on following your passion to make a much needed difference!


N E w S O C I E T Y O F F I C E R S

BrieFs

oN JUNe 21, 2008, THe LeadeRSHiP of the Nova Scotia Barristers’ Society (NSBS) was assumed by President, Joel e. Pink, Q.c. (centre). Joining him as officers are 1st vice-President, J. Ronald creighton, Q.c., of Truro, and newly-elected 2nd vice-President, Marjorie a. Hickey, Q.c., of Halifax.

Cocktails & Conversation with the Judges

The Society’s Gender equity committee recently hosted “cocktails and conversa-tion: your Happiest Hour in Front of a Judge.” The event, which gave participants an opportunity to discuss the challenges that female lawyers continue to face in the profession, was warmly received by the over 90 female judges and lawyers in atten-dance. The evening was also a chance for those in attendance to share and laugh about common experiences.


BrieFs

A D M I S S I O N S D I N N E R 2 0 0 8

(l-r) rita Pink, Joel Pink, Q.C., and comedian Bill Carr

New admittees are piped in

Mark Gouthro, giving the toast

Then President, and the evening’s emcee, Catherine Walker, Q.C.

Gregg Barro presents Noelle England with her scroll

Thursday, June 12th, 2007, Pier 21, Halifax, NS


BrieFs

James A. Michael Portrait Unveiling

THe SocieTy’S Race ReLaTioNS coMMiTTee recently honoured James a. Michael in a portrait unveiling ceremony held at the law courts. Mr. Michael, a member of the Shubenacadie Band, is the first Mi’kmaq lawyer admitted to the Nova Scotia Bar. The Society and the committee hope to unveil further portraits in the future to showcase the racial diversity of lawyers in the legal profession in Nova Scotia, and to highlight the achievements and contributions of traditionally and historically marginalized communities in our province.

(L-R) James A. Michael and family pose with Chief Justice J. Michael MacDonald

Innis Christie, Q.C., Receives Society’s Distinguished Service Award (DSA)

THe SocieTy iS PLeaSed To announce that innis christie, Q.c. has received its 2008 distinguished Service award.

The award, established by the Society’s Bar council in 1999 and first awarded in 2000, is presented to a practis-ing member of the Bar-risters’ Society who has made significant contri-butions to the profes-sion, his or her com-munity, and the Society in general.

Mr. christie was chosen for the many impressive contributions he’s made throughout his legal career: from his work as deputy Minister of the department of Labour – the end result of which was a new Occupational Health and Safety Act, and in 1995, a new Workers’ Compensation Act, to his contributions to canadian labour

law, including his development of the employment Law course at dalhousie, and his work as the leading architect of the Nova Scotia Trade Union Act and the Nova Scotia Labour Standards Code.

an active labour-management arbitrator since 1965, innis chris-tie also has a strong history with the dalhousie Law School, where he held the post of dean from 1985-91, from 1971-2003 was a full-time professor, and then, until 2007, a part-time lec-turer. He is the founding author of the text Employment Law in Canada, now in its 4th edition, and author of several other books and articles. His work to develop Law School curricula surround-ing the legal profession and legal ethics has become a model for similar courses throughout the country.

His commitment to the advancement and welfare of important public institutions and his community, also extend to the Soci-ety, where he has chaired various committees and is a regular contributor on case law to the Law News.

innis christie is currently continuing his arbitration practice, and has recently been named as the 2008 recipient of the Univer-sity of Toronto’s prestigious Bora Laskin award For outstand-ing contributions to Labour Law in canada, to be awarded in october 2008.

July 2008 11

A N N U A L M E E T I N G 2 0 0 8June 19 – 21, 2008, Inverary Inn, Baddeck, Nova Scotia

BrieFs

July 2008 11

A N N U A L M E E T I N G 2 0 0 8

THe 2008 aNNUaL MeeTiNG “Professionalism in Practice: Being civil in Times of change”, held June 20-21 in Baddeck, was a resounding success. The riveting keynote speech delivered by The Honourable chief Justice a.H. Wachowich (right), court of Queen’s Bench, alberta was well received by a full house. chief Justice Wachowich addressed civility in an adversarial system and raised issues of professionalism, civility and humanity in the practice of law.

BrieFs

June 19 – 21, 2008, Inverary Inn, Baddeck, Nova Scotia

Phot

o by

Mur

dock

Sm

ith/N

SBS

(L-R) Jodi Mailman, Gordon Davidson, Catherine Walker, Q.C., Mike Power, Mark Dempsey, and Philip Leefe

were they Smarter than the Fifth-graders?

a ReceNTLy-HeLd FUNdRaiSeR PiTTed the talents of a group of ten Bridgewater elementary fifth-graders against a group of five Bridgewater lawyers (Mike Power, Gordon davidson, Jodi Mailman, Mark dempsey and Philip Leefe). The first annual “Great desBrisay History Test,” a fundraiser for Bridgewater’s desbrisay Museum, took place on June 10 at Bridgewater elementary. Both teams were tested on their Bridgewater/Lunenburg county history knowledge, with the 46-45 win going to the students. The event raised approximately $2,000 and a very good time was had by all!


society

news

FINANCE & ADMINISTRATION

THe SocieTy’S aUdiTed FiNaNciaL STaTeMeNTS WeRe presented to the membership at the annual Meeting on June 21. The Society’s General Fund ended the year with a surplus of $122,428. This was largely due to lower than budgeted expenditures. For more detail, see the NSBS annual Report at www.nsbs.org.

over the past year the Finance committee received two reports from the Society’s auditors addressing certain internal control issues. any identified weaknesses are being addressed by staff.

The Trust accounts committee is currently considering changes to the monitoring of Lawyer’s Trust accounts in an effort to focus limited resources where they will do the most good. The committee has received a report from staff and will be considering it through the 2008/2009 year. in the past year the committee recommended to council, and council approved changes to the regulations to clarify which lawyers qualify for the Sole Practitioner exemption on cheque signing and to clarify the required treatment for “wire transfers” out of a lawyer’s trust account. The committee is considering changes to the regulations to allow staff of a law office to transfer funds out of a lawyer’s trust account. any changes in this regard will require strict internal controls in the law firm.

The Federation of Law Societies of canada (FLSc) continues to work with the canadian Payments association (cPa) and to lobby the Government of canada as the canadian banking industry prepares to introduce significant changes to chequing accounts; most notably banks will, instead of returning cheques to customers, offer images of them. The FLSc has been able to ensure the cPa follows an acceptable standard for the images, and continues to work to ensure that the images are available for an appropriate period of time, and that the costs are reasonable.

We have received a few calls recently regarding mortgage payments from banks received under escrow conditions. it seems that banks are dating these cheques in advance of the closing dates, whereas in the past they used to be dated for the date of closing. Regulation 10.3.6 (c) permits a lawyer to hold these cheques without deposit. it is in your interest to ensure that the escrow conditions are in writing and are clear. you do have a responsibility to protect the property (the cheque) and to maintain a record showing that you received and are holding the property (Regulation 10.2.1(i) “a record showing all trust property held in trust from time to time for all clients, and identifying the client on whose behalf the property is held;”).

ADMISSIONS & PROFESSIONAL DEVELOPMENT

SPRiNG HaS BeeN a BUSy TiMe FoR cPd. We’ve BeeN hard at work on our ongoing courses: the civil Procedure Rules training which will launch this summer and a successful ‘migration’ of our Land Registration course into an online format. Lawyers can now receive this training from the comfort of their offices. We’ve had two successful and sold out conferences: the Improved Companies Act, which we were pleased to offer in concert with the canadian Bar association – Nova Scotia; and the Class Proceedings Act, featuring chief Justice Winkler of the ontario court of appeal. We also held an historic joint session of the Nova Scotia Bar and the association of Nova Scotia Land Surveyors, which we hope will be the first of many. our annual meeting, Professionalism in Practice, was also sold out and once again was a smashing success. Last but not least, we’ve travelled throughout the province and talked to hundreds of lawyers as a part of the Futures Project: Practising Law in a changing World. We look forward to sharing the results of these consultations - and the tools that follow from them - with the Bar in the months to come. Looking forward, our annual ReLaNS conference will take place on october 6th, and the NSBS & Nova Scotia criminal defense Lawyers association conference will take place on November 21st. our second annual Professional Regulation conference will take place on November 14 & 15. additionally, we have plans for a written advocacy course, a new slate of lunch & laws, and much much more. For more information on all of these programs, and to be the first to know about our latest offerings, stay tuned to www.nsbs.org/development.php.

March of Dimes Canada’s battle of the legal bands fundraiser is in its 3rd year. Rock for Kids will take place this year at the Marquee Club on Tuesday, October 28th.

If you are interested in submitting a band or providing sponsorship, please contact Mary Lynne Stewart at 1-800-263-3463 ext. 7312 or by e-mail at [email protected] or Marc Belliveau at

902-420-3343 or by email at [email protected].

All funds raised will benefit Halifax children with disabilities. For more information please visit www.marchofdimes.ca.

is looking for bands!


LIBRARY & INFORMATION SERVICES

oveR THe PaST 15 yeaRS, LiBRaRy & iNFoRMaTioN Services (L&iS) has been working with other courthouse and law society libraries across canada on various cooperative ventures designed to improve service to members and ensure their continued access to important legal material. These cooperative ventures include a resource sharing agreement, a regional reference desk service, a preservation plan, and a core collection agreement.

in the 1990s, L&iS and its counterparts across the country recognized that the increasing cost of legal materials presented a challenge in meeting the varied information needs of their users. in an effort to meet this challenge, and better serve their users, the National Resource Sharing agreement was implemented among courthouse and law society libraries in canada. This arrangement is a fiscally responsible and cost effective means of expanding libraries’ access to additional sources of information and is especially useful for obtaining primary and secondary material unique to a particular province.

The National Resource Sharing agreement spawned other cooperative ventures, as well, particularly within the atlantic region. in 2003, the atlantic Provinces’ Regional Reference desk was established by the law society library directors in New Brunswick, Newfoundland, Nova Scotia, and Prince edward island. The Regional Reference desk is a useful initiative for providing reference service when libraries may not be staffed due to holidays, sick leave, or emergencies.

a more recent cooperative venture is the atlantic Provinces’ Preservation agreement, the purpose of which is to ensure that vital legal materials are preserved for future use and available within the atlantic provinces. The agreement, signed in 2007, provides that each province will maintain legal material specific to its own jurisdiction, including law society publications, statutes and regulations, gazettes, and law reports. and just this year, the law society library directors in the atlantic provinces signed a Basic collection agreement to make certain that core reference works, treatises, textbooks, and other materials essential to legal research are readily available within the atlantic region.

The various cooperative ventures in which L&iS participates illustrate that law society and courthouse libraries continue to be relevant and important providers of information to lawyers in canada. Questions? Please contact staff at L&iS by telephoning 1-866-219-1202 or 425-Book (2665), or by sending an e-mail to [email protected].

PROFESSIONAL RESPONSIBILITY

iN THiS iSSUe oF THe SocieTy RecoRd, WHicH FocUSeS on succession planning, members may be interested to know that one of the larger initiatives undertaken by the Professional Responsibility department this past year has been the issue of member capacity. “capacity” is defined as the status of a member’s ability to practice law with reasonable skill and judgment that is not substantially impaired by physical, mental, or emotional disorders or addiction.

For several years, the Society has struggled with how to deal with this issue. currently, we may only address the capacity of a member in the traditional discipline process, which is triggered by a complaint about a lawyer’s conduct, practice, or competence. Recognizing that discipline is not necessarily the best or most effective means of dealing with lawyers who suffer from physical, mental, or emotional impairment, the Society has determined that the Legal Profession Act should be amended to permit it to deal with members’ capacity directly, in a manner consistent with the Society’s mandate to uphold and protect the public interest in the practice of law.

Preparing new legislative provisions and a new regulatory scheme involves significant work, requiring expertise in legislative drafting, principles of administrative law, and the duties of fairness. The Society is fortunate to have that commitment and expertise in the relatively new Professional Responsibility Policies and Procedures committee (PRPPc). The PRPPc fulfills a key role in the Society’s professional responsibility process by considering and developing policies and procedures used by the complaints investigation committee, the Hearing committee, and staff within the Professional Responsibility department. These policies and procedures permit the Society to fulfill its public protection mandate while at the same time ensuring that members subject to the professional discipline process are afforded fairness.

in the coming year, the PRPPc will continue to work on the capacity project, along with various other complaints investigation and hearing committee policies and procedures, such as provision of counsel to members and witnesses, “no contest” pleas, and compelling member testimony at s.37(1) proceedings. For more information on the work of this and other Professional Responsibility committees, have a look at our detailed 2007/2008 annual Report.

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news


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John Rafferty, Q.C.Burchell MacdougallCarol’s husband, Brian, was a senior lawyer operating a sole

practice when he suddenly and unexpectedly died of a heart attack. Carol and Brian had been happily married for over 35

years. Not only did Carol have to cope with the grief of losing her life partner, she also had to deal with her husband’s legal practice.

Unfortunately, like so many lawyers, Brian had made no succession plans for his practice. That is, he had made no arrangements for another lawyer to handle the closure of his office, the transition of his files and the realization of the value of the practice.

The task facing Carol was a daunting one. There were active files, some of them urgent, that needed to be transferred to new lawyers. There were thousands of closed files. A plan had to be developed for staff during the transition. The office landlord, equipment lessees and suppliers needed to be dealt with. If things were not handled quickly, the value of the practice would quickly erode as clients drifted away.

When news of Brian’s death spread, chaos quickly followed at the office. Clients were calling for their files and staff were looking to their own future employment prospects. Files were unbilled. There were accounts receivable to collect and trust funds to deal with.

In addition to the tremendous stress these practice issues visited on Carol, clients are likewise stressed. Many of them develop a personal relationship with their lawyer over the years, are saddened by his death, but are also confused as to their proper course of action.

Sometimes the lawyer’s spouse or other family members are employed

in the office. This can provide helpful continuity for the lawyer taking over the practice, but undoubtedly brings an additional level of stress to the family member.

In a larger law firm, transitioning is usually not a serious problem. The firm has other lawyers who can take on the work of the deceased partner. Sometimes, other lawyers have already been working on the files. Even if not, they are prepared to work longer hours for the good of the firm and of the clients. Chaos is controlled, clients are serviced, file value is maintained, and the deceased’s family is protected from additional stress. With proper planning, sole practitioners can achieve the same result.

It is not just death that creates the need for a succession plan. Disability, suspension, incompetency or other factors may also result in the need for one. If a proper succession plan is not in place, the Society may appoint a custodian or receiver to manage the practice and protect the public interest, may assist with transitioning the practice to another lawyer, or may work with the estate to ensure client interests are protected. Immediately after appointment, the custodian will secure the lawyer’s files and records and become the signing authority on the trust and general accounts.

Whether the successor lawyer is appointed by the Bar Society or the estate, the deceased lawyer’s calendar will be checked for upcoming hearing dates and meetings. Files will be reviewed to identify urgent matters and impending limitation dates. Clients and opposing

Taking Care of Business


counsel will be contacted on the urgent matters first and, eventually, on all active files.

One of the most significant tasks facing a custodian or successor is disposition of the lawyer’s trust funds. On active files, this is usually relatively straightforward, with a replacement lawyer obtaining authorization from the client and committing to honour the undertakings of the former lawyer.

However, many client trust balances are quite stale. There may be sums retained to record releases that have never been obtained. This may sometimes occur due to difficulty with the mortgagee or as a result of a failure to vigorously follow up requests for releases. When the release is eventually obtained, the recording fee may have changed so that the available funds are now inadequate.

In some cases, trust funds should go back to the client. With stale transactions, the client may be difficult or impossible to find and a court application may become necessary.

There is often money in trust for the lawyer’s retainer or from which the lawyer’s account can be paid. If the money has been there for a long time, it may be difficult to create a proper bill or to fend off client arguments or complaints because time records or retainer agreements may not be available. Value will be lost to the family.

All of us have a tendency to ignore difficult or tedious tasks and push them to the back of our desks. Unfortunately, the longer they sit, the more difficult they are to resurrect and resolve. When the task falls to a successor lawyer or custodian, valuable time will be spent in getting up

to speed on the file and doggedly pursuing the resolution. Again, this expense subtracts from the value of the practice to the lawyer’s family.

Studies indicate that lawyers are remaining in practice longer now than in the past. This may be the result of better health, longer life span, a desire to remain employed, an inability to sell the practice, an inadequate requirement plan or a combination of these factors. Because of this, we can expect an increase in the number of lawyers ceasing practice because of death, disability or incompetency rather than planned retirement.

To protect yourself and your family, every lawyer should have a succession plan. Trust accounts should be kept up-to-date by rendering accounts promptly, by returning money to clients quickly and by regularly following up on outstanding documents such as mortgage releases. Files should be culled to their essentials to reduce storage needs both now and in the future. Ensure that original documents are given to the client with a notation or receipt in the file. Keep an up-to-date file list and store files numerically or alphabetically for easy retrieval. Keep clear records of time or billing arrangements so that appropriate fees can be charged and justified.

One of the lawyer’s biggest assets is the value of his practice - both on an ongoing basis and in the work invested in existing files. Be sure not to deprive your family of this asset by sloppy record keeping, poor file administration, or the lack of a succession plan.

John Rafferty, Q.C., a lawyer with the Truro firm of Burchell MacDougall, also works for the Society as a practice receiver and custodian.

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The only constant is change, continuing change, inevitable change; that is the dominant factor in society today. No sensible decision can be made any longer without taking into account not only the world as it is, but the world as it will be.

— Isaac Asimov

Preparing for change isn’t just good common sense, it is good business sense. In the legal profession, that means planning for the next wave of leaders – before the current leadership

exits the building.

It’s called succession planning, and it is critical, says Salima Alibhai, a senior consultant with ZSA Legal Recruitment. “The key to law firms is their clients. Succession planning should be a priority.”

Yet most firms don’t do it at all. According to a recent survey of some of the largest law firms in Canada and the U.S., 53 per cent of attor-neys polled said their firm or legal department does not have a for-mal succession plan in place for key positions. “It’s understandable that succession planning may sometimes take a back seat to billable work or urgent legal matters, but law offices should not wait until a leader departs to begin the process,” says Charles Volkert, executive director of Robert Half Legal, which conducted the survey.

“Creating and implementing a succession plan is not a quick task,” he adds, “It can take many years to identify and groom an attorney for an advanced leadership role.”

Time is one reason many firms, including larger firms, put off planning for the next generation of senior partners. A focus on the practice of law – not the running of a business – is another. “Lawyers are terribly busy, and the law firm model is all about billable hours cranked out,” says Carol Fitzwil-liam, principal with Fitzwilliam Legal Recruitment Inc.

“In addition,” she notes, “lawyers may have a dislike or a distrust of client development.”

Keeping clients, and

keeping clients satisfied, how-ever, is at the heart of succession planning. As Isaac Asimov fore-warned, change is unstoppable. In the legal profession, planning for those changes means anticipat-ing that lawyers will move to another firm, retire, leave the profes-sion altogether, or suffer a serious health problem. What happens to clients when any of this happens? That’s the question a succession plan answers.

“If a firm doesn’t have a succession plan, and the client loses the spe-cial relationship they’ve had or doesn’t have a go-to person, they will go somewhere else,” says Alibhai.

“A personal relationship is part of being a trusted advisor but you need to make sure that when (lawyers) are ready to move on, the client is taken care of,” says Bernie Miller, managing partner with McInnes Cooper.

The regional firm’s succession plan consists of two prongs. First, there is practice management and the lawyers and administrators involved in those areas. “We want to have a longer-term view of our people and a way of identifying our future leaders and mangers,” says Miller.

The firm’s plan also focuses on the succession of lawyers in later stages of practice, he notes. “We want to make sure the relationships they’ve built up get handled appropriately.”

Those relationships define a law firm – and determine its success. “Relationships and connections with our clients are

critical,” says John Rogers, managing partner with Stewart McKelvey.

“We need to ensure a transfer of lawyers to the next generation

of leaders,” he adds.

That transfer isn’t one-way. While it is important to prepare cli-ents and ju-nior lawyers for the rela-

Planning for the Great UnstoppableWhat firms without plans stand to lose

donalee MoultonFreelancer


tionship to be, it is equally important for senior lawyers to mentor those below them. “There is a transfer of knowledge and a transfer of responsibility,” says Rogers.

“Good law firms,” notes Alibhai, “foster junior lawyers in order to become their partners.”

Not surprisingly, those lawyers need to be part of the succession plan-ning process. That requires commitment. “It takes a lot of time, en-ergy and conviction to ensure a young lawyer is brought up to speed to be custodian of a client relationship,” says Fitzwilliam.

Volkert recommends that law offices begin their planning by choos-ing high-potential employees, providing them with ongoing mentor-ing and including them in strategy discussions relating to the opera-tion of the firm or department.

“Succession candidates must be given ample opportunity to build their skills and leadership abilities in practice management, new business de-velopment, marketing, strategic planning and client service,” he says.

At Stewart McKelvey, there is a career development framework that identifies the progression of lawyers from the start of their career through to senior roles. “We work at developing lawyers at all levels,” says Rogers.

“Succession planning,” notes Fitzwilliam, “can be a written document so people can remember decisions, but what drives success is the at-titude. This must be a normal course of business. It shouldn’t be a concept that emerges when there is a threat of a loss of rainmakers.”Fact is, that looming reality is driving a lot of law firms into the cor-porate boardroom to plan for succession. According to the Public Health Agency of Canada, we are facing a significant aging of our population as the proportion of seniors increases more rapidly than all other age groups. In 2001, one Canadian in eight was aged 65 years or over. By 2026, this figure will be one in five.

Closer to home, Nova Scotia is the oldest province in Atlantic Cana-da, and the second oldest in the entire country. And within the next 20 years that population is projected to double. That spells more work for lawyers and fewer lawyers to do the work.

“We know with demographic changes ahead that there will be a mas-sive transfer of wealth and changes in leadership…. We need to en-sure we deal with transition ourselves,” says Rogers.

It’s not only numbers that are changing, the practice of law itself has been fundamentally altered – and the need for succession planning has increased exponentially as a result. “Traditionally lawyers stayed with the same firm throughout their career and clients rarely changed firms,” says Fitzwilliam. “All of that has changed. As a result, succession plan-ning is a much more important preoccupation for law firms today.”

Pitfalls and resource requirements aside, planning for the next wave of leaders – with current leaders still in place – makes good sense for the firm and its lawyers. It helps to keep clients in the fold, and retain lawyers who see they are valued.

In the end, says Miller, “the difficulty of implementing a succession plan pales in comparison to not having one.”

Succession Planning at Boyne Clarke

Diane Norrisexecutive director, Boyne clarke

When the first of our partners retired, or moved on to other ventures, we got our introduction to the concept of transitioning clients and files, and the myriad of other matters that need to be dealt with when a partner leaves. Each time there was gradual improvement, but it was clear that we needed to be much more proactive in our approach to succession planning. We sought advice from one of the national management-consulting firms and began to put together our succession plan. There are a number of components to the plan. First of all, we know that to ensure continuity of the firm we need to continue to grow, but this growth has to be strategic. We have carefully assessed the firm’s culture and have developed recruitment strategies that aim to attract the types of lawyers we think possess the necessary traits and skill sets.

We also recognize that in order to develop our future leaders, we need to involve junior partners as well as associates in all aspects of firm management – from recruitment to marketing, up to and including representation on the Executive Committee. It is our lawyers, in the mid-point of their legal careers, as well as the lawyers joining the firm, that will ultimately have to fill the roles that have traditionally been filled by our senior partners.

From a client relationship perspective we are working very hard to ensure that our clients are exposed to lawyers at all levels of the firm. To encourage this type of behaviour we are looking at ways to better track, and reward, effective delegation of work to associates and articled clerks by our partners.

It is not a static plan; it continues to evolve as the firm does. At the annual firm retreat, to be held in late summer, we will be holding a session dedicated to this topic. Not surprisingly, this is an issue that is very important to those lawyers who will stay on with the firm past the founding partners. The goal is to ensure that the firm continues to develop as an entity unto itself, and is no longer simply an amalgamation of talented individuals.


We frequently receive calls here at the Professional Respon-sibility Department from members asking “What do I do with my client files when ____?” The “blank” can be any

number of situations, including retirement, wind up of a practice, dissolution of a firm, colleagues transferring to another practice, and the list goes on.

When a member dies suddenly, with no succession plan in place, we also receive calls from surviving family members and colleagues ask-ing the same question: “What do I do with the files?”

Contrary to what many members believe, it is not the responsibility of the Society to take care of client files upon the death of a member of the Bar. That being said, the Legal Profession Act does contain pro-visions under which the Society may appoint a custodian or receiver to manage the practice and protect the public interest, by assisting with the transition of the practice to another lawyer, or working with the estate to ensure client interests are protected.

First and foremost however, it is the responsibility of the member to ensure that client files are dealt with appropriately. Upon death, and in the absence of a succession plan, that responsibility will transfer to the member’s estate.

The Legal Ethics Handbook outlines members’ ethical obligations with respect to client files.

Chapter 5 of the Handbook requires members to “hold in strict confi-dence” all client information acquired during a retainer, except where disclosure is authorized by the client, required by law, or permitted by the Handbook. Commentary 5.3 states that every client is owed a “continuing duty of secrecy” by the member and that this duty sur-vives the professional relationship.

Chapter 9 of the Handbook requires members to protect and safe-guard clients’ property, which includes client files, and to return cli-ent property at the end of a retainer.

Failing to adopt a succession plan which deals with your client files could result in persons reviewing the contents of client files without client authorization, in order to determine the status of a file and its

ownership, thus breach-ing the continuing duty of secrecy owed to your clients. Lack of a succes-sion plan could also result in client files not being returned to clients or not being properly transferred because your successor or estate is unaware of the file’s existence or its location.

To ensure client files are handled appropriately, consider the follow-ing when preparing a succession plan:

Create and maintain an up-to date office procedure manual pro-1. viding detailed directions with respect to client files, including:

How to generate a list of active client files, including a. client names, addresses, and phone numbers;Where client ledgers are keptb. How the open/active/closed files are organized, as-c. signed numbers and where they are keptWhere original client documents are keptd.

Ensure that you are able to generate complete client and file 2. open lists with up-to date contact information.Record all deadlines on every file in a central calendar system 3. which is easily accessible.Thoroughly document all files sufficiently to allow the conduct 4. of file to be assumed without delay and expense to clients.Purge and close files regularly and avoid keeping clients’ prop-5. erty or original documents (see File Retention Policy).Store all critical information regarding client matters, trust ac-6. counts, and financial information in a location easily and effi-ciently accessed by your estate, staff, colleagues or successor.Draft detailed written letters of instructions/guidelines for your 7. estate, staff, colleagues, or successor. Review and update these instructions from time to time, and advise the same as to loca-tion of instructions.

(Adapted Checklist – Practice and Planning Considerations from the article “Succession Planning,” by the Law Society of British Columbia)

A proper succession plan dealing with your client files will ensure your clients are protected and your ethical obligations pursuant to the Handbook are met.

And the file goes to…

Heather TottonNSBS Professional Responsibility counsel

Your ethical obligations in disposing of files upon the conclusion of your practice


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LiAns

by Deborah e. Gillis, Q.C. Risk and Practice Management Advisor

You’ve Planned for Success. Now Plan for Succession.

Well-developed and well-implemented records management systems and file retention policies should be part of your succession planning.

When you open a file, and as the matter progresses, you should put thought into how you manage and document the file and consideration into what information should be retained when the file will be closed. Having well-organized and well-managed records increases your profitability, reduces your risk and makes your practice more attractive to a potential purchaser.

A well-documented file plays a significant role in managing your risk and defending against a negligence claim. Documentation confirming advice given and instructions received, as well as notes of conversations and meetings, and copies of other relevant documentation and correspondence, should be maintained in your closed files.

When developing a succession plan, a lawyer or law firm should decide what criteria will be followed in determining what is retained in a closed file, as well as when, if ever, the file should be destroyed. As well, the lawyer and/or law firm should address what happens to a lawyer’s closed files if a lawyer dies, leaves the firm or the firm dissolves.

Consider the following when addressing these issues:

What will be maintained in a closed file?• Where will closed files be stored and for how long?• Who will pay for storage?• How will these files be accessed?• Will there be a destruction date set for each file as it is closed? If so, who • sets it and what criteria is used?If a lawyer leaves a firm, what happens to the files he or she was respon-• sible for? Will the firm continue to store the files indefinitely; will the de-parting lawyer take responsibility for the ongoing storage of the files?If the firm retains the file, will the firm give the responsible lawyer ad-• vance notice of an intended destruction and give that lawyer the option of storing closed files himself/herself, instead of the firm destroying it?If closed files still exist on the death of the lawyer, who will assume • responsibility for the ongoing storage of these files?

Lawyers frequently ask how long they must keep a closed file. There is no magic or easy answer to this question. It is ultimately a professional judgment that the lawyer and law firm have to make after considering the type of file at hand, the particular matter, and the particular client – especially when that client has ignored your advice, or when the client has limited the scope of your retainer.

Tips from The risk & pracTice managemenT advisor

Without a file, it is almost impossible to defend against a negligence claim. Property, family, commercial, and wills and estates files may be needed long after the file is closed. LIANS has seen negligence claims in family and real estate matters made more than 20 years after representation has ended. Having access to the lawyer’s well-documented closed files was critical in the successful defense of these claims.

In an article entitled Wrapping Up and Winding Down and posted to the LIANS website at www.lians.ca/lossprevention/wrap_up.htm, I provide suggestions on what should be considered, and what tasks completed, prior to and upon retirement. That article includes the following link to Guidelines on File Retention and Destruction published by the Society in 1998.

Two other excellent resources to assist you in developing records management and file retention policies are:

The Lawyer’s Guide to Records Management and Retention, George C. Cunningham and John C. Montana, American Bar Association, Law Practice Management Division, 2006

Records Management in the Legal Environment, Jean Barr, CRM; Beth Chiaiese, CRM; and Lee R. Nemchek, CRM, ARMA, 2003

The first is available at the Nova Scotia Barristers’ Library and can also be purchased from the American Bar Association. The second is on order and should soon be available at the Barristers’ Library.

While many files should be kept indefinitely, it does not mean that everything in the file has to be kept when the file is closed. Spend time culling a file as the matter progresses, and when it is being closed. Duplicate or unnecessary information can be removed from the file before it is sent to storage. Return client records to the client. Do not keep a client’s original documentation. If retaining your files in digital form, be mindful of the need for backup and of the possibility that future changes in technology might render this data inaccessible. Maintain a copy of whatever technology you will need to be able to read this data and/or have it reformatted as technology changes.

Time spent planning now will reap many future rewards, including reduced storage costs.

Deborah E. Gillis, Q.C., is the Risk and Practice Management Advisor for LIANS. She may be reached at 423-1300 ext. 345 or at [email protected]


It is never too early to plan. We will all exit from our law practice at some point, whether voluntarily (retirement or sale) or involuntarily (death or disability). The other certainty is that

there will be tax implications arising from our exit from practice. With proper planning, the tax implications can be managed. Although it is not possible to explore, in detail, all tax implications, I highlight below some of the potential ones to consider in the context of law practice succession planning.

The tax consequences to a lawyer exiting from a practice will depend upon the fair market value of his or her practice interest or the actual proceeds of disposition on the sale to an arm’s length party. In most circumstances there may be very little commercial or transferable “goodwill” to a law practice, with the result that there is very little if any capital gain on the disposition of a law practice. That having been said, I am aware of a limited number of practices sold for an amount beyond the value of the “hard” assets. If there will be a gain on the disposition of the law practice, consideration should be given to incorporating the law practice so that the lawyer disposes of shares as opposed to a direct interest in the practice assets. The sale of shares may permit the lawyer to have the benefit of the lifetime capital gains deduction on the sale of “qualified small business corporation shares,” with the result that the gain is sheltered from tax. It is possible for a lawyer to incorporate his or her practice any time prior to sale and to claim the capital gains deduction on the sale.

Regardless of whether the lawyer is incorporated or not, if the lawyer records work in progress on the practice financial statements and claims a reserve for income taxation purposes, this reserve will come back into income following termination of the practice. Careful cash flow planning may be required in this regard.

A practising lawyer may claim a deduction for bad debts in respect of uncollected accounts receivable. It is questionable, however, whether a retired lawyer can continue to take such deductions following termination of the practice. It will be prudent to write off any questionable debts immediately prior to terminating practice so that the deduction is not lost.

A retiring lawyer should close all HST and employer accounts with the Canada Revenue Agency (“CRA”), otherwise the CRA will continue to look for remittances. If the lawyer takes home office equipment or furnishings for personal use, this could trigger HST to be self-remitted.

If the lawyer is a member of a law partnership, care must be taken to ensure that the lawyer’s exit (whether voluntarily or involuntarily) does not inadvertently trigger a dissolution of the partnership. In the absence of an agreement to the contrary among the partners, a change in partners might be viewed by the CRA as a dissolution of the

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partnership. Dissolution of the partnership will have tax implications to all the partners, not just to the departed lawyer. A dissolution will, by default, result in a deemed disposition by the partnership of its assets, at fair market value, and a disposition by all partners of their partnership interests for an amount equal to the value of their interest in the partnership assets. This may result in immediate unwanted taxation consequences to all partners, including the departed lawyer.

Avoiding a dissolution of a partnership can be particularly tricky where there is a partnership of only two lawyers. With proper planning, however, there are techniques available to avoid an unwanted dissolution of the partnership.

There are also certain specific rules in the Income Tax Act that the partners may utilize to provide taxation relief on the dissolution of a partnership. A partnership may be converted into a direct co-ownership structure on a tax-deferred basis where each of the partners receives an undivided interest in each property of the partnership. Another rule permits a partnership to be converted into a sole proprietorship on a tax-deferred basis. Planning is key to enjoying the benefit of these relieving rules.

If the partner’s departure does not result in the dissolution of the partnership, the tax consequences will be determined by the business arrangement with the partnership. Where the former partner receives payments in satisfaction of his or her capital account, such payments will not reduce the income of the remaining partners. If a retired partner receives an allocation of ongoing income of the partnership, he or she continues to be a member of the partnership and such allocations will continue to be included in his or her income (and not that of the other partners). It is very important that the partners turn their minds to whether payments to a former partner will be on account of capital or an allocation of partnership income.

Upon exiting a partnership the lawyer will dispose of his or her interest in the partnership, and the tax consequence of this disposition will be determined by the “cost base” of his or her partnership interest. To the extent the proceeds of disposition exceed the cost base, the lawyer will have a taxable capital gain. Take note that a partner’s cost base is reduced throughout the partnership’s fiscal year by his or her draws, and then increased at the end of the fiscal year by the amount of partnership profit allocated to the partner. The partner’s draw can result in the partner having a negative cost base. A mid-year disposition (even for nil consideration) will result in the negative amount being a taxed as a capital gain. The timing of the disposition will be important and it may be preferable to wait until the end of the current fiscal year before ceasing to be a partner.

“If the lawyer is a member of a law

partnership, care must be taken to ensure

that the lawyer’s exit (whether voluntarily

or involuntarily) does not inadvertently

trigger a dissolution of the partnership.”


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I do not deny mortality and am very much aware of the issue of succession planning and, indeed, have given it considerable

“thought”. However, and despite the professional advice given clients in the areas of estate and forward planning and regardless of all those close calls in the crosswalks, I have, to date, been selfishly remiss in failing to take concrete steps in succession planning.

Thank you for raising this important issue. It has been on my mind and as yet I do not have anyone assigned, or a plan. I

guess I’m still feeling invincible. I just assumed that my family would contact the Barristers Society if I died. If I were suffering from an illness or accident that would prevent me from working, I assumed that I would phone the Barrister’s Society and advise accordingly. We could make arrangements for clients to pick up their files. That is the same scenario I had in mind if I died. I don’t have a particular lawyer in mind where I would feel it appropriate to send my files. I think my clients should have the option of choosing their own lawyer. I would however, abide by any guidelines set down by the Society.

When I learned about the number of legal practitioners without a professional disaster plan (disability, death) in place,

the phrase “cobbler with no shoes” came to mind. This isn’t rocket science – a will, a symbiotic relationship with another practitioner to step into the breach if you are not a member of a multi-person firm, appropriate provision for the tax person (through existing assets or insurance), and a sealed memorandum of “how this office works” – file organization, tickler systems, fiscal and trust matters. It takes a little thought, and a day’s work.

When I started out 21 years ago, succession issues in small rural firms were addressed by bringing in an article clerk who later

became an associate and, in time, a partner. When the older lawyer was ready to retire, there was already someone in the firm familiar with the clients and their affairs.

I am also a little embarrassed to admit that I don’t have a plan in place. I am the only lawyer at this end of Guysborough

County, and some of my clients don’t drive, or don’t drive very far. I don’t have an associate or partner, and my expansion plans at this time are only related to the area of enlarging my support staffing.

I am embarrassed to say that although I have thought a bit about succession planning after attending last year’s annual

Barrister’s Society meeting, I do not have a plan in place.

Yes. I have a plan which has been in place for several years. I feel it is incumbent on all members to have their affairs in

order should something unexpected occur as well as planning for retirement someday.

As I note, the Bar Society’s Annual Report poses this question, I do have in mind that I want to discuss this issue with an

experienced company & estate lawyer to get a process organized in the event of my untimely demise... but fact is, it is easier to ignore our own mortality... and so I delay... in this case though I have committed to myself to initiate this before the end of the year and before the next annual report. And to be frank, I am motivated more by the notion of not leaving a big mystery for my wife (as Executor) to sort out.

“I was a sole practitioner for ten years. Over a year ago I decided to wind down and work for Acadia First Nation. What

a nightmare. I am still working on tying up some estate work, etc. I found a lawyer to take my closed files, but in my opinion it is like being in the mob. I can’t get away from it. It will be with me for life. I get phone calls regarding old files which may lead to me to have to work on fixing something, etc. I still have a practising status which I intend to keep. I feel as though I will be haunted forever by those ten years. It was also difficult to get permission from the Bar to have my closed files moved. I can tell you my advice to any sole practitioner is to find an associate to work with you who would be willing to take over when you leave.

“Well, I have not thought about it. I was sick about five years ago, which meant that I could not work at the office for a

month. I was able to instruct my secretary to send out letters asking for adjournments due to my illness. No other lawyer stood in for me. Luckily I was able to get back to work before any great number of clients left for other lawyers, but I did lose some. I still have no concrete plan.

Have no specific plan in place, but we are a small community of lawyers practicing independently, all women, and we often

cross refer, so I guess I would think that my files would be absorbed into the practices of these other lawyers; but nothing specific in place.

Sole practitioners from across the province comment on how they’ve planned (or not) for the unexpected

The Straight Goods



What would you do if you suddenly lost one of your invaluable staff? You know the ones; they’ve been at the firm for the past 30 years quietly working away. They know all the ins and outs of the office and can recall all the old clients. Where would you be if tomorrow that person was, for whatever reason, unable to come to work?

“I can’t say it without swearing,” says Kim Turner, the Managing Partner of Pink Breen Larkin (PBL), reflecting on what would have happened if they’d lost Jackie Nielsen, a recently-retired Scheduling Coordinator, without the year’s notice she gave.

“We would have been in really deep trouble without that… If any of our administrative assistants just left it would have a huge impact. But if you have someone who plays that key a role in terms of all the knowledge she’s carrying in her brain about clients and what’s going on, it would be, (and would have been) a real struggle to have dealt with that without having a plan in place.”

With a year up its sleeve, PBL brought in a consultant to help fill Jackie’s position of Scheduling Coordinator. It was a then-current employee, Gwyneth Parker, who was the successful candidate, which made the transition a little easier. For three months leading up to her departure Gwyneth shadowed Jackie to learn the ropes. Jackie also prepared a manual describing what her position was and some of the nuances of what she did, even going as far as to detail specific clients’ needs. “The kind of information that somebody new just wouldn’t have,” says Turner.

Jackie’s retirement has made PBL more aware of the need to consider succession planning for its support staff. “We have to always be ready for something awful to happen, or for an employee to just decide they want to move on to somewhere else,” says Turner. Most of the firm’s administrative assistants are now able to cover for each other. Ironically, one of the only positions now without a valid backup happens to be Gwyneth’s.

For the personal injury team at Boyne Clarke, staff retention and attrition are an ongoing consideration. Every month, Senior Partner, Matthew Napier, and Practice Coordinator, Lynn Curtis-Williams meet to consider all the team members and look at where they currently are. Listening to and accommodating individual aspirations, constantly saying thank-you, and keeping an open mind about what can be done, is how Napier and Curtis-Williams try and keep the team happy. “I meet with them [the team members] regularly. There’s good communication and we set ground work for a good working

atmosphere and avoid attrition if we can,” says Napier.

While this approach generally works, it doesn’t deal with the surprise departure of an employee. Curtis-Williams says that, ideally, a six to eight-week transition is needed for someone to take over a new role. If one of the support staff just up and left, the firm would most likely move a float in to fill the gap – which would throw everybody off.

Cross-training is something the firm does consider for this kind of situation, but only to an extent. Being a small team of 14 people the personal injury group is faced with having to balance the need to ensure people have a breadth of skills (and are able to step in if needs be), with not diluting the skills set too much. “It’s nice to have their niche,” says Napier.

On the other end of the spectrum is the Provincial Department of Justice, which includes about 70 lawyers and 30 administrative staff. With such a large number of employees and an aging workforce, staff turnover is something they have to deal with on a regular basis, says Jennifer Palov, a director of one of the solicitor teams.

“We’ve had difficulties in the past, particularly when dealing with short terms leaves,” says Palov. “If someone’s going on maternity leave or secondment we have difficulty back filling for a position because it can take up to three months to hire somebody in government.”

One initiative introduced a couple of years ago to help deal with this problem was to move all files into a centralised computer drive with a set protocol for organizing and naming; a move which has made it a lot easier for work to be shared around.

The office is also currently undergoing a restructuring that will see a move towards a team-based approach. Everyone will be grouped into small teams and given responsibility for particular client departments. “We’re hoping that the team will be responsible for the work, that they’ll be meeting on a regular basis, and will include the support staff,” says Palov. “The goal is that if someone leaves the team, the other members will be up to speed enough that they can pick up the work of that individual for a short period of time.”

Succession planning is something no one likes to think about. But curve balls happen every day. Will you be ready for yours?

Preparing for the loss of a valuable employee

Mark Bolton Freelancer

Catching thatCurve Ball


Professional regulation on the edge:

28 The Society Record

C O N T I N U I N G P R O F E S S I O N A L D E V E L O P M E N T

Nova Scotia Barristers’ Society, 1645 Granville Street, Halifax, NS, B3J 1X3 | 902-422-1491 | www.nsbs.org

the Cutting Edge or the Edge of Extinction?November 14 & 15, 2008 | Prince George Hotel, Halifax, NS

THE CONFERENCE:

do you work or volunteer for a regulatory body? are you a decision maker, a policy maker, or keenly interested in hearing about the growing challenges to self regulation? are you a lawyer working with or appearing in front of regulatory bodies? are you interested in learning about innovative approaches to dealing with members with mental and physical incapacities? do you want to learn about the latest hot topics in professional regulation? Whether you are a newcomer to the field of professional regulation, or a seasoned regula-tor, this conference has something to offer!

BY ATTENDING THIS CONFERENCE, YOU wILL RECEIVE:

• Practical tips from the experts; • Provocative discussion about the future of self regulation; • Networking with others in the regulated professions field;• Materials and tools to take away; and• Education on best practices in effective communication, volunteer training and more!

REGISTRATION:

Price: $425 + tax (Includes lunch on Friday, breaks & materials) –Time: November 14, 8:30 – 5:00 (Coffee, muffins & registration at 8:30 a.m.) November 15, 9:00 – 12:00Location: Prince George Hotel, 1725 Market Street, Halifax, NS B3J 3N9

NSBS members – register on-line at http://members.nsbs.orgNon-members – contact [email protected] discounts available Negotiated rate of $159.00 per night with the Prince George (quote the NSBS room block)

For more information about this and other CPD offerings, visit

www.nsbs.org/development.php

Register now!


VOLUNTEER OPPORTUNITY

The Halifax Refugee Clinic is a charitable non-profit non-government society assisting refugee claimants who cannot afford a private lawyer. Last year the Clinic initiated a drive for volunteer lawyers and was delighted with your generous response. We are again pleased to invite members of the NSBS to join our growing roster of volunteer lawyers to do interesting, important pro bono work for Clinic clients, including appearances before the Immigration and Refugee Board of Canada and the Federal Court. No previous experience is required, as the Clinic offers legal education and mentoring. We anticipate each volunteer handling 1 or 2 cases a year. If you are interested, please contact Lee Cohen, Q.C., Clinic Chairman, at [email protected] or Julie Chamagne, Clinic Executive Director, at [email protected].


WHAT ARE YOUR OPINIONS ON PRO BONO WORK?Do you see a need for pro bono services in Nova Scotia?

This project is generously funded by the Law Foundation of Nova Scotia.

The roundtables will be an opportunity to:- hear opinions from your colleagues - discuss the future of pro bono work

Attend our roundtable discussions

Complete our surveyWe are aware that there are a wide range of

opinions on this issue. Your input is essential!

You will receive a survey by email seeking your perspective on pro bono legal work. Please take some time to share your ideas.

Contact us:[email protected]

1165 Cartaret Street Halifax, NS B3H 3P2

tel: 902.429.1913 fax: 902.406.6907

NOVA SCOTIAPRO BONOSTUDY

LOCATIONKentvilleTruro, New Glasgow, AmherstShelburne, Yarmouth, DigbyGuysborough, Sheet HarbourHalifaxBridgewaterSydney, Antigonish

WEEK OFJuly 28:

August 18: August 25:

September 1: September 22:September 29:

October 6:

The NSPBS is a study of engagement and interest in pro bono legal work and an examination of whether a formal pro bono program would benefit the communities of Nova Scotia.

www.gusrichardson.com

phone 902.422.6729email [email protected]

Gus Richardson is pleased to offer his services as an arbitrator, mediator and appellate lawyer in his new practice, Ad+Rem ADR Services.

With over 20 years litigation experience at all levels of courts in Nova Scotia and Ontario, Gus is also a Small Claims Court adjudicator. Gus brings those skills to his practice as an arbitrator and mediator in labour, insurance, personal injury, commercial and condominium disputes.

July 2008 31

summAtion

Heading North: A trip to Iqaluit

Donald Murray, Q.C. Barrister & Solicitor In early May, the Law Society

of Nunavut and the Nunavut Branch of the Canadian Bar

Association held their annual meetings in conjunction with three days of events designed to enhance the skills and durability of lawyers who have chosen the challenge of working in Northern Canada. After accepting an invitation to attend, I was able to provide both organizations with a series of education sessions and facilitated discussions that met the immediate professional development objectives of the two groups.

The Nunavut Bar is small, mostly young, and all very dedicated to the work that they are expected to do. However, the nature of the cases that Legal Aid lawyers and Crown attorneys in particular are expected to handle, the volume of their work, and the conditions under which the whole justice system operates – both locally in Iqaluit and on a circuit that comprises 20 per cent of Canada’s land mass – exact a substantial cost on the emotional and physical well-being of its lawyers and court workers. There are multi-lingual challenges as well. The absence of even the most basic of counseling services for those victimized by violent crime, or those accused and then convicted of violent crime, means that there are limited options for the justice system to create results that any of the participants or

the wider community can regard as satisfactory. The Bar, however, remains committed to bringing a high quality of criminal justice services to Nunavut.

While there, I presented a series of talks and led discussions about criminal trial advocacy skills to prosecuting and defence counsel from both the private Bar and the public sector. A few days after, several lawyers gathered for a full afternoon discussion about the causes, effects, and preventive management required for those exposed to vicarious trauma through their practices. Finally, at the end of the three-day event, I met with the executive of the Law Society to provide some thoughts, based on Nova Scotia’s experience, about things to consider as the Nunavut Law Society attempts to put into place a form of Lawyers’ Assistance Program.

The education sessions were held at the old courthouse, in the main courtroom that looks over the still-frozen Frobisher Bay. Iqaluit is home to a substantial fishing industry. Even though the harbour was frozen, two local Inuit lawyers and their families found time to favour myself and members of the local Bar with a trip by snowmobile and kamotiq across the harbour for a brief picnic that included raw arctic char, spring berries, and tea.

July 2008 31


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Documents

Keeping Trouble from the Door - NSBS Homensbs.org/sites/default/files/cms/publications/society-record/sr... · ineffective letter writing campaign, gone through an internal complaint