Law Society is scary to lawyers

In case you didn’t know, lawyers regulate themselves. And, it would be disastrous to have it any other way….

Every now and then, someone complains that lawyers should not be allowed to police themselves, thinking that lawyers will “stick together”. To those people: you are dead wrong.

 

In Canada, each province/territory has a Law Society, which an association of lawyers, that polices, regulates, and disciplines its lawyers.

The Law Societies are intended to (first and foremost) protect the public and ensure that Canadians are served by competent lawyers. See section 3 of the Legal Profession Act. 

The Law Societies are involved in establishing standards for education and competence of their lawyers. They also regulate the admission process (for someone to become a lawyer).

Also, contrary to some public belief, non-lawyers are involved in regulating the legal profession, too. Non-lawyers with the Law Societies are intended to bring a public perspective.

Some people think that the Law Societies will not punish their lawyers adequately. That, too, is dead wrong.

The Law Society will investigate complaints and discipline lawyers for their mistakes, ensuring that the public is protected.

The Law Society can (and will) impose various penalties on lawyers, including imposing a fine up to $20,000.00, placing conditions on a lawyer’s practice, and/or suspending/disbarring the lawyer.

Believe it or not, a letter from the Law Society causes fear and paralysis in any lawyer.

For your interest, certain areas of law draw more complaints than others. Family law is the area of law with the highest number of complaints against lawyers (maybe because of the high emotion involved?). On the other hand, complaints are least frequent in creditor law, criminal law, and motor vehicle cases.

The independence and self-regulation (as opposed to government regulation) of the legal profession is absolutely crucial. Here’s why:

Lawyers need to be separate from the government (because the government is sometimes involved in legal actions). If the government can punish or discipline lawyers, then lawyers cannot represent their clients fully (against the government).

Imagine this: you are charged with a criminal offence and you are pitted against the government (i.e. the police and crown prosecutors). Do you think that your lawyer would be able to sufficiently defend your case and argue all defences, knowing that the opposing side can discipline them?

Or imagine this: your property has been expropriated (taken) by the government. Do you think that your lawyer would be able to argue as aggressively, knowing that he/she could be disciplined by the opposing party? Probably not, right?

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on December 25, 2012: Law Society is scary to lawyers.

Lawyers at (Christmas) parties

Have you ever met a lawyer at a party? (Insert stupid joke here…)

 

Seriously though, if you have met a lawyer at a party and told him/her about your legal troubles, you might have caused problems for that lawyer. I’ll explain…

If you talk to a lawyer at a party (or some other gathering) about your legal problems, then it could be interpreted as a ‘consultation’.

You might be thinking, “So what?”

Well, when consultations occur, certain issues (for the lawyer) arise.

To start, if you have a conversation with a lawyer, and that lawyer is representing the person on the ‘other side’, you could have just forced that lawyer to give up working on that file. I’ll explain…

All information given in a consultation needs to be kept confidential. And, a lawyer cannot represent a person if they have consulted with (and received confidential information from) the person on the ‘other side’ of the file.

Here is an example: imagine you’re going through a divorce and you start talking about that divorce with a lawyer at a party. Neither of you know beforehand, but the lawyer you’re talking to is representing your spouse. If that occurred, then that lawyer would probably have to stop working on that file (as it would be against the rules to act for one party after consulting with and receiving information from the opposing party).

In a small city like Kelowna, this is a real possibility.

Also, besides potentially losing work, the lawyer could be held legally (and financially) responsible for his/her comments to you.

To some people, lawyers are ‘walking insurance policies’.

Imagine this: someone approaches a lawyer at a party and tells them about a legal problem. In response, the lawyer says that he can’t help or isn’t familiar with that area of law; but, in trying to help, gives a few basic tips and says, “I am sure that everything will be fine”. The lawyer then leaves the conversation. Later, if the file goes sideways, that person could try to hold the lawyer responsible.

So, what should a lawyer do when approached by an acquaintance or stranger (with a legal problem) at a party? Well, to avoid these problems, the lawyer could say, “I don’t want to be impolite, but I don’t want you to reveal any information to me that I should not have about your legal problem.”

Of course, not every lawyer will do this. But, some lawyers will. To those lawyers, the risk of losing files or exposing himself/herself to liability is enough (to appear rude to a stranger).

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on December 18, 2012: Lawyers at Christmas parties.

Lawyers deserve better reputation

There is no shortage of lawyer jokes. Here are a couple:

Q: Why won’t sharks attack lawyers?
A: Professional courtesy.

Q: What’s the difference between a jellyfish and a lawyer?
A: One’s a spineless, poisonous blob. The other is a form of sea life.

Do you think these jokes are funny? I don’t. They are extremely insulting. I take my job very seriously – and I am not alone. It is tragic that some lawyers make bad (and stupid) decisions – it gives other lawyers a bad name.

Here is a real-world example of a lawyer’s horrible decision:

Mr. Martin Wirick was a real estate lawyer in Vancouver and his major client was Mr. Tarsem Singh Gill, a developer. Gill, or one his companies, would purchase a property, redevelop it, and then sell it. Wirick, performing the real estate transfer, would receive the sale proceeds and, instead of paying off the mortgage and other financial charges on the title, he funneled the money to Gill or one of his companies (for reinvestment).

This is the biggest legal fraud in Canadian history and is discussed in more detail on the Law Society website.

The fraud started small: it started with a $20,000 shortfall in a single real estate transaction involving Gill. Gill requested that Wirick delay paying off the mortgage on the property until funds were available (and Wirick foolishly and nervously agreed). Not surprisingly, funds never came, forcing Wirick to commit other frauds to cover up the original mistake.

This scheme went undetected for several years and involved over 100 real estate transactions.

The total value of the frauds was nearly $40 million.

So, what happened with Mr. Wirick? He cooperated with the Law Society in their investigation and pled guilty to the criminal charges. In 2009, he was sentenced to 7 years in jail and ordered to pay $2 million. He lost everything…

You hear these stories and think lawyers are shady, right? That’s because you probably don’t hear about the good things that lawyers do…

You probably never heard that the Law Society paid nearly $40 million, fully compensating all those people who were hurt in the Wirick fraud. And every lawyer in B.C. now pays extra fees each year to help cover this loss.

You probably never hear about the many, many great lawyers who are involved in Access Pro-Bono and who donate their time for low-income earning people.

You probably never hear about how lawyer groups, such as the Canadian Bar Association (CBA), protest against the government creating law that is bad for Canadians. This occurred when the CBA protested against the Conservative Government when it hastily and sloppily made jail the primary tool to ‘fight crime’ (rather than focus on the root causes of crime): CBA’s Reasons to Oppose Bill C-10.

You probably never heard about Mr. Dugald Christie, a Vancouver lawyer who helped set up numerous pro-bono clinics across western Canada. He provided very cheap (and often free) legal services to low-income people and earned less than $30,000.00 per year from 1991 to 1999. He also challenged a B.C. law that infringed on the rights of low-income people.

In 2006, Mr. Christie was bicycling across Canada to raise awareness of the shortfalls of legal assistance programs. Sadly, on July 31, 2006, Mr. Christie was hit by a van during his trip and was killed.

Lawyers who make bad decisions exist: bad decision makers exist in every profession. But, I have confidence that those lawyers either get ground out of practice and leave the profession voluntarily (because they can’t keep clients) or they are removed from practice by the Law Society.

It might be time for people to re-evaluate their opinions on lawyers. Don’t fall victim to the stupid lawyer stereotypes.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on September 25, 2012: Lawyers deserve better reputation.

No lawyers allowed?!

I am very disappointed.

Here is why…

Last week, Bill 52 passed 3rd reading in the B.C. Legislature (making it even closer to becoming law).

You may recall that, three weeks ago, I wrote a column about the B.C. Government’s new proposal on how to deal with traffic ticket disputes: Bill 52 – Big Changes Coming.

Bill 52 is completely misguided and may not pass constitutional scrutiny, which could end up costing B.C. taxpayers a lot of money if the process has to be changed.

Possibly more frustrating/disappointing than Bill 52 is Bill 44, which also passed 3rd reading last week. To me, Bill 44 is equally as…misguided.

I encourage you to read Bill 44 – The Civil Resolution and Tribunal Act at the following link: Bill 44.

So, what does Bill 44 propose?

Well, put simply, Bill 44 seeks to create “Civil Resolution Tribunals” that will run side-by-side with B.C. Courts. The Tribunals will have jurisdiction to hear and decide cases that fall within the jurisdiction of B.C. Small Claims Court. It is, according to the B.C. Government, intended to save money.

I understand that this may sound strange, so I’ll put it another way.

At present, if you have a dispute with someone (typically for claims under $25,000), you can go to Small Claims Court. Small Claims Court is much more informal, streamlined, and user-friendly (than traditional court), allowing people to represent themselves (which often occurs). With that said, people are still allowed to hire lawyers. The hearing/trial is presided over by a provincial court judge who is neutral and independent from government. This sounds like a good process, right?

Under Bill 44, parties could (if they consent, for now) have their potential Small Claims case taken away from the court system and heard in front of a Tribunal, a non-judicial group. In this process, the parties must represent themselves; lawyers are not allowed…

At section 20, Bill 44 states that, as its default position, lawyers are not allowed. If you want to hire a lawyer, you have to satisfy the Tribunal that a lawyer is required.

It isn’t hard to imagine that some people will be unfairly advantaged. For instance, some people are more familiar with presenting an argument, such as those people who work in business or insurance. Is this fair? I certainly don’t think so.

Another big problem with Bill 44 is that, in section 9, it specifically excludes the B.C. Government from being sued in this alternative Tribunal process. If this process is so great, then why is the Government specifically excluding itself from it?

It is disheartening that the B.C. Government did NOT consult with those groups who have the most expertise in this area when creating this Bill. As you can imagine, this Bill isn’t well supported (and is opposed) by some of those groups. Consider the media release from the Canadian Bar Association (B.C. Branch): CBA Media Release.

It is also disheartening that the B.C. Government pushed through this Bill (as well as Bill 52) BEFORE hearing the results of a report on B.C.’s shortcomings in the justice system.

For those who don’t know, in February 2012, the B.C. Government appointed a very well respected lawyer, Mr. Geoffrey Cowper, Q.C., to head a critical review (and draft a final report) of B.C. justice system: Justice Review. The Government would then use that report to make changes (and improve our system). The final report will be made to the Government in July 2012.

The Government’s decision to push through Bill 44 begs many questions…

Why create an alternative process in which people are not represented by lawyers and decisions are made by people without judicial training? Why funnel much needed resources away from the current court system and why not address the judge shortage? Why not just ‘tinker’ with the existing Small Claims Court process (if there are problems)? And why is the Government specifically excluded?

If you want to read the ‘debate’ that occurred during 3rd reading of Bill 44, scroll down to [1720] at the following link: Hansard. For the ‘debate’ that occurred during 3rd reading for Bill 52, scroll down to [1930] at the same link.

Whether or not you agree with the changes, I am hopeful that you will think about and consider the changes for yourself (without blindly relying to any particular source). I have done this and I am very disappointed in our Government.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 5, 2012: No lawyers allowed.

Thankfully, judges are appointed (and not elected)

In Canada, our judges are appointed, not elected. For that reason, we are very, very lucky.

Some people, however, think that judges should be elected. To those people: you are wrong.

Here is why…

Consider your typical political election; often, there are misrepresentation of facts, evasive answers, and frequent photo-ops. The message is often lost and elections often degrade into advertising campaigns.

I would like to think that those who are elected are the best people for the job; but, I am not always so sure.

For judges, this is system that exists in the United States of America. Hopeful judges have to campaign and their previous decisions are then scrutinized by the public, who, by large, have done little or no research to actually question those decisions.

So, it isn’t surprising that judges, like politicians, make decisions that they think will affect their chances of re-election.

This happens in politics all the time.

Consider the Federal Conservative’s decisions to create harsher sentences for crimes, despite argument and evidence that harsher sentences do NOT lower or deter crime. So, why are they doing it then? Answer: votes.

In America, when judges are elected, they, too, make decisions that will help them get re-elected into office. For instance, American judges often levy very strict (and often unjustified) sentences on offenders, so that they don’t appear lenient to the voting public.

I do not envy Americans for having that system.

For an illustration of what it is like to have elected judges, consider the following New York Times article from 2006, describing a system in which nearly three quarters of judges (who were elected) are not lawyers (and have little or no legal training/knowledge): In Tiny Courts of N.Y., Abuses of Law and Power.

Of course, the article’s material isn’t representative of all of America; but, it does provide a glimpse into the problem of using elections to find judges (i.e. that the best people for the job aren’t always elected).

In Canada, the process is very different. I will summarize it briefly.

First, lawyers who apply to become a judge must have been a lawyer for at least 10 years.

Screening committees then review the applicants based on several factors and make recommendations to the government (for appointment to the bench).

The factors that are considered include a keen intellect, proficiency in the law and in ethics, the ability to listen, the capacity to exercise sound judgment, a sense of consideration for others, patience, and a willingness to learn. An applicant’s courtesy, honesty, and humility are also considered, as well as their dedication to the public good, often demonstrated by pro bono work.

Selection committees will also interview lawyers and judges who have worked with or against the applicant. The committees are interested in the applicant’s interpersonal skills and whether or not an applicant engaged in ‘sharp’ conduct in his/her legal career.

If the applicant passes all the hurdles, then the government chooses among those applicants who have been recommended by the committees.

Also know that there are more applicants than openings (so the competition is fierce).

In P.E.I., there are openings approximately every 10 years. For federal court appointments across Canada, there may be 500 applicants a year, but only 50 to 60 appointments are made.

Once appointed, judges cannot easily be removed and are free to make decisions without influence from any powerful outside sources. Their decisions are reviewable by appellate courts, rather than the voting public.

I understand that some people think that judges’ decisions should be reviewable by the voting public, which would occur if judges were elected.

However, to do so would mean that judges’ decisions would pander to public opinion.

If judges pandered to public opinion, their decisions would be based on popularity, rather than legal principles. Judges would be hesitant to make correct (and unpopular) decisions, such as those that impact minority groups/interests.

It isn’t surprising that people sometimes get frustrated with a judge’s decision. When a judge makes a decision, one party will always be disappointed.

But, it is surprising, however, that the media sometimes does a poor job in accurately reporting the facts of a judge’s decision. This is a ‘special’ pet peeve of mine (to say it lightly).

My advice: get all the facts of a case before you criticize a judge’s decision. And be thankful that judges are appointed, not elected.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 29, 2012: Thankfully, judges are appointed.

Your secrets are safe

In practice, I am often asked, “This conversation is just between us, right?” This column is intended to answer that question.

Put simply, what you tell your lawyer is confidential.

This confidentiality is both a ‘rule of evidence’ (protected by the court) and a professional duty (mandatory to all lawyers).

First, regarding the ‘rule of evidence’, the communications that a client has with a lawyer for the purpose of receiving legal advice are privileged (and cannot be disclosed in court/in a witness stand). This rule of evidence, excluding such communications from being heard in court, is referred to as ‘Solicitor-Client Privilege’. By virtue of this privilege, a lawyer cannot disclose this information even after the client dies.

Outside of this ‘rule of evidence’, there is also a professional duty that lawyers hold ALL client information in strict confidence (and not just those communications that were made for purpose of giving/receiving legal advice). This duty is discussed in the Law Society of British Columbia’s Professional Conduct Handbook, chapter 5.

For ease of reference, chapter 5 states that when a lawyer is required to produce information under the Criminal Code, Income Tax Act, or some other legislation, the lawyer must resist disclosure and claim that the information is confidential.

If a lawyer breaches their professional duty (by, for example, telling their friends about client information), then he/she is punishable by the Law Society. The Law Society works diligently to protect the public from negligent lawyers and will severely penalize and even disbar lawyers who act against the public interest.

This professional duty (to keep secret client information) extends to even disclosing whether or not a lawyer is retained/acting for a particular person.

To illustrate, unless I am engaging in some activity in which I have to state the name of a client, such as interviewing witnesses or appearing in court, the fact that the particular client has retained me (or our firm) remains completely confidential. I tell some clients that if I see them in a grocery store, I won’t say, “Hi”. Of course, this is often up to the client.

There are exceptions, though, when a lawyer does not have to keep a client’s secrets.

For instance, communications that are intended to further a criminal purpose (such as asking for advice on how to commit a crime or a fraud) are not protected. Lawyers are not allowed to provide such advice, anyway. Such communications do not come within the scope of professional employment. This, however, does not apply to previous crimes committed, such as ‘client confessions’; these communications are confidential.

Another example is the ‘public safety exception’, which states that privilege does not apply if there is an imminent risk of serious bodily harm or death to someone. To explain, if someone tells a lawyer that they are going to kill/hurt someone, such communications/secrets are not safe/protected (and for good reason).

Compared to any other professional relationship, such as doctor/patient, teacher/student, pastor/church-goer, or accountant/client, the secrets that you tell your lawyer are the most protected against disclosure.

Bottom-line: your secrets are safe with your lawyer.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on April 24, 2012: Your secrets are safe.