the advisory - The Law Society of Alberta

Transcription

THE
ADVISORY
VOLUME 8, I S S U E 5 • D E CE M B E R 2010
IN THIS ISSUE
01From the President: Major Regulatory Work Accomplished by Benchers
02Executive Director’s Report: Developing Organizational Priorities
at the Law Society of Alberta
NEWS
03Rule Approvals Launches Law Society’s Trust Safety Initiative
03 Lawyers at Risk Task Force to Implement Best Practices
04The Three “R’s”: Rural, Regional and Remote
05 Law Society Honours Lawyers with Long Service Awards
09 Viscount Bennett Scholarship Winners
09W. Bernie Kelly QC Memorial Prize: Learning about Behind-the-Scenes
Litigation Process at SCC
14 Understanding Insurance Coverage for Pro Bono Legal Service
14 In with the New! Alternative Business Structures focus of Law Conference Plenary
FEATURES
06 Legal Icon Marks 70 Years of Service
07Risks Up Close
10 Eulogy for Tom Mayson
PRACTICE
11 Ethically Speaking: Client Verification Rules and Fraud Prevention
12 A Neutral Corner: Candid Conversations with Women in Law
REGULATORY
13Summary of Disciplinary Matters
Maclean (Mac) Everett Jones — Page 6
A Celebration
of 70 Years Service
— Page 6
FROM THE PRESIDENT:
Major Regulatory Work
Accomplished by Benchers
By Rod Jerke, QC, President, Law Society of Alberta
AT THE NOVEMBER meeting, several important Law Society initiatives appeared before
the Benchers for consideration. These included
the proposed strategic plan and the national
model code. As well, new Rules for the Law
Society’s Safety of Trust Program were on the
table for approval.
In approving several key regulatory projects, the Benchers moved the Law Society of
Alberta closer to its vision of being a model
regulator.
Principles of Strategic Plan Approved
At the September Bencher meeting, there was
a discussion about the proposed strategic plan
which we began working on in earnest early this
year. The discussion occurred at a high level and
I wondered then whether we should step back
and ponder this question: What is the purpose
of a strategic plan?
To my mind, a strategic plan is a road map
that helps an organization to determine its future course. In order to determine where it is
going, an organization needs to know where it
stands, then determine where it wants to go and
how to get there. Accordingly, a strategic plan
must be a fluid document capable of amendment in response to or reasonable anticipation
of changing conditions.
The work by the Benchers on the strategic
plan has been ongoing for over a half decade.
The adoption, in principle, by the Benchers of
this plan ensures that the energy and resources
of the Law Society are focused on those strategic initiatives most important to achieving our
vision, mission, and goals.
Model Code of Conduct Approved
will be in effect January 1, 2011.
The Benchers have identified that a national
model code is an important initiative in our
strategic goal of being a model regulator, and
flows from the necessity of developing national
standards for the regulation of the legal profession.
This is not a situation where all law societies adopt one code, but rather, a situation where
15 codes will exist – the National Code, and a
code for each province and territory (consisting of the National Model Code with amendments specific to each province or territory and
two for Quebec). Thus each regulator will have
an opportunity to amend the National Model
Code to suit its particular needs. That’s why we
asked the Professional Responsibility Committee to review the provisions of the Model Code
and make recommendations as to adoption and
any amendments that are required for the local
environment.
The Benchers, while approving the Model
Code as the Code of Conduct, have requested
the Professional Responsibility Committee develop an implementation plan, including a future effective date and communications and
educational plans, to introduce the Code of
Conduct to practitioners and assist them to understand it.
The Special General Meeting and Legal
Aid Funding
Trust Safety Rules Approved
The Benchers and staff have been working to create new Rules and processes to support its Trust
Safety Program. At the November meeting, the
Benchers approved the new Rules to Part 5, Division 2 of the Law Society of Alberta Rules. These
Legal Aid is a serious concern for the Law Society and our work flows from two of our strategic
goals: Public Confidence and Access to Justice.
At the September Bencher meeting, we
heard from representatives of the Criminal Trial
Lawyers’ Association, Legal Aid Board and the
Edmonton Criminal Law Bar. While each speaker
presented the legal aid funding issue from a different perspective, they share a common concern about the negative consequences of the
funding reductions on already disadvantaged
Albertans, and that an increase in funding is
desperately needed.
The Benchers adopted four important Strategy Statements at its September meeting. We
are working on those and will provide updates
as possible. It’s worth keeping in mind that the
strategies are aimed at an even broader objective, namely an increase in access to legal services for disadvantaged Albertans. No one doubts
that to accomplish that there needs to be an increase in resources provided to Legal Aid Alberta.
As the Law Society works toward a resolution with other parties, the reality is that the
timeline for seeing any impact of these efforts
is months. The Law Society has worked hard to
foster and maintain a good working relationship with government, and understands that a
collaborative approach is necessary for success
when working with government.
We will continue to keep you posted on
our progress on these important initiatives. v
New Executive Elected for 2011-2012
The Benchers at their November 25-26th meeting elected a new Executive Committee for 2011-2012. Douglas Mah, QC, the current President-Elect becomes President. The President-Elect for 2011-2012 will be Stephen Raby, QC.
The other executive members are: Benchers Jim Eamon, QC; Kevin Feth, QC; Carsten Jensen, QC; and Dale Spackman, QC. Wayne Jacques is the
Public Representative to the Executive.
The new President and President-Elect and Executive will begin fulfilling their roles on February 2, 2011.
1
THE ADVISORY • VOLUME 8, ISSUE 5 • DECEMBER 2010
EXECUTIVE DIRECTOR’S REPORT:
Developing Organizational Priorities at the
Law Society of Alberta
By Don Thompson, QC, Executive Director, Law Society of Alberta
THE ASPIRATIONS of the Law Society of Alberta are
set out in a new 2010-2013 Strategic Plan.
The Law Society of Alberta continues to be guided
by its vision and its mission, and the Strategic Plan is
intended to enable the Law Society to achieve its vision.
The Strategic Plan was developed during the Jan-
uary and April 2010 Bencher meetings, and the priorities from the plan were incorporated into a three-year
priority plan which was presented to the Benchers in
June 2010. These priorities were incorporated into the
business plan and budget for 2011 and considered by
the Benchers in September and October 2010.
STRATEGIC PLAN 2010-2013
GOAL 1: MODEL REGULATOR
GOAL 2: PUBLIC CONFIDENCE
Key Results
Be a model regulator by promoting and ensuring high ethical standards and competence on
the part of all those seeking admission to and
practising law in Alberta
Build public confidence in the profession and
the Law Society as a regulator by being effective, fair, timely, transparent and responsive.
yy Lawyers and the courts remain independent.
yy Solicitor-client privilege is preserved.
Key Results
yy The Law Society will meet or exceed national
standards for admission to the Alberta bar.
yy Clearly articulated standards for ethical conduct will be in place.
yy Lawyers in Alberta will be knowledgeable
about and demonstrate high levels of competence and ethical behaviour in their practice.
yy Appropriate, effective and timely corrective
action will be taken when lawyers fail to
meet competency and ethical standards.
yy Complaints and other steps within the conduct process will be managed in an effective
and timely manner.
yy Risk mitigation vehicles will be in place relating to financial loss arising from lawyers’
errors and theft.
Key Results
yy The Law Society will be viewed by government as providing objective advice in the
public interest on all matters relating to the
regulation of the legal profession.
yy The value of an independently regulated profession will be recognized by government, the
profession and the public.
yy The Law Society will be seen by the public,
the profession and government as being effective, fair, transparent and responsive.
GOAL 3: PRINCIPLES OF JUSTICE
Uphold and preserve the principles of justice
fundamental to a free democratic society, particularly client-solicitor privilege, the rule of law,
and the independence of courts and lawyers.
LAW SOCIETY OF ALBERTA—STRATEGIC PLANNING FRAMEWORK
VISION & MISSION
• Ethical Practice
• Competency
Key Results
& Strategies
Public
Confidence
Principals
of Justice
• Trusted Advisor
• Independently
Regulated Profession
• Rule of Law
• Independent Bench
and Bar
Key Results
& Strategies
Key Results
& Strategies
Promote access to high quality legal services.
Key Results
yy The public will have improved access to competent legal services.
yy The public will have increased access to legal
information.
yy The Law Society will provide, and be viewed by
government as providing, objective advice in
the public interest on access to justice issues.
yy The legal profession will reflect the diversity
of the society it serves.
yy The Law Society will conduct its business in
a manner that respects equity and diversity.
GOAL 5: ORGANIZATIONAL CAPACITY
Ensure the Law Society has the required organizational infrastructure and business supports in
place to achieve the Law Society’s mission and
strategic goals.
Key Results
Strategic Goals/Pillars
Model
Regulator
GOAL 4: ACCESS TO JUSTICE
Equal Access
to Justice
• Diversity
• Supply
Organizational Capacity
• Governance and leadership structures, systems and processes
• Human resources
• Business systems and processes
• Information and communications technology
Key Results
& Strategies
Governance/Leadership
yy Effective Bencher succession planning policies and practices will be in place.
yy The Law Society’s strategic, business and budget planning processes will be clearly articulated, communicated and effectively aligned.
yy The Law Society will operate with a clearly
established governance model consistent
with governance best practices, recognizing
the unique role of the Law Society and the
Benchers.
Human Resources:
yy The Law Society will have an adequate complement of appropriately skilled employees to effectively achieve its mission and strategic goals.
yy Workloads for Law Society volunteers will be
appropriate and manageable.
Facilities and Equipment:
yy The Law Society will have the required facility and equipment infrastructure to support
effective and efficient operations. v
2
Rule Approvals Launches
Law Society’s Trust Safety Initiative
By Janet Dixon, QC, Senior Counsel, Law Society of Alberta
ON NOVEMBER 26, 2010, the Benchers approved
the Rule changes to formally launch the trust
safety initiative. This program will be administered
by the trust safety department, which will assume
all prior audit functions in addition to the new elements of the trust safety program.
The Law Society has been committed to
supporting lawyers in maintaining efficient and
effective accounting systems to ensure trust
funds held by Alberta lawyers remain safe from
fraudulent schemes and losses due to weak internal accounting systems.
In the last few years Alberta lawyers have
brought numerous risks to our attention; the trust
safety initiatives will enable lawyers to develop
and maintain internal accounting systems to protect against those risks and will permit the Law
Society to conduct timely and effective audits to
confirm the adequacy of the accounting systems.
How will the new rules affect me as a
practitioner?
For most lawyers, the rule changes may have
little impact on their day to day operations.
Lawyers in Alberta have maintained a high level
of vigilance over trust property and have experienced few difficulties. The new program will
support these lawyers through an education
program, risk management tools and regular
audits with timely feedback to ensure the con-
tinued safety of trust money. While there are
some new mandatory requirements with respect to trust property, these requirements reflect existing best practices. For these lawyers,
key elements of the new trust safety program
include the following:
yy Every firm will have to designate a “responsible lawyer” who is accountable for overseeing the internal accounting systems and all
firm filings. A LESA program has been designed to fully inform the responsible lawyer
of his or her obligations.
yy While there is no requirement to have computerized accounting software, firms with
approved accounting software will have the
option to participate in automated audits
in place of annual external accountant trust
audits.
If lawyers have experienced difficulty in
the past in complying with accounting rules
or statutory obligations, have been involved
in risky activities or have experienced losses
or shortage of trust property, the new trust
safety program will provide support and structure to ensure these lawyers have future success in complying with accounting rules and
safeguarding trust property. Conditions may
be imposed on these lawyers or firms requiring computerized accounting software or other
risk management systems to better ensure the
safety of trust property held by these lawyers.
When are the new Trust Safety rules effective?
The Rules are effective January 1, 2011. The new
filing requirements come into effect based on
the designated filing date of each existing firm.
Every lawyer who maintains a trust account in
Alberta has declared a designated filing date.
This is the date that firms have used in past
years to calculate the due date for the old Form
S and T. Lawyers seeking to set up a new firm
will do so under the new rules.
The trust safety department will be contacting every firm in advance of its designated filing
date to explain the requirements of the new Rules.
Letters for January and February designated filing
dates have already been sent to the firms.
What can I do to prepare for the new
requirements?
All lawyers are encouraged to review the Law
Society website www.lawsociety.ab.ca for
more detailed information about the program.
A “Frequently Asked Questions” area is set up
and will be regularly updated to reflect areas
of interest expressed by lawyers. The updated
Rules are on the website. Lawyers are encouraged to contact the Trust Safety department
for further information at 403-229-4740 or
trust.safety@lawsociety.ab.ca. v
Lawyers at Risk Task Force
to Implement Best Practices
By Carsten Jensen, QC, Bencher and Chair, Lawyers at Risk Task Force
ON MAY 7, 2010, the Law Society convened a
round table discussion to review and discuss issues related to “lawyers at risk” as a result of
underlying personal difficulties that may affect
their competence. Those underlying personal difficulties
sometimes include addiction, mental or physical illness or disability, bereavement, separation or divorce. The round table was organized
by the Law Society’s Lawyers at Risk Taskforce,
with support from staff and volunteers of the
Law Society of Alberta and the Alberta Lawyers’
3
Assistance Society (ASSIST).
The specific purpose of the Lawyers at
Risk round table was to review what the Law
Society, ASSIST, and the rest of the Alberta legal
community currently do to help lawyers and articling students with personal and professional
issues. That review was conducted on a comparative basis, and so it included an analysis of the
“best practices” of other regulators, lawyer assistance programs and legal communities outside Alberta. The discussion took place within
the boundaries of the Law Society’s mandate to
serve the public interest.
Twenty-nine people attended the round
table discussion, including specially invited
experts and discussion leaders. They included
executives from the leading lawyer and physician assistance programs in Florida, Oregon,
and British Columbia. Others attended who had
gained their expertise in dealing with lawyer at
risk issues in Alberta, including a former Bencher, counsel, and members who had personally
had to deal with risk issues. Participants heard
first-hand accounts from individuals who had
continued on page 4…
NEWS
The Three “R’s”:
Rural, Regional and Remote
By Sarah J. King D’Souza, QC, Bencher and Chair, Retention and Re-Engagement Task Force, Law Society of Alberta
THE RETENTION and Re-Engagement Task
Force has commenced its work to identify the
issues and to develop a strategy to retain and
re-engage lawyers in the private practice of
law.
While we are all aware of efforts given to
retaining doctors in rural areas of Alberta, and
appreciate why it is important for communities,
we have not as a legal profession, fully considered the importance of recruitment and retention of lawyers in rural areas, and the impact of
lack of rural lawyers upon access to justice for
persons living outside the major centres.
At the November 25, 2010 Law Society
celebration for practitioners with 50, 60 and 70
year of service, three of the seven 50 year practitioners were from rural Alberta, and both of
those attending the lunch mentioned concerns
about succession planning for their practices.
Current demographic information about
our membership indicates that of our practising
members:
yy 4346 are located in Calgary,
yy 2724 in Edmonton, and
yy 1013 in other parts of the province
yy 216 students-at-Law are working in Calgary,
yy 133 Students-at-law in Edmonton and,
yy 38 elsewhere in Alberta.
In 2009, approximately 58 per cent of Law
Society of Alberta lawyers were between the
ages of 41-70; 25 per cent were aged 31-40; and
less than 10 per cent were under age 30.
It appears from data in other jurisdictions
that rural practitioners are older than those in
urban centres, and that the majority of practices are small, making succession planning
difficult.
The Canadian Bar Association in B.C. has
launched the Rural Education and Access to
Lawyers initiative with funding from the Law
Foundation of British Columbia. Strategies include funding for second year summer student
placements in rural and small communities,
support to law firms engaged in recruitment
and hiring of students and new lawyers, and an
articles registry.
One of the Law Society’s strategic goals
is to promote access to justice. Lack of access to lawyers in regions means that some
Albertans may not receive legal advice on
matters affecting their legal rights. We need
to examine the extent of the problem affecting recruitment and retention of lawyers in
rural, regional and remote areas of Alberta,
identify the potential factors contributing
to the problem and consider strategies, commencing at the point of law school entry, and
continuing thereafter.
I invite lawyers to share their stories and
provide their thoughts to inform the Task Force
on lawyer retention and re-engagement in the
legal profession in Alberta. You are welcome to
email me at: sking@flo.legalaid.ab.ca v
Lawyers at Risk Task Force to Implement Best Practices, continued… from page 3
suffered from personal problems which had
placed them in difficulty with the Law Society
as regulator. From the round table discussion, we identified a number of areas, all related to each
other, for further work:
1. There is an identifiable suite of warning signs
that a lawyer may be in sufficient distress to
impair his or her competence. How do we
train our members to recognize such signs, so
that assistance can be offered at the earliest
possible time?
2. There are cultural barriers in our communities and our profession which prevent lawyers
from seeking help. There is a view that mental
illness or addiction is shameful. How can we
break through these barriers?
3. How can we create and follow sustainable
models of lawyer assistance?
4. How can we otherwise enhance the resources
available to lawyers in distress?
5. How can we improve the Law Society’s discipline process to deal with lawyers in distress,
both to make it more compassionate, and to
recognize such improvements will be in the
public interest?
Round table participants concluded that
the following “best practices” should be consid-
ered in Alberta:
yy Early outreach is critical for the prevention
of more serious problems, and that outreach
can be by education and awareness campaigns. It also may include a direct approach
to a lawyer identified as having problems.
yy Outreach and education should be directed
at awareness of sentinel behaviour, and of
the avenues of assistance. Effective outreach
increases the likelihood of a lawyer’s seeking
early help.
yy Help should be available from the day of admission to law school to retirement.
yy Assistance programs should be integrated in
the discipline process. This means that the
discipline process should be flexible enough
to respond to distress issues, and conversely,
assistance programs are able to take the initiative when discipline issues suggest a lawyer is in distress. Diversion from the disciplinary process to treatment, where appropriate,
should be encouraged.
yy Legal help should be provided to lawyers in
the discipline process, and includes a component of diagnosis and treatment through
other professionals.
yy The financial consequences to a lawyer who
faces distress issues resulting in practice in-
terruption should be recognized, and dealt
with in some meaningful way, perhaps including mandatory disability insurance.
yy Law office managers should be supported
in their in-house programs to deal with distressed firm members.
yy Emergency response programs should exist
to cover the sudden interruption of a distressed lawyer’s practice.
yy Support should be available to the families
and colleagues of the distressed lawyer.
There are obviously challenges in implementing these best practices in Alberta, and the
Law Society as regulator must make sure that
everything that it does reflects its public interest mandate. Having said that, we recognize
that assistance to distressed lawyers, and opportunities for diversion from disciplinary processes in appropriate cases, will serve to protect
the public.
At our November 2010 meeting, the
Benchers considered a report from the Lawyers
at Risk Task Force, which included all the elements outlined above. The Benchers have provided strong encouragement for this initiative,
and our task going forward will be to implement
as many of the best practices discussed above
in the work of the Law Society. v
4
Law Society Honours Lawyers with Long Service Awards
50, 60 & 70 Years of Service
Celebrated
The Law Society commemorated 50, 60 and 70 years of service with a luncheon on November 25th. The recipients are as
follows in this photo: Top row, left to right: Robert G. Roddie,
QC; Stanley Schumacher, QC; Law Society President Rod Jerke,
QC; Hon. Judge R.A. Jacobson; and Donald T.D. Hatch, QC. Bottom row, left to right: Gerald M. Burden, QC, 60 years; Maclean
Jones, QC, 70 years; Arthur M. Davis, QC; and Raymond F. Kutz.
Missing: Theordore L. Babie.
30 years of Active Service
Congratulations to the following lawyers who are being honoured this year for 30 years of active membership with the Law Society of Alberta. They
will each receive a 10-karat gold recognition pin and a congratulatory letter from Rod Jerke, QC, President of the Law Society of Alberta. The eligibility
criteria is based on 30 years of active membership (360 months) as of September 30, 2010, regardless of whether the service is insured or uninsured,
and whether it is rendered within or outside Alberta. For details, please contact Sheila Serup, Manager, Communications at (403) 229-4744 or at Sheila.
Serup@lawsociety.ab.ca
D. R. Abbey
B. A. Adair
A. R. Anderson, QC
L. D. Ayers
Gregory Bailey
T. W. Bardsley
Brian A. Beresh, QC
Wendy E. Best, QC
P. M. Bishop
R. G. Bissett
D. J. Blackett
J. P. Bond, Q.C.
Michael J. Bondar
Judy N. Boyes, QC
T. J. Boyle
M. J. H. Braun
Mary-Kay Brook
G. F. Butler
Elizabeth T. Callaghan
Linda T. Callaghan
Larry Carr, QC
James W. Carr
Victor J. Carson
M. R. Carter, QC
Norman J. Cavanagh
Jean K. Coutts
Ted R. Croll
J. A. Cross, QC
J. H. Cuthbertson, QC
Clark W. Dalton, QC
A. S. de Villars, QC
B. Q. H. Der, QC
Arline F. Diamond
Richard C. Dixon
D. L. Droppo, QC
P. D. Edwards
Dale O. Ellert
5
Tom M. Engel
Stephen English, QC
G. F. Faass
P. M. Farion
P. J. Faulds, QC
Fred R. Fenwick, QC
Philip L. Fiess
Brian L. Fish
Gregory J. Forrest
Gregory R. Forsyth, QC
D. P. E. Fournier, QC
Karen George
Sharon M. Gould
Ms. Helen R. Greaves
R. R. Hagerman
Harold W. Hagglund, QC
R. J. Hall
Dave G. Hancock, QC
B. G. Hansen
Timothy E. Haufe
Kathryn A. Heath
Mary A. Heaton
Greg D. Heinrichs, QC
D. B. Hepburn, QC
W. A. Herman
Denis A. Hickey
Dave. A. Hill
L. N. Hiller
A. J. Hladyshevsky, QC
A. A. Holinski
L. J. Holmes, QC
Lorraine Howard
M. Ann Hughes
John A. Hughes
W. Laird Hunter, QC
Terry Huzil
J. L. Ircandia
Ms. K. D. Jacobson
Anne Jarman, QC
R. A. Jerke, QC
H. M. Joffe
R. S. Johnson
J. A. R. Joly
James W. Joosse
N. Kangles
R. H. Kennedy
David W. Kinloch
Gerald J. Kugelmass
Bonita (Bonnie) L. Limpert
Mark Lindskoog
Stephen L. Livergant, QC
D. G. Loader
Gary S. Low
H. M. Lowenstein
Kathleen Luna
James Alexander MacDonald
I. R. MacDonald, QC
J. R. MacInnes, QC
Elizabeth M. MacInnis
T. B. MacLachlan
J. W. Mandick
Lorne G. Mann
Graeme S. Marr, QC
F. G. Vaughn Marshall
M. J. McCabe, QC
Kerry W. McClelland
M. N. McCrank, QC
James D. McFarlane, QC
J. David McInnes
Elizabeth M. McKall
Ramon T. McKall
A. G. McMillan
Shirley Ann McNeilly, QC
J. Murray McPherson
E. F. A. Merchant
W. Martin Meronek
Mrs. M. J. Metz, QC
P. Meyers
Derek G. Milen
K. F. Miller
S. R. Miller
R. Vance Milligan, QC
Charles A. Mitchell
Darrell R. Moore
Kevin T. Mott
P. R. Murray
Barbara J. Murray
Bruce A. Murray
R. W. Myers, QC
D. L. Nerland
R. A. Neufeld, QC
I. A. Nicol
Jennifer J. Oakes, QC
Eric L. Oddleifson
Peter Pagano, QC
Peter Pastewka, QC
D. D. Peterson, QC
David R. T. Pfau
P. G. Pharo, QC
Eunice L. Prichard
A. A. Robinson
Susan L. Robinson Burns, QC
David T. Robottom, QC
David Rode, QC
L. A. Rodger
K. J. Rogers
David C. Romaniuk
David J. Salmon
Jacqueline E. Schaffter
I. C. Schofield
P. A. Scott
Ralph D. Scurfield
Richard C. Secord
W. Y. Shaw
Michael Sherritt
W. R. Shouldice
R. M. Simpson
C. H. Sissons
James A. Smith
Barbara J. Snowdon
Grant N. Stapon, QC
Lawrence Stein, QC
Robert C. Stemp
A. Stephen W. Stiles
Richard W. Sugden
M. Francine Swanson, QC
Michael J. Tadman
Linda A. Taylor
Duncan C. Thompson
Linda Threet
Mark D. Tims, QC
Karen E. Tottrup
J. L. Treleaven
Andrew J. Trevoy
Greg G. Turnbull, QC
Julia A. Turnbull, QC
J. M. Walker
Christopher R. Warren, QC
D. S. Welsh
Schuyler V. Wensel, QC
J. Wiebe
R. M. Wilkinson
Doris I. Wilson, QC
Camilla L. Witt, QC
B. A. Yaworski, QC
Ian A. Zaharko
D. Zalmanowitz, QC
B. Zalmanowitz, QC
Ms. F. L. Zinger
FEATURE
Legal Icon Marks 70 Years of Service
By Derek Sankey
Maclean (Mac) Everett Jones, QC is a veteran of
the legal sector in Alberta who carried on the traditions of the firm that bears his name, Bennett
Jones, following in the footsteps of his predecessors and mentors
MACLEAN (MAC) JONES decided when he was
in Grade 8 that he was going to become a lawyer. When he moved on to high school, he joined
the Western Canada High School debating team
and it solidified his career goal.
“I pretty well made up my mind that’s
what I was going to do,” says Jones, now 94
years old. “But I never really did get to the point
so that I could talk on my feet. I had to plan and
work like hell to get anything ready.”
For a man who admits he was not a born
courtroom litigator, he sure did very well for
himself as a lawyer. After completing his law
degree from the University of Alberta in 1939,
Jones was lucky to land an articling placement
at the law firm founded by R.B. Bennett (Prime
Minister of Canada, 1930-35) and partners. It
was May of 1939, following the depression, and
just months away from World War II breaking
out later that year in September.
He was called to the bar in Alberta in 1940
(and later, Saskatchewan in 1959), but left to
serve in the war in the Royal Canadian Navy,
serving on convoys across the Atlantic for three
years. To this day, he still has a wooden carving
he made of the frigate he served on sitting on
a credenza in his office. He also remembers his
first day at sea.
“I was sick as a dog,” he recalls. “I was hanging over the rail for a couple of hours, so I went
down to the canteen and bought two Coca Colas. I went back up and drank one of the bottles
straight down and about two hours later, I was
all better. It never worked for anybody else.”
When he came back to Calgary in 1945,
he returned to the same law firm, known then
as Bennett, Hannah, Nolan, Chambers & Might,
and picked up where he left off. His passion was
always in business law. “I didn’t have any interest in criminal law or family law or any other
areas,” he says from his Calgary home. He still
remembers being at his first partners’ meeting
on Jan. 2, 1952.
EJ Chambers, Harry Nolan, Orrin Might and
the firm’s most senior partner, Alexander Hannah, were all there at the meeting, along with
Jones. “The purpose of the meeting was to divide up the pie for the coming year,” says Jones.
“I got what was left over.” When the meeting
was just about to be adjourned, Chambers approached Nolan. “He said, ‘Harry, I get down to
the office at 8:30 every morning and I do that
Maclean (Mac) Everett Jones, QC
to set a good example to the young lawyers.
Harry, you come down at 10:00 every morning and I think that sets a bad example to the
young lawyers.’ Nolan, with his big Irish smile,
said, ‘Chambers, you’re absolutely right again.’
Then he said, ‘Chambers, I’m going to make you
a promise. I’m going to keep coming down at
10:00 every morning.’”
It’s that kind of story Jones looks back on
fondly about the inner workings of the law firm,
and of the types of characters he worked alongside as mentors during his early years as a lawyer. Both Chambers and Nolan had a big impact
on his career. Nolan even went on to become a
judge on the Supreme Court of Canada. “He was
a great lawyer and a great friend,” says Jones. “I
did a lot of work for him.”
Jones first gained experience in the oil and
gas industry when he went down to the Southern Methodist University in Dallas, Texas, to take
a week-long course every year and got to know
a lot of oil and gas lawyers. As Alberta’s energy
industry began to take off following the Leduc
oil discovery, Jones started getting clients and
started building what would become an area of
expertise that lasted throughout his career.
Asked about the differences between starting out as a young lawyer in the late 1930s and
1940s versus now, there are plenty of examples.
“I don’t know what they’re paying young fellows
and girls coming out of law school now, but it
isn’t the $25 a month that I got when I started
out,” he quips. Technology has also completely
changed the nature of the profession. “One of
the things that’s changed a lot are all of these
pocket telephones and daybooks these guys
have in their pockets,” says Jones. “They’ve practically got a library in their coat pocket.”
Gone are the days of spending countless
hours in the library researching precedent. Technology has improved access to all kinds of information and, by extension, the way in which
lawyers do their jobs. In his early career, Jones
would spend hours and sleepless nights in the
library researching and preparing for his clients.
Yet he always made it home for dinner at 5:30
every night. “Now I see lawyers who don’t get
home until seven or eight o’clock at night,” he
remarks. Not that he didn’t work hard. “The first
part of my career, the objective was to earn
enough money to eat three meals a day and
have a place to sleep,” he says.
As his practice began to grow with the Alberta oil industry – he officially moved into oil
and gas law in 1947, acting for Imperial Oil as
the Leduc oilfields began to boom – the firm
itself also evolved with the times. There were
moments he thought about leaving the firm to
try something else – the only firm he’s worked
for during his 70-year career.
“There were good times and there were
bad times,” he says bluntly. “You can’t say it
was all easy going because it wasn’t. There were
times when I thought maybe I would go and
start a practice of my own in some small town,
but I never did,” says Jones. “My wife wouldn’t
let me, for one thing.”
When he started out practising law, there
were hardly any in-house legal departments.
Now, of course, most energy corporations have
their own legal counsel and, where in the past
lawyers spent their careers at one law firm or
another, now they can work for their entire lives
inside corporations’ legal departments.
Despite all of the changes in law and how
it is practised over the last 70 years, one thing
that has not changed, in his view, is the integrity
of the profession as a whole.
“It’s a good, honorable profession,” says
Jones, “with a great future.” It also lends itself to
other career paths – the majority of Canadian
politicians started out as lawyers, for example –
but also to involvement in the community.
Jones served for four years on the Calgary
Public School Board – three as chairman – and
three years on the University of Calgary’s board
of governors, including two as its chairman. He
also spent six years on the Calgary Police Commission and served on the board of the Canadian
Council of Christians and Jews. “I think anybody
who is in a position to do something should do
6
Risks Up Close
Warning Signs of
Two Business Scams
The risks are real. The schemes are sophisticated;
the traps are devious.
This section of the Advisory discusses risk and identifies
some of the warning signs. We’d also like to share with you
steps the Law Society of Alberta is taking to assist lawyers
in reducing risks and limiting their exposure.
TOP 10 CAUSES OF LOSS IN PAST 10 YEARS
Investment schemes | 1%
Fraud by client or other party | 2%
Lack of delegation
or poor supervision | 5%
Unclear, miscommunication
| 25%
Systems/Procedure/
Administrative | 29%
Fee dispute | 1%
Conflict | 13%
Mortgage Fraud | 2%
By Kathy Whitburn, Manager, Complaints,
Law Society of Alberta
1. Corporate Identity Theft
Scenario:
A corporation holds itself out to be the owner of a
property (e.g. a commercial property) but, in fact,
the corporation has been created to defraud the
legitimate owner of the equity in the property. If
there is a mortgage registered on title, a false discharge is registered and then the corporation sells
the property or obtains a new mortgage.
Best practices:
yy do a corporate search to determine the names
and addresses of the directors and officers,
and their addresses and the addresses of the
registered and records offices;
yy get photo identification of the person purporting to have signing authority;
yy ask to see the appropriate corporation resolution giving that person signing authority
Flags:
yy the corporate minute book is not available;
yy the minute book is produced but annual returns are not current or there are some other
irregularities;
yy the deal is rushed and;
yy the address of the person with signing authority is different than that listed with corporate registry.
2. Investment Schemes
FREQUENCY (VOLUME) BY AREA OF LAW SINCE 1992
Intellectual Property | 1%
Tax | 1%
Other | 9%
Commercial & Corporate | 16%
Real Estate | 24%
Matrimonial & Family | 9%
Civil Litigation | 40%
7
Scenario:
A corporation seeks investments from various
sources, promising high returns for short-term
investments. The investors enter into a written
agreement with the corporation which provides
that the funds are immediately releaseable to
the corporation. The investors are instructed to
send the funds to a lawyer who is to hold the
funds in trust. The lawyer is not retained by
the investors and, upon receiving instructions
from the corporate client, releases funds to the
corporate client. When the deal goes sour, the
investors see the lawyer as being liable. What
the investors don’t understand is that the funds
were being held in trust on behalf of the developer and not on behalf of the investors. The
bottom line is that there is no reason for the
lawyer to be holding the funds at all.
Best practice:
Advise the investors, in writing, that you are not
acting on their behalf and that if you receive
any investment funds from them, that you will
not be holding the funds on their behalf but on
behalf of your client, the corporation. v
FEATURE
Four Types of Mortgage Fraud to Watch For
1. Fraud for shelter
The owners or potential owners “fudge” their
mortgage application so that they can get a
mortgage they can’t really afford.
2. Oklahoma flip, the Bump or Value Fraud
A property is sold by legitimate vendor to a
numbered company controlled by the fraudster.
The property is flipped several times with a significant increase in the alleged property value
each flip. No money changes hands. The property is then sold to a straw purchaser who obtains
a mortgage for the inflated value, the property
goes into foreclosure and the lender is left with
an unpaid mortgage that is much greater than
the actual value of the property.
3. Identity Theft or Title Fraud
There are two kinds: (1) the legitimate owner
retains title to a property that the fraudster has
targeted. The fraudster obtains a mortgage with
forged and false documents often with the assistance of a dishonest broker or bank employee;
(2) the fraudster actually illegally transfers the
property from the legitimate owner to someone else and that someone else gets a mortgage. Again, the true owner only finds out when
the illegitimate mortgage goes into arrears.
4. Rescue Fraud
The legitimate owners of a property are in financial difficulty and agree to sell their property to a fraudster’s numbered company for an
inflated price. The fraudster promises to get a
new mortgage and then transfer the property
back in three to six months. The fraudster does
get the new mortgage but the legitimate owners do not get anything more than a nominal
amount from the net sale proceeds. They pay
rent to the fraudster equal to the new mortgage payments. However, the fraudster does
not make the mortgage payments and does
not transfer the property back to the legitimate owners so new foreclosure proceedings
are started and the original owners are eventually forced out of the property.
Best Practices to Avoid Mortgage Fraud
yy Do your title searches. If the property was
sold only days earlier or if you’re presented
with a number of different purchase agreements where the price keeps escalating, do a
historical search.
yy Obtain and keep client photo identification.
yy Ask the purchaser(s) questions like what they
do for a living, why they decided to purchase
this particular property, etc.
yy If there are multiple purchase contracts and
the closing dates are out of sequence, ask why.
yy Ask about special or irregular credits to the
purchaser. v
Practice Good Habits to Prevent Loss
By Lisa Sabo, Director, Insurance, Law Society of Alberta
yy Know the new Client and Identification Verification Rules.
yy Confirm advice and instructions in writing.
yy Keep good notes of conversations with clients – a short memo to file can save the day
when the client’s recollection of a conversation differs from the lawyers. yy Retainer letters clarify what the lawyer will
and will not do; as do non-engagement and
disengagement letters.
yy Be cautious of third parties who are involved
in the client’s transaction and are not indepen-
dently represented — confirm in writing that
you do not act for anyone but the client; recommend independent legal advice.
yy Resist the temptation to save the parties
money in legal fees by simply papering the
deal when the deal goes sour. One of the first
places the parties look is to the lawyer for
failing to properly advise them about the risk
in the transaction.
yy Beware of the client who seeks to use your
trust account as a bank account. Ask yourself; what professional services you are ren-
dering? (See the new Client and ID Verification Rule).
yy Be wary of clients who are promising unrealistic returns on investments on funds deposited in the lawyer’s trust account.
Remember that you are the lawyer. Don’t relax
good practice habits because you have a longstanding relationship with a client. If a deal
goes sideways, fingers almost always point to
what the lawyer should have done or could
have done better. v
Practice Tips for Trust Funds and Accounting Records
By Kathy Whitburn, Manager, Complaints, Law Society of Alberta
Practice Tips – Receiving Trust Money
yy Know who money is coming from
yy Understand trust conditions on funds,
attempt to get in writing
yy Deposit money daily
yy Consider getting funds certified
yy Be aware of money laundering laws and rules
Paying Out Trust Money
yy Review ledger card before disbursing funds
to ensure sufficient funds on hand
yy Ensure ledger cards are up to date
yy DO NOT PAY OUT unless certain funds
have cleared
yy Ensure trust conditions met before paying out
yy Ensure trust cheque fully completed before
signing
yy Do not post-date trust cheques
yy Ensure trust cheques are maintained in a
safe and secure location (lock & key)
yy Ensure account rendered before trust transfer
Accounting Records
yy Keep records organized
yy Label all books, records and boxes
yy Store records in bankers box
yy Keep cheques and bank statements together
yy Maintain ATM receipt slips with deposit books
yy Create a month-end checklist
yy Create a monthly reconciliation package
yy Organize bank statements and reconciliations by bank account
yy Colour code cheques (general vs. trust)
yy Maintain voided cheques
yy Get certified cheques back from bank
yy Maintain one ledger card per matter v
8
Viscount Bennett Scholarship Winners
By Bria Cridland, Communications Coordinator, Law Society of Alberta
The Viscount Bennett Scholarship was established through a trust fund by the Right Honourable Viscount Bennett to encourage a high standard of legal
education, training and excellence. It is awarded annually by the Law Society of Alberta.
Winner’s Studies to Focus on Legal Theory
HAVING COMPLETED a year long clerkship at the Supreme Court of Canada in Ottawa, Jocelyn Stacey now has her
sights set on earning an LL.M. degree from Yale University. Receiving a Viscount Bennett Scholarship is important to
Jocelyn not only financially, but also in knowing she has support from home while studying abroad.
While at Yale, Jocelyn looks forward to benefiting from the broad-range of courses offered to master’s students
at the law school. She intends to focus her course work on legal theory and also work on an individual research project
on administrative and environmental law. Gaining perspective on the law from other international students as well as
from her Yale professors promises to be an eye-opening experience for Jocelyn.
Jocelyn has a B.Sc. from the University of Alberta and an LL.B. from the University of Calgary. Upon earning her
LL.M., she plans to find an academic position at a Canadian law school. v
Jocelyn Stacey
Studies in Water Issues to Build Canadian Expertise
Anna Lund
GROWING-UP in a family of ‘paddlers’, it’s only natural that Anna Lund should feel a strong connection to our water
resources. Her interest went from personal to academic in her second year of law school at the University of Alberta
when she wrote a paper on water rights in Alberta.
Anna is excited now to be at the University of California, Berkeley (Boalt Hall) working towards her LL.M. and
focusing on property law, bankruptcy law and water rights. She will be writing her thesis with Joseph Sax, author of
Legal Control of Water Resources: Cases and Materials (Thomson West, 2006).
Being in California will not only provide Anna the opportunity to experience great weather, but it will allow her
to join leading-edge discussions on water policy. Anna is appreciative for the Viscount Bennett Scholarship helping her
pursue studies in California. Studying water issues in an area where innovation is necessary will allow Anna to bring
valuable expertise back to Canada. v
Recipient Sets Sights on Environmental Law Studies
Receiving a Viscount Bennett Scholarship from the Law Society of Alberta feels like validation to Cameron Jefferies,
whose path into law was somewhat unorthodox. Earning a biological sciences degree from the University of Alberta
fueled an interest in environmental law.
Having completed his law degree at the U of A, Cameron is now studying towards his LL.M. at the University of
Virginia in Charlottesville. Cameron plans to complete an independent research project on whale and shark conservation along with his course work.
After completing his LL.M. requirements at the Thomas Jefferson founded university, Cameron plans to return to
Alberta where he feels there is a lot of environmental work that must be done. He plans to pursue a career as a public
interest environmental lawyer and eventually teach the next generation of environmental lawyers. v
Cameron Jefferies
W. BERNIE KELLY QC MEMORIAL PRIZE:
Learning about Behind-the-Scenes Litigation Process at SCC
NICK PETERSON anticipates learning about
the behind-the-scenes litigation process in his
new position with the Supreme Court of British
Columbia. A 2010 graduate of the University of
Alberta, Nick began a one year term as a Judicial
Law Clerk in September.
Upon completion of his clerking term,
9
Nick, the 2010 recipient of the W. Bernie Kelly
QC Memorial Prize, will begin articles at Miller
Thomson LLP in Vancouver. He looks forward
to pursuing interests in the areas of labour and
employment, trusts and personal injury/insurance litigation.
W. Bernie Kelly, QC, served as the Law So-
ciety of Alberta’s deputy secretary, secretarytreasurer (executive director) from 1969 – 1988.
In 1989, an endowment was established in Mr.
Kelly’s name to honour his contributions to the
Law Society and recognize his interest in encouraging a high level of legal education and practice
in Alberta. v
FEATURE
Eulogy for Tom Mayson, QC: February 1, 1928-October 18, 2010
By Justice A.H.J. Wachowich
ON MAY 30, 1953, Tom Mayson, QC, took the
oath to uphold the law before Justice Hugh
John MacDonald. Tom became a lawyer after
articling for a year to Ronald Martland, QC, who
later became a Justice of the Supreme Court of
Canada.
After that day in 1953, he commenced a
career in the profession of law that in the eyes
of his peers was enviable. He was more than
noble and honourable from that day forward
until April 30, 2008, when he retired from the
profession.
For 55 years, he made remarkable achievements including being the Managing Partner
from 1959 until 1982. His duties included managing the newly established office in Calgary.
All of his time in the profession was with the
firm of Milner Steer Dyde Poirier Martland, and
Layton as it was then named. Now the firm is
called Fraser Milner Casgrain.
Tom Mayson was raised in Edmonton during the Depression years by his mother, who
was widowed while Tom was still an infant.
She worked as a housekeeper for Sandy Dyde’s
mother so Tom was familiar with the senior
solicitor by name. Ever-conscious of expenses,
fortunately Mayson showed athletic prowess
and was able to pay his university tuition one
year by playing professional football. He graduated from the University of Alberta in 1952
with degrees in arts and law, applied to Sandy
Dyde for articles and was accepted. Tom stated,
“It is the only firm I ever considered and I have
been here ever since.” He confined his practice
to litigation and commercial law.
When at the University of Alberta, Tom
was considered not only for his academic excellence but also for his athletic ability. He won
many awards as a student which prompted the
Faculty of Law to recently name a “group study
room” at the Faculty to honour Tom’s memory.
He was the quarterback of the Golden
Bear Football Team in 1948. The University
of Alberta’s Athletic Department dropped the
football program at the end of the year. The
uniforms and equipment were sold to the Edmonton Eskimo Football Team which joined the
Canadian Football League in 1949 and the Eskimos continued the tradition of wearing green
and gold colors.
Along with the equipment and sweaters, four Golden Bear players joined the Eskimos including Tom. The other three were Peter
Lougheed, who became a well known politician
in our province; W. Kenneth Moore, the former
Chief Justice of the Court of Queen’s Bench of
Alberta; and the late Jim McCrae who became a
prominent criminal lawyer in our province.
Tom’s name became an answer to a trivia
question, “Who was the first Canadian (non
import) quarterback to play for the Eskimos.”
Tom played only one year and decided to concentrate on his law studies. He was influenced
in doing so as he wily stated, “I was only being paid about .05 cents an hour while I was on
the Eskimo roster.” Besides football Tom also
distinguished himself as a basketball player
with the Golden Bears. His teammate at that
time, the former Premier of our province, Peter
Lougheed, stated: “He was always a team player
- in whatever it was that he might be doing. He
considered the team first.”
“Tom always showed up in a multitude of
ways as a team player – be it in his law class
where he was prepared to help others, his firm,
sports, and his family life.”
And the retired Chief Justice W. Kenneth
Moore stated: “Tom was a great friend, a skilled
lawyer, and a gentleman. I always enjoyed his
warm personality, his sense of humour and that
wonderful smile. He enjoyed the respect of the
entire Alberta Bar. We’ve lost a wonderful friend
and a great guy who always went out of his way
to help others.”
His former partner, Denny Thomas, now
Mr. Justice Thomas of the Court of Queen’s
Bench stated: “Tom could do it all – a complete
lawyer who later in his career specialized in civil
litigation and commercial law.” Justice Thomas
noted that Tom was the last student and counsel to work with the giant in the legal profession
– George Steer, Q.C.
Tom Mayson, this man of honour, also
served his profession in other ways. He was
elected a Bencher of the Law Society of Alberta
in January of 1980 and served for eight years.
He was on the Discipline Committee when
the actions of two notorious members of the
Law Society almost bankrupted its insurance
fund. He acted justly and with dispatch. This
was recognized by the profession. It has been
often said that the greatest honour bestowed
upon a lawyer is to be elected as a Bencher by
ones’ peers as this shows the trust the members of the legal profession have in the elected
Bencher and you can expect that individual to
represent them honourably and with total integrity.Tom also spent much time at his farm
and cottage at Lac La Biche where he enjoyed
those rural surroundings which provided him
leisure and rest.
He was predeceased by his first wife Shirley in 1979 and his son Tom Jr. He is survived by
his wife Pat, daughter Carmen, sons Brad, Ron
and Doug, and his 10 grandchildren: Stephanie,
Joffrey, Carley, Jennifer, Alex, Jessica, Mitchell,
Tonisha, Brody and Forrest.
He left this earth being that honourable
man respected by all who knew him and thankful in some way or another to have the opportunity to meet such a man of honour and we
have become better individuals because of this.
I close by quoting from the Talmud:
For no one can tell what trials and travails
await a newborn child; but when a mortal dies in
peace, we should rejoice, for he has completed a
long journey, and there is no greater boon than
to leave this world with the imperishable crown
of a good name.
Tom Mayson left this world with that crown
of a good name—a man of honour. Tom—you
died in peace—may you now rest in peace. v
Legal Icon Marks 70 Years of Service, continued… from page 6
something in the community,” he says.
His family has always been an inspiration
throughout his career. His son, Craig, is now a
practising tax lawyer in Calgary, while he’s got
another son in B.C. and a daughter in Vancouver
who’s a chartered accountant, along with six
grandchildren who keep him busy.
Looking back, Jones is still amazed he’s
made it this far. He credits following his passion
in law as part of the reason for his longevity.
“The success I point to is living an extra 20 or
30 years,” he jokes.
“For some reason or another, I’ve outlasted
everybody else. I never thought of the future,
except for what was going to happen the next
week or two. Never at any time did I think here
I’d be, 94 years of age.”
He has received many accolades and recognition for his legal and community service
over his 70-year career, including the Law Soci-
ety of Alberta’s Lifetime Achievement Award in
1999 (it now hangs proudly on his office wall).
Recognition from your peers – the ones you’ve
spent your career working alongside – and from
the people in your field that will always mean
the most to him. “If you get an award that’s
connected with your own work and your own
lifestyle, that’s a lot more important than getting an award for something else,” says Jones.
“That really counts.”
10
ETHICALLY SPEAKING
Client Verification Rules
and Fraud Prevention
By Nancy Carruthers, Practice Advisor, Law Society of Alberta
FRAUD IS OF increasing concern to Alberta lawyers and the Law Society of Alberta. Mortgage
and real estate fraud have long been identified
as an issue of particular concern to our real estate lawyers, as well as to lenders and property
owners. Lately, however, we have all received the
Law Society e-mail notices, advising of the latest
attempts by scam artists to defraud our lawyers.
The typical scheme involves someone
from a foreign or remote jurisdiction, writing
or emailing to a lawyer and asking for representation in a matter involving debt collection
or financing. There is no advance call from the
unsolicited client, the lawyer may or may not
practice in that area of law, and/or there may
be no logical connection between the lawyer’s
geographical location and the client’s matter.
In the debt collection matters, the delinquent
debtor too readily sends payment to the lawyer, while the eager creditor asks for immediate
payment from the lawyer’s trust account – minus the lawyer’s fee, of course.
Sometimes the “client” sends a cheque or
draft, asking that the lawyer deposit it into a
trust account and later asking the lawyer for
some form of payment. Sometimes the client
purports to have been referred by a trusted representative or agent in Alberta, or even a lawyer
in another jurisdiction, in attempt to make the
lawyer think that they are a legitimate client.
All these efforts are directed at obtaining
funds from a lawyer’s trust account, leaving
the lawyers with a shortfall when they release
funds to a client and later discover they have
relied on fraudulent cheques or bank drafts.
Our client identification and verification
rules were implemented December 31, 2008, in
response to pressures from the federal government in its fight against money-laundering and
terrorist financing. These rules do, however, assist lawyers in preventing and protecting themselves from more basic fraudulent schemes.
Before cash is received from or on behalf of a
purported client for a debt collection matter
or purchase and sale, the lawyer must identify
and verify the client, which means the lawyer
must obtain basic contact information as well
as a copy of identification to confirm the client’s identity and address. The lawyer must either meet the client face to face or, failing that,
must engage a guarantor or agent to obtain a
copy of the identification by meeting the client
face to face and preparing a written attestation.
Also remember that the client identification and verification rules apply to “third parties”. You are expected not only to verify the
identity of the individual client instructing you,
but also a third party if they are directing or instructing that client. These third parties include
principals who may be represented by agents, or
donors who have granted power of attorney to
others, who then instruct counsel.
If purported clients are told that identification is required, many will move on. Their hesitation to provide identification should serve as
a warning sign. In some cases, individuals have
attempted to send copies of passports or other
documents directly to lawyers. The documents
were suspicious in appearance and were not accompanied by an attestation of an appropriate
agent or guarantor.
It is not enough to simply obtain and copy
the identification – look at it and make sure
the photos and names match the individuals in
front of you. Check their signatures, addresses
and their dates of birth. If relying on guarantors
or agents, do some due diligence to ensure their
authenticity and reliability as well.
Try to talk to the client directly, over the
phone, or even using Skype or other videoconferencing tools, rather than relying solely on email.
Get to know the client and understand the motivation behind the transaction. If the client alleges they have been referred by someone, ask
to speak to the referral source to determine how
well they actually know the client, if at all.
If relying on a client’s cheque or bank draft,
call the issuing bank, using a phone number other than the one on the document. If the cheque
is written on the account of a corporation, call
the corporation at an independent telephone
number, rather than the one provided on the
cheque. You can also ask for assistance from
your financial institution. Do not pay out funds
until the cheque has cleared.
There is an exemption in the client verification rules with regard to electronic fund
transfers. Lawyers should read the rules and be
familiar with their application. Lawyers should,
however, be very cautious about providing
details of their trust accounts to others, and
should not assume that funds received by electronic transfer or direct deposit are more reliable. Not all electronic fund transfers are the
same and, if there has been reliance on a forged
or fraudulent document, the bank may reverse
the deposit transaction after you have released
funds in reliance on that deposit.
Train your staff so that they will be your allies in following the client identification and verification rules and identifying potential frauds.
Read Law Society bulletins and fraud alerts regarding suspected fraudulent schemes that may
be of concern to you as a legal practitioner. If you
suspect a new client may be a fraudster and you
would like confidential practice advice, you are
welcome to contact the practice advisors.v
LESA Receives Highest Award for Conveyancing Guide Project
At ACLEA’s 46th Annual Meeting in New York City, Legal Education Society of Alberta (LESA) received ACLEA’s Award of Professional Excellence In Technology ( the highest award ) for its Alberta
Conveyancing Guide Wiki Project. Jennifer Flynn, Managing Director, accepted the award. ACLEA is
the international association for continuing legal education. It has 600 members worldwide.
Jennifer Flynn was elected as a director at large to ACLEA’s Executive Committee. This is the
third time a member of LESA’s leadership team has been elected to serve the membership of
ACLEA. Former executive directors Hugh Robertson, QC, and Paul Wood, QC went on to serve as
Presidents. The Executive Director of ACLEA says no other organization has been in this position
in ACLEA’s 46-year history. LESA has been well served by being at the heart of the Continuing
Legal Education world. v
11
PRACTICE
A NEUTRAL CORNER
Candid Conversations
with Women in Law
By Jocelyn Frazer, Equity Ombudsperson, Law Society of Alberta
STRATEGIES FOR balancing personal and professional demands, and issues related to maternity or parental leaves were among the topics
discussed at a special “Candid Conversations
with Women in Law” event hosted by the Law
Society of Alberta.
The Nov. 10, 2010 event featured facilitated small group, roundtable discussions among
women from various practice settings on topics of interest to them. Interest in the session
was overwhelming with 92 applicants for 40
registration spots. In all, 55 people participated
and a waiting list has been generated for future
events.
Topics for discussion included marketing
and business development, as well as the previously mentioned issues relating to maternity
or parental leaves, and strategies for balancing
personal and professional demands. Participants were grouped by area of practice or work
environment and were joined by more senior
LESA Honored for
Excellence in Marketing
practitioners with a view to facilitating an open
discussion and the sharing of information, experiences and advice within the discussion groups.
The event was organized by the Retention
of Women Working Group, a group comprised
of representatives from the legal profession
around Calgary, and lunch was sponsored by the
Association of Women Lawyers and the Counsel
Network.
Initially assembled to organize a speaking
panel at the University of Calgary to inform
students on the realities of the first few years
of practice, the Retention of Women Working
Group has become as a working group pilot
project through the Office of the Equity Ombudsperson.
For the past couple of years, the group has
been engaged in various activities at the University – working with the Canadian Bar Association to enhance the mentor program which
is offered to law students, and speaking on the
value of developing a network with other lawyers. The Working Group has also hosted other
events, including a luncheon last spring designed
to encourage candid discussions between female law students and experienced women in
practice which was very well received.
Based on membership demographic data,
and reports from other law societies, we know
there are challenges for new lawyers, and these
often result in membership attrition in the first
several years of practice. While the Retention
and Re-Engagement Task Force is examining
this issue in greater detail, the working group
is focusing on undertaking small initiatives with
a view to providing tangible opportunities for
lawyers to connect.
Lawyers interested in coordinating similar
initiatives outside of Calgary are encouraged
to contact the Equity Ombudsperson, Jocelyn
Frazer at 403-229-4769 or by email at Jocelyn.
Frazer@lawsociety.ab.ca v
Evaluate your 2010 CPD Goals
By Susan V.R. Billington, QC, Policy and Program Counsel, Law Society of Alberta
As we near the closing of 2010, many of us reflect on our accomplishments over the past
year. From a professional standpoint, this reflection should include an evaluation of your
CPD goals and activities as outlined in your 2010 CPD Plan. What CPD activities did you
implement in 2010? What is still left to do? How can you carry your CPD goals into next
year’s CPD planning cycle?
Planning for 2011 CPD:
The Legal Education Society of Alberta was
honored for excellence in Marketing by the
Learning Resources Network (LERN), an international association in lifelong learning. The
award was accepted by LESA’s graphic designer
Robin Wilms (right). v
An evaluation of your CPD goals and accomplishments is also timely as your next CPD
Plan declaration is due starting January 1, 2011 and before the March 15, 2011 deadline.
More information on your CPD Plan declaration is available on the Law Society’s website at
www.lawsociety.ab.ca. Tools to create, record and declare your 2011 CPD Plan online are
available after January 1, 2011 on the CPD Alberta website at www.cpdalberta.ca.
If you should have any questions, please do not hesitate to contact the Law Society at
403-229-4766; or via email at cpd@lawsociety.ab.ca. v
12
Summary of Disciplinary Matters
Includes Hearing Reports issued between September 2010 and November 2010
In this Summary of Disciplinary Matters for the period September 2010 to November 2010, the Law Society of Alberta seeks to educate and inform
lawyers on its role as a self-regulator in the public interest.
The Law Society completed 16 hearings during this time. The hearing reports issued may correspond to the hearings held during this period, but may
reflect hearings held in earlier periods. Several of the reports are summarized below. All hearing reports are available at www.lawsociety.ab.ca under
Lawyer Regulation/Hearings & Outcomes/Hearing Reports.
Reprimand of A.
In issuing a reprimand to A. for failing to transfer files in a timely basis, disclosure of confidential information of his clients and breaching Law
Society accounting rules, a Hearing Committee
recognized that A.’s personal challenges and his
efforts to correct them are significant mitigating circumstances.
A sole practitioner since 2000, A. has no disciplinary record with the Law Society.
A. had been referred to the practice review process of the Law Society of Alberta in June 2009.
His personal circumstances were noted in the
hearing. The committee understood that he
needed to focus on his well being and pursue
remediation in order to break the cycle.
The Hearing Committee concluded that A. has
difficulties with file management and organization and with focusing on issues in his practice.
These difficulties manifested themselves in the
accounting deficiencies and in the inappropriate conduct described in citations 1 and 2. The
Committee found there was no element of dishonesty or bad faith in his conduct.
The practice problems were either caused or
contributed to by A.’s personal and emotional
situation and the challenges he faced in his
practice. The primary focus of his efforts to date
in the office is getting existing files in order. He
has hired staff to assist him in his practice.
With respect to disclosure, the Committee
wrote in its report that “unjustified disclosure
of a client’s confidences is a serious matter
because the public trust in lawyers and the
solicitor and client relationship is dependent
on lawyers keeping their clients’ secrets. The
fundamental importance of solicitor and client privilege and the relationship between a
solicitor and his or her client, and its role in the
administration of justice, has been emphasized
many times by the Supreme Court of Canada.”
The Committee noted in its report that in
“speaking for the Court in Pritchard (at para. 17),
Justice Major stated: As stated in R. v. McClure,
[2001] 1 S.C.R. 445, 2001 SCC 14, at para. 2:
Solicitor-client privilege describes the privi-
13
lege that exists between a client and his or
her lawyer. This privilege is fundamental to
the justice system in Canada. The law is a
complex web of interests, relationships and
rules. The integrity of the administration of
justice depends upon the unique role of the
solicitor who provides legal advice to clients
within this complex system. At the heart of
this privilege lies the concept that people
must be able to speak candidly with their
lawyers and so enable their interests to be
fully represented. The privilege is jealously
guarded and should only be set aside in the
most unusual circumstances, such as a genuine risk of wrongful conviction.”
In its report, the Committee noted that “deterrence of other members and denunciation is
served by the reprimand, our re-affirmation of
the fundamental importance of solicitor and
client privilege, and the potential for significant
additional sanctions as demonstrated in the
Bissett and Belzil decisions.”
A. was reprimanded and ordered to pay hearing
costs.
The Hearing Committee was comprised of Jim
Eamon, QC; Kevin Feth, QC, and Sarah KingD’Souza, QC.
Disbarment of B.
Observing the fundamental importance of
maintaining the reputation of the solicitors’
profession as one in which every member may
be trusted to the ends of the earth, a Hearing
Committee disbarred B. for misappropriating
trust funds of more than $100,000, and also for
deceiving or attempting to deceive his clients
and the Law Society. The misappropriations of client trust funds by
B. involved total funds in excess of $100,000,
occurred over a period of almost three years
and involved an element of deceit and “hiding”
by B. to disguise the misappropriations by the
creation of false invoices and payment details.
The Committee heard of the personal and professional difficulties B. found himself in. Professionally, B. had sought a stable position. He
acknowledged being under enormous stress due
to his personal problems, and testified that he
did not remember a lot of what had brought
him to this hearing. B. had been suspended in
2007.
In hearing the submissions of both the Law
Society’s counsel and counsel for B., the Committee’s concluding opinion was that the B.
still showed lack of integrity and basic honesty which does not equate to good character. The Committee noted in its report that B.
stole money from client trust funds over an
extended period of time through a calculated
scheme including transferring funds from one
client trust account to another and creation of
false invoices (a supply of which were created
by him for future use). B. was not candid with
the Law Society investigator with respect to the
transgressions which had occurred prior to the
investigation.
Based on the evidence, the Committee was not
convinced that B. has been cured of his underlying psychological conditions and there is no
certainty that B. would not relapse and engage
in similar conduct if he were to enter a new codependent relationship.
The Committee ordered a referral of this matter
to the Attorney General and ordered that B. pay
actual hearing costs.
The Hearing Committee was comprised of Dale
Spackman, QC; Sarah King-D’Souza, QC and Larry Ohlhauser, MD, Public Representative.
Fine of C.
The Law Society became aware during a routine Rule 130 audit that an Alberta lawyer was
charging extra fees to clients who were covered
by the Workers’ Compensation Board contrary
to a WCB agreement with him.
During the audit, the Law Society understood
that C. had entered into a “side deal” fee arrangement with his clients contrary to his
agreement with WCB and without full disclosure to the clients; and that C. did not send the
WCB client letter to two WCB covered Worker
clients whom he represented in civil actions.
REGULATORY
Summary of Disciplinary Matters, continued
from page 14…
C.’s difficulties arose with the Law Society for
two reasons. Firstly, C. did not refuse to sign
the consent letters for WCB. Rather, he signed
the consent letters and returned them to WCB
thus, entering into the agreement with WCB.
He did not advise WCB that he did not agree
with the contents of the letters regarding fees.
Secondly C. did not send either client the Client
Letter which clearly states “because the Workers’ Compensation Board is the client, you will
not be responsible for payment of any fees or
disbursements related to this action except as
they relate to claims other than personal injury claims. All fees and disbursements are to
be paid from money recovered in the lawsuit”.
Prior to the hearing, C. agreed he would repay
the monies he received in contravention of the
Agreement.
The Hearing Committee found that C. had
breached the Agreement in that having consented to the Agreement, C. did not send the
Client Letters to clients and engaged in “side
deals” with clients.
yers’ professional responsibility and their duty
to the public as stated in the Lawyers & Ethics: Professional Responsibility and Discipline,
by Gavin McKenzie (at pages 26-1): “The purposes of law society discipline proceedings are
not to punish offenders and exact retribution,
but rather to protect the public, maintain high
professional standards, and preserve public confidence in the legal profession.”
C. was fined $1,000 and ordered to pay costs.
The Hearing Committee was comprised of
Neena Ahluwalia, QC; Rose Carter, QC and
Wayne Jacques, a Public Representative. v
The Committee noted it was mindful of law-
Understanding Insurance Coverage for Pro Bono Legal Service
By Susan V.R. Billington QC, Policy and Program Counsel, Law Society of Alberta
AS WITH ALL legal services, a lawyer must be an
active and insured member of the Law Society to
provide pro bono legal services. The Rules of the
Law Society facilitate the provision of pro bono
legal services by lawyers who otherwise may not
be insured to provide legal services to individual
clients. Provision of the services are restricted
however, in accordance with Rule 148 (2.1)
Active Lawyers:
Members who are active and insured lawyers
(members of the private bar) are insured to provide legal services to clients whether or not they
charge a fee for the legal service. When providing pro bono legal services through a pro bono
clinic, other pro bono program or doing the legal
work for free in the course of private practice, the
Alberta Lawyers Insurance Association insurance
provides errors and omissions (E & O) coverage
for pro bono legal services delivered.
Corporate/Government insurance exempt
lawyers:
Corporate/government lawyers are active members of the Law Society and exempt from the
insurance provisions of the Rules of the Law Society pursuant to Rule 135 and Rule 148. This category of members swears a statutory declaration
that they will not provide legal services outside
the scope of their employment.
The Benchers of the Law Society of Alberta
and the Alberta Lawyers Insurance Association (ALIA) have facilitated the extension of errors and omissions insurance coverage through
ALIA to corporate/government lawyers when
they provide pro bono legal services through an
authorized pro bono provider as listed in Rule
148(2.1). For example, this means that corporate
and government lawyers can provide pro bono
legal advice through one of the pro bono clinics such as Edmonton Community Legal Clinic or
Calgary Legal Guidance.
Pro bono legal services or advice provided
to a neighbour, or a friend are not included in
the insurance coverage for corporate/government exempt lawyers.
Active for pro bono legal services only:
Lawyers who are inactive or retiring can be a
great source of volunteers for pro bono legal
service providers such as the pro bono clinics.
Many lawyers at this stage of their professional
careers want to continue to be active in providing legal advice and want to continue to contribute by providing pro bono legal services. The
barrier is the cost of maintaining their active
status and insurance coverage.
The Benchers of the Law Society have created a membership category for those lawyers who
want to remain active by delivering pro bono legal
service through an authorized pro bono provider.
Members seeking the status of “active for
pro bono services only” must:
1) be eligible for reinstatement to the Law Society;
2) apply to the Law Society of Alberta for the
membership category “active for pro bono
service only”;
3) p
ay the applicable fee (inactive member fee); and
4) swear a statutory declaration that they will
only provide pro bono legal service through
an authorized pro bono provider as outlined
in Rule 148(2.1) of the Rules of the Law Soci-
ety of Alberta.Once in this membership category, the member must provide some legal
service through the authorized pro bono service provider.
Legal services provided to a neighbour or a
friend, even though they may be pro bono (free)
are not included in the insurance coverage for
members in the “active for pro bono legal services”
category, unless of course, those services are delivered through an authorized pro bono provider.
Members should be aware that the time in
the “active for pro bono service only” category will
not necessarily be counted towards their eligibility
for reinstatement to full active, insured status.
The insurance coverage for pro bono legal
services for the “government/corporate” and for
the “pro bono legal services only” membership
categories is available only for pro bono services
delivered through an authorized pro bono provider as listed in Rule 148(2.1) of the Law Society of Alberta Rules.
Authorized Pro Bono Providers:
Calgary Legal Guidance
Central Alberta Community Legal Clinic
Edmonton Community Legal Centre
Lethbridge Legal Guidance
Volunteer Lawyers Service
Children’s Legal and Educational Resource Centre
Grand Prairie Legal Guidance
If you have any questions about membership status and insurance coverage for pro bono legal services, please contact PBLA or Lisa Sabo, Director,
Insurance, Law Society at 403-229-4717 or the
Law Society’s Membership Department. v
In with the New! Alternative Business Structures focus of Law Conference Plenary
Hear how innovative law firms here and elsewhere are entering new markets, leveraging technology and inventing new ways of doing business
while managing costs and keeping clients happy.
A panel of guest speakers and Law Society representatives will discuss this topic at its plenary at the Alberta Law Conference on January 27,
2010 in Edmonton. The plenary will be held 9:30 – 11:30 a.m. at the Conference which is being held at the Fairmont Hotel Macdonald.
14
THE LAW SOCIETY OF ALBERTA
Suite 500, 919 - 11th Ave SW, Calgary, Alberta T2R 1P3
Telephone 403.229.4700 | Fax 403.228.1728 | Toll Free 1.800.661.9003
201 Scotia Place, Tower 2, 10060 Jasper Ave., Edmonton, AB T5J 3R8
Telephone 780.429.3343 | Fax 780.424.1620 | Toll Free 1.800.272.8839
www.lawsociety.ab.ca
MISSION
THE BENCHERS
Rodney Jerke, QC, President
Douglas R. Mah, QC, President-Elect
Larry Ackerl, QC
Neena Ahluwalia, QC
Rose Carter, QC
James Eamon, QC
Ron Everard, QC
Fred Fenwick, QC
Kevin Feth, QC
James Glass, QC
Harry Van Harten
John Higgerty, QC
Carsten Jensen, QC
Sarah King-D’Souza, QC
Roy Nickerson, QC
Stephen Raby, QC
Frederica Schutz, QC
Dale R. Spackman, QC
Scott Watson, QC
Tony Young, QC
PUBLIC REPRESENTATIVES
(Lay Bencher)
Mirriam Carey, Ph.D.
Wayne Jacques
Larry Ohlhauser, MD
Amal Umar
THE MANAGEMENT TEAM
Don Thompson, QC, Executive Director
Howard Kushner, Deputy Executive
Director - Regulation
Janet Dixon, QC, Senior Counsel
Greg Busch, Director, Lawyer Conduct
Michael Penny, QC, Director, Policy & Research
Lisa Sabo, Director, Insurance
Nona Cameron, Director, Human Resources
Drew Thomson, Director, Corporate Services
The Advisory is published five times a year
for lawyers, stakeholders, and affiliates of
the Law Society of Alberta. Articles and
comments should be directed to Sheila
Serup at Sheila.Serup@lawsociety.ab.ca
Editor Sheila Serup
Design Myron Advertising + Design
To serve the public interest by promoting a high standard of legal services
and professional conduct through the governance and regulation of an independent
legal profession.
The Law Society of Alberta is a self-governing association of all the practising lawyers in Alberta and
has been regulating the legal profession since 1907. The Law Society derives its authority from the Legal
Profession Act of Alberta, and is financed and maintained by Alberta lawyers at no cost to the public.
Serving in the public interest, the Law Society of Alberta sets out standards through Rules and a Code
of Professional Conduct.
Assist
Practice Advisors
Assist helps Alberta lawyers, articling students
and their immediate families cope with personal
issues such as stress, depression, anxiety, alcohol,
drug and all other forms of abuse or addiction,
relationship difficulties, burnout and anger. Assist is
voluntary and confidential. Individuals seeking help
are not identified to the Law Society of Alberta, the
Canadian Bar Association or any other entity.
The Law Society’s Practice Advisors provide
confidential professional and personal advice for
lawyers on legal, ethical and practice concerns,
personal matters or mediation, practice start-up,
practice management, and firm management, risk
management, career transition.
Call Assist for direct professional assistance
and referral services at 1.877.498.6898 (tollfree) or 1.877.737.5508 (toll-free) to learn more
about how Assist can help. Assist is operated by
the Alberta Lawyers’ Assistance Society (www.
albertalawyersassist.ca), a non-profit society that
is independent from the Law Society of Alberta.
Mentor Program
Lawyers are provided with the names of experienced mentors or practitioners in family law,
criminal law, wills and estates, real property law
and civil litigation.
CONTACT
CONTACT:
Jocelyn Frazer at toll-free 1.888.229.4769 or
Jocelyn.Frazer@lawsociety.ab.ca; or Ross McLeod,
780.412.2301 or toll free 1.800.661.2135 or Ross.
McLeod@lawsociety.ab.ca; or Nancy Carruthers,
403.229.4714 or toll-free 1.800.440.4640 or
Nancy.Carruthers@lawsociety.ab.ca
Office of the Equity Ombudsperson
The Equity Ombudsperson provides confidential
assistance with the development of workplace
policies and the resolution of harassment and
discrimination concerns.
CONTACT
Jocelyn Frazer, Equity Ombudsperson at toll free
1.888.229.4769
1.800.272.8839
Membership Department
For any changes regarding contact information,
membership and insurance status, and any
student inquiries, please contact the Law
Society of Alberta’s Membership Department at
403.229.4781 or toll free 1.800.661.9003 ext.
4781 or membership@lawsociety.ab.ca
The December issue of the Advisory is distributed by hard copy to all active lawyers with the Law Society of
Alberta. Other issues of the Advisory are sent by email to those lawyers with an email address with the Law
Society of Alberta. Hard copies are mailed to those without an email address with the Law Society. If you prefer
a hard copy subscription, please make your request at feedback@lawsociety.ab.ca

the advisory - The Law Society of Alberta

Transcription

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