May 24, 2001
Affiliated Law Firms - Implementation of Regulatory Scheme
Convocation approved a scheme for regulating affiliated law firms presented by the MDP Task Force. The scheme was adopted as presented, with minor changes to the proposed amendments to the Rules of Professional Conduct.
An affiliated law firm is one form of a Multi-Disciplinary Practice and is defined as:
A law firm that has an affiliation with a non-lawyer firm (for instance an accounting firm) where the firms regularly join together for the joint promotion and delivery of respective services to the public.
The regulatory scheme includes the adoption of By-law 32 and changes to the Rules of Professional Conduct . The scheme implements recommendations made in the Task Force's September 21, 2000 report, adopted by Convocation November 2000.
Convocation also adopted unrelated amendments to By-law 25 - Multi-Discipline Practices, proposed by the Task Force.
Multi-Disciplinary Task Force - Implementation Phase - Full Report to Convocation
Inter-Provincial Practice of Law: Implementation of the Protocol
The Law Society, together with the Law Societies of other provinces, signed a Protocol on the Interjurisdictional Practice of Law in February 1994. The objective of the protocol was to make it easier for lawyers to practise in other Canadian jurisdictions while maintaining the ability of each law society to regulate lawyers practising within their jurisdiction. The protocol includes provisions dealing with a number of matters such as insurance, compensation, foreign legal consultants and interjursidictional law firms.
To begin to implement the protocol, Convocation adopted By-law 33 concerning the occasional practice of law. The new by-law represents the first step in addressing all of the issues set out in the protocol.
Inter-provincial Practice of Law - Excerpt from Admissions Committee Report
New BAC Policy
In the new model of the BAC, students can enter the course and write exams before receiving their third-year law school results. This raises the question of what happens to a student who turns out to have failed third year and therefore lacks an LL.B.
Convocation approved a policy that would permit students who have failed some of their LL.B. examinations to retain credits earned during the Skills Phase of the BAC but not to proceed beyond that Phase until all the required examinations for an LL.B. have been passed.
Non-Payment of BAC Tuition Fees
Convocation approved the policy that the education department be granted authority to withhold a certificate of successful completion of the BAC from a student who has outstanding BAC tuition fees.
Since most students now enter the BAC directly from law school, they do not have the advantage of having earned an income from articling to assist them in paying their BAC fees. The Admissions committee has approved a staff proposal to assist students unable to pay the BAC tuition fee immediately following law school by offering alternative payment plans, spreading the payment of the tuition fee out over a longer period. These monthly payment plans will permit students to use their income while articling to pay their fees, and will mean that students may complete the BAC before paying.
Summer Student Recruitment Policy for Summer 2002
The Law Society has regulated the operation of summer student recruitment in Toronto for several years to ensure an orderly and fair recruitment process. Convocation reviewed the Procedures for Recruitment for Summer 2002, based on the 2001 procedures, adopted in June 2000.
The procedures provide definitions and set specific guidelines for firms to follow when recruiting students in either their first or second year of a Bachelor of Laws program, such as when to interview candidates and extend offers of employment. A decision was made by Convocation that these procedures can be approved without being returned every year for approval, unless a substantial change to the content is recommended.
Federation of Law Societies of Canada Report
Convocation adopted the Federation of Law Societies of Canada's (FLSC) resolution regarding the federal Proceeds of Crime (MoneyLaundering) Act. For more information including a copy of the Resolution on Money Laundering adopted by the FLSC, go to the FLSC's web site .
Unclaimed Trust Funds
Yesterday's adoption of an amendment to by-law 31 by Convocation now enables the Law Society to proceed with its unclaimed trust fund initiative.
Earlier this year, Convocation paved the way for the creation of a program that enables lawyers to submit unclaimed trust funds that they have held for at least two years to the Law Society. Members of the public will also now be able to check centrally with the Law Society to determine if they are entitled to outstanding claims.
On Thursday, Convocation amended by-law 31 which provides a right of appeal within the Society for claimants whose claims are denied. Check here (except) to read the Professional Regulation Committee report to Convocation, which includes the motion regarding this bylaw.
For previous reports to Convocation on this initiative , click here.
A voice mail box will be set up shortly to take calls from anyone who wants more information on this initiative. The number will be provided as an update to this news highlight as soon as it becomes available.
Keep checking this web site for more details about the program and application forms as they become available.
Excerpt from Professional Regulation Committee Report - including motion
Rules of Professional Conduct - Amendments
The Professional Regulation Committee recommended a number of revisions to the Rules of Professional Conduct which Convocation approved Thursday. The recommendations are based on a review by the Rules Working Group of issues arising from the adoption of the New Rules on November 1, 2000.
Highlights of Amendments
Excerpt from Professional Regulation Committee Report
By-law 34 - Professional Corporations
By-law 34 has been created in response to new provincial legislation (Bill 152 & Bill 45) which amends the Law Society Act to allow lawyers to practice law through a professional corporation. The new by-law will come into force once the legislature proclaims Bill 152 in force.
The new by-law covers the name, structure and registration requirements for a professional corporation - it also includes form 34A - Certificate of Authorization and form 34B - Notice of Intention to Surrender a Certificate of Authorization.
Excerpt from Professional Regulation Committee Report including overview and draft of by-law
By-law 35 - Bankruptcy of Members
Convocation approved a new by-law (by-law 35) dealing with member bankruptcy.
The new by-law includes the following:
- a requirement that members immediately notify the Society of their bankruptcy;
- restrictions on members' receipt or handling of trust funds
- authorization for the delegation of the Secretary's duties under the by-law to Senior Counsel, Discipline or (in the event of Senior Counsel's inability to act) Discipline Counsel
Bankruptcy provisions formerly appeared in s.7 of Regulation 708 but were repealed when amendments to the Law Society Act were adopted in February 1999. A review of issues concerning the bankruptcy of members is continuing. By-law 35 represents an interim measure.
Excerpt from Professional Regulation Committee Report including draft of new by-law
Draft Bencher/LSUC Staff Relations Policy and Procedures
Model Policy on Accommodations for Law Firms
Convocation adopted the Model Policy on Accommodations for Law Firms , prepared by the Equity Initiatives department. The policy is based on the educational document Accommodation of Creed and Religious Beliefs, Gender Related Accommodation and Accommodation for Persons with Disabilities , submitted by the department to the Equity and Aboriginal Issues Committee/Comite sur l'equite et les affaires autochtones in the fall of 2000.
The Bicentennial Report on Equity Issues in the Legal Profession has noted the importance of developing model policies for the profession. Over the years, the Law Society has produced several model policies for law firms to assist them in developing policies and programs aimed at promoting equity and diversity in all aspects of the legal profession, such as employment and services.
Consistent with the Law Society's Accommodations Policy for students in the Bar Admission Course adopted by Convocation in June 1999, the Model Policy on Accommodations covers a number of issues, including:
- Why Law Firms Need Written Policies
- Legal Requirements and Professional Responsibilities
- The Legal Duty to Accommodate
- Accommodation and Undue Hardship
- Accommodation of Creed, Religious Beliefs, Gender or Family Status, Disability
- Benefits of Adopting a Policy
- Effective Policy Implementation
Update on High School Mentoring Program
Convocation heard that effort is underway to promote the High School Mentoring Program throughout high schools in the Greater Toronto Area for the upcoming school year, 2001-2002. The program was formally launched in December 2000 and aims to provide high school students from communities under-represented in the legal profession with insights into the legal profession and the day-to-day work of lawyers.
The program has enjoyed participation from the following: Department of Justice, Tory's, the Ministry of Labour, Bank of Montreal, Canadian Securities Institute, Ministry of the Attorney General, Blake Cassels & Graydon, as well as small firms and sole practitioners.
Currently there are 25 high school students placed with lawyers. In addition, the Equity Initiatives Department has held events in celebration of Black History Month, International Women's Day and Francophone Week. These events have attracted close to two hundred students, as well as a number of law students, lawyers and judges.
Affiliated Law Firms - Implementation of Regulatory Scheme
By-law 32 -Affiliations with Non-Members - made
Convocation adopted By-law 32 to deal specifically with affiliated law firms.
The new By-law includes the following:
- definition of an affiliated law firm
- requirement for ownership and control of the affiliated law firm by lawyers
- requirement for disclosure of specific information to the Law Society
- requirement for separate premises for the affiliated law firm
- requirement to observe certain rules, etc. governing affiliated law firms
- the triggering of a self reporting requirement upon becoming an affiliated law firm
By-law 32 & Form 32A & 32b (See Full Report for more information)
Rules of Professional Conduct - Amended
Convocation approved changes to the Rules to address issues involving affiliated law firms:
- definition of affiliation and affiliated entity - Rule 1.02
- conflicts of interest - Rule 2.04
- fee and profit sharing - Rule 2.08 (9)
- letterhead - Rule 3.03
- advertising - Rule 3.04/3.05
Amendments to these proposals include changes to the commentaries following clause 2.04(1)(b) and subrule 2.04 (10.3) as outlined in the Supplementary Material to the Multi-Disciplinary Practice Task Force Report, as amended, and changes to new sub-rule 5.02(6).
Also see the amendments to Rules resulting from the Professional Regulation Committee's review of the new Rules.
Amended Rules - changes are underlined
Convocation approved the proposed amendments to the following Rules and commentary:
Rule 2.04(12) Avoidance of Conflicts of Interest - Prohibition Against Acting for Borrower and Lender
- added definition of 'an institution that lends money'
Rule 2.05 Conflicts from Transfers Between Law Firms
- house keeping changes to make rule and commentary more understandable
Rule 2.06 Doing Business with a Client
- New subrule added to specify that a lawyer need not require that a client receive independent legal advice before accepting a retainer from the client, where the client intends to pay for legal services by transferring corporate shares
Rule 2.08(9) Division of Fees
- paragraph added to commentary to clarify acceptability of terms of sale of law practice which include a percentage of revenues generated from the practice sold
- amended subrule to except interprovincial and international law firms from prohibition against the division of fees - specifically as the phrase, any person who is not a lawyer, could be interpreted to include lawyers who are members of other Canadian law societies and non-Canadian lawyers
Rule 3.01 Making Legal Services Available
- revised to make consistent with subrule 2.08(8) by amending commentary to include phrase - where a referral fee is permitted by rule 2.08(8)
Rule 3.02 Law Firm Name
- revised to clarify that the name of a former member of the firm may be included in the Firm Name if the member is deceased or retired from the practice of law
- to be effective September 1, 2001 to allow law firms to effect any required changes to their names
Rule 3.03 Letterhead
- amended to clarify that letterhead may include advertising under rule 3.05
Rule 4.03(3) Advocacy - Interviewing Witnesses
- language added making it clear that communications with employees of corporate parties that would otherwise be proscribed are permissible if they are otherwise authorized or required by law
- deleted the prohibition against communications with corporate employees whose acts or omissions are "in issue", while maintaining the prohibition against communicating with employees whose acts or omissions may expose the corporation to civil or criminal liability
- deleted the prohibition against "dealing with" employees whose acts or omissions may expose the corporation to liability, while maintaining the prohibition against "approaching" such employees
Rule 5.01 Supervision
- replaced 'law clerks' with 'non-lawyers' in the commentary following 5.01(2)
The committee's report included a discussion of other rule issues which did not result in amendments including Rule 2.08(4) - Contingent Fees. The committee recommended to Convocation that consideration of amendments to Rule 2.08(4) be deferred until the Ontario Court of Appeal has ruled on a challenge to the Superior Court's decision permitting a contingent fee, to be followed by a consultation process outlined in the report.
(See Full Report for more information)
By-Law 25 - Multi-Discipline Practices - Amended
The existing By-law 25 on Multi-Discipline Practices was amended based on the following recommendations from the Task Force:
- Non-Ontario Canadian lawyers are to be excluded from the operation of certain provisions in the by-law that deal with the lawyer's responsibilities for the conduct and activities of non-lawyers. This is necessary as the term "individual" in the by-law describing the non-lawyer may be interpreted to include non-Ontario Canadian lawyers in interprovincial partnerships. There was no intention to require Ontario lawyers in those partnerships to meet these obligations.
- The authority for the Society to suspend and reinstate members' rights and privileges for default in filings was added to the by-law, in a fashion similar to that found in the new by-law on affiliations with non-lawyers
Motion to amend By-law 25
Inter-Provincial Practice of Law: Implementation of the Protocol of Feb. 1994
By-Law 33 - Inter-provincial Practice of Law - made
By-law 33 includes the Protocol on the Interjurisdictional Practice of Law's 10-20-12 definition of 'occasional practice', meaning a lawyer acts on no more than 10 matters for no more than 20 days (in total) in a 12 month period.
The most significant aspect of the new by-law is, where a lawyer meets the conditions set out in section 5 of the by-law, there is no requirement to seek permission from or to notify the Law Society of Upper Canada that the lawyer will be practising in Ontario occasionally. These conditions are:
- Entitled to practice in another province or territory
- Member in good standing of home law society (or societies)
- Not the subject of criminal proceeding in any jurisdiction
- Not the subject of competence or conduct proceeding
- No criminal record
- No record of conduct or competence orders in any jurisdiction
- Meets professional liability insurance and defalcations coverage requirements
Where not all of the conditions in section 5 are met, the lawyer may apply to the Law Society for permission to practise occasionally in Ontario.
Refer to the by-law and the admissions Committee report for more details.
Excerpt from Admissions Committee Report
Convocation debated and adopted policy and procedures to be followed when an employee feels that he or she has been subjected to harassment or discrimination as defined in the LSUC Workplace Harassment and Discrimination Prevention Policy and where the complaint involves a bencher. The LSUC Workplace Harassment and Discrimination Prevention Policy does not cover benchers.
The policy and procedure was also debated during the April 26 Convocation and several motions for amendments were put forward; however, the motion to adopt the amended procedure as a whole was not put forward at the April Convocation.