1993 Legislative Session: 2nd Session, 35th Parliament
The following electronic version is for informational purposes only.
The printed version remains the official version.
HONOURABLE COLIN GABELMANN
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 Section 1 of the Legal Profession Act, S.B.C. 1987, c. 25, is amended
(a) by repealing the definition of "Canadian citizen",
(b) by adding the following definition:
"non-practising member" means a person to whom a non-practising membership certificate is issued under section 28.1 (4); , and
(c) by repealing the definition of "retired member" and substituting the following:
"retired member" means a person to whom a retired membership certificate is issued under section 28.1 (4); .
2 Section 2 (2) is repealed and the following substituted:
(2) All of the following are members of the society:
(a) barristers and solicitors who hold a practising certificate for the current practice year;
(b) retired members;
(c) non-practising members.
3 Section 7 is repealed and the following substituted:
7 The treasurer may
(a) appoint any person as a member of a committee of the benchers, and
(b) terminate the appointment.
4 Section 8 is repealed and the following substituted:
8 (1) A person who has served as a bencher for 4 complete or partial terms, whether consecutive or not,
(a) is not eligible to be elected or appointed as a bencher, and
(b) is a life bencher on leaving office as a bencher.
(2) Despite subsection (1), a bencher who is elected assistant deputy treasurer
(a) may continue to serve as assistant deputy treasurer, deputy treasurer and treasurer under section 9, and
(b) is a life bencher on leaving office as a bencher.
(3) A life bencher
(a) may attend and speak at meetings of the benchers,
(b) has no vote in bencher meetings, and
(c) except as a member of a committee under section 7, may not exercise any of the powers of a bencher.
(4) A person who was a bencher on January 10, 1992 and has served as a bencher for 4 or more complete or partial terms, whether consecutive or not,
(a) despite subsection (1), is eligible to be elected or appointed as a bencher for a fifth and a sixth term, and
(b) is a life bencher on leaving office.
5 Section 12 (3) is amended by striking out "hold" and substituting "holds".
6 Section 15 is amended by adding the following subsections:
(5) Before the treasurer's term of office expires at the end of an even numbered year, the benchers must hold an election for the office of bencher in the district in which the retiring treasurer was last elected.
(6) The bencher elected under subsection (5) holds office for one year starting on the following January 1.
7 Section 24 (2) is amended by adding the following paragraph:
(a.1) by resolution, authorize a committee to do any act or exercise any jurisdiction which, by this Act, the benchers are authorized to do or to exercise, .
8 Section 25 (2) is amended
(a) by adding the following paragraph:
(a.1) authorize a committee to do any act or exercise any jurisdiction which, by this Act, the benchers are authorized to do or to exercise, , and
(b) by repealing paragraph (f) and substituting the following:
(f) establish qualifications for and conditions under which members who hold a practising certificate may practise as mediators, .
9 Section 26 is amended
(a) in subsection (3) (a) by striking out "on a particular matter",
(b) in subsection (3) (b) by striking out "on a particular cause or matter", and
(c) by adding the following subsection:
(6) A member or former member who is suspended or has been disbarred, or who, as a result of discipline proceedings has resigned from membership in the society, or who has otherwise ceased to be a member of the society as a result of disciplinary proceedings, must not do any act described in paragraphs (a) to (g) of the definition of "practice of law" in section 1, even though the act is not done for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the act is done.
10 Section 27 is amended
(a) by repealing subsection (3) and substituting the following:
(3) The benchers may do any of the following:
(a) prohibit a member or class of member, as determined by the benchers, from acting as a principal for an articled student;
(b) stipulate the duties of principals;
(c) make rules for any of the following:
(i) requiring members to apply to the credentials committee to become a principal for an articled student;
(ii) for the consideration and determination of those applications by the credentials committee;
(iii) for appeals to panels from decisions of the credentials committee. , and
(b) by adding the following subsections:
(4) On the recommendation of the discipline committee or competency committee, or on its own motion, the credentials committee may consider the fitness of a member to act as a principal to an articled student and may do any of the following:
(a) conduct or authorize any person to conduct an investigation concerning the fitness of the member to act as a principal;
(b) require the member to appear before the committee and to respond to questions of the committee;
(c) order the member to produce any documents, records or files that the committee may reasonably require.
(5) For the purposes of subsection (4), and after allowing the member to make submissions, the credentials committee may do any of the following:
(a) permit the member to act as a principal to an articled student;
(b) permit the member to act as a principal to an articled student subject to conditions or limitations;
(c) order that the member not act as a principal to an articled student.
11 Section 28 is amended
(a) in subsection (1) by striking out "he" and substituting "the person",
(b) by repealing subsection (1) (a),
(c) in subsection (2) by striking out "he" and substituting "the barrister or solicitor", and
(d) by repealing subsection (2) (a).
12 The following section is added:
28.1 (1) The benchers may make rules as follows:
(a) establishing conditions under which a member may become and remain a retired member or a non- practising member;
(b) establishing conditions under which a retired member or a non-practising member may apply for and be issued a practising certificate.
(2) On or before a date set by the benchers each year, a retired member or non-practising member must pay the annual fee set by the benchers for retired members or for non-practising members.
(3) A member who is a retired or non-practising member for part of a year must pay a prorated portion of the fee set under subsection (2).
(4) If a retired or non-practising member complies with subsection (2) and with the rules under subsection (1) (a), the secretary must issue
(a) to the retired member a retired membership certificate in a form approved by the benchers, or
(b) to the non-practising member a non-practising membership certificate in a form approved by the benchers.
13 Section 29 is amended
(a) in subsections (1) and (5) by adding "or non-practising" after "retired",
(b) by repealing subsections (8) and (9), and
(c) in subsection (12) by striking out "sections 28 (1) (f) and (2) (h) and 36 (7) (d)," and substituting "section 28 (1) (f) and (2) (h),".
14 Section 30 (2) is amended by adding "or non-practising" after "retired".
15 Section 32 is repealed.
16 Section 33 is repealed and the following substituted:
33 (1) If a member fails to pay the annual fee or a special assessment as required under section 28.1 or 29 by the time that it is required to be paid, the member ceases to be a member of the society, unless section 29 (6) applies or the benchers otherwise direct.
(2) If a member fails to pay a fine, costs or penalty by the time that it is required to be paid, the benchers may suspend the member until the fine, costs or penalty is paid.
17 The following section is added:
35.1 (1) Within 30 days after being notified of the decision of the panel under section 35, the applicant may apply in writing to the benchers for a review.
(2) On a review of the record before the panel and after hearing the applicant's submissions, the benchers may
(a) confirm the decision of the panel, or
(b) substitute a decision the panel could have made under section 35.
(3) If in the opinion of the benchers there are special circumstances, the benchers may permit the applicant to present evidence that is not part of the record.
18 Section 36 (7) is amended
(a) by striking out "he" wherever it appears and substituting "the person",
(b) by repealing paragraph (a), and
(c) by repealing paragraph (d) (i) and substituting the following:
(i) a prorated fee under section 28.1 (3) or 29 (1) (a), .
19 Section 37 (1) is repealed and the following substituted:
(1) For the terms the treasurer determines, the treasurer may appoint a competency committee consisting of the following persons:
(a) a bencher as chair;
(b) a bencher as vice chair;
(c) other benchers or members of the society as members of the committee.
20 Section 38 is amended by striking out "competency committee" and substituting "benchers".
21 Section 39 is amended by adding the following subsection:
(9) The discipline committee may rescind a citation at any time before a panel makes a determination under section 45.
22 Section 41 (2) is repealed and the following substituted:
(2) A person who has participated in the decision to direct that a citation be issued must not
(a) serve as a member of the panel, or
(b) sit as a bencher on a review by the benchers under section 47 or 48.
23 Section 52 is repealed and the following substituted:
52 (1) In this section and sections 52.1 and 52.2 "fund" means the special compensation fund continued by subsection (2).
(2) The benchers must continue the special compensation fund.
(3) For this section and sections 52.1 and 52.2, money or property entrusted to or received by a member of the society as trustee is not entrusted to or received by the member in the member's capacity as a member of the society if the member has no responsibility in the member's capacity as a barrister or solicitor in connection with the money or property entrusted to the member.
(4) For the terms the treasurer determines, the treasurer may appoint the following persons as the members of the special compensation fund committee:
(a) a bencher as chair;
(b) a bencher as vice chair;
(c) other benchers or members of the society as members of the committee.
(5) The fund
(a) is the property of the society,
(b) must be accounted for separately from the other funds of the society, and
(c) is not subject to any process of seizure or attachment by any creditor of the society.
(6) The benchers may invest the fund and the proceeds from it in any securities and in the manner they think fit.
(7) The fund is not subject to a trust in favour of a person who claims to have sustained a loss.
(8) The benchers may authorize payment out of the fund for expenses incurred for any of the following purposes:
(a) to administer the fund;
(b) to investigate claims against the fund;
(c) to improve members' records or accounting procedures;
(d) for any other matter relating to the protection and maintenance of the fund.
(9) A payment made under subsection (8) (b) or section 52.1 (3) (d)
(a) may be recovered from the member or former member on whose account it was paid, or from the estate of that person, as a debt owing to the society, and
(b) if collected, is the property of the society and must be accounted for as part of the fund.
(10) In any action to recover money under subsection (9), the member, former member or the estate may raise any defence against the society that could have been raised against the person to whom the payment was made in respect of any action that could have been brought by that person for conduct that gave rise to that person's claim under section 52.1, other than a defence under the Limitation Act.
52.1 (1) A person may apply in writing to the benchers for compensation from the special compensation fund.
(2) If in their opinion it is warranted, the benchers may investigate the conduct described in the application as soon as practicable.
(3) If the benchers are satisfied that
(a) money or other property was entrusted to or was otherwise received by a member of the society in the member's capacity as a barrister and solicitor,
(b) the member misappropriated or wrongfully converted the money or other property, and
(c) a person sustained a pecuniary loss as a result of that misappropriation or wrongful conversion,
the benchers may, in their discretion and on terms they think fit,
(d) pay money out of the fund to compensate the person entitled for all or part of the loss, or
(e) determine that no payment be made.
(4) The benchers must not make a payment out of the fund for any of the following:
(a) in respect of a misappropriation or wrongful conversion that occurred before the fund was created;
(b) if the claim for payment is made more than 2 years after the facts that gave rise to the claim were known by the person making it;
(c) in respect of a misappropriation or wrongful conversion by a member that occurred while the member was acting in the capacity of a member of a governing body of the legal profession of another province or territory or a foreign jurisdiction.
52.2 The benchers may make rules as follows:
(a) establishing procedures for the investigation and consideration of an application under section 52.1, including rules permitting a hearing;
(b) placing general limitations on the amounts that may be paid out of the fund;
(c) permitting the review by the benchers of any decision of the special compensation fund committee.
24 Section 55 is amended
(a) in subsection (1) (a) by striking out "35 or 36" and substituting "35, 35.1 or 36", and
(b) by repealing subsection (2) and substituting the following:
(2) The competency committee may order that a member pay to the society the cost of an investigation or of implementing a remedial program under section 37 and may set and extend the time for payment.
25 Section 56 is repealed and the following substituted:
56 (1) For a hearing under Part 5 or 6
(a) the benchers or a bencher,
(b) a panel or a member of a panel, or
(c) the special compensation fund committee appointed under section 52 (4) or a member of the committee
have the powers, protection and privileges of a commissioner under sections 12, 15 and 16 of the Inquiry Act with respect to any hearing.
(2) The society, an applicant or a respondent may apply to the Supreme Court, without notice to anyone, for an order that a subpoena in the form in the Rules of Court issue to compel the attendance of a person as a witness at a hearing under Part 5 or 6.
(3) If the person who is required as a witness is in the custody of
(a) another person, or
(b) the custodian of a penal institution,
in addition to making an order under subsection (2), the court may make an order directing the person having custody to produce the attendance of the witness at the hearing.
(4) The Rules of Court respecting
(a) the use of a subpoena to obtain the attendance of a person at the trial of an action, and
(b) failure to obey a subpoena or order of the court
apply to a person who is the subject of an order under subsection (2) or (3).
56.1 (1) If it appears that a person has failed to comply with an order, summons or subpoena of a person or body referred to in section 56 (1) (a) to (c), a person or body referred to in section 56 (1) (a) to (c) may apply to the Supreme Court for an order directing the person to comply with the order, summons or subpoena.
(2) On an application under subsection (1), the court may make the order requested or another order it considers proper.
26 Section 71 (9) is repealed and the following substituted:
(9) The procedure under the Rules of Court for the assessment of costs and the review of bills and agreements applies to the review of bills under this section.
27 Section 78 is amended
(a) by repealing subsection (3.4) and substituting the following:
(3.4) For the purpose of preserving the solicitor and client privilege,
(a) the hearing of the application under subsection (3.2) must be held in private,
(b) the style of cause must not disclose the identity of the solicitor or client, and
(c) if the solicitor or the client requests that the records relating to an application under subsection (3.2) be kept confidential,
(i) the records must be kept confidential, and
(ii) no person other than the solicitor or client or a person authorized by either of them may search the records unless the court otherwise orders.
(3.41) Despite subsection (3.4), reasons for judgment relating to an application under subsection (3.2) may be published if the names of the solicitor and client are not disclosed and no information serving to identify the solicitor or client is disclosed. ,
(b) by repealing subsections (3.5) to (3.7), and
(c) by adding the following subsection:
(13) The procedure under the Rules of Court for the assessment of costs and the review of bills and agreements applies to the review of an agreement, including a contingent fee agreement.
28 Section 89 (2) is amended by striking out "52," and substituting "52, 52.1, 52.2,".
29 Section 95 is amended by adding the following subsection:
(9) The Unclaimed Money Act does not apply to unclaimed trust funds under this section.
30 Section 12 of the Attorney General Statutes Amendment Act, 1989, S.B.C. 1989, c. 64, is amended
(a) by striking out "Section 32 is repealed and the following substituted:" and substituting "The following section is added:", and
(b) by renumbering the added section as 32.1.
31 This Act comes into force by regulation of the Lieutenant Governor in Council.
SECTION 1: repeals the definition of "Canadian citizen" and adds new definitions of "retired member" and "non-practising member".
SECTION 2: expands the membership of the Law Society of British Columbia to include non-practising members.
SECTION 3: re-enacts section 7 to allow for the appointment as a member of any committee of the benchers of a person who is not a member of the society.
SECTION 4: re-enacts section 8 to limit the number of terms that a bencher may serve to 4 terms or a total of 8 years. Benchers who have served for that period of time would be given the honorary title of life bencher, which is currently reserved for benchers who served 12 years or served as treasurer.
SECTION 5: corrects a grammatical error.
SECTION 6: allows for a by-election to replace a treasurer whose term expires when there is not a general election of benchers, to be held before the end of the treasurer's term of office.
SECTION 7: allows benchers to pass resolutions delegating any of their powers to a committee.
SECTION 8: allows benchers to make rules delegating any of their powers to a committee and allows for rules establishing conditions under which members may practise as mediators.
SECTION 9: allows lawyers from outside of British Columbia to get permission to practise law in British Columbia for a period of time rather than on the current case by case basis. New subsection (6) prohibits members who have been disbarred or who have otherwise lost their membership for disciplinary reasons from practising law under any conditions, whether or not they appear to get paid for doing so.
SECTION 10: provides the benchers with powers to provide articled students with qualified principals and approved educational programs. The amendments also allow the benchers to define the duties of principals and make rules for appeals from decisions of the credentials committee.
SECTION 11: removes the references to Canadian citizenship as a qualification for membership and redrafts the subsections in gender inclusive language.
SECTION 12: deals with the rules for retired and non-practising members. The new category of "non-practising member" is created to help members who need to interrupt their careers and later return to active practice.
SECTION 13: makes amendments consequential to new section 28.1.
SECTION 14: adds non-practising members as persons who are not authorized to practice as notaries.
SECTION 15: repeals the section.
SECTION 16: re-enacts the section to remove the reference to Canadian citizenship and sets out the consequences for failure to pay fees and other money.
SECTION 17: provides for appeals from decisions under section 35 by a panel in a credentials hearing.
SECTION 18: removes the requirement of Canadian citizenship as a qualification for membership, redrafts the subsection in gender inclusive language and adjusts the reference to fees.
SECTION 19: provides for the membership of the competency committee to include members as well as benchers and requires that the chair and vice chair be benchers.
SECTION 20: gives the benchers, rather than the competency committee, the power to impose conditions on the practice of a member who returns to practice after not practising law for a period of 3 years of the preceding 5 years.
SECTION 21: allows the discipline committee to rescind a citation.
SECTION 22: re-enacts the subsection to clarify its intent.
SECTION 23: replaces section 52 with sections 52, 52.1 and 52.2 that deal, respectively, with the administration of the special compensation fund, claims on the fund and powers to make rules about the fund. The amendments allow the benchers to establish a special compensation fund committee, delegate certain powers to the committee and provide for reviews by the benchers of decisions of the committee.
SECTION 24: allows the society to recover some of the costs of remedial programs from lawyers who benefit from them.
SECTION 25: replaces the obscure legal Latin of section 56 by reference to procedures under the Rules of Court.
SECTION 26: corrects the subsection to reflect the language used in the Rules of Court.
SECTION 27: amends the section to resolve problems with preserving the confidentiality of applications to approve certain kinds of contingent fee agreements and provides the authority for and the procedure for review of fee agreements, including contingent fee agreements, between a lawyer and the lawyer's client.
SECTION 28: makes amendments consequential to new sections 52 to 52.2.
SECTION 29: clarifies that the Unclaimed Money Act does not apply to money in members' trust accounts.
SECTION 30: amends an amendment that is not in force.
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