Day: October 17, 2018
The Law Society’s Ethics Committee recently released the following Ethics Ruling as guidance for the profession. For your convenience, we’ve listed the ruling below but it can also be found in our Ethics Rulings Database.
If you have any questions or concerns regarding this post, please contact the Law Society at (306) 569-8242 or 1-833-733-0133.
Date: September 13, 2018
Cite as: 2018 SKLSPC 8
Code Chapter: 3.5-5, 3.5-6
Code Heading: Accounting and delivery
Classification: Payment of retainer by third party
Practice Area: Litigation
Lawyer X represented Client A. Members of an organization (the “Third Party”) were present at Lawyer X’s initial meeting with Client A. A few days after the initial meeting, the Third Party paid Client A’s retainer to Lawyer X.
Several days later, the Third Party made a request to Lawyer X to have the retainer returned as Lawyer X’s services were no longer required. After speaking with Client A regarding the Third Party’s request, Lawyer X and Client A determined that the funds would not be returned, and no response would be provided to the Third Party.
Sometime later, the Third Party again requested the return of the retainer from Lawyer X and implied the retainer funds had been improperly provided. Lawyer X again spoke with Client A and subsequently advised the Third Party they would not be returning the retainer. Lawyer X had no reason to believe the Third Party’s retainer funds had been improperly provided.
Lawyer X did not enter into a retainer agreement with Client A or the Third Party, and no discussions were had as to what would happen in the event any funds remained at the end of Lawyer X’s representation of Client A, in the event representation ceased, or how the money would be treated once received. Lawyer X advised that there were no funds remaining in trust at the end of the file.
The Ethics Committee determined that whether the money was properly provided to Lawyer X is a legal issue that needs to be dealt with between Client A and the Third Party. Once the retainer was provided, Client A controlled the retainer, absent any agreement that dictated otherwise. To the Committee’s knowledge, there was no such agreement here.
When a lawyer is aware that a third party is paying the lawyer’s retainer, there is an obligation on the lawyer to have conversations with both the client and the third party regarding the payment of a retainer from the third party; i.e.: who directs the matter, what happens to the money if the lawyer withdraws/is terminated before the funds are exhausted, who can apply for taxation, and what is to happen if the third party demands return of the retainer. These discussions would preferably be reduced to writing, confirmed in the retainer agreement, and agreed to by the client and the third party prior to receipt of the retainer.
Saskatchewan’s population has grown increasingly diverse over the past 10 years; data from the 2016 Census shows increases in those who identified as being members of several minority or equity-seeking groups.
Diversity has advanced from a mere compliance exercise focused on meeting numbers for various measurable attributes, to the reality that our organizations are increasingly diverse, multicultural and global.
As we recognize Access to Justice Week in Saskatchewan from October 22-29, we engage new and diverse voices in the access to justice conversation and highlight initiatives that aim to improve access to justice for Saskatchewan residents. To this end, the Law Society has partnered with the CBA to offer a full day of programming dedicated to the Benefits of Diversity, on October 23 and 24 in Saskatoon and Regina respectively. The day has been designed by a diverse group of practitioners, judges and LSS staff to address this important topic and ensure relevance to all those who inhabit the legal landscape of the province.
We are delighted to be hosting Ritu Bhasin as our morning presenter. Ritu is a prominent Canadian speaker on the issues associated with equity and diversity in the legal profession.
Terri Karpish, McDougall Gauley’s Director of Professional Development, has known Ritu for a number of years in a number of capacities and had this to say regarding her Saskatchewan visit:
“Ritu is highly regarded as an expert in the diversity field in Canada and the US. I am so excited that she is coming to Saskatchewan!”
Subsequent to Ritu’s workshop, we will welcome a group of local speakers who will focus first on the changes seen in Saskatchewan’s demographics and move to a discussion of local perspectives and lived experience. Our day will be concluded with a session moderated by Chief Justice Richards that will bring us full-circle as we address how diversity in your organization positively impacts business.
As Saskatchewan becomes more diverse, let’s arm ourselves with the necessary skill sets to recognize the way culture impacts our perceptions, beliefs, behaviors and responses.