Law Society of Saskatchewan

New Ethics Ruling

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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: December 6, 2018
Cite as: 2018 SKLSPC 12
Classification: Formation of Solicitor/Client Relationship, Rule 1.1-1, Duty to Avoid Conflicts of Interest, Rule 3.4-1
Practice Area: Health Law

Ethics Committee Ruling:
This was a Request for Ruling by Lawyer X as to whether they are in a solicitor/client relationship with patients they see who have been certified under The Mental Health Services Act (the “Act”) as part of their duties as an Official Representative appointed by the Province.

Lawyer X’s duties as an Official Representative are outlined by The Mental Health Services Regulations (the “Regulations”). While Lawyer X maintains separate files for each patient, Lawyer X does not open a separate file for the patients they see in their recording system for the purpose of conflict checks as they do not consider the individual patient to be their client, but rather, they consider the Province to be their client. Accordingly, Lawyer X does not conduct a conflict search prior to meeting with and advising patients that they see under the Act, nor are they included in any future conflict checks. Lawyer X indicated that the patient does not give them any information, and they only advise the patient of their rights and assists them with an appeal of their detention if requested, among the other duties legislated. Lawyer X noted that patients will often speak for themselves before the appeal panel, however there are times when Lawyer X will speak for them. Lawyer does not believe that there would be a conflict if they were retained by a third party to act against a patient they had seen, as they describe their actions as “administrative”; the patient does not provide them with confidential information, and the medical information they receive is directly from the hospital in the form required by the legislation. If a patient wants to pursue other legal matters outside of Lawyer X’s duties under the Regulations, Lawyer X advises the patient that he/she will need to obtain their own lawyer.

Ruling:
The Ethics Committee determined that this type of work does not fit under “the auspices of pro bono or not-for-profit legal services”. The member is paid by the government, and therefore the Rules regarding short-term legal services do not apply. The patients seen by the member are clients, like any individual that a lawyer represents is his/her client. The member is provided with the patient’s name in advance of meeting with the individual and therefore, a conflict search should be conducted before accepting the engagement. In the event the member is at the hospital and is advised of a new patient that needs to be seen, the member should first obtain a conflict check either by contacting his/her office to obtain a conflict check while he/she remains at the hospital or by returning to his/her office to obtain same. The Committee is aware of jurisdictions where conflict searches are being completed by lawyers appointed as Official Representatives under the Act prior to the lawyer meeting the patient. The member has access to a significant amount of confidential information for each of the patients that he/she sees, such as their personal medical records, and accordingly there is a substantial risk of a conflict of interest to occur. For example, the lawyer will have substantial information about a patient’s mental health that could be directly relevant to other matters such as if his/her law firm advises on matters involving the Ministry of Social Services, family law, etc.

The identification rules are met as the lawyer may rely on the identification obtained by the apprehension, and the health card number in the medical records. This would constitute reasonable measures as outlined in the identification Rules of the Law Society of Saskatchewan.

Before accepting, as a client, a patient referred under the Act to the member, a conflict check should be performed and, if the member does not have a conflict in representing the patient, the individual patient should be entered as a client into whatever recording system the lawyer uses to ensure that the names of the individuals appear on future conflict searches.

Legal Basics for Boards: What Every Lawyer Needs to Know

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By Jakaeden Frizzell, CPD Program Coordinator 

On Tuesday March 19 (Saskatoon) and Thursday March 21 (Regina) the Law Society will be hosting full day seminars covering the basics of sitting on a board of directors. The seminar will qualify for 5.5 CPD hours.

The program is dedicated to a thorough discussion of the responsibilities and best practices of being a board director. With such a high level of responsibility required from directors, this overview will prove beneficial for both new and experienced board members. The day will begin with a presentation on the basics of board work, touching on subjects such as the division of power between directors and shareholders as well as some possible conflicts of interest. The morning will continue with a look into board meeting procedures and a review of the use of meeting minutes. Before noon, attendees will hear from accounting experts who will speak to financial statements and financial literacy in a board setting. After lunch, participants will work through potential real-world scenarios in round table groups with a facilitated review to follow. Next, a panel discussion will dive into different areas of director liability and how you can be protected. The day will wrap up with a presentation on how to be successful as a board member and what makes a good director from management’s perspective.

Open to both lawyers and non-lawyers, this in-depth seminar will cover the information you need to know to serve as a director sitting on a board. Register here: Legal Basics for Boards

New Ethics Ruling

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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: December 6, 2018
Cite as: 2018 SKLSPC 11
Classification: Manner of Withdrawal, Rule 3.7-8 and 3.7-9
Practice Area: Criminal Law

Ethics Committee Ruling:

Lawyer X represented Client A who was facing criminal charges.  Lawyer X reviewed Client A’s file and determined that they did not see a defence to the charge and therefore there was no merit in Legal Aid proceeding with a trial.

Client A did not want to enter a guilty plea but rather wanted to conduct a trial.

In a letter to Client A, Lawyer X advised that because Client A wanted to proceed to trial, Client A was refusing Lawyer X’s professional advice to plead guilty, and accordingly Client A had terminated the lawyer-client relationship.  Lawyer X further advised Client A that he was not being denied Legal Aid services, and that if Client A was prepared to resolve their charges through a guilty plea, Lawyer X was prepared to represent them for sentencing.  Lawyer X also noted that Client A was able to proceed to trial without the assistance of Legal Aid.

Ruling:

The Ethics Committee determined that Lawyer X has mischaracterized the termination of the solicitor/client relationship.  Where a client instructs the lawyer to do something against the lawyer’s advice, it does not mean that the client has terminated the solicitor-client relationship. In this situation, as the lawyer was not prepared to take the matter to trial, and the client wanted to proceed to trial, the lawyer was effectively withdrawing their services from the client, and thereby terminating the solicitor-client relationship. The member was terminating services to the client and should not be wording their letter to say that the client was terminating the relationship. The Ethics Committee takes issue with the statement Lawyer X made in their letter to Client A that the client is not being denied legal services.

Drafting the letter in this way may also affect the accused’s right to counsel. The characterization that the client, not the lawyer, is terminating the solicitor/client relationship appears to be intended to hinder the client’s ability to obtain court appointed counsel.

The Committee has strong concerns that this type of conduct has the ability to create a situation where the lawyer could be offside s. 606 of the Canadian Criminal Code and Section 5.1-8 of the Code of Professional Conduct, as the accused, when asked if the guilty plea is voluntary, may state that they are only doing so because their lawyer will otherwise withdraw. Further, the Committee wishes to reiterate that lawyers have a duty under Rule 3.7-8 to avoid prejudice to the client when withdrawing on a file.

The Committee is not criticizing Lawyer X for making the legal decision that they would not run a trial based on the merits of this case; that is their prerogative.  However, because the client says that they want to run a trial and the lawyer does not want to, does not mean that the client is firing the lawyer.

New Ethics Ruling

Posted on Updated on

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: December 6, 2018
Cite as: 2018 SKLSPC 10
Classification: Undertakings and Trust Conditions, Rule 7.2-11
Practice Area: Family Law

Ethics Committee Ruling:
This was a Request for Ruling by Lawyer X. Lawyer X received disclosure on trust conditions from Lawyer Y. Lawyer X was concerned with the trust conditions for the reasons as follows:
1. They purport to place trust conditions retroactively on documents received in the past;
2. They place trust conditions on material from court services;
3. They place trust conditions on documents filed with the court; and
4. They purport to attach trust conditions to all disclosure which may be received in the future.

Ruling:
The Ethics Committee reviewed the trust conditions and determined that while it is inappropriate to impose trust conditions on documents provided in the past, Lawyer Y has revised their trust condition template letter and rectified this issue. Lawyer Y does have a duty to draft clear and unambiguous trust conditions. In this instance, the Committee did not find there were any other issues with the drafting of Lawyer Y’s trust conditions. If Lawyer X does not wish to accept the trust conditions, they can return the documents and either request an amendment or make the argument to the Court about why they have not received disclosure and allow the court to decide. In the event Lawyer X already has court documents that Lawyer Y provided by way of disclosure, Lawyer X should return the disclosure to Lawyer Y and advise that they already have their own copy and therefore they do not need them.
With respect to imposing trust conditions on future disclosure, the Ethics Committee noted that these are used regularly in the court context in both criminal proceedings and family services proceedings as they allow for timely disclosure. Lawyers may exchange disclosure when they have it and not return to the office to send a cover letter with trust conditions. To create a ruling that prohibits this would put an onerous obligation on prosecutors to the detriment of the accused.

New Journal Issues- January 2019

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By Sara Stanley

National Insolvency Review
Volume 35, Number 6 (December 2018)

Appellate Court Casts Doubt on Finality of Vesting Orders / Brendan Bissell and Jennifer Stam

Receiver of Insolvent Power Generation Company in British Columbia Wins Battle with BC Hydro- Allowing Dispute to be Heard by the Court Instead of by Arbitration / Michael Nowina and Christina Doria

Commercial Insolvency Reporter
Volume 31, Number 2 (December 2018)

Concordia International Corp.’s Canada Business Corporations Act Proceedings Explained / Linc Rogers and Aryo Shalviri

The Queen v. Callidus Capital Corporation Overturned: Lenders Breathe a Sigh of Relief, but for How Long? / Michael J. Hanlon, Jeffrey Levine, Eric Valliéres and Emile Catimel-Marchand

Banking and Finance Law Review
Volume 34, Number 1 (December 2018)

A Regulatory Diagnostic Toolkit for Digital Financial Services in Emerging Markets / Louise Malady, Ross P. Buckley, Anton Didenko and Cheng-Yun Tsang

The Sandbox of the UK Financial Conduct Authority as Win-Win Regulatory Device? / Renato Mangano

Open Banking: Canadian and International Developments / Ana Badour and Domenic Presta

Back to Normal? Ontario Court of Appeal Overturns ClearFlow Decision on Interest Disclosure under Section 4 of the Interest Act / Michael Disney, Carol D. Pennycook and Derek R.G. Vesey

Book Review: Bankruptcy and the U.S. Supreme Court / Virginia Torrie

Money, Payment Systems and the European Union: The Regulatory Challenges of Governance / George A. Papaconstantinou

International and Comparative Secured Transactions Law: Essays in Honour if Roderick A. Macdonald / Tamara M. Buckwold

Insider Trading and Market Manipulation: Investigating and Prosecuting Across Borders / Gail e. Henderson

McGill Law Journal
Volume 63, Number 1 (December, 2018)

Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty / Siena Anstis, Joshua Blum and Jared Will

Seeking Justice by Plea: The Prosecutor’s Ethical Obligations During Plea Bargaining / Palma Paciocco

Drawing the Line between Lay and Expert Opinion Evidence: Jason M. Chin, Jan Tomiska and Chen Li

The Regulation of Hateful and Hurtful Speech: Liberalism’s Uncomfortable Predicament / Jocelyn Maclure

<< Why Couldn’t You Just Keep Your Knees Together?>> L’obligation déontologique des juges face aux victims de violences sexuelles / Michaël Lessard

Manitoba Law Journal
Volume 41, Number 1 (2018)

Guth Lecture 2018: Statutory Interpretation- Then and Now / Richard H. Hemholz

Evaluating Manitoba’s Automobile Injury Mediation Pilot Project / Jennifer L. Schulz

Law Students’ Responses to Innovation: A Study of Perspectives in Respect of Digital Knowledge Transmission, Flipped Classrooms, Video Capsules and Other Means of Classroom Dissemination / Richard Jochelson and David Ireland

A Horse Gallops Down a Street… Policing and the Resilience of the Common Law / John Burchill

The Constitutionality of the Federal Carbon Pricing Benchmark & Backstop Proposals / Bryan P. Schwartz

Public Inquiries’ Terms of Reference: Lessons from the Past- And for the Future / Gerard J. Kennedy

It’s Here, but it was Never “Brought into the Jurisdiction”?: The Policy Implications of Re: Hughes on Issues of Conflict-of-Laws Under the PPSA / Darcy L. MacPherson

Farm Debt Compromises During the Great Depression: An Empirical Study of Applications Made Under the Farmers’ Creditors Act in Morden and Brandon, Manitoba / Virginia Torrie

Saved by the Bell: The 2015 Legislative Assembly Rules Changes / Ben Wickstrom

Bill 203: The Legal Profession Amendment Act (Queen’s Counsel Appointments) /Yassir Alnaji

The Enactment of Bill 5, The Francophone Community Enhancement and Support Act: A Proud Moment for Manitoba / Constancia Smart-Carvalho

Canadian Family Law Quarterly
Volume 38, Number 1 (December 2018)

Why Does Quebec Family Law Seem So Different in the Eyes of Canadian Common Law Lawyers? But How Different Is It Actually? / Dominique Goubau

The Use of Spousal Support Review Orders in Canada / Jane M. Reid and Scott L. Booth

Severable Offers: Resolving Issues in Family Litigation Like Beads on a String / Mary-Jo Maur

Challenging the Use of Police Enforcement Clauses in Ontario / Kate Mitchell

The Criminal Law Quarterly
Volume 66, Number 3 (December 2018)

Editorial: Pardons, Expungements and Unjust Convictions

Reform of the Defence of Duress (and Necessity) / Steve Coughlan et al

Residential School Syndrome and the Sentencing of Aboriginal Offenders in Canada / David Milward

A “Bad Rap”: R. v. Skeete and the Admissibility of Rap Lyric Evidence / Ngozi Okidegbe

Ignorance of the Law IS an Excuse Revisiting the Concept of “Legal Impossibility” and U.S.A. v. Dynar / Nick Kaschuk

Does R. v. Wong Apply to Applications to Withdrawal a Guilty Plea Before a Trial Judge / Judge Wayne Gorman

Dalhousie Law Journal
Volume 41, Number 1 (Spring 2018)

Physicians’ Attitudes, Concerns, and Procedural Understanding of Medical Aid-in-Dying in Vermont / Teresa Ditomasso, Ari P. Kirshenbaum and Brendan Parent

Foreseeably Unclear: The Meaning of the “Reasonably Foreseeable” Criterion for Access to Medical Assistance in Dying in Canada / Jocelyn Downie and Kate Scallion

Legalizing Assisted Dying: Cross Purposes and Unintended Consequences / Emily Jackson

Trying and Dying: Are Some Wishes at the End of Life Better than Others? / Oliver J. Kim

A Comparative Analysis of Voluntariness Safeguards and Review Procedure under Oregon and the Netherlands’ Physician Assisted Dying Laws / Michaela Estelle Okininski

Euthanasia by Organ Donation / Michael Shapiro

Questioning POLST: Practical and Religious Issues / Lloyd Steffen

Legal History and Rights for Nonhuman Animals: An Interview with Steven M. Wise / Angela Fernandez

The Stakes in Steak: Examining Barriers to and Opportunities for Alternatives to Animal Products in Canada / Angela Lee

The Animal Protection Commission: Advancing Social Membership for Animals through a Novel Administration Agency / John MacCormick

Canadian Tax Journal
Volume 66, Number 1 (2018)

Electing into a Value-Added Tax: Evidence from Ontario Microentrepreneurs / Emily A. Satterthwaite

Proportionality and the Train of Inquiry in Tax Court Discovery: A Search for the End of the Line / David Jacyk and Pooja Mihailovich

Equalization and Canada’s Fiscal Constitution- The Ties That Binds? / Richard M. Bird

Finances of the Nation: “Final and Unalterable” – But Up for Negotiation: Federal-Provincial Transfers in Canada / Trevor Tombe

Current Cases: (FCA) Canada v. MacDonald; (FCA) Canada v. Rio Tinto Alcan Inc.; (ONCA) Canada Life Insurance Company of Canada v. Canada (Attorney General); (BCSC) 5551928 Manitoba Ltd. (Re) / Jeremie Beitel, Carrie Aiken, Rami Pandher, and Britta Graverson

International Tax Planning: Tax Treaty Abuse and the Principal Purpose Test- Part 2 / David G. Duff

Personal Tax Planning / / Planification fiscal personelle: Credit Where Its Due: Tax Credits for Elder-Care Expenses and Other Tax Considerations / Le crédit à ceux qui le méritent : Les credit d’impôt pour frais de soins aux aînés et autres considerations fiscales / Lucie Chanpagne and Gael Melville

Selected US Tax Developments: The Impact of US Tax Reform on Canada-US Mergers and Acquisitions / Peter A. Glickich and Gregg M. Benson

Current Tax Reading / Robin Broadway and Kim Brooks

The Advocate
Volume 77, Part 1 (January 2019)

On the Front Cover: Nancy Merrill, Q.C. / Mary E. Mowat

It’s Never Too Early to Start Giving Back / Elisabeth A. Sadowski

Family Law Arbitration: Five Years Later / Georgialee Lang

Welcome to the Machine? Considering the Ethics of Legal Technology / Kevin Smith

Revision to the Law Society of Saskatchewan CPD Policy

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Since the introduction of mandatory CPD in Saskatchewan in 2010, the CPD Policy required that CPD content be designed for an audience that is primarily composed of lawyers, paralegals, articling students and/or law students. However, over the last decade the legal landscape has changed and access to justice has become an increasingly prominent issue. There has been a dramatic increase in the number of self-represented litigants and in public demand for legal information. Further, the Law Society has received questions/complaints from members who have presented to an audience that is not connected to the legal profession. These members express the view that to prepare and present to these other audiences requires similar (and sometimes more) review, analysis and preparation, as compared to presenting to a lawyer audience.

In light of this, and to better facilitate and encourage the delivery of legal information to the public, the CPD Policy has been amended, effective January 1, 2019, to reduce the restrictions on the type of audience required for CPD hours. The CPD content being presented must be in compliance with the overall subject matter requirements set out in the CPD Policy, but the restrictions on the type of audience have been removed, with the exception of presentations to clients (CPD hours are not available for presentations targeted primarily at clients).

Please refer to the complete CPD Policy on our website for further details related to CPD requirements.

Law Society Penalty Decision: Law Society of Saskatchewan v. MacKay

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A penalty decision has been released in relation to the matter of the Law Society of Saskatchewan v. David MacKay. The following allegations against the Member were proven in an earlier phase of the hearing process:

i. did, after agreeing to trust conditions imposed by Lawyer S. in relation to the release of certain settlement funds coming into his possession, fail to comply with those trust conditions by releasing said funds without first ensuring the trust conditions had been met.

The following penalty was imposed by the Committee:

a. DAVID MACKAY is reprimanded;

b. DAVID MACKAY shall pay a fine to the Law Society of Saskatchewan in the amount of $1,000.00;

c. DAVID MACKAY shall pay costs to the Law Society of Saskatchewan in the amount of $11,000.00;

d. IT IS FURTHER ORDERED THAT DAVID MACKAY shall pay the amounts noted above by 4:00 p.m. on April 30, 2019, failing which a suspension shall be imposed until such time as the amounts noted above have been paid in full.

For more information on the Law Society of Saskatchewan discipline proceedings, please visit the Discipline Section on the Law Society of Saskatchewan website.