Legal Ethics

Family Law: Through the Eyes of the Child

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By Jakaeden Frizzell, CPD Program Coordinator 

The Law Society was delighted to present the informative family law seminar Through the Eyes of the Child with The Honorable Justice Turcotte as host. We held the event at TCU Place in Saskatoon on Tuesday, November 20th and in Regina on Wednesday, November 21st at the Delta.

The morning sessions featured our main presenter and clinical psychologist Dr. Craig Childress who gave insight into his Attachment-Based Model of Parental Alienation (AB-PA) and its application to high conflict divorce, specifically focusing on the relationship between parent and child. The lecture continued with a discussion about Dr. Childress’ AB-PA pilot program work with family courts in Houston, Texas and the use of assessment focused treatment in divorce proceedings.

The first afternoon session was comprised of presentations from local professionals regarding various resources available for high-conflict divorce. Participants heard from Connie Lupichuk and Leanne Leedahl of Aspire Too who use an innovative approach to coach parent skills and ultimately reduce the impact of conflict for children in potentially high conflict divorce cases. Coralee Peterson of the Family Justice Services Branch with the Government of Saskatchewan took attendees through the services available from their office. Kim Miller, a consultant with the Government of Saskatchewan’s Dispute Resolution Office discussed high-conflict mediation and reviewed proposed changes to mandatory mediation for family law in Saskatchewan. Finally, participants were presented with a look at some new ways of delivering Family Law services from Charmaine Panko of Panko Collaborative Law & Mediation and some alternative professional services from former lawyer and separation specialist Lana Wickstrom.

The afternoon concluded with the panel discussion When Court is Necessary. In Saskatoon, Justice Turcotte, Jim Vogel Q.C, Dr. Childress, and Kim Miller provided some insight into this topic as well as some best practice strategies for court proceedings. They were joined for the Regina session by Coralee Peterson.

The Law Society of Saskatchewan would like to thank Dr. Childress for travelling all the way from California to share his expertise at this in-depth and informative seminar. We would also like to thank our guest speakers for sharing their knowledge and guidance on this topic. To our participants, thank you for your attendance and thoughtful participation throughout the day.

Referral Fees – What you should know

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[Reprinted with permission from the October 2018 edition of Communiqué, by Darcia Senft, General Counsel , Director of Policy and Ethics at the Law Society of Manitoba.]

From time to time, we receive questions about fee referral “pitches” and whether such fees can be paid and received without causing a lawyer to act in breach of the rules set out in the Code of Professional Conduct.

The Code has rules and commentaries that relate to the division of fees and referral fees. Rule 3.6-7 specifically prohibits a lawyer from directly or indirectly sharing, splitting, or dividing his or her fees with any person who is not a lawyer and from giving any financial or other reward for the referral of clients or client matters to any person who is not a lawyer.

From time to time lawyers receive telephone calls or emails from individuals who indicate that they want to help increase the number of new cases that the lawyer takes on. For example, a caller explains that his company will provide contact information to potential clients in whatever practice area or geographic area that the lawyer selects. It is not a directory service but some form of customized referral process that relies upon the company’s technology. When asked how the company makes money from the proposed referral process, the lawyer is told that he will be required to pay a flat fee each month to the company although they will not charge a fee for each referral. The caller is from another jurisdiction and is not a Manitoba lawyer. Under the circumstances, the proposed payment system would amount to a referral scheme that no Manitoba lawyer could participate in without breaching the referenced Code referral fee rules. If you have become involved in this kind of an arrangement, you should revisit it in light of the Code restrictions.

Certain types of referral fee payments are allowed. With the exception of referrals as a result of conflicts, Rule 3.6-6 allows a lawyer who refers a matter to another lawyer because of the expertise and ability of the other lawyer to handle the matter to receive a referral fee but there are a couple of conditions that must be met. First, the fee itself must be reasonable. Second, the client must be informed about it and must consent to its payment. You might wonder what a “reasonable” fee might look like. You might also wonder why the Law Society would even care about a referral fee arrangement where the client consents.
Consider the following situation. A lawyer who does not practise in the area of family law at all meets with one of his long-standing clients who now needs a divorce. The lawyer says he doesn’t practise in that area but can make a referral to a lawyer in another firm who does this work. The lawyer who accepts the domestic retainer agrees to pay 15% of all fees generated back to the lawyer who made the referral. The domestic case may take several years to complete and the client may end up paying in excess of $40,000 to the family law lawyer. Would it be reasonable for the referring lawyer to receive $6,000 in fees simply for making the initial referral? Even if the client purportedly “consents” to the referral fee, at the beginning of a retainer the client would have no idea how much the referring lawyer ultimately will be paid. How could consent, under those circumstances, be described as “informed?” What would the client say if he knew that in order for the domestic lawyer to keep up those anticipated long-term referral payments, she had to charge a higher hourly rate?

Where the Code allows payment of a referral fee from one counsel to another, it stands to reason that the fee must be fully known (i.e. quantifiable) in order for the client to provide informed consent. Before considering any kind of division of fees or fee referral payments, consult the Code and please call us if you have any questions about whether the contemplated arrangement is appropriate having regard to your ethical obligations.

This Week in Legal Ethics – New Ethics Ruling

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LegalEthicsBannerThe 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 9
Code Chapter:           7.2-11
Code Heading:          Undertakings and Trust Conditions
Classification:            Trust funds
Practice Area:            Real Estate

Facts:

Lawyer X has retained money in trust on a real estate matter for Client A for approximately 7 years.  The money is bound by trust conditions.

Lawyer X inherited the file and the trust conditions from Lawyer Y.  Lawyer X is unable to fulfil the trust conditions in order to release the money from their trust account.  Lawyer X has attempted to negotiate a resolution of the matter with Client A and the opposing party, who is now self-represented, with no success.  Neither Client A, nor the opposing party wish to pursue the release of the money held in trust.

Decision:

In the circumstances, Lawyer X needs to consider how to divest themselves of the funds held in trust. If Lawyer X is unable to obtain instructions from their client, Lawyer X should consider withdrawing.  The ownership of the trust funds is a legal issue that will likely require the determination of the courts.

Generally, lawyers are again encouraged to ensure that, in accepting trust conditions, they think ahead as to whether the conditions allow for a certainty of end point in relation to funds held in trust. If the release of the trust funds requires action on behalf of another party outside of the control of the lawyer, consider using a third party to confirm completion of the trust condition, or implementation of deadlines after which the money will be paid to a certain party, or arbitration or mediation clauses in the event of disagreement.

This Week in Legal Ethics – New Ethics Ruling

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LegalEthicsBannerThe 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

Facts:

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.

Decision:

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.

Indigenous Canada Course

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Indigenous Canada is a 12-lesson Massive Open Online Course (MOOC) that explores Indigenous histories and contemporary issues in Canada. From an Indigenous perspective, this course explores key issues facing Indigenous peoples today from a historical and critical perspective highlighting national and local Indigenous-settler relations. Topics for the 12 lessons include the fur trade and other exchange relationships, land claims and environmental impacts, legal systems and rights, political conflicts and alliances, Indigenous political activism, and contemporary Indigenous life, art and its expressions.

 The Course qualifies for 12 CPD credits, all of which qualify for ethics. The Law Society recognizes the value of this course and as such, the course has been incorporated into the CPLED Program as a mandatory module.

This Week in Legal Ethics – 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, I’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:                           June 26, 2018
Cite as:                        2018 SKLSPC 7
Code Chapter:           3.4
Code Heading:          Conflicts
Classification:            Duty to Avoid Conflicts of Interest
Practice Area:            Immigration

Facts:

Law Firm XYZ does immigration work on behalf of Immigration Company A, which is owned by relatives of Law Firm XYZ’s partners. In addition, Law Firm XYZ’s partners and their spouses own Immigration Company B, for which Law Firm XYZ has not yet done immigration work.  Client service and administration at Immigration Company B is done by an employee of Law Firm XYZ. Immigration Company B not a licensed immigration consultancy.

Decision:

The Ethics Committee considered whether there is the potential for conflicts of interest. While lawyer X lists the Immigration Companies as the client, the individuals themselves are the true clients. The individuals seeking legal advice, and not the Immigration Companies or another referral entity, must be treated as the client. Every legal client is due the same standard of care and all the protection entailed in the Rules of the Law Society of Saskatchewan and the Code of Professional Conduct, regardless of who referred that client and how that client became a client.

The Committee also considered whether the public was fully protected from potential negligence, competence or conduct claims. The clients of the Immigration Companies may not be entirely aware that Lawyer X is doing work for them. It is likely not sufficiently clear to the clients that they could file a claim of negligence or a complaint to the Law Society against Lawyer X, if the circumstances warranted it. The Committee is concerned that the reason the client relationship is structured in this way is to attempt to protect the members from liability or claim. The Committee determined that the current structures of Immigration Company A and Immigration Company B are not proper; it is not appropriate for a lawyer to try to absolve their professional responsibilities through a corporate structure.

This Week in Legal Ethics – New Ethics Ruling

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LegalEthicsBannerBy Melanie Hodges Neufeld

The Law Society’s Ethics Committee recently released the following Ethics Ruling as guidance for the profession. For your convenience, I’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:                           June 26, 2018
Cite as:                        2018 SKLSPC 6
Code Chapter:           3.4
Code Heading:          Conflicts
Classification:            Acting Against Former Clients
Practice Area:            Family Law; Criminal

Facts:

Lawyer X defended Client A previously on an assault charge. Client A allegedly assaulted an ex-partner/employee/roommate and alcohol was a factor.

Lawyer X began representing Client B, Client A’s spouse, in separation proceedings against Client A. The Petition contains allegations relating to alcohol.

Client A, through counsel, raised the issue of conflict of interest with Lawyer X.

Lawyer X believes that Lawyer X represented Client A on an entirely unrelated matter and therefore, there is no conflict.

Client A believes that Lawyer X has personal information about Client A which can be used against Client A in the family law matter.

Decision:

The Ethics Committee determined that Lawyer X previously represented Client A, a now-opposing party, on a matter in which some circumstances are related to those presented in the current separation proceedings.  Accordingly, the Committee agreed that there is sufficient overlap between the two matters that Lawyer X may have confidential information from the prior representation of Client A that may prejudice Client A in the current proceedings. The two actions are not wholly unrelated.  The Committee determined that Lawyer X is in a conflict of interest pursuant to Rule 3.4-10(c) by representing Client B in the matter against Client A.