Legal Ethics

CPD Live Streams: We Are Listening

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By Jakaeden Frizzell, CPD Program Coordinator

The Law Society of Saskatchewan hosted our first Live Streamed CPD seminar on May 1, 2019. After some years of hosting noon hour webinars, this was another strong step towards offering accessible education options to our members. The Live Stream – which is accessed through a web link – was very well received by those who participated.

“Please have more presentations in this manner. It was a great experience.”

And we’ve heard you. The Law Society will make a concerted effort to offer Live Streams of events that work well with this format. We’ve even added a Live Stream to the “Current Trends in Professional Regulation” seminar on May 21 in Saskatoon!

Did you know we offer a travel discount to some events? We still encourage you to attend in person, but Live Streaming will go a long way towards increasing access for our rural members so they can take advantage of the great CPD events to come.

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.

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.

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 10
Code Chapter:           7.2-11
Code Heading:          Undertakings and Trust Conditions
Practice Area:            Family Law

Facts:

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.

Decision:

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.

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.