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The Law Society Amendment Act

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S.M. 1994, c. 13

The Law Society Amendment Act

(Assented to July 5, 1994)

HER MAJESTY, by and with the consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. L100 amended

1           The Law Society Act is amended by this Act.

2           Section 1 is amended

(a) in the definition "inquiry", by striking out "judicial committee" and substituting "discipline committee"; and

(b) by adding the following definition in alphabetical order:

"committee" means a committee of the governing body; (« comité »)

3           Section 36 is amended

(a) in subclause (o)(iv), by striking out "discipline committee of the society" and substituting "complaints investigation committee";

(b) by repealing subclause (o)(vi) and substituting the following:

(vi) is ordered by a committee to pay a penalty or costs, or

(c) in clause (x), by striking out "discipline committee of the governing body" and substituting "complaints investigation committee".

4           The following is added after section 42:

Foreign legal consultant

42.1(1)      The governing body may permit a person who is qualified to practise law in a country, or within a jurisdiction of a country, other than Canada to practise the law of the country or jurisdiction in Manitoba, subject to any condition the governing body considers necessary or advisable, including the payment of a fee.

Application of Act and rules

42.1(2)      This Act and the rules of the governing body apply with necessary modifications to a person permitted under subsection (1) to practise in Manitoba, but the governing body may not disbar the person.

Rules respecting foreign legal consultants

42.1(3)      The governing body may make rules respecting practise by persons referred to in subsection (1), including the establishment of conditions of their practise and the issuance, cancellation and renewal of licences or permits to practise.

5(1)        Subsections 49(2) to (4) are repealed and the following is substituted:

Service of notice

49(2)        The notice referred to in subsection (1) shall be served in accordance with section 53.1.

5(2)        Subsection 49(5) is amended by striking out "in accordance with this section" and substituting "on the member".

6           Section 50 is repealed and the following is substituted:

Status of member pending inquiry

50(1)        Where the governing body or a committee directs an inquiry under section 49 into the conduct or competence of a member, the governing body or the committee may, at any time before the inquiry is completed, where it determines that it is in the public interest, suspend the member from practice or impose conditions of practice on the member until such time as the governing body or committee rescinds the suspension, or varies or rescinds the conditions of practice.

Notice of suspension or imposition of conditions

50(2)        The secretary shall cause notice of the suspension of a member or of the imposition of conditions on the practice of a member under subsection (1) to be served upon the member in accordance with section 53.1 as soon as practicable after the determination is made.

Publication may be directed

50(3)        The governing body or a committee may direct that publication be made to the members of the society, or the public, or both, of information relating to proceedings under this section including

(a) the name of a member who is the subject of an inquiry;

(b) the nature of the inquiry; and

(c) the suspension of the member or the imposition of conditions on the practice of the member under subsection (1).

Appeal of interim suspension

50(4)        A member who is suspended under subsection (1) may appeal to a judge of the Court of Queen's Bench, and the judge hearing the appeal may make any order that he or she considers just and proper.

Time for appeal

50(5)        An appeal under subsection (4) shall be commenced within 30 days after the day the member or the member's counsel is served with a copy of the notice of suspension under subsection (2).

7(1)        The following is added after subsection 52(5):

Service of copy of decision or order

52(5.1)      A decision or order made under this section shall be served in accordance with section 53.1 on the member affected by the decision or order.

7(2)        Subsection 52(6) is amended

(a) by striking out "discipline committee of the governing body" and substituting "complaints investigation committee";

(b) by striking out "standards committee of the governing body" and substituting "competence committee";

(c) by striking out "either of those committees" and substituting "the complaints investigation committee"; and

(d) by striking out "judicial committee" and substituting "discipline committee".

7(3)        Subsection 52(6.1) is amended by striking out "the discipline committee and the standards committee" and substituting "the complaints investigation committee and the competence committee".

7(4)        The following is added after subsection 52(6.1):

Release of information respecting complaint

52(6.2)     Notwithstanding subsection (6), the president or chief executive officer, or a person designated by either of them, may disclose to any person that the society has received a complaint respecting the conduct or competence of a member, or that a complaint or other matter is or will be under investigation by the complaints investigation committee or the competence committee.

7(5)        Subsection 52(7) is amended by striking out "judicial committee" and substituting "discipline committee".

7(6)        The following is added after subsection 52(7):

Disclosure of information to authorities

52(8)        Notwithstanding subsection (6), the president, vice-president or chief executive officer, or the chairperson or vice-chairperson of the complaints investigation committee or the competence committee shall disclose to a law enforcement authority any information respecting possible criminal activity on the part of a member that is obtained during an investigation under this Act into a member's conduct.

8           Subsections 53(1) and (2) are repealed and the following is substituted:

Right to obtain file or record of member

53(1)        Where the governing body or a committee commences an investigation into the conduct or competence of a member of the society, the governing body or committee may request and is entitled to obtain any file or record respecting a client of the member that it might reasonably require to further the investigation, whether or not the file or record, or any part of it,

(a) is subject to a solicitor-client privilege; or

(b) is the subject of a charge or complaint.

Application of solicitor-client privilege

53(2)        Where a person carrying out a duty under this Act obtains information from a file or record of a member of the society that is subject to solicitor-client privilege, the person has the same obligation respecting the disclosure of the information as the member, but the person may disclose the information to the governing body or a committee for the purpose of an investigation or inquiry under this Act.

9           The following is added after section 53:

Service on member of notice, decision or order

53.1(1)      Service upon a member of the society of a notice under section 49 or 50 or a decision or order under section 52 may be effected

(a) by serving the member personally;

(b) by sending a copy by prepaid registered mail addressed to the member's address appearing in the records of the society;

(c) by leaving a copy, in a sealed envelope addressed to the member, at the member's place of residence with a person who is or appears to be an adult resident of the premises;

(d) by serving a copy personally upon counsel who appeared for the member at the inquiry; or

(e) by sending a telephone transmission of a facsimile of the notice, decision or order to the counsel who appeared for the member at the inquiry with a first page that contains

(i) the sender's name, address and telephone number,

(ii) the name of the counsel,

(iii) the date of transmission,

(iv) the number of pages in the transmission,

(v) the telephone number at the premises from which the documents are transmitted, and

(vi) the name and telephone number of a person to contact in the event of a transmission problem.

Effective date of service of mailed document

53.1(2)      A notice, decision or order sent by registered mail under clause (1)(b) is deemed to be served on the third day after the day it is mailed.

Proof of service

53.1(3)      Proof of service under subsection (1) may be made by affidavit or statutory declaration.

Substituted service

53.1(4)      Where the governing body or a committee determines that prompt service of a notice, decision or order under subsection (1) is not possible, the governing body or committee may make an order for substituted service, and shall specify in the order when service made in accordance with the order is deemed to be effective.

10          Subsection 54(1) is repealed and the following is substituted:

Appeal to Court of Appeal

54(1)        A member of the society may appeal a decision of the governing body or a committee to The Court of Appeal if the member, by the decision, is

(a) disbarred;

(b) suspended under subsection 50(1), and an appeal to the Court of Queen's Bench under subsection 50(4) is denied;

(c) suspended under subsection 52(1) or (2);

(d) struck off the books of the society;

(e) reprimanded;

(f) fined;

(g) ordered to refrain from practising in certain areas of law; or

(h) required to have his or her practising certificate subject to terms and conditions pursuant to an order under section 52;

and on hearing the appeal, the court may make such order as it considers just and proper.

Time for appeal

54(1.1)      An appeal under subsection (1) shall be commenced within 30 days after the day the member or the member's counsel is served with a copy of the decision or order that is the subject of appeal.

11          The following is added after section 54:

Appeal by governing body

54.1(1)      The governing body may appeal a decision or order of a committee under section 49 or 52 to The Court of Appeal on a question of law only.

Time for appeal

54.1(2)      An appeal under subsection (1) shall be commenced within 30 days after the day the governing body or its counsel is served with a copy of the decision or order.

12          Clause 56(2)(c) is repealed and the following is substituted:

(c) agrees to place at the disposal of any other person the services of a barrister or solicitor, except where the agreement is pursuant to

(i) a prepaid legal services plan which provides that any barrister or solicitor entitled to practice law in the province may provide the legal services under the plan,

(ii) a contract or policy of liability insurance, or

(iii) a collective agreement or collective bargaining relationship; or

13           Section 57 is repealed and the following is substituted:

Practice by students

57          Notwithstanding section 56, the governing body may make rules respecting the circumstances in which students may engage in the work of a barrister or solicitor while acting under the authority and supervision of a barrister or solicitor.

14          Section 60 is repealed and the following is substituted:

Definitions

60(1)        In this section,

"court" means the Court of Queen's Bench; (« tribunal »)

"custodian" means a person appointed by an order of the court under this section; (« gardien »)

"member" means a member of the society, and includes a former member and a member who is suspended under this Act; (« membre »)

"property" means any negotiable instrument, financial account, cash, money on deposit, file, record or other document or chattel that relates to the practice of a member or that is in the possession of the member and relates to the business or affairs of a client or former client of the member. (« biens »)

Judge may appoint custodian of member's property

60(2)        A judge of the court may, on application by the society without notice or with such notice as a judge of the court may require, by order appoint a person to be custodian of the property of a member and to manage, arrange for the conduct of, or wind up the practice of the member, where the judge is satisfied there are reasonable grounds to believe that the member

(a) has been struck off the rolls;

(b) is suspended from practising as a barrister or solicitor;

(c) has absconded or is otherwise improperly absent from a location at which he or she ordinarily conducts the practice;

(d) has neglected his or her practice for an undue period of time;

(e) has insufficient trust money to meet his or her trust liabilities;

(f) has died; or

(g) by reason of illness or mental incapacity or for any other reason is unable to practise as a barrister or solicitor;

or that other sufficient grounds exist.

Judge may authorize sheriff

60(3)        A judge who makes an order under subsection (2) may authorize the sheriff of a judicial centre to enter any premises in which the court is satisfied there are reasonable grounds to believe that property of the member is located, and to open any safety deposit box or other receptacle on the premises and to seize the property of the member and place it in the custody of the custodian.

Service of court order

60(4)        An order made under subsection (2) shall be served upon such persons and in such manner as the judge may direct.

Retention of member's property

60(5)        A person served with a copy of an order made under subsection (2) shall retain in his or her possession any property of the member and shall not dispose of it until directed in writing by the sheriff, custodian or court.

Powers of court respecting order

60(6)        Where an order has been made under subsection (2), a judge of the court may, upon application of the society or any interested person, without notice or with such notice as the judge may require,

(a) remove the custodian and appoint another custodian;

(b) direct any person who possesses property of the member to deal with or dispose of the property in a manner that the judge considers just and proper; and

(c) give such directions as are required to any person, including directions to the custodian respecting disposition of the member's property.

Custodian to give notice re held property

60(7)        A custodian who takes custody of property of a member shall, as soon as is practicable after taking custody, give such notice as the custodian considers proper to any person who has, or who appears to the custodian to have, an interest in the property that

(a) any person who has an interest in the property may apply to the custodian in writing to have the property dealt with in such manner as the person may specify; and

(b) a member whose property is in the custody of a custodian may in certain circumstances claim a lien on the property.

Where custodian may release property

60(8)        Where a custodian is satisfied that a person is entitled to possession of property held by the custodian and that no solicitor's lien is claimed or appears to exist in respect of the property, the custodian may deal with the property in a manner specified by the person.

Member may claim solicitor's lien

60(9)        A member who is the subject of an order made under subsection (2), who is served a copy of the order under subsection (4), and who claims a solicitor's lien on any property held by the custodian may, within 30 days after the day the order is served on the member, file a notice of the claim and particulars of the claim with the custodian.

Custodian to give notice where claim filed

60(10)       Where a member files a notice of claim under subsection (9), the custodian shall give written notice of the claim to any person who has or appears to the custodian to have an interest in the property, and of the right of the person to apply to the court to have his or her rights determined in respect of the property.

Custodian may dispose of property if notice of claim filed

60(11)       Where a member does not file notice of a claim under subsection (9), the custodian may deliver the property to a person if the custodian is satisfied that the person is entitled to the property, and upon delivery of the property to the person, any right of the member to a lien on the property is extinguished.

Custodian may override lien

60(12)       Notwithstanding subsections (7) to (11), a custodian may at any time deliver property to a person claiming it when the custodian is satisfied that the enforcement of a lien on the property would materially prejudice a person's position in an uncompleted matter and that the claimant is otherwise entitled to the property.

Summary determination of claim to lien

60(13)       Notwithstanding this section, a judge of the court may summarily determine the validity of a claim to a solicitor's lien.

Power of judge as to time

60(14)       A judge of the court may at any time enlarge or shorten the time within which anything is required to be done under this section or dispense with any such time requirement.

Immunity for act done in good faith

60(15)       No action or proceeding may be commenced against the society, an officer of the society, a bencher or a custodian, or a person acting on behalf of any of them, for an act done or not done in good faith under this section.

Court costs

60(16)       A judge of the court may award costs against a member or any other person in respect of proceedings under this section, but no costs shall be awarded against a custodian, the society, its officers or the benchers, or a person acting on behalf of any of them, in respect of a proceeding taken under this section in good faith.

Recovery of expenses by society

60(17)       Unless otherwise ordered by a judge of the court, the society is entitled to recover from a member, or the estate of a member, who is the subject of an order under subsection (2), any expense incurred by the society in carrying out the order, including any fee or disbursement that is paid to the custodian and that is not otherwise recovered.

Coming into force

15          This Act comes into force on the day it receives royal assent.