2009: No. 3 • FALL

Benchers’ Bulletin Keeping BC lawyers and the public informed

2 President’s View: It’s just common sense

4 CEO’sPerspective:Findingtime

news

5 BruceLeRose,QC,SecondVice-Presidentfor 2010

6 LawSocietypresentsbusinesscaseforretention of women in private practice

7 2009AnnualGeneralMeeting

7 BClawyersapproveAGMsavingprovision

8 NewBencherelectedforPrinceRupert

8 2010 fees due November 30

centre insert

ResourceguideforBClawyers

Practice

9 Practice Tips: Email and security issues

10 Practice Watch: » Electronic transfer of trust funds » Pooled trust accounts and T5 statements » Alawyer’scharacteristics » Scamsonhomesellers,debtcollection » Client files in electronic form

12 Interlock: Positive communications

regulatory

15 Discipline digest

19 Credentials hearing

2BENCHERS’BULLETIN•FALL2009

BENCHERS’BULLETIN

The Benchers’ Bulletin and related newslettersarepublishedbytheLaw

SocietyofBritishColumbiatoupdateBClawyers and articled students on policy and

regulatorydecisionsoftheBenchers,oncommitteeandtaskforceworkandonLawSocietyprogramsandactivities.BClawyers

are responsible for reading these publica-tions to ensure they are aware of current

standards,policiesandguidelines.

SuggestionsonimprovementstotheBul-letin are always welcome — please contact theeditor.AdditionalsubscriptionstoLawSocietynewslettersmaybeorderedata

costof$50(plusGST)peryearbycontact-ing the subscriptions assistant at com-

munications@lsbc.org. To review current and archived issues of the Bulletinonline,

see“Publications&Forms/Newsletters”atlawsociety.bc.ca.

ExECUTIVEEdITORAdamWhitcombe

MANAGINGEdITORCaraMcGregor

PROdUCTIONEdITORdeniseFindlay

CONTRIBUTORSCarol OakleyRobinPollak

LesleyPritchard

PHOTOGRAPHYBrian Dennehy Photography: page 5

SUBSCRIPTIONSRobinPollak

©2009TheLawSocietyofBritishColumbia

PublicationsMailAgreementNo.40064480

PRESIDENT’S VIEW

it’s just common senseby Gordon Turriff, QC

NExTSUMMERWEwill have new rules in the Supreme Court. One of the linchpinrules effectively requires all participants to conduct all steps in court proceedings pro-portionately,whichmeansthattheymusttailor the working out of the disputes to the complexity of the proceedings and to what is at stake.

Over the years I have flip-floppedaboutproportionality.Foratime,Ithoughtit was an evil concept because, if deter-minedobjectively,itmightlimitthechoic-es available to parties and therefore leave their independent lawyers hamstrung in the advice that could be given. But now I think I’m a proportionality advocate be-cause,really,proportionalityisjustasignalto litigants that they have to use common sense. Can having to act with common sense be fundamentally wrong? Surelyit can’tbe suggestedthat, as citizens,wehavearight,constitutionallyorotherwise,to use a scarce public resource however it pleasesus,or that, as citizens,wehavearight,nomatterhowinefficientwemightbe, to insist that government make theresource less scarce by finding tax dollar somewhere, and without imposing userfees.

I don’t mean to say that it is desirable to have proportionality at any cost. There will always be cases in which an econo-mist’s sense of perfect efficiency will have to give way to higher values. There will al-ways be cases with public interest dimen-sions; there will always be cases where rightshavetobedetermined,inthecircum-stances,becauseonlyoneoftwopositionscan possibly prevail; and there will always be powerful litigants who must not be al-lowed to use their positions of power to obtain unfair advantage. Those cases may take time at court and the resources used to produce needed decisions might not be proportional to anything outsiders might use as a measure. But in the run of ordinary cases,mostaregoingtoberesolvedmost

satisfactorily just with the application of common sense.

Now it is a truism — at least there is a very strongly held public perception — that litigants’ lawyers, not the litigants them-selves,decidehowcasesshouldgoforward.Andthismeans,ofcourse,whencasesgoforwardstupidly,thatitisthelawyers,nottheir clients, who are held accountable,sometimes on the front page of the news-paper. This is a perception balloon we need toburst.Somejournalistsdemonstrateanespeciallyacuteinabilitytorecognizethatlawyers follow their clients’ instructions; these media people habitually fail to re-mind their readers that the clients make the decisions and that the clients might

have decided not to follow their lawyers’ advice. I do not mean to suggest that there aren’t many cases in which clients don’t think independently about what should be done. But their lawyers, having explainedtheoptions and the risks, should be tell-ing them that it is their call to make. In my own smallway, I remindmyself totrytoshow others that I’m only someone look-inginfromtheoutside,neversaying“we”or “our”or “us” in relation to any aspectofaclient’scase.Itisalways:“Myclient’spositionis…”or“myclientwillaccept…”;and I never identify my client’s opponent’s casewiththeopponent’slawyer.Soitisal-ways:“Yourclient’sfailureto…”etc.

Asmanypeoplehavecometolearn,Iamaninveteratefearerofgovernment.So

Can having to act with common sense be fundamentally wrong? Surely it can’t be suggested that, as citizens, we have a right, constitutionally or otherwise, to use a scarce public resource however it pleases us ...

FALL2009•BENCHERS’BULLETIN3

PRESIDENT ’S VIEW

when I was reading 1984again,justtobesureIhadn’tgottenthingswrong,IsawintheintroductiontotheEveryman’sLibraryedition,JulianSymons’neatassessmentofGeorgeOrwell: “His commonsense couldbedevastating.”Ideally,allBClawyerswillalways use common sense devastatingly. However,weknowthat itdoesn’talwayshappen.

I’m not a psychologist, but I suspectthat some people are by nature common-sensical; that others have the good luck to be taught its useful application; and that mostof the restofus cometo recognizeits value from the trial and error of experi-ence.

What does common sense mean to the LawSociety and the Benchers?Well,the society’s public interest mandate re-quires the Benchers to supply British Co-lumbia’s communities with just enough lawyers who are capable of using common sense at least averagely well. This means that the society must be able to identify at least the innately commonsensical law-yersandtocallonthemasmentors,bothwithinandwithoutthePLTC,anditmeansthat the Benchers must re-double their

work of identifying the unaveragely com-monsensical lawyers and of dealing with them as practice standards or discipline cases. I have often said that it only takes one member of any group of two lawyers and two litigants to increase the cost of the litigation,sometimesexponentially,andtomake the lives of the other three miserable

(there is no worse pairing than a lawyer with less than the optimal amount of com-monsenseandaclientactinginbadfaith).We should all want to be sure that the two lawyer members of those groups of four are nevertheproblem,andweshouldallwantto be sure that lawyers do not help abusive litigants in the promotion of misguided campaigns. The assiduous application of

common sense would go a considerable distance towards achieving these goals.

There must be many ways of driving home the importance and the value of a commonsenseapproachtolitigationand,indeed, tothe commonsense solutionofclients’ problems generally. For myself,I always try to remember that the 12 or 15 possibilities my law school professors helpedmetorecognizeforanygivencaseshould quickly be reduced to one or two (and often to none), and my experiencehas taught me that the one or two have to be tended very carefully. I also repeat-edly remind myself that, as lawyers, wedonotgotowar,althoughmanylawyers,including senior lawyers, sometimes de-scribe it that way. Our work is not war. War and common sense are antithetical. We arepuzzle-solvers,oftenhavingtodisplayhighly technical forensic skills. But it’s not our job to win no matter what. The best of us find the ways to apply common sense to solve the problems in our clients’ “any-thing can happen” lives. In Big Brother’sworld,“[t]heheresyofheresieswascom-monsense.”Inourworld,commonsenseisdoubleplusgood.v

President’s speaking tour rolls onPRESIdENT GORdON TURRIFF, QC tookhis message about the critical importance of the rule of law and the independence of lawyers toAustralia.Speaking at theCon-ference of Regulatory Officers in Perth,Western Australia, Turriff gave a keynoteaddress, “Self-Governance as a NecessaryCondition of Constitutionally MandatedLawyerIndependenceinBritishColumbia.”Arguing strongly for the importanceof anindependent legal profession as a necessary componentoftheruleoflaw,Turrifffirmlyasserted that “we can’t be partners in law-yer regulationwith [agovernment]wearebound to challenge on behalf of clients to whomweoweadutyofundividedloyalty.”

His speech at the conference in Perth is just the latest in more than 30 presenta-tions Turriff has made since the beginning of his year as President to help to educate thepublic about the LawSociety’s publicinterestmandate,theruleoflaw,thevital

importance of independent lawyers and theneedforself-regulation.

Turriff’sspeakingtourbeganinFebru-aryandwillcontinuethroughtheFall.Thelatter part of the tour will focus on students and community service groups.

Public response to Turriff’s topic has been positive. Here is some of the feedback we have received on the President’s speak-ing tour:

Appreciate the society reaching out to the public.

I enjoyed the presentation very much, especially in learning more about the integrity of lawyers in these difficult times.

The presentation was informative and increased my confidence in lawyers because of the existence of the Law Society.v

resource guide for Bc lawyers

To better help lawyers meet the needs of their clientsandthepublic,theLawSocietyhaspublished a resource guide for BC lawyers.

Thisat-a-glanceguideconnectsmembers with programs and services availablethroughourwebsite,includ-ingresourcestoenhanceyourpractice,self-pacedonlinelearningtools,prac-ticeandpersonalsupport,andlinkstootherlaw-relatedorganizations.

The resource guide is enclosed in this issue of the Benchers’ Bulletin.Forad-ditionalcopiesortoprovidefeedback,contact communications@lsbc.org. We reserve the right to limit copies.v

I’m not a psychologist, but I suspect that some people are by nature commonsen-sical; that others have the good luck to be taught its useful application; and that most of the rest of us come to recognize its value from the trial and error of experi-ence.

4BENCHERS’BULLETIN•FALL2009

CEO’S PERSPECTIVE

Finding timeby Timothy E. McGee

INARECENTtelevision interviewwithUSPresident Barack Obama, the interview-er ended by saying, “I love watching youwork.”TheinterviewerwasimpressedwithObama’s seemingly limitless energy to speakdirectly to theAmericanpeople, in-deedtheworld,oncriticalissuesofthedayandtodosoinacalm,disciplinedmanner.In short, hewasmaking a very tough joblook deceptively easy.

What can we learn from how the Pres-ident works?

Frommyperspective,IthinkObama’sinsistence on regular exercise as part of his daily routine is an important part of how he makes it look so easy. Despite the fact that he is probably the busiest man in the world,PresidentObamaexercisesanhoura day. His close friends say it’s how he re-lievesstress,maintainsaroutineandthinkswithout interruption. He doesn’t let his minute-by-minute appointment calendar— or election victories — get in the way.

ThemorningafterhisvictoryrallyinGrantPark and a few hours before travelling to Washington for his first tour of the White House,Obamawasatthegym,recharginghis batteries. Perhaps most importantly in myview,hiscloseassociatessayhisexer-cise routine makes him happy — and who doesn’t work better when they are happy?

A recentStatisticsCanada report re-veals that while physical activity among Canadians is up moderately in the past 10 years,almosthalfofadultCanadianswereclassifiedas“inactive”duringtheir leisuretime.Almost aquarterofCanadians sur-veyed reported they usually sat for most of the day.

As a profession, lawyers are notori-ously hard workers. The demands of en-suring clients are well served often leads to long working hours with little time for anything else. And, of course, there aremany in our profession who successfully meet the demands of their clients without

exercising regularly. But in addition to tak-ingcareofourclientsandourwork,weallneedtotakecareofourselves.Afriendandsenior member of the bar recently told me how he battled back from a near fatal af-flictionthathithimoutoftheblue.Today,he is busier than ever with a very success-ful practice. But he is also happy and highly motivated. He reminded me that what has helped him the most was the satisfaction he derives from his exercise routine.Andforthat,IcansaythatIlikewatchinghimwork.

I recognize that this approachmightnot resonate with everyone. But if you are inclined to exercise and think you’re too busyordon’thavethetime,IinviteyoutothinkofthePresidentand,whateveryourpolitics, consider how your work, yourhealth andyour happiness,might benefitfrom lacing up those runners.v

FALL2009•BENCHERS’BULLETIN5

NEWS

Bruce lerose, Qc, second Vice-President for 2010WHENABENCHERdecides to put his or her nameforwardasacandidateforfutureLawSocietyPresident,thatpersonagreestotakeon a new level of commitment — to the pro-fession andthepublic.OnSeptember29attheAnnualGeneralMeeting,BruceLeRose,QC was acclaimed Second Vice-Presidentfor2010.Thatmeans in2012, LeRosewillbecome the first ever President from the County of Kootenay. At the Law Society,when a Bencher is in line to become Presi-dent,wecallitbeingon“theladder.”Hereisa brief look at the newest Bencher to climb on.

Bruce LeRose and his twin brotherBrianwereborninTrail,BConSeptember13,1957.Theyandtheirtwoolderbrotherswerekeptbusyattwofamily-ownedbusi-nesses,theTerraNovahotelandtheColan-derrestaurantinTrail.“Janitor,dishwasher,chambermaidandfrontdeskclerk,”LeRoserecalls, “wedid itall.”HenowcreditshisItalian background for his interest in gour-metfoodandfinewines,butheknewhewould not follow in his parents footsteps when it came to his career. He can only re-member ever wanting one job — that of a lawyer.

LeRose was impressed at a youngage by his father’s friend, the late Rich-ardd’Andrea,whowasaProvincialCourtjudge. He liked the idea of a profession that focused on helping people solve their problems.LeRoseeventuallyattendedtheUniversity of British Columbia where hefirst earned his Bachelor of Arts degreeandthen, in1982,his lawdegree.LeRosewas called to the bar and became a mem-berofThompson,LeRoseandBrown(for-merly Geronazzo and Thompson), a fullservice general practice firm with three offices in the West Kootenay. He was elected a Bencher in 2004 and was ap-pointedQueen’sCounsel in2006.LeRoselives with his partner, Melanie, and hastwosons(NicholasandAlex),whoarenowboth attending university.

InputtinghisnameforwardforSecondVice-President,LeRosesayshewantedtogive back to the profession and to continue the “tremendous” learning experience he

has had as a Bencher. LeRose chairs theLawyer Education Advisory Committeeand sits on the ExecutiveCommittee, Fi-nance Committee, Special CompensationFundCommittee, Credentials CommitteeandtheMirrorImagingTaskForce.HealsochairedtheSmallFirmTaskForce.LeRoselooks forward to promoting the practice of law in smaller, rural settings,andcon-siders it a top priority when he becomes President.“MorethanhalfofalllawyersinBCoperateinasmallpracticesetting,with

nomorethanfourlawyersinthefirm,”hesays.“ThemajorityoftheworktheLawSo-cietydoesinvolvestheselawyers.”LeRosebelieves it will help having someone in the topleveloftheLawSocietywhoknowstheimportance of supporting those who oper-ate in small firms.

Alongwithsmallfirmsupport,LeRosealso puts a high priority on transparency at theLawSociety,toensurethatregulationof the legal profession is well understood and viewed as effective.v

6BENCHERS’BULLETIN•FALL2009

NEWS

in Brief

law society presents business case for retention of women in private practiceANExOdUSOFwomen from the legal pro-fession and a looming shortage of lawyers haspromptedtheLawSocietytodevelopabusiness case for keeping women lawyers in private practice.

In 2008, the RetentionofWomen inLawTaskForcewaschargedwithpreparingthe business case and presented its final report at the July Benchers meeting thisyear.

Kathryn Berge, QC, who chaired thetask force, reported that “one third ofnew women lawyers called in 2003 had dropped out of the profession by 2008. This happened during a time when a record numberofwomenenteredtheprofession,yet today women lawyers still represent only 29 per cent of private practice lawyers intheprovince.”

The business case explains the demo-graphic issues facing the legal profession in BC and explains the business advantages of retaining and advancing women in private practice.However,itdoesnotsuggestthatwomen should receive special treatment. It stresses the competitive advantages of creating firms that retain and advance tal-entedlawyers,withafocusonservingcli-ents in effective ways that make business sense and people sense.

“The benefits of retaining women law-yersaresignificant,”saidBerge,whoprac-tises in a small firm in Victoria. “Keeping anddevelopingtalentincreasesefficiency,client service, lawyer morale and futurerecruitment ability. This holds true in both good and bad times. There is also the bene-fit of a stronger and more sustainable firm

c u l t u r e based on merit,flex-ibility and diversity.”

The busi-ness case has already received considerable attention in themedia.Over thenext fewmonths,members of the task force will be speaking tolawfirms,law-relatedorganizationsandothers to promote the business case and increase awareness of the benefits of re-taining women lawyers in private practice.

Todownloadthebusinesscase,goto“Publications&Forms/Committee&TaskForce Reports” at lawsociety.bc.ca. Formore information, email diversity@lsbc.org.v

Bench & Bar Dinners

Tickets are still available for the 25th an-nualBench&Bardinner,whichtakesplaceon Wednesday, November 4 at the Pan PacificHotel inVancouver.TheLawSoci-etyispleasedthattheHonourableStevenL.Point,OBC,LieutenantGovernorofBCandtheHonourableMichaeldeJong,QC,AttorneyGeneralofBC,willbeattendingthe dinner to honour the society’s 125th anniversary.

TheLawSocietyandtheCBAarejoin-ing with the Kelowna Bar Association toinvite lawyers and judges to attend the 6th annualYale County Bench & Bar dinner.It’s happening on Thursday, November 19atthedeltaGrandOkanaganResortinKelowna.

To download programs and registra-tionformsfortheBench&Bardinners,seethe Calendar at lawsociety.bc.ca.

weBster awarDs

A selection of BC’s best journalists havebeennamedasfinalistsforthe2009JackWebsterAwards.This year’s recipients —including thewinner of the JackWebsterAward for Excellence in Legal Journalism,sponsored by the Law Society — will behonoured at a ceremony at the Westin Bayshore on Tuesday, October 20.

Vancity anD hsBc imProVe rates to FounDation

LawFoundationChairMaryMouatiscom-mending Vancouver city savings credit union and hsBc Bank of canada for their commitment to paying a competitive rate of return on lawyers’ pooled trust accounts. BothareontheFoundation’spreferredlistof financial institutions.

Increased revenues enable the LawFoundation to fund programs that make

the justice system more accessible to Brit-ish Columbians. The funded programs in-clude professional legal education, publiclegaleducation,lawreform,legalresearch,legal aid and law libraries.

Lawyers are encouraged to considerwhich financial institutions provide the best support to the Law Foundationwhen deciding where to place their trust accounts.

JuDicial aPPointment

the honourable gregory t.w. Bowden,aJudgeoftheProvincialCourtofBC,hasbeen appointed a Judge of the SupremeCourt of BC in Vancouver. He will replace MadamJusticeK.M.Gill,whoresignedonJune1,2009.v

FALL2009•BENCHERS’BULLETIN7

NEWS

law society welcomes new chief JusticeTHE LAW SOCIETYwelcomes The Hon-ourable Robert J.Bauman, who wasappointedChiefJus-tice of theSupremeCourt of British Co-lumbia on Septem-ber 10, 2009. Hereplaces the Hon-

ourableChief Justicedonald BrennerwhoretiredonSeptember7.

Chief Justice Bauman was born inToronto.HecompletedaBachelorofArtsfrom the University of Western Ontarioin 1971 and Bachelor of Laws with Hon-ours from the University of Toronto in1974, graduating second in his class. Hearticled at Wilson, King & Co. in Prince

George,where he became partnerwithinsix months of completing his articles. It was during this period that Chief JusticeBauman gained a reputation for excellence in administrative law, advisingtownsandmunicipalities throughout Northern BC.

In 1977,Chief JusticeBaumanmovedto Kelowna with his wife and two young sons. The next four years were spent at the firm of Wilson Bauman. The family moved to Vancouver in 1982 where he joined Bull,Housser&Tupper,andcontinuedtospecialize inadministrativeandmunicipallaw. In 1996, Chief Justice Bauman wasappointedajudgeoftheSupremeCourtofBCandwas elevatedtotheCourtofAp-peal in 2008.

duringhisyearspractising law,ChiefJusticeBaumanalwaysfoundtimetoshare

his expertise. He has been a member of the Provincial Attorney General Rules Com-mittee, Chair of the Supreme Court civillawcommittee,ChairoftheCBAMunicipalLawSection,andapanellistatContinuingLegalEducation.Healso lecturedatBCITand was an adjunct professor of adminis-trative law atUBC. He performed these,and other professional duties, in tandemwithenjoyingfamilylife.ChiefJusticeBau-man is described as having an outstanding mind and an unwavering sense of fairness and compassion.

The Welcoming Ceremony for the HonourableChief Justice Robert Baumanwillbeheldat9:15amonFriday,October30,2009inCourtroom55attheVancou-verLawCourts.v

Bc lawyers approve agm saving provisionINA REFERENdUM concludedSeptember3,BC lawyersvoted80percent infavour(2,484:589) to amend the Law SocietyRules to add a saving provision regardingtechnical failures at a general meeting.

Rule 1-7(1) allows the Benchers toconduct a general meeting by joining any number of locations by telephone or by any other means of communication that

allows all persons participating in and entitled to vote at the meeting to hear eachother. Rule 1-7(5) requires that thatbe done in a minimum of eight locations aroundtheprovince.TheeffectofRule1-7isthat,ifparticipantsatanymeetingloca-tion are unable to hear and be heard by ev-eryone,theAGMcannotcontinue.

The Benchers sought membership

approvaltoaddasavingprovisiontoRule1-7,thatwouldensureameetingwouldnotbe invalidated by reason alone of a tech-nical failure that prevented one or more members from participating in or voting at themeeting, provided that amajorityof the people participating have voted to continue the meeting.v

2009 annual general meetingTHISYEAR’SANNUALGeneralMeetingwasheld in 12 locations around the province. In total, 200members and 12 students par-ticipatedinthemeeting.PresidentGordonTurriff,QCablychairedthemeeting,whichhad to consider several procedural motions over the course of nearly two hours.

Bruce LeRose, QC was acclaimed as2010 Second Vice-President, and RitaAndreone, speaking to his nomination,noted that LeRosewill be thefirst Presi-dent from the County of Kootenay in the 125-yearhistoryoftheLawSociety.

The members approved setting the 2010practicefeeat$1,633.50, the sameamount as in 2009. In recommending no increaseinthepracticefeefor2010,First

Vice-President Glen Ridgway, QC, ChairoftheFinanceCommittee,notedthattheBenchers considered the current economic climate and the impact this has had on a numberofmembers.Ridgwayalsonotedthat the Benchers reduced the SpecialCompensation Fund fee by $100 and ap-proved an increase in the Insurance fee of $200.

AmajorityvotingattheAGMpassedthree resolutions put forward by Karen WhonnockandLindaLocke,QCregardingimproving Aboriginal participation in thelegal profession. The resolutions called on theLawSocietyto:

1. amend the 2009-2011Strategic Plan

so as to include the retentionofAb-originallawyersasapriorityatStrat-egy1-3onpage4;

2. strike a working committee comprised of Benchers, Aboriginal lawyers andAboriginal law students that will re-view and update the 2000 report on Addressing Discriminatory Barriers facing Aboriginal Law Students and Lawyers; and

3.establishafull-timestafflawyerposi-tion whose sole purpose is to support Aboriginallawstudents,articlingstu-dents and lawyers.

The Benchers will consider the resolutions at a future meeting.v

8BENCHERS’BULLETIN•FALL2009

NEWS

2010 fees due november 30THELAWSOCIETYannualpracticefee,theSpecialCompensationFundassessmentandthefirsthalfoftheLawyersInsuranceFundassessmentaredueNovember30,2009forthe 2010 practice year.

Practice fee: The members set the practice fee for 2010 at the annual general meetingoftheLawSocietySeptember29.The fee and its related components total $1633.50,thesameasin2009.Inrecom-mending no increase in the practice fee for

2010,theBenchersconsideredthecurrenteconomic climate and the impact this has had on a number of members. The practice feewillstillprovideforabalancedGeneralFundbudget.

special compensation Fund fee: The 2010 Special Compensation Fund assess-ment is $50, a reduction of $100 from2009.

lawyers insurance Fund fee: The 2010Lawyers InsuranceFundassessment

is$1600,anincreaseof$200.Theincreaseis intended to help fund an expected in-crease in claims activity and reduced in-vestment income as a result of the eco-nomic downturn.

Those making late payment will in-cur an additional fee of $100 for practis-ing members and $25 for non-practisingmembers,plusapplicabletaxes.v

legal advice-a-thon raises awareness and fundsPROBONOGOINGPublic2009,aninitia-tive ofWesternCanada Society toAccessJustice,ProBonoLawofBCandtheSalva-tionArmyProBonoProgram,heldfreelegaladviceclinicsoutdoorsinmid-SeptemberinVancouver,KelownaandVictoria.Thegoaloftheone-dayeventswastoservethepub-lic,createawarenessaboutlawyers’effortstoincreaseaccesstojustice,andraisefundsto support BC’s pro bono programs.

Seventy-eightvolunteer lawyerspro-videdfreelegaladviceto167clients.Lowandmodest-incomeindividualsandhome-less people appreciated the opportunity to meet with lawyers in the accessible and casual nature of the outdoor clinics. These clientsreceivedmuch-neededguidanceona wide range of legal issues and thanked

the lawyers for helping to ease their stress and fear.

“Mostvolunteerlawyersseemedde-lightedbytheirProBonoGoingPublicex-perience and some lawyers stayed beyond theirscheduledshiftstohelpmoreclients,”saysJamieMaclaren,ExecutivedirectorofProBonoLawofBC.Atonepoint inVan-couver’sVictorySquarePark,therewere11volunteer lawyers providing free legal ad-vicetoclientsatthesametime,requiringafew lawyers and their clients to sit on park benches and on the lawn.

Co-workers,friendsandfamilymem-bers of the volunteer lawyers, as well asthe general public, generously pledgedtheir financial support. Pro Bono GoingPublic2009exceededitsfund-raisinggoal

—pledgedsupporttodatetotals$24,554with an additional $6,500 in corporatesponsorships.

This was the second advice-a-thonin Vancouver and the first time for Kel-ownaandVictoria.ProBonoGoingPublicis intended to become an annual outdoor event in each of these cities.

Maclarensays,“Wefeelthatwewereable to raise considerable awareness in each city concerning the widespread avail-abilityofprobonolegaladviceclinics,thetraditional and substantial benevolence of BC’s pro bono lawyers, and the acuityofthe access to justice crisis that begs for a replenishedlegalaidsystem.”v

new Bencher elected for Prince rupert

suzette narbonne was elected the new Bencher for Prince RupertCountyfor2009.NarbonnereplacesRobertPunnett,QC,appointedtotheSupremeCourtofBritishColumbiaJune19.

CalledtotheBarin1989(Manitoba)and1995(BC),NarbonneisasolepractitionerinPrinceRupertandpractisesprimarilyintheareasofcriminallaw,familylawandhumanrights.Shehasalso

servedasagovernoroftheLawFoundationforthepastsixyears.

Anavidmarathonrunner,Narbonnehasworkedtopromotefitnessinhercommunity.ShecoacheslocalrunnersandledateamofchildrenandadultstotheNationalCapitalMarathoninOttawa(TeamNarbonne).TheCanadianBarAssociation,BCBranch,hon-ouredNarbonne’scommunityspiritwiththeCommunityServiceAwardin2008.

TheLawSocietyexpressesitsapprecia-tion to the following candidates for their participation in this important element ofgovernanceofthelegalprofession.Forabreakdownoftheby-electionresults,seeAbouttheLawSociety/Benchersatlawsociety.bc.ca

RobertCurrie Called to the Bar: 1979 RobertA.Currie,Smithers

WadeMacGregor Called to the Bar: 1990 Talstra&Co.,Terrace

FALL2009•BENCHERS’BULLETIN9

PRACTICE

PRACTICETIPS,bydaveBilinsky,PracticeManagementAdvisor

email and security issues♫ Communication’s never been as easy as today …Now time and distance melt away No digital delay And some things can be written down that we’re too shy to say… ♫LyricsandmusicbyPetShopBoys.

EMAIL TECHNOLOGY IS a double-edgedsword—offering speedandeaseof reply,but carrying with it a litany of possible prob-lemsandmiscommunications,whichmulti-plyquickerthanyoucanclick“send.”

This column identifies some of the practice problems presented by email and computing resources, andoffers practicaltips on how to handle them.

Do you haVe all the emails?

It is unusual for anyone to have just one emailaccount.Assuch,youmayhavecli-entemailsontheofficenetwork,onweb-basedemail suchasGmailorYahoo, andon home email accounts. It is important to gather all those email messages together in one place — either a paper file or an electronic one on your network — ensuring that file contains all communications with the client and other parties.

PassworD Protection

Do you change passwords regularly and immediately change all passwords for em-ployees who have left? It is not unknown for ex-employees to come back into theoffice network via remote access proto-colstodelete informationonthesystem,including any emails they can find. Test your passwords against password check-ers (Microsoft has a goodone) to ensurethatyouareusingstrongpasswords.Useapassword storage application in order that you are not reusing the same password for multiple applications.

email security

We take email privacy for granted, butthere are situations when unencrypted email may not be appropriate. Consider taking the text of the communication and placing it inside an encrypted document

that is attached to a covering email which does not say anything other than “please seeattached.”

lost in translation

You may assume that an email was re-ceived,butitmayhavebeenmisaddressedor caught by a spam filter used by the in-tended recipient. Don’t assume that silence in the face of an email is tacit acceptance of whatwassetforth.Followupunansweredemails with a telephone call.

you’Ve got mail

Don’t let your email pile up in your in-box. Email applications may have a fixed amount of storage; once over this limit,you may lose all your messages. In some cases there is no warning that this is about tooccur.Setupafolderstructureonyournetwork and move your email into the ap-propriate client folder (”save as”) ratherthan keeping it in your email application.

caPture real-time conVersations

Do you use instant messaging to com-municate with clients or other lawyers in

youroffice?TheseIMsmaynotbeloggedbyyoursystem,andassuchthesediscus-sions will be lost as soon as you close the application. Consider how to capture these communications in the same way that you capture emails.

Back-uP your PortaBle

Emails and other documents stored on lap-tops or other portable devices could van-ish if the device is lost or stolen. Take steps to ensure that these communications are automatically copied to or stored on your officenetwork.Alsoensurethattheyhaverobust security (such as hard drive encryp-tion)aswellasremote“wiping”softwareto protect client confidentiality.

Protect your system

Ensure that you have trusted and up-to-dateanti-virusandanti-malwareinstalledonyoursystem.Youdonotwanttobeac-cused of inadvertently transmitting a virus or trojan to a client or lawyer via email.

continued on page 14

10BENCHERS’BULLETIN•FALL2009

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PRACTICEWATCH,byBarbaraBuchanan,PracticeAdvisor

withdrawal of trust funds by electronic transferTHE BENCHERS HAVE rescinded Law So-ciety Rule 3-56(3.1)(a), allowing lawyersto make or authorize the withdrawal offunds from a pooled or separate trust ac-count by electronic transfer, even if the dollar amount to be withdrawn is less than $25 million. Priortothis change, a lawyercould not electronically transfer funds from trust unless the amount was greater than $25million.TherestofRule3-56(3.1)isun-changed regarding the conditions that must be met for an electronic transfer from trust to occur.

Lawyersmustcompleteandpersonal-ly sign the Electronic Transfer of Trust Funds Form locatedonthe LawSocietywebsitefor all electronic transfers from trust (ex-ceptforpaymentstotheLawFoundation).Note that online payments from a trust account via the internet are not permitted. Also,onlinetransferstomovefundsfromalawyer’s trust account to his or her general account are not permitted.

Lawyersarecautionedthat,althoughRule 3-56(3.1) is permissive (use of theword“may”)sothatalawyercouldtheo-retically write a trust cheque for an amount over $25 million rather than withdraw the amount by electronic transfer, finan-cial institutions adhering to the Canadian PaymentsAssociation rules and standards governing the exchange of payment items between CPA member institutions foramounts over $25 million will not accept a trustcheque.TheCPAwascreatedbyfed-eral legislationtoestablish,maintainandoperate a national system for the clearing and settlement of payments. To find out moreabouttheCPA,visitcndpay.ca.

Lawyers who have questions aboutthe electronic transfer of funds are encour-aged to contact their banking representa-tiveandtheLawSociety’sTrustAssurancedepartment at 604-697-5810or trustac-counting@lsbc.org.

interest on PooleD trust accounts – t5 statement oF inVestment income

Formerly (and in some cases it still hap-pens),whenfinancialinstitutionsprepareda Statement of Investment Income (T5)for interest paid on lawyers’ pooled trust

accounts,theT5sweresenttotheindivid-ual lawyer or law firm account holders. The LawFoundationofBC(the“Foundation”)has informedthe LawSociety thatfinan-cial institutions are now consolidating the interestpaidtotheFoundationoneachin-dividualaccountintooneT5,whichissentdirectlyto,andtherecipientidentifiedas,theFoundation.

If you or your firm receive a T5 directly from a financial institution for interest that was paid to the Foundation,you can for-wardtheT5totheFoundation.TheFoun-dationsuggeststhat,beforeforwardingit,youmake sure thatBox22 is blankor, ifnotblank,doesnothaveyourrecipientIdnumber entered in Box 22. If your recipi-entIdnumberappearsinBox22,andtheinterest was paid to the Foundation, thefinancial institution would need to prepare arevisedT5identifyingtheFoundationasthe recipient.

The Foundation does not require acover letter if you forward a T5 to it; how-ever,youmaywishtoprovidealetterforyour records.

a lawyer’s ProFessional anD Personal characteristics

Aland.Hunter,QCobtainedhislawdegreefromtheUniversityofBritishColumbiain1961 and recently retired from practice af-ter an illustrious 47-year career. Thoughhe moved to Calgary early in his career,eventually forming the well known Code Hunter law firm and becoming President oftheLawSocietyofAlberta,Mr.Hunterhas always maintained ties with BC on a personal level if not in practice.

RecentlyMr.Hunterintroducedmetoapaperthathewroteseveralyearsago,A View as to the Profile of a Lawyer in Private Practice (1995), 33 Alta. L. Rev. 831, inpreparation for a national conference on the legal profession and ethics. Based on his experience in private practice and as aBencher,itisMr.Hunter’sviewthatthepublic has a right to expect that a lawyer will possess the professional and personal characteristics listed below. • a thorough understanding of the law;• a recognition that the law is not

immutable and that there is need to have a continuing interest in changes in the law (indeed the lawyer should continuetobeastudentofthelaw);

• a demonstrated analytical ability;• demonstrated written and oral com-

munication skills;• conscientiousness and a good under-

standing of human nature;• a strong interest in problem-solvingbeforethereisaproblem,inriskaver-sion and riskminimization, and afterthere isaproblem, indispute resolu-tion;

• a good imagination for creative solu-tions;

•wisdom;• good judgment;• diligence;• efficiency;• competence;• honesty;• candour;• discretion;• care and prudence;• fearlessness;• the utmost integrity.

Whether just starting out, in the middleornearingtheendofourcareers,this listpresents an opportunity to reflect on our own characteristics and aspirations.

craigslist – scamsters Preying on legitimate sellers

Lawyers should be aware of yet anothercounterfeit cheque and bank draft scam. This one involves home sales on Craigslist.

Now that more legitimate homeown-ers are advertising their homes for sale privatelyon the internet, fake buyers areapproaching the sellers directly rather than goingthrougharealtor.Fortunately,whensome of the unwary sellers have received whattheythoughtwerelegitimateoffers,they sought legal counsel with respect to their conveyances and astute lawyers rec-ognizedtheearmarksof a scambefore itwas too late.

The fake buyers usually say that they live inaforeigncountry (theUnited

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Kingdom is common) and are willing tobuy the property quickly and without ac-tually seeing it. They typically use one of themanyfreeweb-basedemailaddresses,suchasHotmail,YahooorGmail.Thefakebuyer usually sends an amount over the asking price.

If a lawyer gets involved, sometimesthefraudsterdisappears,ortheymaysendthelawyeragenuine-lookingbutfakebankdraft or certified cheque drawn on a Cana-dian bank for more than the asking price. The fraudster wants the seller or the seller’s lawyer to electronically transfer the excess funds before learning that the bank draft or certified cheque is coun-terfeit.

What can you do to protect yourself and your client from illegitimate purchasers?

1. Confirm the buyer’s addresses and telephone number by checking for published addresses and numbers to see if they match.

2.Ask yourfinancial institution to con-tact the bank issuing the certified cheque or bank draft to confirm that the funds have cleared.

3. Wait for the funds to clear before pay-ing out from your trust account. This reduces the risk but may not eliminate it completely.

Formoretipsonprotectingyourself,con-sult the Notice to the Profession issued onMay 14, 2009 and the Summer 2009 edition of Practice Watch.

new twist on Phony DeBt collection scam

Beon the look-out for a new counterfeitcheque and bank draft scam that has sur-facedinAlberta.

AnewclientretainedanAlbertalaw-yer,whoactedfortheclientseveraltimes.The client became a tenant of the lawyer so that the lawyer got to know the client well. Eventually the client asked the law-yer for assistance in collecting a debt. Afake cheque arrived for the amount of the debtpurportedlyfromaQuebeclawfirm.The client was in a rush for the money and askedtheAlbertalawyertowritetheclienta cheque right away for most of the mon-ey,buttoholdbackenoughtopaysomecreditors.Althoughthenameof a lawyeronthefakechequewasarealQuebeclaw-yer,theaddressandphonenumberonthecheque were incorrect.

Fortunately,theAlbertalawyerlookedupthetelephonenumberfortheQuebeclawyer who was the apparent signatory ofthecheque,andtheQuebeclawyerin-formed him that the law firm cheque was phony. Not all of the details are available yet fromAlberta, but the name of a de-ceased lawyer may have also been on the Quebeccheque.

ProViDing client Files in electronic Form

Chapter 10, Rule 8(e) of the Professional Conduct Handbook requires a lawyer, onwithdrawalfromamatter,totakeallrea-sonable steps to assist in the transfer of a client’sfile.Recently,theEthicsCommitteeconsidered what a lawyer’s duty to a client is when the client requests documents in electronic form.

Alawyerhasanethicalduty,onthere-questoftheclient,toprovideaclientwithdocuments in the possession of the lawyer that the client is entitled to have at law. Where a client requests a lawyer to provide documentsinelectronicform,alawyerhasan obligation to provide copies of the docu-ments in the same electronic form in which the lawyer holds them at the time of the client’s request.To read the full decision,seetheannotationinChapter10,Rule8ofthe Annotated Professional Conduct Hand-book ontheLawSocietywebsite.

Further inFormation

Contact Practice Advisor Barbara Buch-anan at 604-697-5816 or bbuchanan@lsbc.org for confidential advice or more in-formation regarding any items in Practice Watch.v

notices from the court

THE PROVINCIAL COURT has issued two practice directions:

1.August12,2009fortheFortSt.John–Cariboo Northeast district, “CriminalCaseflowManagementRules–Arraign-mentandTrialConfirmationHearings,Compliance andAdministrativeCourtSittings.”

This direction has three objectives:

• expand judicial assignmentsforJu-dicialCaseManagers;

• provide a simplified and efficient means of scheduling breach mat-ters;

• enforce compliance with Criminal CaseflowManagementRules.

2.October1,2009fortheVictoriaYouthJusticeCourt,“CriminalCaseflowMan-agementRules–ArraignmentandTrialConfirmation Hearings and Adminis-trativeCourtSittings.”

This direction has two objectives:

• expand judicial assignmentsforJu-dicialCaseManagers;

• enforce compliance with Criminal CaseflowManagementRules.

Visit the court’s website at provincialcourt.bc.ca for the complete text of the practice directions.

TheSupremeCourthas issuedthefollow-ing practice direction:

Commencing October 1, 2009, thecourt will adopt a new procedure to facilitate the recording of appearances on applications in certain civil pro-ceedings. This new procedure is being implemented to assist court clerks in accurately recording the appearances ofparties,counselandothers.

Visit the court’s website at courts.gov.bc.ca for the complete text of the practice direction.v

12BENCHERS’BULLETIN•FALL2009

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INTERLOCK,byPhilipCampbell,M.Ed,RCC

Positive communications“STEWART”ISAproductive and successful partner. He has high standards for himself and equally high expectations of those who workforhim.Unfortunately,legalassistantswho are assigned to him do not seem to last long. They either ask for other assignments or they resign. Two have taken stress leave. Stewart is unapologetic. “The practice oflaw,”hesays,“isnotapicnic.Otherpeople’slives and the success of the firm depend on us doing our work effectively — with preci-sion,withaccuracyandinatimelymanner.IfI’mhardonpeople,it’sbecausetheworkisparamount.”Thosewhoworkforhimsaythat he is constantly critical and seems an-gry a lot of the time. They see him as arro-gant and believe that he is contemptuous of them. They spend a lot of time trying — usually unsuccessfully — to anticipate what his needs or objections might be and try to avoid contact with him as much as possible. Stewartisconstantlyfrustratedattheturn-over rate and complains that he never has time to get someone properly trained be-fore they take off.

“Maureen” has two young teenagersand a husband who works as a retail store manager. Her children call her the judge.

When she fights with them — which is most of the time she is home — they ad-dress her as “YourHonour,”which infuri-ates her even more. She used to correctthem before she realized that this onlyencouragedtheiruseoftheterm.Shemi-cromanages their homework and becomes very angry when their marks do not meet her standards. The more tender moments she had with them when they were young-er are largely forgotten. Her husband is too smarttotellherhefeelslikeheisincourt,but is intimidated by her verbal ability. He feels like he is never permitted to win an argument. Maureen is considering leav-inghermarriagebecause,asshesays,herhusband has spaghetti where his backbone should be.

“Brian” has a strong belief in the in-herent worth and dignity of every human being. This serves him well with much of his clientele, but leads to frustrationwhen his colleagues take a less-than-re-spectful approach with him. His attempts to move to a collaborative approach are metwithcompetitiveness,aggressionand sometimes contempt. He believes that they ignore him and chafes when they joke

about how the tigers would make short work of him if he ever walked into a jungle. He feels like a child in his responses and protestations. While he knows he is com-petentasalawyer,hiscolleagues’antago-nism makes him wonder if he’s in the right career.

Stewart,MaureenandBrianeachhavecommunication problems.

Intheworkplacetoday,asineveryoth-erpartofourlives,ouremotionsautomati-cally filter everything that we hear and see. Weuseouremotions,notlogic,toassess:

• Is the speaker a threat to my agenda and my needs?

•Do I like and trust the speaker?

•Does this information make a differ-ence to me?

• Is it reliable?

Solet’sgetbacktoStewart,MaureenandBrian.

Stewart makes the assumption thatcontent is everything and emotions are ir-relevant. People should be able to get past their emotionality and do what needs to be done.However,heisblindtohisownemo-tionalityandtheways it affectsthewell-being and productivity of those who work for him and try to make him look good. He could listen and validate without ever giving any ground on quality and effective-ness. In the process he may occasionally find,perhapstohisamazement,thatthoseworking for him have contributions that may help him be more effective.

Maureen is caught in a cycle of frus-tration and contempt. At work she maybelievethatherapproach iseffectiveand,using a narrow scope of evaluation, thatmay well be true. But while she may be able to rationalize the negative impactsofher approach inherfirm, she isfindingit difficult to see any positives at home. If shedoesnot change, shewill continuetoalienate her children and may lose her mar-riage. It will be difficult for her to turn the ship around. If she can learn to validate the needs of her family members and give them anattentiveandsupportiveear,twothingsmayhappen.First,shemayrealizethatshegives nothing away by listening and gains

FALL2009•BENCHERS’BULLETIN13

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services for membersPractice and ethics advisorsPractice management advice–ContactDavid J. (Dave) Bilinsky,PracticeManage-mentAdvisor,todiscusspracticemanage-mentissues,withanemphasisontechnology,strategicplanning,finance,productivityandcareer satisfaction. Email: daveb@lsbc.org Tel:604-605-5331or1-800-903-5300.

Practice and ethics advice–ContactBarbara Buchanan,PracticeAdvisor,Conduct&Eth-ics,todiscussprofessionalconductissuesinpractice,includingquestionsaboutclientidentificationandverification,scams,clientrelationshipsandlawyer/lawyerrelationships. Tel:604-697-5816or1-800-903-5300 Email: advisor@lsbc.org.

ethics advice–ContactJack olsen,stafflaw-yer for the Ethics Committee to discuss ethi-calissues,interpretationoftheProfessional Conduct Handbook or matters for referral to thecommittee.Tel:604-443-5711or1-800-903-5300Email:jolsen@lsbc.org.

All communications with Law Society practice and ethics advisors are strictly confidential, except in cases of trust fund shortages.

interlock member assistance Program–Confidential counselling and referral services by professional counsellors on a wide range of personal,familyandwork-relatedconcerns.Servicesarefundedby,butcompletelyinde-pendentof,theLawSocietyandprovidedatno cost to individual BC lawyers and articled students and their immediate families. Tel:604-431-8200or1-800-663-9099.

lawyers assistance Program (laP)–Con-fidentialpeersupport,counselling,referralsandinterventionsforlawyers,theirfamilies,support staff and articled students suffer-ingfromalcoholorchemicaldependencies,stress,depressionorotherpersonalproblems.Based on the concept of “lawyers helping lawyers,”LAP’sservicesarefundedby,butcompletelyindependentof,theLawSocietyand provided at no cost to individual lawyers. Tel:604-685-2171or1-888-685-2171.

equity ombudsperson–Confidentialassis-tance with the resolution of harassment and discriminationconcernsoflawyers,articledstudents,articlingapplicantsandstaffinlaw firms or other legal workplaces. Contact EquityOmbudsperson,anne Bhanu chopra: Tel:604-687-2344Email:achopra1@no-vuscom.net.

trust at the same time. Second, shemayfind that other people — even children — have good and valid reasons for wanting what theywant.Youdon’t have to agreewith those reasons to see how they have validity to the other person. The magic combination of firmness and kindness is far more effective than harsh criticism and attempts at control.

Brian is on the other end of the spec-trum from Maureen. Emotionally, heabsorbs all the slings and arrows and is wounded. Therapy would probably help him develop a sense of self that is more in-dependent of the rudeness of other people. He probably also needs to upgrade his as-sertivenessskills, learninghowtopickhisbattles and how to challenge in a way that doesn’t feed into the pattern of aggression and counter-aggression that seems to bea part of his firm’s culture. His challenge will be to pick the genuine issues out of the bluster of his colleagues and address them in a professional manner. If he can keep his focus on task accomplishment instead of onhowheisbeingtreated,itwillshowinhis body language, facial expressions andvoice. It is this more than anything else that will encourage the others in his firm to seehim,notasachallengeorapushover,but as a colleague.

It would help Stewart, Maureen andBriantorealizethatweevaluate the con-tent of any communication on the basis of whether or not we like and respect the speaker. We like and respect people who acknowledge our needs and are up front about their own needs.

• Our emotional filters are constantlyevaluatingall input — whether from our physical environment or from the communications of others — evaluat-ing the input and matching it with our perceived needs.

• Ouremotionalfiltersarealwaysmo-tivatingustowardPHYSICALaction.

• Anger will show itself first in thevoice. The tone becomes aggressive and the volume increases.

• This is part of the instinct to intimi-date the other person.

• Your arousal is often beyond yourconscious awareness. We’ve all heard someone insisting, at thetopoftheirvoice,thattheyarenot shouting.

• Fear leads to an instinct to leave.You either justwant to getoutofthere,oryoufreezeupcompletely.

• Anger and fear will lead you to re-spond from instinct and not fromstrategy.This is biological program-ming.

• As your emotions rise, your abil-ity to think clearly starts to shut down.

• The same happens to the other person if you trigger their anger or fear.

You reducethe chancesof theotherper-son responding out of anger or fear if you can validate their needsastheyhaveex-pressedthem — not as you actually assess them to be.

• Listencarefully.

• Show an interest and ask clarifyingquestions.

• Initially,donotagreeordisagree.Savethat kind of assessment for negotia-tion.

• Be aware of what your body is com-municating.

• The tone of your voice should have some warmth.

• Makeeyecontactwithoutitbeingalocked in a stare.

• A relaxed and engaged physicalpresence conveys that you are lis-tening,interestedandconsidertheother person’s input as being im-portant.

•When you show you care about the other person’s expressed needs, youincrease the chances that they will care about yours. This allows you to find a common purpose and common solutions.

As you validate the needs expressed byothers — even when they seem contra-dictory to your needs — you give nothing away,you increasethe chancesthattheywill listen to your needs and you become a much more effective communicator.v

InterlockEmployeeandFamilyAssistanceProgram is a division of PPC Worldwide. Contact us at 604-431-8200 or 1-800-663-9099,orvisitinterlock-eap.com.

14BENCHERS’BULLETIN•FALL2009

PRACTICE

the equity ombudsperson … here to help

Lawfirmshaveadutytofosteraprofessionalworkenvironmentthat promotes equal opportunities and prohibits discriminatory practices.Whenfirmsdonotliveuptothatduty,therecanbeseri-ous consequences for everyone.

To help stop workplace discrimination and encourage equitable workplacepractices,theLawSocietyoffersBClawfirmsthe

servicesofanEquityOmbudsperson.TheOmbudsperson,anne Bhanu chopra,confi-dentially assists anyone who works in a firm in resolving concerns over possible discrimi-nation,andassistslawfirmsinpreventingdiscriminationandpromotingahealthyworkenvironment.

TheEquityOmbudspersonisindependentoftheLawSocietyandreportsonlyanony-mousstatisticaldatatotheSociety.Lawfirmstaff,lawstudents,articledstudents,lawyers,humanresourceadministratorsandmanagingpartnersinlawfirmsareallwelcome to contact the Equity Ombudsperson.

Chopracanbereachedonherconfidential,dedicatedtelephonelineat604-687-2344or by email to achopra1@novuscom.net.

what the ombudsperson can offer your law firm:

• advice and strategies to meet your obligations under the Human Rights Act and the Professional Conduct Hand-book;

• educational seminars for members of your firm;

• confidential discussion of a particular problem,ifyouareworriedaboutanincident and want to know about your options and the impact on the firm;

• trainingtoconductbias-freeinter-views;

• strategies for creating a positive law firmculturethatisrecognized,appreci-ated and sought after;

• strategies to rejuvenate your work-place and increase productivity.

For the recorD

Emails are subject to discovery and can be actionable. Ensure that your staff only uses your email system for your office-relatedmatters.Haveanauthorizedusepolicyforyour office that details appropriate (and in-appropriate)useofyouremailandinternetresources.

metaData

Don’t email electronic documents without first removing the metadata. Consider us-ing a metadata removal tool or converting documentstoPdF(andusingthemetadataremovaltoolinAdobe)toensurethatyouare only sending information you wish your clientorotherpartiestosee.Readthede-cember 2008 “PracticeTips” formore in-formation about metadata.

clean slate

Securelydeletealldataoncomputersthatarebeing retired.Youdon’twantto seeanews headline about lawyer and client data turning up on a discarded computer.

remote connections

Do not have file sharing applications on any computer that connects to the office net-work. There is simply no reason for these applications to be within an office network.

Email security ... from page 9

Ensure that your remote access imple-mentation meets current state of the art security and encryption.

yours truly…

Create an email signature block containing your contact info that is automatically at-tached to every message. In that signature block, assert a claimofprivilegeoverthecontents of the email and attachments.

clear the air

Firmupyourretainerbeforeyougiveanyadvice via email.

minD your manners

While email is very easy and convenient,as lawyers we still need to maintain a pro-fessional approach.Most importantly,weneed to guard against saying something in an email that we would not consider say-ing face to face with someone or, worseyet,notliketoseeinprintintheVancou-ver Sun.

Foradditionaltipsonemail,seethelat-est edition of Insurance Issues: Risk Manage-ment,“Email:Preventingamailstrom.”v

The 2009 Pacific legal technology conferencewasheldFriday,October2,2009attheVancouverTrade&ConventionCentre.Recordattendancemeantstanding-roomonlyinsomepresentations.dr.MichaelGeist,lawprofessor,bloggerandcolumnist,gaveanentertainingandthought-provokingkeynoteonhowblogs,Twitter,websitesandotherinternet-driventechnologieshavechangedhowgovernmentsshapelegisla-tioninlightofthenear-instantaneouscommentaryandcollaborationabilitiesofthepopulace using the web.

Other sessionsdealtwithgoingpaperless,thevirtual lawofficeandthe latestone-discoveryande-preparationoflitigationfiles.Privacy,securityandiPhonesandBlackberriesallhadtheirtime,aswellastimeandtaskmanagementusingtechnol-ogy.Theconferenceclosedonaexhilarating60Tipsin60Minutes,thatmanagedtosqueezeinover100tipsinall.

Powerpointsusedinthepresentationscanbefoundatpacificlegaltech.com/ses-sions.html and the conference papers and materials are available for purchase for $149 +tax.Formoreinformationortoplaceyourorder,emailinfo@pacificlegaltech.com.

FALL2009•BENCHERS’BULLETIN15

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Discipline digest [Editor’s note: This digest has been updated to reflect a subsequent finding in the Vivian Chiang matter.]

Please find summaries with respect to:

• donaldWayneSkogstad• SheldonGoldberg• VivianChiang[originallypublishedasLawyer9]• HaroldGarrettPower• Bradley Darryl Tak

Forthefulltextofdisciplinedecisions,visittheRegulation&Insurance/RegulatoryHearingssectionoftheLawSocietywebsite.

DonalD wayne skogstaDNelson, BCCalled to the bar: July 10, 1979Discipline hearings: October 23 to 26 and November 1 and 2, 2006, De-cember 18 to 21, 2007 and March 13, 2008 (facts and verdict); May 20, 2009 (penalty)Panel: Robert McDiarmid, QC, Chair, Thelma O’Grady and Ralston Al-exander, QCReports issued: October 24 (2006 LSBC 40) and November 9, 2006 (2006 LSBC 43), July 3, 2008 (2008 LSBC 19) and May 22, 2009 (2009 LSBC 16)Appeal hearing on interlocutory application: May 11, 2007Appeal decision: June 5, 2007 (Skogstad v. Law Society of BC, 2007 BCCA 310)Counsel: Jean Whittow, QC and Efrem Swartz for the Law Society and Bryan Baynham, QC and Jay Havelaar for Donald Wayne Skogstad

FactsOnFebruary15,2005acitationwasissuedagainstdonaldWayneSkog-stad alleging seven counts of professional misconduct.

ThefactsgivingrisetothiscitationtookplacefromJanuary1997tode-cember1998whenSkogstadactedforclientV,anoffshorecompanythatwasownedandoperatedbyF,anotherclient.Onthe instructionsofF,SkogstaddirectedtheestablishmentofoffshorecompanyVintheTurks& Caicos Islands with the assistance of a law firm there. The purpose of thebusinesswastoidentifyandparticipateinhigh-risk,high-yieldinvest-ments with the expectation that any returns on the investments would be sheltered fromCanadian income tax. F found prospective investorsand persuaded them to invest in the company.

Vgaveinstructions,alwaysthroughF,withrespecttothe“investments”SkogstadwastomakeforV.Skogstadpermittedhistrustaccounttobeused to pool monies for persons who were not his clients for use in vari-ousinvestments.BetweenJanuary1997andApril1999about$2millionwasdeposited inSkogstad’strustaccount.A significantportionofthismoney was invested in programs that turned out to be scams.

Skogstadbecameawareofthepotentiallyfraudulentnatureofthepro-gramsandadvisedFoftheseconcerns,buthedidnotadviseindividualinvestorsand,infact,didnotknowwhomanyofthemwere.

In his response to the complaint of an individual investor, SkogstadprovidedfalseinformationtotheLawSocietystatinghehadnoinvolve-mentwith Investors International, an organization that held seminarspromotingthe schemes, andthathedidnot run,manageorhaveanyinvolvement in any kind of investment pool.

Preliminary mattersAtthestartofthehearing,counselforSkogstadmovedtohavetheci-tationquashed,oralternativelyfora stayofproceedings,onthebasisof unreasonable delay causing prejudice to him. The panel rejected the motiononthebasisthatthedelaywasnotunreasonableorinordinate,twoyearsofthedelaywascausedbytheRespondent,thepublicinterestrequiredahearingonthecitationandanyunfairnesstotheRespondentcould be overcome.

duringthehearing,thecounselforLawSocietyattemptedtoquestiontherespondentonmattersthatwereprotectedbysolicitor-clientprivi-lege. Thepaneldeterminedthatthequestioningcouldoccur,providedthatstepsweretakentomaintaintheprivilege,byclosingthehearingtothepublicwhenprivilegedmatterswerethesubjectoftestimony,andbyanonymizingallclient references.Thepanel’sdecisionwasappealedtotheCourtofAppeal,whichupheldthepanel.

VerDictOnthefirstcountofthecitation,thatSkogstadknowinglyassistedhisclientsinperpetratingafraudulentinvestmentscheme,thepanelfoundthat the evidence did not support an allegation that he assisted V and persons associated with V in the perpetration of an investment scheme that he knew or ought to have known was a deception or betrayal of the public.

Onthesecondcount,thepanelfoundthatitdidnothavetheauthoritytofind a breach of the Securities Act and therefore dismissed the allegation Skogstadengagedorassistedotherstoengageintradesinsecurities.

Onthethirdcount,thepanelfoundSkogstadguiltyofprofessionalmis-conduct for failing to advise investors that he was not representing their interests,contrarytoChapter4,Rule1oftheProfessional Conduct Hand-book.

Onthefourthcount,thepanelfoundthatSkogstaddidnotoweadutyasprotectorofatrustand,therefore,therewasnoconflictbetweentheinterests of his client and the interests of the beneficiaries of the trust.

Onthefifthcount,thepanelfoundthat,asSkogstaddidnotactfortheClientInvestorsandwasnotprotectingtheirinterests,theevidencedoesnot support anallegationthatSkogstadwas in conflictwith regardtoacting for Client Investors while acting for V.

Onthesixthcount,thepanelfoundthereweremanyinstanceswherede-posits were made to the V trust account without the source of the deposit being known and recorded. Without the ability to verify the expectations ofthedepositor,itisnotpossibleforthelawyertoknowaproposedpay-ment from the trust account meets the requirements for a withdrawal. ThepanelfoundrepeatedviolationsofRule3-60andassuchfoundSkog-stad guilty of professional misconduct.

Finally,thepaneldismissedtheallegationthatSkogstadfailedtoprovideallbooksandrecordspromptlycontrarytoRule4-43.

Penalty Inreaching itsdecisiononpenalty,thepanelnotedthatthemostseri-ousallegationsagainstSkogstadweredismissedduringtheproceedings.Thepanelalsonotedthat,whileSkogstadhadcommittedprofessionalmisconduct,hewasnotaparticipantinthefraudulentschemesanddidnotpersonallyprofitfromthe investors’money.Accordingly,thepanelorderedthatSkogstad:

1. be suspended for three months; and

2.payacontributionof$20,000tothecostsoftheproceedings(ac-tualcostswereapproximately$200,000).

16BENCHERS’BULLETIN•FALL2009

REgulATORy

shelDon golDBergVancouver, BCCalled to the Bar: January 3, 1973Ceased membership: August 1, 2009Discipline hearing: March 26 and 27, 2008Panel: Bruce LeRose, QC, Chair, Dirk Sigalet, QC and Peter Warner, QCReport issued: May 29, 2009 (2009 LSBC 18)Counsel: Jaia Rai for the Law Society and Sheldon Goldberg on his own behalf

SheldonGoldbergsignedanundertakingtoresignhismembershipintheLawSocietyeffectiveAugust1,2009.Hewillnotapplytobereinstatedforfiveyears,norwillheapplyformembershipinanyotherjurisdictionwithoutadvisingtheLawSociety.Hewillnotallowhisnametoappearon the letterhead or work in any capacity for any lawyer or law firm in BC withoutfirstobtainingwrittenconsentfromtheLawSociety.

Asaresultofthisundertaking,thedisciplineCommitteehaswithdrawnthecitationandplaceditinGoldberg’spersonalfile,forconsiderationbythe Credentials Committee if he applies for reinstatement.

FactsOnAugust14,2008acitationwasissuedagainstSheldonGoldbergforfailing to attend a fix date appearance in Provincial Court and for failing torespondtocommunicationsfromtheLawSocietyinthecourseofitsinvestigation of complaints against him by the Provincial Court judiciary.

Failingtoattendafixdateappearance

GoldbergrepresentedtheaccusedinR v. P and appeared at an arraign-menthearingonJuly17,2007attheVancouverProvincialCourthouse.Atthatarraignment,thematterwas referredtoa casemanagertofixathree-daytrial.GoldbergrequestedthematterbeputovertoJuly18,wheretheaccusedwouldappearonhisownbehalfandGoldbergwouldtrytopre-arrangeatrialdate.

No datewas fixed by the July 18 appearance.At that hearing,CrownCounseladvisedthatGoldbergsentanoterequestingthematterbeputovertoJuly20.Asaresultthematterwasadjourned.

When R v. Pwascalledat2:49pmonJuly20incourtroom307,Goldbergwasnotinattendance.Hedidnotspeaktohisclienttoexplainhisnon-attendance,nordidheexplainwhyatrialdatehadnotbeenset.

Crown Counsel for R v. PsawGoldbergjustoutsideorinsidecourtroom307immediatelypriortothecasebeingcalled.HesaidthatGoldbergat-tendedbrieflyandadvisedhecouldnotgetathree-daytrialuntilJanuaryandsohehadnotsetatrialdate.CounseladvisedGoldbergtoaddressthematterontherecord,butGoldbergsaidhewantedthemattertogoovertoJuly23whenhecouldhopefullyattend.

CrownCounselreportedhisconversationwithGoldbergtothepresidingjudge,whoaskedwhereGoldbergwent.CounselreportedandaSheriffconfirmedthatGoldbergwasbeforeajudgeincourtroom303,justdownthe hall.

The judge stood down R v. PandorderedGoldbergtoappearbeforehimwhen a break occurred. Crown Counsel in courtroom 303 relayed the order toGoldberg.Goldberg responded by saying “No. I am going toSurrey,”randownthestairsandawayfromthecourthouse.

R v. Pwasrecalledat3:15pm,atwhichtimecounselfromCourtroom303reported on what had transpired. R v. P was stood down and adjourned to July23,whenGoldbergwasorderedtoappearandexplainhisfailuretocomply with the judge’s order.

Goldberg submitted he had a higher purpose in postponing theR v. P matter—thathehopedtoconvincethejudgeatwo-daytrialwouldbebetter and therefore achieve an earlier trial date for his client. He added

that circumstances beyond his control created a dilemma where the least disrespectfulchoicewastogototheSurreycourthouseandcontinueatrial there.

The panel found these excuses to be unacceptable.Goldberg allowedhimself to be scheduled to appear in courtrooms on five matters in two separate cities in a singleday, and so is theauthorofhisownmisfor-tune.

FailuretorespondtocommunicationsfromtheLawSociety

Onthebasisoftheallegationoutlinedabove,theLawSocietylaunchedaninvestigationintoGoldberg’sconduct.AnoutsideinvestigatorretainedbytheLawSocietymadefiveseparateinquirieswithGoldberg,towhichhe did not respond appropriately.

IttookGoldbergsixweekstoreplytothefirstoffiveletterssenttohimby the investigator. Instead of providing a candid and complete response to these inquiries,Goldberg respondedby accusing the investigatorofbias.

VerDictAsanofficerofthecourt,alawyerhasanabsoluteobligationtoattend,whetherfortrialor adjournmentpurposes, to servethe client, respectthecourtandrespecttheadministrationofjustice.Failuretofulfillthatobligation is conduct deserving of sanction.

The panel found that Goldberg’s behaviour collectively trivializes thedutyofalawyertohisclientandthecourts,andisdisrespectfulofthosewho administer the justice system. His behaviour is deliberately disrup-tiveandresults in,amongotherthings,dissatisfiedclients.Further,hisconduct demonstrates gross neglect of his duties as a lawyer and consti-tutes professional misconduct.

The panel characterizedGoldberg’s conduct in responding to the LawSociety-appointed investigator as delayed, then clever, selective andincomplete.The panel found thatGoldberg’s responseswere a breachof the Professional Conduct Handbook and constituted professional misconduct.

ViVian chiang [originally published as lawyer 9]Discipline hearing: October 7 and 8, 2008Panel: majority decision: Thelma O’Grady, Chair, and Karl Warner, QC; minority decision: Ralston Alexander, QC Report issued: June 17, 2009 (2009 LSBC 19) Counsel: Maureen Boyd for the Law Society; Vivian Chiang on her own behalf

FactsUnderLawSocietyRule4-38.1(2)ifallcountsofacitationaredismissed,the hearing report summary must not identify the respondent.

AcitationwasauthorizedagainstVivianChiangallegingfourcountsofprofessionalmisconduct.Oneallegationwaswithdrawn,andthehearingproceeded on three allegations of acting contrary to the duty of an of-ficerofthecourtormisleadingthecourt.TheLawSocietyalsoaskedthepaneltoconsiderafindingofincompetence.Atalltimesrelevanttothiscitation,Chiangwasapart-time,practisingmemberoftheLawSociety.

ChiangwasthemajorityshareholderinFInc.,whichoperatedawholesaleproducebusiness.Afteradisputewithseveralotherproducecompaniesregarding a shipmentofmangos, amandatory arbitrationhearingwasheldbytheFruit andVegetabledisputeResolutionCorporation (dRC)andFInc.wasfined$13,000US.ThecompanyrefusedtopaythefineandF Inc.’smembership inthedRCwassuspended.AnoticeofsuspensionwascirculatedtodRCmembers,whichhadanallegednegativeimpacton the business.

FALL2009•BENCHERS’BULLETIN17

REgulATORy

WithChiangservingascounsel,F Inc.commencedproceedingsagainstdRC and other defendants, filing an ex parte application to have the suspension set aside on the basis of wrongful interference with the busi-nessofFInc.TheapplicationalsosoughtretractionofthedRC’snoticeof suspension and a courtorder to stopdRC from issuing any furtherdefamatorypublicationsaboutFInc.

The ex parteapplicationwasheard inChambersonMarch11,2005byJudgeA.ChiangdidnotidentifyherselfasalawyerandinsteadactedinhercapacityasanofficerofFInc.

The judge advised she was unable to grant the relief sought since the de-fendants were neither present nor had they been served with the Notice ofMotion.Shethenturnedthehearing intoaShortLeaveapplication.The judge further advised that only one aspect of the application could beconsideredonshortleave,namelythepleaforinjunctivereliefagainstdRCfrommakingfurtherallegedlydefamatorypublications;theothertwo items required a full hearing.

ThejudgeprovidedaNoticeofShortLeaveanddirectedChiangtoservethisNotice alongwiththeNoticeofMotionandAffidavitmaterialoncounselfordRC.

TheShort LeaveRequisitiondidnot specifywhichpartsofthemotionwere approved for short leave. Further, Chiang did not indicate therewere limitations placed upon the application when serving materials on counselfordRC.Asaresult,dRCpreparedforandrespondedtoallthreeclaimsforreliefinChambersbeforeJudgeBonMarch15.Atthathearing,Chiang spoke to all three claims.

OnMarch16,JudgeBdismissedallthreeapplicationsforrelief.ChiangfiledaNoticeforLeavetoAppealonApril25,shortlyafterwhichdRCandanotherpartyfiledaNoticeseekingdismissalofFInc.’sactioninitsentirety.

ThedismissalmotionwasscheduledtobeheardonJune23,2005.OnJune16,ChiangappearedinChambersbeforeJudgeCwithoutnoticetoanypartyandmadeanapplicationforadjournmentor,inthealternative,shortleaveonamotiontoadjournthehearing.ShortleavewasgrantedandtheadjournmentapplicationwasheardonJune17.AtthattimeChi-angadvisedthat,whileoneoftheopposingpartieswasagreeabletoad-journment,theotherwasnot.AsaresultJudgeCadjournedthematteruntilthenextdayandinthepresenceofallcounsel,orderedthedefen-dants’applicationbeheardAugust8.

ThematterultimatelycamebeforeJudgedonAugust8andafterahear-ing the action was dismissed.

VerDict Majority(ThelmaO’Grady,Chair,andKarlWarner,QC)

The majority was guided in its deliberations by F.H. v. McDougall, 2008 SCC53.Althoughnotadisciplinecase,this judgmentaffirmsthattheburdenrestsontheLawSocietytoprovewithevidencethatisclear,con-vincing and cogent the facts necessary to support a finding of professional misconduct or incompetence on a balance of probabilities.

Misleading the court

There was no satisfactory or convincing evidence to suggest Chiang sought an advantage by failing to inform the court she was a member of theLawSociety.Norwasthereanyevidenceshecouldordidreceiveanadvantage by presenting herself as a lay litigant.

Allmembersofthepanelwereunabletofindauthorityforthepropo-sitionthat,whena lawyerappears incourtonbehalfofacompanyofwhichthelawyer isaprincipal,thatthelawyer isobligedtoadvisethecourt of the fact that he or she is a lawyer and that failure to do so is a lackof candouronthepartof themember.Accordingly, therewasnofinding of professional misconduct for failing to identify as a member of theLawSociety.

Chiang should have outlined the relief requested and the limitations of theShortLeaveOrdergrantedbyJudgeAattheoutsetoftheChambershearingbeforeJudgeB,butdidnot.Instead,sheembarkeduponadiscus-sion of the underpinning facts of the case.

The facts were relevant as background for injunctive relief and were thereforeproperlybeforethecourt.However,themajorityfoundthattherespondent erred by failing to state outright the limitation of the short leave order. This should have been done at the outset of the hearing.

However,themajoritycouldfindnoinstanceinthetranscriptwhentherespondent did not respond other than truthfully when asked a question by the court.

Whenmakingtheapplicationforadjournment,Chiangwasnotasclearas she should have been with respect to her acceptance of the conditions uponwhichdRC’sconsentwouldbegivenfortheadjournment.Herlackofclaritycanbeseenfromthetranscript,butitdoesnotdisplayanin-tended desire to mislead. The majority found no professional misconduct.

Incompetence

Afindingofincompetenceisbasedonapatternoveranumberofcasesinvolvingdelay, lackofknowledgeoverwideareasof law,severeprob-lemsofsubstanceabuse,emotionalorpsychiatricdifficulty,consistentabusive language or consistent disrespect for the courts.

No such patterns or instances of repetitive behaviour were offered in the evidence presented at the hearing. The majority could only observe that Chiangbeganasingleaction,mistakenlyconceivedfromtheoutset,andjurisdictionally with little or no apparent merit.

WhileLawSocietyinterventionmaybeappropriatewhenasingleinstancerisestodemonstrateapotentiallackofjudgment,suchaninterventionismostfrequentlymanifestedbywayofConductRevieworthrougharecommendation to seek the assistance and guidance of senior counsel.

ThemajoritydidnotfindincompetenceandtrustedthatChiang,bygoingthroughthisseriousprocess,hadbeensufficientlyadmonishedtoneverallow her judgment to be clouded again and that she will never find her-self practising in an area of the law so apparently foreign to her.

Minority(RalstonS.Alexander,QC)

The minority also adopted the reasoning in F.H. v. McDougall, supra,find-ingthatthenecessaryclear,convincingandcogentevidencetosupportthe allegation misleading the court by failing to disclose limitations on theshortleaveapplicationimposedbyJudgeAhadbeenadducedbytheLawSocietyinthecourseofthedisciplinaryhearing.

There was no debate on the issue of whether or not the court was mis-led. Even the evidence of Chiang was consistent on the issue of her lack ofentitlementtospeaktoallthreeparagraphsinherNoticeofMotionseeking relief.

Adeterminationofprofessionalmisconductdependsonintent.Allavail-able evidence pointed overwhelmingly to the fact that Chiang intention-allyproceededtoseekreliefinrespectofaportionoftheNoticeofMo-tionforwhichshortleavehadnotbeengrantedbyJudgeA.

Chiang’s explanations as to why she proceeded despite the orders of JudgeAwerenotcredible.Sheactedwilfullyandknowinglyandwith-outregardforherprofessionalresponsibilitiestothecourtandtheLawSociety.

MisleadingthecourtinthismannerrepresentedamarkeddeparturefrombehaviourtheLawSocietyexpectsof itsmembers.Theminorityfoundprofessional misconduct.

Bencher reViewThe Discipline Committee has referred this decision under section 48 of the Legal Profession Act for review by the Benchers.

18BENCHERS’BULLETIN•FALL2009

REgulATORy

harolD garrett PowerVancouver, BCCalled to the Bar: November 19, 1999 Ceased membership: May 19, 2009Disbarred: July 15, 2009Discipline hearing: July 15, 2009Panel: Glen Ridgway, QC, Chair, Leon Getz, QC and Herman Van OmmenOral decision on facts and verdict: July 15, 2009Report issued: July 24, 2009 (2009 LSBC 23)Counsel: Maureen Boyd for the Law Society and no one on behalf of Harold Garrett Power

FactsA citationwas issuedonMay 14, 2009 allegingHaroldGarrett PowersubmittedfalseinformationonhisApplicationforEnrolmentintheLawSocietyAdmissionProgram.

Power’slegalnameatbirthwasHaroldGarrettPower.HewasadoptedandgiventhenameGaryJosephMcGory;however,hisadoptiveparentsdid not change his name legally. Power learned of his true name in his 30s andsubsequentlyusedthenamePowerforsomepurposesandMcGoryfor other purposes.

InMay 1994, Powerwas arrested inToronto under the nameofGaryJosephMcGoryandchargedwithfivecountsofobtaining,forconsider-ation,thesexualservicesofapersonunder18years.Hewascommittedtotrialonthreeofthosecountsandwasacquittedin1998.Atthattime,he did not advise the police or Crown Counsel that his legal name was HaroldGarrettPower.

In1997,PowerobtainedhislawdegreeattheUniversityofTorontoandin1998,appliedtotheLawSocietyofBC’sadmissionprogramunderthename HaroldGarrett Power.On his application for enrolment, Powerfailed to disclose that he had previously used the name Gary JosephMcGoryandthathehadbeenchargedinOntariowithcriminaloffences.

In2007,PowerwaschargedinBCwithsexualexploitationofaminorun-ders.153(1)(a)oftheCriminal Code.Asaresultofthosecharges,theLawSocietybecameawarethatPowerhadpreviouslyusedthenameMcGoryand had previously been charged with criminal offences.

TheLawSocietywrotetoPoweraskingtoexplainhisfailuretodisclosetheOntariocriminalchargesandhisprioruseofthenameMcGory.Af-ter several exchangesof emails, Power stated that he had never beenchargedorconvicted,norhadheusedanyothername.

In giving evidence at his trial inMarch 2009, Power admitted that heliedontheLawSocietyapplicationformwhenhedeniedusinganyothername and when he declared he had never been charged or convicted of any offences under the Criminal Code.

ShortlyafterhisconvictionontheBCcriminalcharges,PowerwrotetotheLawSocietytoadvisethateffectiveimmediatelyhewaswithdrawingasamemberoftheLawSocietyandceasingthepracticeoflaw.OnJune5,2009PowerinformedtheLawSocietythathedidnotintendtocontestthecitationandstatedthat,sincehehadalreadyresignedfromtheLawSociety,hedidn’tseethepointofanyhearings.

PowerdidnotappearatthescheduledhearingonJuly15,2009;however,the panel decided to proceed in his absence.

VerDictThe panel found that Power knowingly and intentionally failed to disclose information about his past. Power further aggravated the situation by lyingtotheLawSocietyonthreeoccasionsduringits2008investigationinto the 1994 criminal charges and Power’s previous use of another name.

Thesefacts,coupledwithhislackofremorse,ledthehearingpaneltofindPower guilty of conduct unbecoming of a lawyer.

PenaltyAlthoughitmayappearoddthatapanelmaysuspendordisbaranon-member,theLegal Profession Act requires that it be done if that is the appropriate penalty. The panel decided to impose the penalty that would be appropriate if Power were still a member.

Powerliedinordertoconcealhistrueidentity,whichpreventedtheLawSocietyfromconductingabackgroundcheckwithrespecttocharacter,especially a criminal records check. The panel had no evidence that Power understoodandacknowledgedhiswrongfulconductand,asaresult,thathe could rehabilitate himself such that there would likely be no reoccur-renceofdishonestconduct.Additionally,theaggravatingfactorofPowerlying to the Law Society on three separate occasions about his initialfalsehood was significant.

The panel ordered that Power:

1. be disbarred; and

2. paycostsof$5,000.

BraDley Darryl takPort Moody, BCCalled to the Bar: February 15, 1991Discipline hearing: July 21, 2009Panel: Bruce LeRose QC, Chair, Dr. Maelor Vallance and Herman Van OmmenReport issued: September 2, 2009 (2009 LSBC 25)Counsel: Eric Wredenhagen for the Law Society and Bradley Tak on his own behalf

FactsOnAugust19,2008,theLawSocietywrotetoBradleydarrylTakinquir-ingabouthisfailuretoreportcertainjudgmentstotheLawSocietywithinseven days of the date of entry of those judgments. It appeared those judgmentsremainedunsatisfied,contrarytoLawSocietyRule3-44(1).

TakleftavoicemailmessageonSeptember2,2008askingforadditionaltimetorespondtothe letter.TheLawSociety issuedfollow-up lettersdatedSeptember29,November3anddecember3.Thedecember3let-ter advised Tak that failure to respond would result in the matter being referred to the Professional Conduct department.

Receivingno response,thefilewas referredtoProfessionalConduct inJanuary2009.An investigatortelephonedTakonJanuary 13, leavingavoicemail message asking him to respond. He did not respond to that voicemailandtheinvestigatorwrotetoTakonJanuary22,requestingaresponsebynolaterthanFebruary5.

TheinvestigatorleftasecondvoicemailmessageforTakonFebruary6,andalsowrotealetterthatsameday.Inthatletter,theinvestigatorad-visedTakthatfailuretorespondbyFebruary11wouldresultinthematterbeing referred to the Discipline Committee with a recommendation that a citation be issued.

Takrespondedwitha letterdatedFebruary11,howeverhedidnotan-swer the investigator’s questions completely and issues were raised that requiredfollow-up.OnFebruary12,theinvestigatorwrotetoTakaskingfor clarification of specified matters and answers to additional questions byFebruary26.

Afterafurtherexchangeofvoicemails,TakprovidedasecondresponseonMarch5.Again,hisresponsewassubstantive,butleftquestionsopenthatrequiredfollow-up.

FALL2009•BENCHERS’BULLETIN19

REgulATORy

credentials hearingLAWSOCIETY RULE 2-69.1 provides for the publication of summariesof credentials hearing panel decisions on applications for enrolment in articles, call and admission and reinstatement. If a panel rejects anapplication, the published summary does not identify the applicant without his or her consent.

Forthefulltextofhearingpaneldecisions,visittheRegulation&Insur-ance/RegulatoryHearingssectionoftheLawSocietywebsite.

Jungwoon (Pierce) lee New Westminster, BCHearing (application for enrolment as an articled student): June 3 and 4, 2009Panel: Robert D. Punnett, QC, Chair, Haydn Acheson and David Mossop, QCReport issued: July 21, 2009 (2009 LSBC 22)Counsel: Jason Twa for the Law Society and Kevin Woodall for Jungwoon (Pierce) Lee

Jungwoon(Pierce)LeeattendedUBClawschoolbetween2004and2007and receivedhis LLB. InOctober 2008, Leeobtained an articling posi-tion and submitted his application for enrolment as an articled student to theLawSociety.TheCredentialsCommitteeorderedahearingrelatedtothreeassaultsbyLeethatraisedconcernabouthisfitnesstobeenrolledasanarticledstudent.Additionally,LeefailedtodisclosetotheLawSoci-ety a fourth assault that occurred in 2006.

Thethree incidentswhereLeeengaged inphysicallyaggressivebehav-iourinvolvedafellowhighschoolstudentin2000,hisyoungerbrotherin 2003, and a former girlfriend in 2004. In 2006, in another physicalaltercationwithhisyoungerbrother, Leegrabbeda largekitchenknifeandverballythreatenedhisbrother.Thepolicewerenevercalled,andnochargeswerelaid.LeefailedtodisclosethisincidenttotheLawSociety.

Leewasassessedtoevaluatehispropensitytowardsassaultivebehav-iour. He described having poor role models in his parents in terms of both emotionalandphysicalrestraint.Leehadinitiallyshownaratherlacklus-treattitudetowardsrehabilitation;however,afterattendingafewses-sionswithanangermanagementcounsellor,hedecidedtostartdealingwithhisproblem.Leehassinceparticipatedingroupcounsellingaswellasasix-weekangermanagementprogram.

ThecounsellorreportedthatLeeappearstohavemoreinsightintothefact that, as a professional, therewould be serious consequences thatwould jeopardizehisprofessionalstatuswereheevertoactoutphysi-callyeveninahighlyprovocativesituation.ThecounsellorperceivesLeeto be at a low to medium level of risk. He is not a low risk because of thehistoryinhiscase,butalsonotamediumriskbecausehehasmadedefiniteprogressandhascometocertainrealizationsashehasmaturedover the past few years.

Thepanelwasimpressed,notonlybyLee’seffortstorehabilitatehimself,but also by the evidence of what he has learned from his counselling ses-sions and the anger management group sessions.

ThepanelconcludedthatLeepassedthefitnesstest.Lee isallowedtoenrol in the admissions program as an articled student; however, thepanel ordered that:

1. beforethearticlingagreementisenteredinto,anyprospectiveprin-cipal must be informed of and given a copy of the panel’s decision;

2. theprincipalmustundertaketotheLawSocietytoinformtheLawSocietyforthwith,inwriting,ofanyaggressivebehaviourinvolvingLeethattheprincipalbecomesawareof,whetherornotsuchbehav-iour occurs during working hours;

3. theprincipalmustundertaketoprovidequarterlyreportstotheLawSocietysettingouthowLeeisprogressinganddealingwithhisangermanagement issues;

4. Leemustdevelopandfollowwiththecounsellor,oranotherpersondesignatedbythecounsellor,acounsellingprogram,includingone-on-onecounsellingdealingwithangermanagement;

5. Lee must see any psychologist or psychiatrist as directed by the Credentials Committee; and

6. at the end of his admission program, Lee must provide the LawSocietywithanaffidavitdetailinganyaggressivebehaviourorangermanagementissuesinvolvingLeeduringhistermintheadmissionprogram,whetheror not suchbehaviouroccurredduringworkinghours.

ThepanelorderedthatLeepaycostsof$500.

ThishearingdealsonlywithLee’senrolmentintheadmissionprogram;the Credentials Committee still has to decide whether Lee should becalled and admitted as a lawyer.v

TheLawSocietyinvestigatorwrotetoTakonMarch19,askingadditionalfollow-upquestions.Hedidnotrespond,despitetheissuanceofacita-tion.Asofthedateofthehearing,TakhadstillnotprovidedanswerstothequestionsraisedbytheinvestigatorintheMarch19letter.

TakadmittedthathefailedtorespondtocorrespondencefromtheLawSociety.Heexplainedthattimepressuresbroughtonbyhisbusypracticeand health problems suffered by members of his family were the reasons for his failure. Tak did not suggest that these circumstances excused his conduct.

VerDictChapter13,Rule3oftheProfessional Conduct Handbook obligates law-yers to reply promptly to any communication from the Law Society.A lawyer’sfailureto respond impairstheSociety’s abilitytogovern its

memberseffectively.Assuch,failingtorespondisagravematter.

The panel found Tak guilty of professional misconduct for failing to re-spondtotheLawSocietycorrespondenceofMarch19,2009.

PenaltyThe Panel ordered that Tak:

1. payafineof$2,000andcostsofafurther$2,000withinfourmonthsof the date of the hearing;

2. provideasubstantive responsetotheMarch19,2009 letterfromtheLawSocietywithin21daysofthehearing;and

3. provide a substantive response to any further communications with theLawSocietyarisingoutoftheMarch19,2009letterwithin21days of receiving them.v

ELECTEdBENCHERS

PresidentGordonTurriff,QC*

FirstVice-PresidentG.GlenRidgway,QC*

SecondVice-PresidentGavinH.G.Hume,QC*

RitaC.AndreoneKathrynA.Berge,QCJoostBlom,QCRobertC.Brun,QCLeonGetz,QCCarolW.Hickman*WilliamF.M.JacksonTerenceE.LaLiberté,QCBruceA.LeRose,QC*JanLindsaydavidW.Mossop,QCSuzetteNarbonneThelmaO’GradydavidM.Renwick,QCMarguerite(Meg)E.Shaw,QCRichardN.Stewart,QCRonaldS.TindaleHerman Van OmmenArthurE.Vertlieb,QC*Jamesd.Vilvang,QCKennethM.WalkerdavidA.Zacks,QC

LAYBENCHERSHaydnAchesonPatrickKelly*StacyKuiackBarbaraLevesquePeterB.Lloyddr.MaelorVallance

ExOFFICIOBENCHERAttorneyGeneralMichaeldeJong,QC

* Executive Committee

LIFE BENCHERS

RalstonS.Alexander,QCR.PaulBeckmann,QCHowardR.Berge,QCP.MichaelBolton,QCThomasR.Braidwood,QCCecilO.d.Branson,QCTrudiL.Brown,QCMr.JusticeGrantd.BurnyeatA.BrianB.Carrothers,QCMr.JusticeBruceI.CohenRobertM.dick,QCRobertd.diebolt,QCIandonaldson,QCUjjaldosanjh,QCLeonardT.doust,QCJackL.T.Edwards,QCWilliamM.Everett,QCAnnaK.Fung,QCRichardC.Gibbs,QCArthurM.Harper,QCJohnM.Hogg,QCH.AllanHope,QCAnnHowardJohnJ.L.Hunter,QCMr.JusticeRobertT.C.JohnstonGeraldJ.Kambeitz,QCMasterPeterJ.KeighleyMr.JusticePeterLeaskGeraldJ.Lecovin,QCHughP.Legg,QCCharlesC.Locke,QCJamesM.MacIntyre,QCRichardS.Margetts,QCMarjorieMartinRobertW.Mcdiarmid,QCBrianW.F.McLoughlin,QCKennethE.MeredithPeterJ.Millward,QCdennisJ.Mitchell,QCKarenF.Nordlinger,QCRichardC.C.Peck,QCJunePreston,MSWEmilyM.Reid,QC

PatriciaL.Schmit,QCNormanSeveride,QCJaneS.Shackell,QCdonaldA.Silversides,QCGaryL.F.Somers,QCMaryF.Southin,QCMarvinR.V.Storrow,QCWilliamJ.Sullivan,QCG.RonaldToews,QCRussellS.Tretiak,QCBenjaminB.Trevino,QCWilliamM.Trotter,QCRossd.TunnicliffeAlanE.Vanderburgh,QCBrianJ.Wallace,QCKarlF.Warner,QCWarrenT.Wilson,QC

MANAGEMENTBOARd

ChiefExecutiveOfficerandExecutiveDirectorTimothyE.McGee

StuartCameronDirector of Discipline / Litigation Counsel

SusanForbes,QCDirector, Lawyers Insurance Fund

JeffreyHoskins,QCTribunal and Legislative Counsel

Howard KushnerChief Legal Officer

JeanetteMcPheeChief Financial Officer

AlanTreleavenDirector, Education and Practice

AdamWhitcombeChief Information Officer

845CambieStreet,Vancouver,BritishColumbia,CanadaV6B4Z9

Telephone604-669-2533|Facsimile604-669-5232

Toll-freeinBC1-800-903-5300|TTY604-443-5700

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