Triple P - Nova Scotia Barristers` Society

the
SOCIETY
RECORD
VOLUME 32 | NO.2 | Fall 2014
NOVA SCOTIA
BARRISTERS’ SOCIETY
www. n s bs.o rg
Action on access
Law societies are engaging with communities to develop practical A2J strategies
Fall 2014SCOTIA
1
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C ontents
VOLUME 32 | NO 2 | Fall 2014
the
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is published by the
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Barristers’ Society
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The President’s View
7
Briefs
12
Society News
15
Stories of success and connection: The ITL Observership Program – Allison Smith
16
Here to help: How the private Bar supports Nova Scotia Legal Aid – donalee Moulton
18
NSLA: Double certificate, double whammy – donalee Moulton
19 Law school accreditation in historical perspective – Barry Cahill
21
LIANS – Tips from the Risk & Practice Management Program
22 Action on A2J: Initiatives taking root in 2014-15 – Lia Renaud
25
This land is our land – Angela Simmonds
27
Understanding access: Collaboration helps law societies develop practical strategies
– Marla Cranston
29
Preparing for the storm: Legal innovation in Nova Scotia – Julie Sobowale
31 Entity Regulation 101 – Steve Mark & Tahlia Gordon, Creative Consequences Pty Ltd.
34
‘Triple P’ regulation in Nova Scotia
35
Legal research: Staying in control, on budget and in the know –
Deborah Copeman & Jennifer Taylor
38
SUMMATION: Reflections on representing Nova Scotia at the national regulatory table
– Catherine S. Walker QC
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NOVA SCOTIA
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nsbs.org
page 8
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on the cover:
The Halifax Refugee Clinic was one of 11 community and legal organizations to host A2J
conversations with delegates from across Canada, during the Federation of Law Societies’ national
conference in Halifax October 8-10. Photo by Laura Hilchey Photography
For ongoing Society news, follow us online:
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Fall 2014
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the
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view
The A2J Imperative
E
verybody is talking about access to justice these days.
What does it mean to you? I would venture to guess there
are very different answers to that question, depending on
whether you are a lawyer, a judge or a member of the public. For
me, access to justice is about Nova Scotians being able to get
the information, advice and guidance they need to be able to
make the best informed decisions they can to resolve their legal
problems.
That does not necessarily mean the court system. That does
not necessarily mean lawyers. In fact, research teaches us that
the majority of citizens do not go to lawyers to get legal advice,
but look elsewhere. Indeed, many use the services of the “first
responders” – community organizations. Nova Scotians consult
social workers, immigrant advisers, shelter personnel and others
for legal information and advice, for direction as to how to
navigate the legal system. This is because most of them simply
cannot afford the cost of legal services provided by lawyers.
Why should the regulator be so concerned about access to
justice? Because all law societies in Canada regulate the practice
of law in the public interest. It is in the public interest to have
legal services accessible to as many Nova Scotians as possible
who need them. The Society has identified access to legal
services as one of its key strategic directions over the next couple
of years, with a key focus on equity-seeking and economically
disadvantaged groups.
We are collaborating with community organizations and other
partners in the justice system (the courts, the Department of
Justice, CBA-NS) to advocate for enhanced legal services. We feel
we have an obligation to lead the charge (where appropriate),
facilitate conversations amongst the various stakeholders, share
information and keep the spotlight on the need for this issue to
be addressed.
We are not alone in this endeavour. We partner with other law
societies and other organizations to make our impact greater. We
provide information and hold workshops to help the profession
understand what type of service is needed and by whom, and to
promote creativity and innovation in the practice of law. These
are just a few questions we ask ourselves:
•
Do we need more pro bono clinics that offer summary
legal advice or do we need to develop a model that
provides for ongoing coaching of self-represented
litigants, so they can make informed decisions as to
how to move forward with their legal matters?
•
Do we need to modify our practices and our fees
in order to capture more of that untapped market of
potential clients out there?
•
How do we get information and advice to people
in a timely way so they can resolve their legal issues
themselves, without recourse to the courts?
As the regulator, we feel we have an obligation to change our
regulatory model so that you, the legal practitioner, can rethink
how you deliver legal services in the future. We have already
started down this path. We very much look forward to engaging
you in discussions as to what regulatory model you think would
best enable us to deliver legal services to a greater number of
Nova Scotians, both now and well into the future.
Tilly Pillay QC
President
Fall 2014
5
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BRIEFS
2014 June Bar Admission Ceremony
The Society held its annual Call to the Bar on June 6 at Pier 21, with the Hon. Justice Glen G. McDougall of Nova Scotia Supreme Court presiding.
Sixty-two new lawyers joined the legal profession, and the majority stayed in Nova Scotia to establish their legal practices. Eighteen more were
admitted at a smaller ceremony on October 16 at the Halifax Law Courts.
From the Bench … to the barbecue
Once a year, the Chiefs and
Associate Chief volunteer to do
the grilling at a lunchtime staff
BBQ at The Law Courts in Halifax.
Pictured here on June 11, from left
to right: the Honourable Joseph
Kennedy, Chief Justice of the Nova
Scotia Supreme Court, the Hon.
Michael MacDonald, Chief Justice
of Nova Scotia and the Court of
Appeal, and the Hon. Deborah
Smith, Associate Chief Justice of
the Nova Scotia Supreme Court.
Photo by Nancy Rubin QC,
Partner, Stewart McKelvey
Fall 2014
7
BRIEFS
Race and the law and ‘the Other’
Meaghan Mahadeo’s legal interest in
the concept of “the Other” germinated
while completing her master’s degree
in intercultural literature at Leiden
University in the Netherlands.
Keen to examine how societies are
structured by establishing knowable
norms and values, with ‘the Other’
as something beyond the norm, she
also looked at transgressions in the
boundaries between the self and the
other. “What I felt I was missing in my
graduate studies was a tangible or
practical application of these ideas to
lived reality,” says Mahadeo, recalling
the research inspiration that led to her
2014 Race and the Law Essay Prize.
“I thought this paper could be a
meaningful way to blend postLeft to right: Hanaa Al Sharief and Alicia Arana of the Society’s Racial Equity Committee, award
colonial theories of ‘Othering’ and recipient Meaghan Mahadeo and Level Chan of Stewart McKelvey.
the disenfranchisement that often
results from the process of setting
up boundaries between groups of people, with the historic and “This concept does not reflect how Aboriginal peoples
current realities experienced by Aboriginal peoples in Canada.”
themselves conceive of Aboriginality, as something that
is diverse and often fluid,” adds Mahadeo. Now in Ottawa clerking with the Hon. Justice Elizabeth
Heneghan at the Federal Court of Canada, Mahadeo received the “I thought it was important to highlight the artificiality of the
award upon graduating in May from the Schulich School of Law concept of ‘Indian’ pursuant to the Indian Act, and also consider
at Dalhousie University. The essay prize encourages outstanding how the boundary that the term creates between Canada’s
scholarship by law students on topics pertaining to issues of race Aboriginal peoples and the rest of Canadian society could
and law. Embarking on its seventh year, the award presented by be used in a productive way, as a tool to promote Aboriginal
the Society’s Racial Equity Committee (REC) and sponsored by autonomy.”
the Halifax law firm Stewart McKelvey.
Mahadeo’s achievement was also recognized at the REC’s June 5
Mahadeo’s winning essay is titled “What’s in a name?: An reception to honour articled clerks and new calls from racialized
Analysis of the Politics of Band Membership Codes in the Canadian and Aboriginal communities, and again at the Society’s
Indigenous Quest for Self-Determination.”
Recognition Reception on September 19.
The paper suggests the concept of “Indian” is a colonial
construct determined by the federal government, serving to set
groups of people apart in order to determine who is and is not
entitled to government benefits.
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The Society Record
For more information on the essay prize, including a list of past
recipients and paper abstracts, visit nsbs.org/race-and-law-essay-prize.
BRIEFS
2014 NSBS PRESIDENTS’ LEADERSHIP AWARD
What does Vincent van Gogh’s lost ear have to do with
leadership and law school? You’ll have to watch Emilie
Coyle’s memorable valedictory speech to find out.
Coyle got a rousing standing ovation after her poignant
spoken-word address to fellow graduates at the May
23 convocation at the Schulich School of Law. (To find
the video online, search for “Emilie Coyle valedictory” or
visit www.youtube.com/watch?v=kG5anDC-Dz8)
Emilie Coyle with daughter Maia, Catherine Walker QC and Dean Kim Brooks QC
Earlier that day at the Dean’s Reception, she received
the 2014 NSBS Presidents’ Leadership Award for
her leadership qualities and volunteer efforts while
attending law school. Now articling at Weldon
McInnis in Dartmouth, Coyle spearheaded the
first student society of the Canadian Association
of Refugee Lawyers, played a leading role in the
IDEALaw 2014 Conference, and is a board member
for Stepping Stone and the Rainbow Refugee
Association of Nova Scotia.
Also on May 23, Paul Calderhead received the NSBS Presidents’ Leadership Summer Internship, which provides a modest
honorarium toward a volunteer project following first-year law studies. He spent the summer as an intern with the Centre for Law
and Democracy, working on a project relating to internet and media law.
The Joy of Gender: The 12th Annual Pride Reception
The past two years have been a turning point for gender identity and gender expression
in Nova Scotia, with equality protections added to the Human Rights Act and some
surgeries now covered by provincial health insurance. Soon, Nova Scotians will be able
to change their birth certificates to reflect their gender identity, with or without surgery.
“There are a lot of trans people for whom surgery is beside the point … they need doctors
to help them with just routine everyday health issues,” Hershel Russell explained in his
informative talk at the 12th Annual Pride Reception, co-hosted by the Society and the
SOGI Section of CBA-NS on July 24 at Studio 21 Fine Art.
Despite increasing visibility (e.g., trans actress Laverne Cox on popular TV), those who
are gender different still face constant scrutiny and discrimination, even with such
basics as finding a welcoming washroom in public buildings, schools and workplaces.
“Or that constant, exasperating question: ‘Have you had the operation?’ When in doubt,
it’s usually inappropriate to ask,” says Russell.
Lead mental health trainer for Rainbow Health Ontario’s Trans Health Connection, the
Toronto-based psychotherapist and educator has been counselling trans people and
their families since 1995, and offers support to parents of gender-independent children.
The annual Pride Reception is an opportunity to celebrate diversity within the province’s
legal profession and to show support for LGBTI lawyers throughout Nova Scotia.
Hershel Russell MEd, of Trans Health
Connection
Fall 2014
9
BRIEFS
New appointments for Nova Scotia’s Judiciary
2
3
4
1. Prior to his appointment in July, the Honourable Judge Daniel
A. MacRury (at left) was Chief Crown Attorney for the Cape
Breton Region, and now presides at the Nova Scotia Provincial
and Family Courts in Amherst and Halifax. Kenneth Fiske QC of
the Nova Scotia Public Prosecution Service shares a laugh while
congratulating Judge MacRury during the October 10 swearingin ceremony in Sydney.
“Judge MacRury brings with him a lengthy and broad spectrum of
legal experience,” said the Hon. Pamela S. Williams, Chief Judge
of the Provincial and Family Courts of Nova Scotia. “Together
with his renowned volunteer work in the legal profession and for
the communities in which he has lived, it makes him a valuable
addition to our Courts.”
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The Society Record
Also Oct. 10, the Hon. Justice Cindy G. Cormier – a former lawyer
with the provincial Department of Justice – was appointed to the
Nova Scotia Supreme Court (Family Division) in Halifax.
2. The Hon. Justice Lee Anne MacLeod-Archer, formerly of
LaFosse MacLeod Law Firm, was sworn in at a June 17 ceremony
in Sydney, where she presides at the Nova Scotia Supreme Court
(Family Division). At left is the Hon. Michael MacDonald, Chief
Justice of Nova Scotia.
Two recent elevations were celebrated over the summer: the Hon.
Justice Cindy A. Bourgeois (3, left) joined the Nova Scotia Court
of Appeal after five years at Nova Scotia Supreme Court, while
the Hon. Justice Jamie S. Campbell (4), previously a Provincial
Court judge, moved to Nova Scotia Supreme Court.
Photos provided courtesy of the Executive Office of the Nova Scotia Judiciary
1
BRIEFS
2014 RECOGNITION RECEPTION
Heather McNeill QC: 2014 Distinguished Service Award
Nova Scotia’s legal profession – and the public – benefit from
the varied perspectives of a diverse membership, says Heather
McNeill QC of the Dalhousie Legal Aid Service.
“We each have skills and experience that can make a difference
to those in need,” says McNeill, who received the 2014
Distinguished Service Award on September 19 for significant
contributions to her community, the profession and the Society.
A practising lawyer for almost 20 years, McNeill draws on her
previous career as a registered nurse to involve healing and
compassion in her approaches to legal disputes. She also
combines traditional Aboriginal concepts of respect and sharing
with her legal talents, advocating for marginalized individuals
and communities in Nova Scotia.
Her long history of public service includes work with
the Indigenous Blacks & Mi’kmaq Initiative Advisory Council,
pro bono services to immigrants, leadership in the Mi’kmaq First
Nation and much more. At the Society, she currently volunteers
as a member of the Fitness to Practise Committee and the Racial
Equity Committee (REC). “One aspect of the many things we are involved in (with the
REC) is going into diverse communities – for me, the Mi’kmaq
community – and delivering legal information sessions.
Attendees are empowered in terms of knowing the law, the
process and where to go for help. It’s clear that being informed
makes a huge difference,” she says.
Visit the Society’s blog at nsbs.org/public-interest to read
“Distinguished lawyer, legal healer,” featuring a Q&A with
McNeill and more details about the Distinguished Service
Award. The date for next year’s nominations is April 15, 2015;
they may be submitted by both lawyers and the public.
Recognition of long-term service in the legal profession
Also at the September 19 event, the Society
honoured four lawyers with long-term service
certificates. Charlie MacIntosh QC (seated), one
of the province’s best-known real estate lawyers,
and Edwin LeBlanc QC (standing, far left), in-house
counsel with Nova Scotia Power for much of his
career, were recognized for 60 years of service
in the legal profession. President Tilly Pillay QC
also presented 50-year certificates to David F.
Curtis QC of Truro (second from left), a highly
regarded lawyer who assisted in the development
of the Land Registration Act, and David Grant
of Dartmouth (at right), a true generalist who
practised in all areas of law.
The Recognition Reception is an annual
opportunity for the Society to honour lawyers and
law students for contributions that demonstrate
the profession’s commitment to excellence and
public service.
Fall 2014
11
society news
Council updates
Society leadership for 2014-2015
On June 14 during the 2014 Annual Meeting, the Society welcomed
its new leadership for the 2014-2015 Council year.
President Tilly Pillay QC of Halifax (centre) is Executive Director of
the Legal Services Division for the provincial Department of Justice.
First Vice-President Jill Perry (left) is Managing Lawyer (Family)
with Nova Scotia Legal Aid in Sydney. Second Vice-President R.
Daren Baxter QC, TEP (right) is a Partner with McInnes Cooper’s
Halifax office.
Ms. Pillay’s inaugural address, “Turning the Corner,” is available
for viewing online at youtube.com/user/nsbarristerssociety/. For
Council agendas and updates throughout the year, visit nsbs.org/
council-materials.
Please note: The next Council elections will take place in March and
April of 2015, and the nomination process has begun for Second
Vice-President for 2014-2015. Watch nsbs.org for updates.
in efforts to make the family, civil and criminal court systems more
efficient and effective, less costly and easier to navigate.
“The system isn’t perfect and these changes won’t happen overnight,”
says Minister Diab. “But we are committed to working together to
make our system better and to put people first, every step of the way.”
The committee will act on recommendations outlined in Access to
Civil & Family Justice: A Roadmap for Change, released by the National
Action Committee on Access to Justice in Civil and Family Matters.
Notes Chief Justice MacDonald: “As a committee, we will work to
identify and promote the great work that is already being done, and
introduce new initiatives. The intent is to provide leadership so that
all initiatives are as successful as possible.”
Ms. Pillay represents NSBS on the seven-member group, which also
includes Robyn L. Elliott QC, President of CBA-NS; Kim Brooks,
Dean of the Schulich School of Law at Dalhousie University; Karen
Hudson, Executive Director, Nova Scotia Legal Aid Commission; and
Rev. Dr. Linda Yates, Public Representative.
Access to Justice Co-ordinating Committee
Repeat offenders and ungovernability
The Society is participating in the Access to Justice Co-ordinating
Committee (A2JCC), launched June 12 as an important new
collaborative effort among leaders in the province’s justice and legal
community.
Justice Minister Lena Metlege Diab and the Hon. J. Michael
MacDonald, Chief Justice of Nova Scotia, are leading the committee
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The Society Record
Over the past several years, the Complaints Investigation Committee
(CIC) has seen the names of certain lawyers appear on its agenda
again and again, sometimes for similar conduct, and other times for
different conduct.
At what point do these ‘repeat offenders’ cross a line or threshold into
society news
‘ungovernability’? The CIC has been struggling with this question on
an increasing basis, it seems.
When one thinks of ungovernability, it is often in the context of a
lawyer who essentially refuses to communicate or cooperate with an
investigation, and demonstrates an attitude that he or she is unwilling
to accept the regulatory authority of the Society. However, we are
now seeing a number of lawyers who – while being courteous and
apparently cooperative during investigations – demonstrate an
apparent unwillingness or inability to adhere to the rules of conduct,
as evidenced by repeated minor or major complaints, and despite
staff and CIC intervention.
The Professional Responsibility Policies and Procedures Committee
considered these issues over a number of months, including the review
of current case law from other Canadian jurisdictions and case studies of
complaint files recently before the CIC. An amendment to Regulation
9.1 was approved by Council on September 19 to define ungovernability
and add “repeat offender” to the definition of professional misconduct.
See nsbs.org/regulations-under-lpa for details.
In concert with dealing with this troubling problem from a disciplinary
perspective is the equally important goal to reduce the occurrence of
repeat offences. In the spirit of being more proactive, risk-focused
and proportional, the CIC is committed to spending more time
speaking with repeat offenders and other lawyers in person, to help
identify and address the root causes of the offences.
Disclosing confidential information: Risk of death or
serious bodily harm
Since the coming into force of the new Code of Professional Conduct
in January 2012, the Society has received many calls from lawyers
who are struggling to determine whether their circumstances fall
within the public safety exception to the duty of confidentiality
found in rule 3.3-3 of the Code. The thought of breaching solicitorclient privilege is tremendously difficult, and wading through the
competing obligations can be a significant ethical challenge.
The lawyer and client relationship depends on trust. Lawyers can
only fully represent their clients when all relevant information has
been disclosed. Clients can only communicate openly with their
lawyers when they feel completely secure and trust that their lawyer
will hold the matters discussed in strict confidence.
Sometimes, this trust relationship leads clients to disclose information
that causes a lawyer serious concern about the safety of the client or
others, and we have received many calls from lawyers seeking guidance
in these situations. Each situation must be carefully assessed according
to the circumstances of the particular situation, and each requires the
exercise of very sound professional judgment by the lawyer.
A lawyer owes a duty of confidentiality to every client and is prohibited
from disclosing any information acquired through the lawyer-client
relationship under rule 3.3-1 of the Code of Professional Conduct:
3.3-1 A lawyer at all times must hold in strict confidence all
information concerning the business and affairs of a client acquired
in the course of the professional relationship and must not divulge
any such information unless:
(a) expressly or impliedly authorized by the client;
(b) required by law or a court to do so;
(c) required to deliver the information to the Society, or
(d) otherwise permitted by this rule.
However, a limited exception to the prohibition on disclosing a
client’s confidential information exists under rule 3.3-3: Future
Harm/Public Safety Exception:
3.3-3 A lawyer may disclose confidential information, but must
not disclose more information than is required, when the lawyer
believes on reasonable grounds that there is an imminent risk of
death or serious bodily harm, and disclosure is necessary to prevent
the death or harm.
This rule sets up three criteria, all of which must be present before
determining whether or not to disclose:
1. Reasonable grounds;
2. Imminent risk of death or serious bodily harm; and
3. The disclosure is necessary to prevent death or harm.
The following Commentary in the rule is designed to help lawyers
determine when to disclose:
[3] In assessing whether disclosure of confidential information is
justified to prevent death or serious bodily harm, a lawyer should
consider a number of factors, including:
(a) the likelihood that the potential injury will occur and its
imminence;
(b) the apparent absence of any other feasible way to prevent
the potential injury; and
(c) the circumstances under which the lawyer acquired the
information of the client’s intent or prospective course of
action.
[4] How and when disclosure should be made under this rule
will depend upon the circumstances. A lawyer who believes that
disclosure may be warranted should contact the Society for ethical
advice. When practicable and permitted, a judicial order may be
sought for disclosure.
If you need further guidance in deciding whether or not the
circumstances warrant disclosure, please contact the Society’s
Professional Responsibility staff. You may also seek advice from
another lawyer. Rule 3.3-6 of the Code allows you to disclose
confidential information to another lawyer in order to secure legal
or ethical advice.
It is not uncommon for clients involved in difficult personal and legal
situations to become very disconsolate. Clients may make comments
suggesting that they are going to harm themselves or another person(s)
as a result of their seemingly desperate situation. In such circumstances,
it is recommended that lawyers address the comments with their
Fall 2014
13
society news
clients directly, and make specific inquiries as to the seriousness
of the comments and the client’s reasons for saying them. It is also
recommended that lawyers warn their clients that they have an ethical
and professional obligation to report such comments, if they are
believed, to law enforcement or other agencies, despite their duty to
the client to maintain confidentiality. Each situation, and each client,
will be different, and seeking further advice is always recommended.
After you have decided to disclose relevant confidential information in
order to prevent harm to your client or another person, you must then
consider to whom you should disclose. The Society can help you with
this decision. You may wish to speak with the client’s immediate family
or their treating health professional. Adult Protection Services1 and
Child Welfare Services2 are provincial government agencies that can
assist you and your client. If you have evidence that a crime has been
committed, you need to balance your duty to uphold the administration
of justice with your duty of confidentiality to your client, and consider
whether the future harm exception warrants contacting the police
or RCMP. Consider also whether anyone else other than you could
report. Note that the National Model Code Committee is currently
reviewing the guidance to lawyers under the Rules when dealing with
evidence relevant to a crime, in order to provide as clear guidance as
possible under these challenging circumstances.
If you believe a child is at risk of abuse, then you must consider whether
you are obligated to report your suspicions to a child welfare agency3.
Child abuse includes physical, emotional or sexual abuse, or neglect.
For further information about the applicability of the Children and
Family Services Act to lawyers, please see the InForum article “Current
Issues in Legal Ethics – Solicitor-client privilege: The Future Harm/
Public Safety Exception to duties regarding confidential information”.4
After disclosing confidential client information, the Code recommends
that you prepare a written note to file as soon as possible, detailing:
(a) the date and time the disclosure was made;
(b) the grounds in support of your decision to communicate
the information, including the harm intended to be
prevented, the identity of the person who prompted
communication of the information as well as the identity of
the person or group of persons exposed to the harm; and
(c) the content of the communication, the method of
communication used and the identity of the person to
whom the communication was made (Commentary [5]
under rule 3.3-3).
If you need further guidance on this or any other issue, please do not
hesitate to contact the Society’s Professional Responsibility team.
Other resources:
Adult Protection Services: http://www.gov.ns.ca/health/ccs/adult_protection.asp
Department of Community Services – Children, Youth & Families:
http://novascotia.ca/coms/families/index.html
3
Child Welfare Services Offices in Nova Scotia, with contact information:
http://novascotia.ca/coms/department/contact/ChildWelfareServices.html
4
InForum article: Current Issues in Legal Ethics – Solicitor-client privilege: The Future Harm/
Public Safety Exception to duties regarding confidential information: http://nsbs.org/
sites/default/files/cms/publications/forum/2012-11-26inforum.pdf Review of NSBS CPD
Requirement
1
2
14
The Society Record
Douglas Lloy QC, Bronwyn Duffy and Patrick Young, Executive of the
Pictou County Barristers’ Society
Review of NSBS CPD Requirement
The Society is undertaking a comprehensive review of its CPD
Requirement this year, with a focus on the evolving approach to
regulation in the public interest. Staff in the Education & Credentials
department are reviewing data, examining CPD programs in other
jurisdictions and professions, and will hold consultations and focus
groups early in 2015.
Since the mandatory CPD requirement’s launch in 2012, regional
and county Bar societies have stepped up local efforts to provide
professional development. The Pictou County Barristers’ Society
launched “an aggressive program of CLE delivery” for its members,
with more than 15 lunch and learn sessions a year, says legal aid lawyer
Douglas Lloy QC, the group’s president.
The inaugural Northern Nova Scotia CLE Day, held Oct. 24 at Pictou
Lodge, drew more than 70 lawyers from Port Hawkesbury to Windsor
for nine panels featuring speakers from all levels of the judiciary,
LIANS, and senior counsel in the areas of Aboriginal, criminal, family,
personal injury and property law.
“This was the flagship event of the year for the PCBS and we saw
sufficient interest from other local Bar groups in Nova Scotia to make
it a yearly event,” says Lloy. The group is also very active in the wider
community, promoting law as a meaningful and satisfying career
option through school presentations and mock trials.
On November 14 at the Membertou Trade & Convention Centre,
the Cape Breton Barristers’ Society is “Bringing it Home” with its
third annual professional development conference. The event features
sessions on effective judicial settlement conferences, Property Online
transactions, human rights, human trafficking, family law and client
competency. Other regional and county Bar groups also have an active
slate of professional development events that count toward the NSBS
CPD Requirement.
Maurice Chiasson QC and Godfred Chongatera
Stories of success and connection
The ITL Observership Program
L
awyers new to Canada are forging connections in the legal
community and learning about the practice of law in Nova
Scotia through the Society’s Internationally Trained Lawyers
Observership Program.
After completing his observership at Stewart McKelvey, Godfred
Chongatera ended up there as an articled clerk and is now well on
track to join the province’s legal profession. The ITL Program was a
“springboard” that allowed him to make valuable connections in the
province’s legal community that wouldn’t have been possible otherwise,
says Chongatera, who received his LLB in his home country of Ghana
before moving to Nova Scotia to complete a master’s degree at the
Schulich School of Law.
Working on an observership model in conjunction with Immigrant
Settlement and Integration Services (ISIS-NS), the program pairs
internationally trained lawyers with local lawyers who have similar
professional interests. Chongatera observed the day-to-day activities
of a number of lawyers at the firm, sitting in on client meetings,
participating in a CPD session with his supervising lawyer Maurice
Chiasson QC, and studying ethical matters in the Code of Professional
Conduct.
The program saw 11 internationally trained lawyers complete
observerships in a variety of legal workplaces during its pilot year,
which launched in the fall of 2013. It continues to thrive with new
participants such as Farhan Raouf, who is participating at Cox &
Palmer.
“I am delighted with the opportunity,”
Allison Smith
says Raouf, who received two law degrees
Freelancer
in Pakistan. He especially appreciates “the
welcoming attitude that can be found in
Haligonians, which is also quite visible in day-to-day affairs of the
law firm.”
Before moving here, Catrina Campana Wright spent five years in
private practice in the American Territory of Guam. Bringing a wealth
of experience to her new home, she participated in the ITL program
by shadowing Charlene Moore at Nova Scotia Legal Aid.
“It was fascinating to compare the differences – and some surprising
similarities – between my practice and Charlene’s,” says Campana
Wright, who found the program’s mentorship element particularly
beneficial. A highlight was observing Moore successfully defend a
client at an appeal board hearing, an activity that resonated with her
strong interest in administrative law.
Building friendships with other ITLs was an unexpected benefit,
adds Campana Wright. She meets and corresponds regularly with
international colleagues in order to discuss legal practice in Nova
Scotia, their professional goals and challenges facing immigrants.
Note: This is an edited version of a longer article on the Society’s blog at
nsbs.org/public-interest. If you are a practising lawyer who would like to
be involved as a supervisor, please contact Emma Halpern at
[email protected].
Fall 2014
15
Here to help
How the private Bar can support
Nova Scotia Legal Aid
N
ova Scotia Legal Aid reaches out to help Nova Scotians in
need. Recently it looked inward to see how it could better
fulfil its mandate and enhance access to justice. The result
is a new three-year strategic plan that looks at how NSLA can better
provide services – and calls for greater involvement by the private Bar.
The newly unveiled plan, Here to Help, sees the services the
organization provides in three core legal areas – criminal, family and
social justice – as a continuum that starts with information, moves to
advice, then limited retainer, and finally full service. That spectrum of
services doesn’t sit outside the private Bar, however. It’s intertwined,
and the connections are critical at the full-service stage.
and challenging cases that I have. They are
frequently serious indictable matters with
a great deal at stake.”
donalee Moulton
Freelancer
For younger lawyers, legal aid certificates also offer an opportunity to
gain meaningful experience, Lower Sackville lawyer Colin Campbell
points out. “Taking on this type of work builds confidence for future
practice.”
The private Bar’s involvement doesn’t stop here, however. Nova Scotia
Legal Aid is actively looking at new and relevant ways to involve
lawyers. A mentoring program has been launched with the support of
senior partners across the province (see
“The private Bar delivers about
sidebar). Others are lending a hand in
A large part of my practice is
20 per cent of Nova Scotia Legal
novel initiatives to reach communities
Aid’s caseload. Yet we struggle to
often isolated from the legal community.
NSLA certificate work. These cases BOYNECLARKE LLP, for example, is
find private Bar lawyers to take
these cases,” says Karen Hudson
assisting with the new Prestons Access to
QC, Executive Director of Nova
Justice Pilot project. Lawyers from the
include the most interesting and
Scotia Legal Aid.
firm will work with NSLA’s outreach
team and deliver legal information and
challenging cases that I have.
That need for lawyers to lend their
summary advice in property, wills and
expertise and insight is significant.
estates matters.
In fiscal 2013-2014, Nova Scotia Legal Aid completed 18,432 cases.
Of these, 3,258 were handled by lawyers in private practice. To Of course, lawyers are always welcome to sit on the Nova Scotia
induce more members of the private Bar to assist, and to more closely Legal Aid Commission’s board of directors. “Our board mirrors our
mirror rates lawyers charge, Legal Aid recently raised its fees by $10 executive structure. They are driving the ship,” says Hudson.
an hour across the board for lawyers who take certificates. At the top
end, for serious cases, the hourly wage is now $95. However, this NSLA is hoping its outreach to the private Bar will raise the bar in
still brings legal aid rates in well below the private market, so some terms of involvement in the legal aid system. But that outreach is
measure of pro bono is required.
not one-way. Members of the private Bar are welcome to attend inhouse educational sessions hosted by NSLA as part of their CPD
The contribution is well worth it, according to lawyers who have requirements. This includes one-day sessions in the organization’s
assisted Nova Scotia Legal Aid. Bottom line: it’s about more than three core areas. “Recently we had 100 people at a session, and 40
money.
were from the private Bar,” notes Hudson.
“I take legal aid cases as a means of providing a public service to
members of the low-income and marginalized communities of Nova
Scotia,” says Halifax lawyer Shawna Hoyte QC. “As an African Nova
Scotian, I am aware that the financial affordability of legal services
is still a major barrier for the members of my community and many
others in Nova Scotia.”
In addition to giving back, the work itself is rewarding, notes
Kentville lawyer Christopher Manning. “A large part of my practice
is NSLA certificate work. These cases include the most interesting
16
The Society Record
Ultimately, the reasons members of the private Bar will step up to assist
Legal Aid will be as numerous and diverse as the lawyers themselves.
There is a mutual benefit for everyone, however: improved insight
into justice and what it really means.
“I believe it is vital that the private Bar be involved,” says Campbell.
“[Working with NSLA] does allow private lawyers the experience in
dealing with economically disadvantage individuals, which I think
gives a more balanced perspective on practice generally.”
“I take legal aid cases as a means of
providing a public service to members
of the low-income and marginalized
communities of Nova Scotia.”
Halifax lawyer Shawna Hoyte QC.
Fall 2014
17
NSLA: Double certificate, double whammy
A new initiative launched by Nova Scotia Legal Aid is bringing together senior lawyers with less experienced advocates to assist on
serious cases. The biggest winner will be Nova Scotia’s justice system.
At least 16 established lawyers from the private Bar have indicated their preliminary
support for NSLA’s double-certificate program. “They will work with a junior lawyer
taking legal aid certificates, to provide advice and guidance regarding cases,” says Karen
Hudson QC, NSLA Executive Director.
“It means being available on a more intentional basis,” she added. “This will mean better
service for Nova Scotia.”
Doug Shatford QC, a partner with Creighton Shatford in Amherst, is one of the lawyers
who has offered to act as a mentor. “Senior lawyers can charge a rate for mentoring but
most lawyers invited to do this were happy to volunteer,” he says.
Shatford notes that in many cases, particularly in urban areas, such generational
collaboration doesn’t happen naturally. “A lot of young lawyers are hesitant to speak with
senior lawyers about cases. Senior lawyers want to put themselves out there. We want
people to know we’re willing to help.”
Under the new program, which is just now being rolled out, NSLA will identify the names
of senior lawyers willing to take calls from junior lawyers. In-person mentoring may occur
for more complex files and when multifaceted decisions are required, such as those
involving Charter motions, retaining experts, and voir dire.
“We were looking for ways to re-engage the senior private Bar,” notes Hudson. “Some of these lawyers rarely take on legal aid cases,
but we wanted them to be part of the process.”
Those lawyers, it appears, were delighted to be asked.
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18
The Society Record
Photo collage provided by Karen Kavanaugh, Schulich School of Law, Dalhousie University
Law school accreditation
in historical perspective
T
he recent decision by the Council of the Nova Scotia
Barristers’ Society respecting Trinity Western University’s
proposed law school affords an opportunity to examine the
relation of the LLB to Bar admission in this province.
Academic legal education was not historically in vogue within a
system traditionally driven by apprenticeship, and in the early days
of statutory regulation it was the law degree, not the law school
conferring it, that was potentially a source of controversy.
The Bachelor of Arts counted towards Bar admission; the LLB
did not. Few lawyers held the BA, fewer still the LLB, which was
considered an ornament for elite lawyers rather than a path to the
law. (Nova Scotia’s first lawyer with an LLB, Samuel Cunard West of
Halifax [Harvard, 1847], was called to the Bar in 1849.)
In this regard, New Brunswick was far in advance of Nova Scotia.
In 1867, without consulting the law society, the New Brunswick
legislature amended the law relating to the admission of “attorneys”
to authorize the holder of an LLB from Harvard Law School or any
other legally authorized law school to be called to the Bar after three
years’ studentship rather than four. According to historian D. G.
Bell, New Brunswick thus became “the first Canadian jurisdiction to
recognize the value of the LLB.”
In 1884, Nova Scotia, taking into account the recent opening of
Dalhousie Law School, went much further. The legislature enacted
that the holder of the LLB could waive articled clerkship altogether.
(This radical provision was apparently opposed by the Council of the
Nova Scotia Barristers’ Society and did not last; articled clerkship for
LLBs was soon restored.)
In 1887, the preamble to an act amending the Barristers and Attorneys
Act asserted Council’s control over “the legal education of candidates
for admission to the bar” and implicitly its right to accredit law
schools before the LLB could be granted standing.
In 1891, Dalhousie Law School received statutory recognition;
any holder of the Dalhousie LLB who had passed the Society’s
examination in practice and procedure could be called to the Bar.
Finally in 1899, the Barristers and Solicitors Act was passed, professional
self-regulation achieved and Council
authorized to accredit law schools.
Barry Cahill
Independent scholar
From and after 1939 that power was
embedded in the Nova Scotia Barristers’ Society’s Regulations. It
seems doubtful whether law school accreditation ever became an issue
or could have done before 1970, when the LLB became mandatory
for Bar admission.
By 1971 Council had ceased to accredit law schools. The Regulations
defined the law degree as “a bachelor’s degree in law from Dalhousie
University, or when approved by the Committee [i.e., Qualifications
– now Credentials], a degree in law with requirements equivalent
to those for a similar degree from Dalhousie University and from a
university with standards equivalent to those of Dalhousie University.”
The focus and emphasis lay more on the degree than on the degreegranting institution and reflected the Society’s long-standing special
relationship with Dalhousie Law School.
In 1991, the regulation was amended to make it less Dalhousiespecific; law degree meant “a bachelor’s degree in common law from a
Canadian law school or, when approved by the Committee, a degree
in law with requirements equivalent to those for a similar degree from
a Canadian law school or from a university with standards equivalent
to those of a Canadian law school.”
In 1997, the regulation was trimmed even further – law degree
meant “a bachelor’s degree in common law from a Canadian law
school” – but an important new element was added: a Certificate
of Qualification issued by the Joint Committee on Accreditation
appointed by the Federation of Law Societies of Canada and the
Committee of Canadian Law Deans (now the FLSC’s National
Committee on Accreditation). This revised regulation was carried
over into the Regulations enacted under the Legal Profession Act
in May 2005. Further amendments were made in 2012 when the
Society adopted a definition of ‘law degree’ that reflected the new role
the FLSC was playing in the accreditation of law schools. The Society
purported to delegate its role to the Federation but later determined
that to be inappropriate and, in light of Trinity Western University’s
proposed law school, Council revised the regulation in July 2014 to
the following:
Fall 2014
19
“law degree” means ... a Bachelor of Laws degree or a Juris Doctor
degree from a faculty of common law at a Canadian university approved
by the Federation of Law Societies of Canada for the granting of such
degree, unless Council, acting in the public interest, determines that
the university granting the degree unlawfully discriminates in its law
student admissions or enrolment policies or requirements on grounds
prohibited by either or both the Charter of Rights and Freedoms and the
Nova Scotia Human Rights Act.
On this basis Council has taken action in the TWU matter. By doing
so, it was exercising the residual power conferred on it by Section
6 of the Legal Profession Act, specifically 6(2): “The Council shall
govern the Society and manage its affairs, and may take any action
consistent with this Act that it considers necessary for the promotion,
protection, interest or welfare of the Society.”
By doing so, moreover, Council was returning to its governing-body
roots in the Barristers and Solicitors Act, 1899, which provided that an
applicant for admission to the Bar who held “the degree of bachelor
of laws from any law school, college or university recognized by the
council ...”
What began as an issue around the content and relevance of the LLB
evolved by slow degrees into an issue around the fitness of the law
school conferring it.
Barry Cahill has completed the history of the Nova Scotia Barristers’
Society and has now resumed working on his book about the life of
Frances Fish, Nova Scotia’s first woman lawyer.
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20
The Society Record
IB&M Initiative: 25 Years
Please join us in celebrating the 25th
Anniversary of the Indigenous Blacks &
Mi’kmaq (IB&M) Initiative.
On Friday, March 6, 2015, we will be hosting a
symposium at the Schulich School of Law to
reflect on the Marshall Inquiry, followed by a 25th
Anniversary Gala Celebration that evening at the
Westin Nova Scotian Hotel. Special community
events will be held on Saturday, March 7, 2015.
For more information on the Gala Celebration, including gala
tickets and advertising options, please contact [email protected]
or 902.494.1639. For more information on the IB&M Initiative,
please see our website at dal.ca/law/ibandm
LIANS
TIPS FROM THE RISK AND PRACTICE MANAGEMENT PROGRAM
Let’s talk about … RPM
BY STACEY GERRARD
LIANS Counsel
W
hen you hear ‘RPM’,
what comes to mind?
Revolutions Per Minute?
Recreation,
Powersports
&
Marine? Well, hopefully you
immediately thought of Risk and
Practice Management!
In 2005 the Lawyers’ Insurance
Association of Nova Scotia and
the Nova Scotia Barristers’ Society
created the Risk and Practice
Management Program, to offer
assistance to members in an effort
to reduce the frequency and severity of claims and complaints.
With the implementation of the Society’s mandatory continuing
professional development (CPD), lawyers are now required to
complete 12 hours of CPD every year, with two hours dedicated to
risk and practice management and/or professionalism.
What are some of the resources and practical assistance offered by
the RPM Program?
LIANS provides educational seminars on RPM-related topics such
as document management, file retention, succession planning,
disaster planning, fraud prevention, technology and general claim
avoidance. In an effort to keep the presentations relevant, we tailor
them to suit the interests of those attending. These presentations
are offered every year at the annual LIANS fall conference, the
Society’s Annual Meeting and at County Bar meetings throughout
the province.
For those who cannot attend conferences in person – or prefer to
schedule RPM CDP into their daily activities – “lunch and learns”
via webinars (web conferencing) are offered where lawyers can
remotely join an interactive presentation from their computer.
These webinars are available at various times throughout the year
in order to assist lawyers across Nova Scotia with meeting their
CPD requirements. LIANS advertises these webinars via email and
in its electronic newsletter, LIANSwers.
In addition, the latest RPM-related information is shared with the
membership in the Society Record, InForum and LIANSwers. While
the information is not intended to provide legal advice or replace
the lawyer’s own exercise of professional judgment, the articles are
a valuable source of information to assist members with running
their practices more effectively and efficiently. If you are looking
for RPM CPD, consider submitting an article for publication in
LIANSwers! You should also connect with LIANS staff members on
LinkedIn and follow us on Twitter @PreventLoss and @LIANS_RPM.
The LIANS website is another tool that provides information and
resources to assist you with your practice. Newly revised for easier
and more intuitive navigating, it contains information such as:
• who we are;
• information regarding mandatory and excess liability insurance
policy;
• how and when to report a claim;
• various boards and committees that fall within the auspices of
LIANS;
• annual reports; and
• the latest news and information in specific practice areas such as
family law and real estate, and other areas such as professional
development, fraud, and risk and practice management.
The website contains information and links for programs such as
the Mentorship Program and the Nova Scotia Lawyers Assistance
Program. These programs are offered to provide assistance and
support to lawyers with professionalism, skills, health and wellness.
Under the Risk Management tab, find important information such
as the latest in fraudulent schemes being circulated and how to
protect yourself and your practice from becoming a victim. You will
also find a list of the most common errors seen at LIANS and how
to avoid them. For example: effective documentation can play an
important role in claim prevention if your client alleges that you did
not follow their instructions. To assist lawyers with documenting
their files, we include under the “resources” tab practice tools such
as: precedent letters, checklists, retainer agreements and sample
notes to file. If your practice areas include family or real estate,
we have practice tools specific to those areas, which include
precedents, checklists, the mortgage payout protocol and more.
Lastly, the LIANS website offers members the latest information
in technology. Here members will find information about cloud
computing, online scheduling, going paperless and information
about social media.
For more information regarding the services and resources provided
by LIANS and the RPM Program, visit the LIANS website at
www.lians.ca.
If you have any questions on these, or any other risk- or practicerelated matters, do not hesitate to contact the Risk and Practice
Management Program at [email protected] or call the Lawyers'
Insurance Association of Nova Scotia at 902 423 1300.
Fall 2014
21
Action on
access to justice
Initiatives taking root in 2014-2015
T
he Nova Scotia Barristers’ Society is committed to enhancing
access to legal services and the justice system for all Nova
Scotians. Approved by Council on February 19, 2014, the
Society’s Access to Justice Action Plan supports this commitment with
attention to equity-seeking and economically disadvantaged groups.
All access to justice initiatives undertaken or supported by the Society
will be in accordance with the Legal Profession Act and Regulations
under the Act, as well as Council Policies and the Society’s Strategic
Framework.
Key areas of focus
The Action Plan is designed to assist the Society in moving forward
on specific strategic initiatives in the year ahead. Current access to
justice work focuses on the following areas: advocacy, collaboration,
education, innovation and research.
The Society recognizes its legislated responsibility to collaborate with
other community stakeholders in developing strong, sustainable and
innovative programming to address the underlying issues that create
barriers to access to justice. Initiatives are being fostered through
collaborative efforts with lawyers and legal organizations, service
users, government, legal academics, the Judiciary, social and health
services agencies, community groups and others.
Where appropriate, and reflecting its purpose and values, the Society
is advocating to raise the profile and awareness of access to justice
22
The Society Record
issues both within the province
Lia Renaud
and nationally. One important
NSBS Access to Justice Project Manager
new channel for advocacy is
participation in the province’s
Access to Justice Coordinating Committee, launched in June and
chaired by the Justice Minister and Chief Justice of Nova Scotia.
Through this and other efforts, the Society aims to facilitate and
support a fundamental shift in thinking and practice – within the legal
community and beyond – that focuses the delivery of legal services
on the specific needs of the users, through educational projects and
justice system improvements.
Similarly, with ongoing consultation and engagement, the Society
is identifying new and innovative models for lawyers, in efforts to
support and educate lawyers in the face of changes impacting the
profession and the public interest.
Finally, the Society is working to incorporate data compilation
together with qualitative information, which will allow for more
outcomes to be identified and ultimately measured. These research
efforts will enable the Society to track and evaluate the societal
benefits of its access to justice initiatives, to ensure they are making a
difference to Nova Scotians.
2014-2015 Access to Justice Initiatives
A number of access to justice initiatives are already underway. The
Society is also establishing evaluation methods to measure the
outcomes of ongoing projects such as the following:
•
•
•
•
•
•
piloting sexual assault information workshops for lawyers this
fall;
reviewing the Society’s Skills Course curriculum to reflect A2J
values;
increasing innovation in legal service delivery across Nova Scotia;
creating new education programs for lawyers to work with selfrepresented litigants (SLRs), and assisting in the development of
legal information resources to assist SLRs;
supporting the efforts of a working group tackling issues of
Aboriginal child welfare issues in Nova Scotia;
supporting research of North/East Preston communities that
addresses land title issues;
•
•
•
hosting the UnCommon Law 5 conference in the Annapolis
Valley, to explore justice barriers and legal advocacy for Nova
Scotians who have substance use and mental health issues;
undertaking comprehensive community consultation and
engagement in accordance with Section 4(1)(d)(i) of the Legal
Profession Act; and
reviewing the Regulations under the LPA to identify and remove
obstacles to A2J, and enhance opportunities to improve access to
legal services and justice for all Nova Scotians.
For more details and continuing updates on the Society’s Access to Justice
Action Plan, visit nsbs.org/improving_justice.
PROJECT SPOTLIGHTS
UnCommon Law 5
T
he theme for the fifth UnCommon Law program is Mental
Wellness: A Community Approach to Access to Justice.
Offered by the Society across the province – this year in
the Annapolis Valley on November 6 – these forums bring together
lawyers, judges and community members to speak, listen and learn
from each other.
This year’s topic was a very timely one, says M. Ingrid Brodie, Chief
Crown Attorney, Western Region
“In the Annapolis Valley, dedicated committees have worked hard
to launch pilots of court-monitored programs for mental health and
drug treatment to Kentville Provincial Court starting in May 2014,”
says Brodie. “Partnerships across the justice system and among health
professionals have been instrumental in developing and running both
programs bringing new access to justice approaches to rural Nova
Scotia.”
This year’s event had a three-fold purpose:
Access to justice: People with substance and/or mental health
challenges may find themselves involved in the legal system and are
often underserved, lack basic understanding of the process, and have
little to no agency. To address these issues, the conference explored
the question, “How do we build effective legal advocacy for people
who have substance and/or mental health challenges in Nova Scotia?”
Education: To provide education to lawyers in the Valley whose
clients have substance and/or mental health challenges, or who are
often involved in litigation involving people at risk. The event also
educates individuals, families, organizations and communities about
their rights in our legal system.
Above: M. Ingrid Brodie, Chief Crown Attorney, Western Region
and to engage in a positive way with legal professionals.
Previous UnCommon Law events were held in Halifax, Yarmouth,
Sydney and Dartmouth on themes ranging from youth and the law
to the complexity of legal issues for women.
Engagement: UnCommon Law provides opportunities for Nova
Scotians to shift their perspectives about lawyers and the legal system,
Fall 2014
23
PROJECT SPOTLIGHTS (continued)
Sexual Assault Information for Lawyers
T
he Society and the Avalon Sexual Assault Centre are partnering to facilitate pilot workshops this fall on Sexual Assault Information
for Lawyers: Trauma-informed Lawyering. These non-compulsory three-hour workshops provide information and best practices for
lawyers working on sexual assault cases.
Lawyers should be aware of and able to recognize the
signs of trauma that can occur after sexual assaults.
This trauma can be retriggered as a result of attitudes,
beliefs and behaviours, or unsupportive responses
from family, friends or others. Secondary wounding
may also occur throughout the justice process, albeit
unintentionally, so lawyers also need to be mindful in
mitigating secondary wounding to their clients.
The first workshop was presented to articled
clerks on October 28 in the Society’s classroom;
watch InForum for updates on future sessions and
ongoing development of resources for lawyers. More
information is also available to lawyers through the
Avalon Sexual Assault Centre; contact the centre at
902 422 4240 or [email protected].
Left to right: Sexual Assault Information for Lawyers Working Group – Jane Gavin-Hébert, Emma Halpern, Lia Renaud,
Elizabeth Dantzler, Adrienne Buckland, Mary Brown (not pictured: Karla Bray, Andrea Hancock, Ann Marie MacInnes)
Community consultations
T
he Society is rolling out a new community
consultation strategy across the province,
starting this fall. LaMeia Reddick, community
engagement consultant, is tasked with identifying and
connecting to first voice perspectives and representative
perspectives of access to justice challenges in various
regions.
Throughout the project, Reddick is working with
Society staff to develop communication strategies
that will highlight the Society’s access to justice and
engagement work, in ways that will particularly
resonate and connect with equity-seeking and
economically disadvantaged groups.
The project will culminate in four regional sessions
that will bring together lawyers, community members
and other identified legal professionals to discuss access
to justice strengths and weaknesses. Through listening,
observing, engaging and collaborating, the Society will
have the opportunity to better understand the access
to justice needs of diverse communities within the
province.
LaMeia Reddick
Community Engagement Consultant
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The Society Record
This land is our land
T
his past summer, I conducted a research project in the
communities of North and East Preston to try to understand
and identify the concerns of community members regarding
land ownership.
Community leaders and families told of challenges and frustrations
regarding the historic expropriation of land, difficulties with property
taxes, lack of clarity in land titles and concerns regarding inequities
in inheritance. These challenges clearly stem from a history fraught
with racism, oppression and inequity. Today, fewer instances of overt
racism occur and the problems are more systemic. However, racism
and marginalization are still very real experiences for the residents of
North and East Preston.
Interviews centered around three themes of inquiry:
• What are the historical challenges and barriers faced by African
Nova Scotian people when dealing with land ownership;
• In what ways had government processes and legislation been
used in the process to acquire land by community members; and
• In what ways can Nova Scotia move forward to address future
land acquisition and community education around the process
of land ownership?
The communities of North and East Preston were settled on
undeveloped land with little to no resources available for future survival.
Community members experienced frustration and feelings of shame
and anger. These feelings led
Angela Simmonds
to mistrust, which continues
Law student, Schulich School
to this day and is deeply
of Law at Dalhousie University
connected to the deplorable
historical conditions. One
elder in the community who shared his experience explained the land
was not fertile and did not provide the basic necessities to survive.
Through the interview process, some of the concerns raised by
community members were identified around the issues of property
taxes, land title and government programs. It was clear that community
members felt that both North and East Preston are at risk of being lost.
It was also clear through the research for this project that community
members feel they are not being adequately consulted or included in
policy developments with respect to their land. These experiences have
led to growing feelings of distrust and animosity with the provincial
and municipal governments.
Some recommendations emerged from the research and conversations
with community members:
• Creation of a Community Land Trust;
• Establishment of education programs in the communities, to
help people understand the laws that govern their land and the
processes that exist to acquire legal title; and
• Advocacy is required on behalf of the community members in
the Preston area, to ensure straightforward, easy to access and
Fall 2014
25
affordable methods to gain legal title to land that families have
been living on for generations.
Community members need education and they need support from
government, to ensure that land remains in families and that the
communities are able to thrive for future generations.
“Today, our communities have people
with the knowledge to help with
some of the issues the community
faces; we just have to trust each
other. We can be far more powerful
together than if we stand alone.”
– Elder from North Preston
A part-time student at the Schulich School of Law, Angela Simmons
conducted this research project in conjunction with the Society during
the summer of 2014.
Congratulations
2015 Second Vice-President
and Council Elections
If becoming a leader in the profession and contributing to
the ongoing work of Council interests you, start thinking and
planning now. In early 2015, a new Second Vice-President
will be elected and the Society will also conduct its Council
elections in March and April.
The Governance and Nominating Committee will nominate
a candidate for Second Vice-President by the end of January,
and invites all lawyers to provide recommendations.
Jim Musgrave, Q.C. is the 2014 recipient
of the Lionel J. McGowan Award of
Excellence in Dispute Resolution by the
ADR Institute of Canada (ADRIC).
Strategic thinkers and consensus builders, potential
nominees should have an ability to meet the expected time
commitment of approximately 500 hours through the year.
Under its policies, the Committee will also look for such
characteristics as unquestionable integrity, respect for
others, leadership and communication skills, and fit with
the other officers. As well, the Society strives for diversity of
leadership with respect to personal characteristics, area of
practice, and geographic location of the candidate.
The McGowan Award recognizes those
who have made an outstanding
contribution to the development and
success of ADRIC on a national level, and
have contributed significantly to the
promotion and development of
alternative dispute resolution across
Canada.
This national recognition is testament to
Jim's dedication and commitment to
the highest standards of mediation and
arbitration practice.
Congratulations, Jim.
Jim Musgrave, Q.C., C.Med.
If you are interested in being considered for the position of
Second Vice-President, or wish to recommend someone for
the Committee’s consideration, please contact the Chair of
the Committee, J. René Gallant, at [email protected]
or 902 428 6408 by December 1, 2014.
Further details about the elections will be announced in
InForum and at nsbs.org.
TRAMPOLINE BRANDING
Contact: Larry Bootland 902 405 4809
Project: 10836C&P NS Hali Mediation Ad
26
The Society Record
Understanding access
Photo by Laura Hilchey Photography
Collaboration helps law societies develop practical strategies
C
onfused. Frustrated. Anxious. Stressed. Angry. Bewildered.
Humiliated. Isolated. Frightened. Exhausted. Wanting to
just give up.
This is how a roomful of lawyers and regulators felt on October 8
after a three-hour ‘poverty sensitization’ exercise called Living on the
Edge, presented by United Way Halifax during the 2014 Annual
Conference of the Federation of Law Societies of Canada.
“Every one of those words are words we also hear in relation to the
justice system. It’s a system that doesn’t make sense to many people,”
Darrel Pink, Executive Director of the Nova Scotia Barristers’ Society
said to more than 100 delegates representing the Federation and 14
provincial and territorial law societies.
Adopting new identities for the afternoon, each participant imagined
the daily challenges of poverty. They grappled with eviction notices
and expensive dental emergencies, affording daycare while jobhunting, forgoing grocery shopping in order to pay utility bills and,
in some cases, language barriers or brushes with the law. The United
Way plans to offer the exercise to other groups in the Halifax region,
to deepen the understanding of poverty’s complexity, and how a
sudden change of circumstance can significantly impact choices.
Catherine Woodman, President and CEO of United Way Halifax,
rooted the role-playing in some sobering statistics:
• three million Canadians live in poverty today;
• 833,000 used a food bank in 2013, a 23% increase over the past
six years; and
•
last year in Halifax, 1,700
individuals used shelters, with an
average stay of 40 nights.
Marla Cranston
Communications Officer
For the law society reps, it was “an opportunity to step outside our
normal roles, and our comfort zones perhaps, to see the issues from a
different perspective,” said Moncton lawyer Marie-Claude BélangerRichard QC, President of the Federation. Law societies have a critical
role to play in the pressing issues of access to justice and access to legal
services, and “I believe our strength lies in leading through ongoing
collaboration,” she said.
Community visits
The collaboration theme came into focus on October 9, as participants
split up into groups and fanned out across the city for 11 inspiring
conversations with community and justice-oriented organizations.
They asked this question at many of the sites: If you could remove
one barrier or add one resource to give people access to justice, what
would it be?
Teenagers and young adults offered many thoughtful ideas at Leave
Out Violence (LOVE), a violence prevention and intervention
organization. A legal toolkit for youth, with basic information in clear
language, would be a great start, said one. Better teaching of the legal
system in schools, and ongoing legal information via social media
channels would also help, “something that would get us interested to
build that level of trust,” said others.
“If you’re a member of a marginalized group outside of mainstream
Fall 2014
27
Photo by Laura Hilchey Photography
white society, you’re more susceptible to barriers,” added LOVE staff
member Richard Taylor. “We definitely have access to the criminal
justice system – we’re in it.”
The other sessions took place at the Halifax Refugee Clinic, reachAbility,
Mi’kmaw Native Friendship Centre, Immigrant Settlement and
Integration Services, Dalhousie Legal Aid Service, Nova Scotia Legal
Aid, Nova Scotia Supreme Court (Family Division), and with the new
Access to Justice Coordination Committee, a restorative justice group,
and a group of lawyers who are building innovative practices.
After regrouping to share what they learned, the delegates
brainstormed on what roles the Federation and law societies should
play in enhancing access to legal services. A variety of themes emerged,
from encouraging innovative legal practices to the possibility of nonlawyers assisting with some front-end legal work. Fostering cultural
competence in the legal profession is pivotal, but so is developing the
competence to collect, measure and evaluate data, something that’s
sorely lacking in the justice system.
Though law societies across Canada are actively involved in developing
access to justice solutions, the Halifax conference was the first time
they collectively addressed the topic.
“It’s an issue that’s pressing in every single one of our jurisdictions,”
said Jeff Hirsch, the Federation’s Vice President and Council member
for Manitoba. “We’ve just had a taste of what it feels like when you’re
frustrated and disempowered, when you need help with your legal
problems. What can we do to help? We need to engage with the public
and we need to listen to the public, to change our mindset and the way
we do business.”
Young adults, teenagers and staff at Leave Out Violence (LOVE)
shared their “Check-in” process while brainstorming A2J ideas
with conference participants.
We’ve got you covered.
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28
The Society Record
Preparing for
the
storm
Legal innovation in Nova Scotia
A
storm is brewing in the legal profession and it is hitting the
shores of Nova Scotia. The legal landscape is increasingly
becoming more difficult terrain, with new competitors and a
tighter market. The inevitable result will be a major transformation
to the overall practice of law. Jordan Furlong’s presentation at the
2014 NSBS Annual Meeting sent out a warning call to Nova Scotian
lawyers – be prepared.
“The storm has been brewing for a few years with the economic
downturn, declining revenue, tougher clients and sharper
competition,” says Mr. Furlong of Law21.ca, a leading industry
analyst who forecasts the impact of the changing legal market on
lawyers, law firms and legal organizations. “The changes that are
coming will come fast.”
Legal innovation is no longer an idea for the future. Times are quickly
changing with entrepreneurial lawyers in Nova Scotia moving away
from traditional practice and trying out new ideas.
In his keynote address, titled “Weathering the Storm: Navigating
to Safe Harbours in the 21st Century Legal Market,” Furlong
summarized the major trends that are altering the legal profession.
The rise of technology in legal practice, the growing pressures from
clients to reduce legal fees and the rise of alternative business structures
(ABS) in the U.K. and Australia, have created new opportunities and
challenges in the market.
“As lawyers, we think of the
Julie Sobowale
market as clients that approach
Freelancer
us,” says Furlong. “That market
is only the tip of the iceberg.
When Canadians face justiciable problems, 88 per cent do not obtain
legal help.”
One of the major issues he discussed was pricing for legal services and
looking beyond the billable hour. Some Nova Scotia firms are already
experimenting with different pricing models. McInnes Cooper has
entrepreneurial services geared towards startups that include special
fee arrangements and fixed pricing. CS Legal is one of a growing
number of virtual law firms in Nova Scotia and uses flexible fee
arrangements for clients.
“We’ve tried to build our practice from a fresh perspective, not letting
ourselves get caught up in ‘how it should be’ or ‘always has been’
done – all the while counting on some of the solid practices we’ve
learned from seasoned lawyers we’ve been privileged to work with in
the past,” says Natalie Clifford, a partner at CS Legal.
Some firms have stepped completely into new territory as
entrepreneurial law firms. When Corinne Boudreau started Two
Certainties Law in 2012, she designed it based on her client’s needs.
Instead of in a traditional stand-alone law office, the law firm is based
out of Platform Space, a co-working space in Bedford.
Fall 2014
29
“I designed the firm based on clients who I want to serve,” says
Boudreau. “I decided to use a co-working space because I get to hang
out with small business owners as opposed to other lawyers. It’s part
of being in a different mindset. There’s a mastermind group that gets
together to chat about what’s going on in the business world. I know
what’s going in that world and I’m part of the community.”
On the precipice
Law societies across Canada are examining how the
regulatory framework can support and foster innovation in
the delivery of legal practice.
“As legal regulators, we are standing on the edge of a cliff,”
Executive Director Darrel Pink said in a June 5 presentation
to the Law Society of Alberta.
“Our choices are to turn around and walk away from the
edge .... Or we can jump from the cliff and plan for a safe
landing. There is much more risk in this option but as will
be clear to you, my perspective is that we have no choice.”
Here in Nova Scotia, Council’s Strategic Framework has
been the driver behind the priority to transform regulation
and governance in the public interest.
Photo by Eliza Manuel
“Our goal is to examine all aspects of our regulation,
to revise it and to modernize it,” Pink told his western
colleagues, outlining the Society’s ongoing consultations
with lawyers and firms in the province, as well as its
research and collaborations with experts, legal academics
and other regulators.
Corinne Boudreau, 2 Certainties Law
Part of her business design was doing away with the billable hour and
creating new pricing tools. Clients receive engagement letters that
clearly explain what legal services will be provided, and interim bills
are sent with fixed fees for legal services.
“I like the principle-based approach to running a law firm,” says
Boudreau. “For example, I don’t have a trust account. I use fixed fees
for all my services. It came out of my experience of sending out bills
and the feedback I received from clients. With fixed fees, I take on
more risk but I should strive to be more efficient in my work.”
With all the uncertainty, there are safer shores for lawyers in the future,
Furlong suggested in his keynote, and also in an in-depth workshop
the day before at the Society’s offices. Rethinking the practice of law
will lead to new processes and better services for people with lower
incomes. For firms looking to innovate, remember to think about the
business.
“There is a lot more flexibility than you think,” agrees Boudreau.
“Law and design is a good example of what we can do to make the
law accessible to others. What I like about people who are doing
innovative things is they look at different professions and apply it to
law.”
30
The Society Record
“We have said that everything is open for consideration and
we have set ourselves up to build a proactive, principled
and proportionate risk-based regulatory model. We now
refer to this as ‘Triple P Regulation’.
On June 15, the Society’s Annual Meeting featured a twohour professional development session, “Opportunities
for innovation in your practice: An action plan,” led by Mr.
Pink and Jacqueline Mullenger, Director of Education &
Credentials.
The presentation in Alberta, titled “On the Precipice – the
Future of Legal Regulation,” is available for reading on the
Society’s website, at nsbs.org/transform-regulation.
Steve Mark and Tahlia Gordon
Entity Regulation 101
Transforming regulation and governance in the public interest
I
n 2013 the Nova Scotia Barristers’ Society established a Strategic
Framework for 2013-2016, calling for action in relation to
two specific strategic priorities: transforming regulation and
governance in the public interest, and enhancing access to legal
services and the justice system for all Nova Scotians.
A comprehensive research paper, published by the Society in October
2013, set out key objectives for a regulatory model that is responsive
to the current legal practice trends and issues facing legal practice. The
paper recommended that a model regulatory regime should comprise
a framework that is “proactive; is principle-based and outcomesfocused; is risk-based; is able to encourage and accommodate new
business models; is able to enhance access to justice and affordable
legal services and involves new ways of engaging law firms to achieve
outcomes.” Entity regulation was recommended as a key element of
such a model.
At the foundation of this transformation project has been the
development of Regulatory Objectives for the Society, based on
the regulatory best practices models researched and referenced
above. Extensive membership and stakeholder consultation has
contributed to the
development of
these principles.
Steve Mark and Tahlia Gordon
Directors, Creative Consequences Pty Ltd,
an Australian-based international consultancy
In
December
2013, the Society engaged us to assist with the design and
implementation of a regime to regulate entities, including a framework
to embed competent practice and ethical behaviour, otherwise
known as “proactive management based regulation” (PMBR) in all
law firms in Nova Scotia. Throughout 2014, we have been working
with the Society in developing entity regulation. This short article
discusses the concept of entity regulation and the work that has been
conducted by in creating such a system for Nova Scotia to date.
What is “entity regulation”?
Traditionally, legal regulation in common law countries is
characterized by a “complaints-based” reactionary approach. In this
approach ethical standards are set by regulators and practitioners
are held against these standards. Practitioners who fail to meet the
articulated standards are disciplined but only if there is enough
evidence to indicate that the standards have not been met. This
Fall 2014
31
“complaints-based” traditional approach is therefore, by and large,
a pass/fail system: either the rules are found to have been broken
or they are not. Entity regulation differs considerably from this
traditional approach.
Entity regulation embodies a shift from individual lawyer conduct
to a focus on firm culture and behaviour, from a focus on discipline
alone to process improvement. It also represents a shift from the
traditional ‘one-size-fits-all’ model of regulation to one that better
focuses on actual strengths and risks relating to varying types and
sizes of practice.
The concept of entity regulation is not new to the legal profession;
aspects of it have been adopted in several jurisdictions around the
world. In both the United Kingdom and Australia, for example,
legislation has been enacted allowing regulators to look at the conduct
of law firms as entities. Two jurisdictions in the United States, New
York and New Jersey, allow complaints to be made against law firms.
Here in Nova Scotia, a framework exists for complaints to be made
against law firms but again, this represents an approach that has
historically been more reactive than proactive. It’s time to change this
approach.
How is entity regulation implemented so the conduct of law
firms can be assessed?
In Australia, for example, the conduct of entities is assessed through a
framework whereby entities are required to develop, implement and
maintain a management system (“ethical infrastructure”) to meet 10
key elements of sound legal practice. These objectives include, for
example, competent work practices; effective, timely and courteous
communication; timely review, delivery and followup of legal
services; timely identification and resolution of conflict of interests;
and appropriate records management.
This framework, formally referred to as “Proactive Management
Based Regulation” (PMBR), requires the appointment of one or
more lawyer–managers by the firm to take enhanced responsibility
for meeting the 10 objectives. The designated lawyer-manager is
responsible for communicating with the regulator, and completing a
self-assessment of the procedures and processes (“ethical infrastructure)
the firm/entity has developed to address the 10 elements.
Why implement entity regulation?
If developed and implemented appropriately, entity regulation is
extremely beneficial for law firms. In Australia, where entity regulation
has existed for more than a decade, research has revealed a two-thirds
reduction in the number of complaints against entities. Research has
also revealed that Australian law firms subject to entity regulation
believe it has improved and strengthened the management systems
within their firms, thereby assisting them to improve service delivery.
The requirement that law firms develop, implement and maintain
a management system (ethical infrastructure) is easily implemented
because it is not, as noted above, based on a one-size-fits-all model.
Entities are not required to comply with a specific management
framework; rather, they are required to engage in a review and
planning process and develop a set of procedures and processes
consistent with meeting certain elements. All entities, irrespective of
their size and form, develop their own framework rather than having
one imposed on them.
32
The Society Record
The requirement that law firms develop, implement and maintain
a management system (ethical infrastructure) can provide a quasieducative mechanism for the entity, its staff and the general public. In
the current work climate where firms are facing increased commercial
pressure and are, for example, requiring lawyers to meet certain
billable hour targets, a focus on effective management and ethical
behaviour is becoming essential.
How is entity regulation being developed for Nova Scotia?
Entity regulation is not a one-size-fits-all regulatory model. It cannot
be “cut and pasted” from one jurisdiction to the next. Rather, it must
“fit” the regulatory culture and framework that already exists.
In collaboration with the Society, we designed an iterative approach
comprising six phases:
1. Review of the present regulatory and ethical requirements for
lawyers, including an analysis of conduct complaint data and
professional indemnity claims;
2. The design of a set of ‘objectives’ considered necessary to encompass
the findings of Phase 1;
3. A consultation phase for stakeholders on the entire process but
specifically on the ‘objectives’;
4. The design of a ‘self-assessment’ process to enable entities to address
the ‘objectives’;
5. A further consultation phase; and
6. The implementation phase, including design of an ‘audit’ or
‘review’ function.
Last March, we presented the Society with an independent report
that considered the applicability of entity regulation and PMBR. The
report discussed whether the Society’s existing regulatory framework
is appropriate for entity regulation and PMBR, and whether Nova
Scotia is culturally ready for a new regulatory model. After lengthy
consideration of the current regulatory framework and culture, the
report opined that Nova Scotia is ready for entity regulation and
PMBR. This conclusion was based on the following reasons:
1. The Nova Scotia Barristers’ Society has a strong relationship with
the province’s legal profession and is well accepted as the regulator.
2. The profession appears to accept the regulatory framework currently
in place in Nova Scotia.
3. The Society already has a framework for entity regulation.
4. The Society has been engaging in discussions with the profession
about its plans and continues to so engage.
5. The Society is prepared to assist and support the profession through
the transformation, and towards further improvement.
Having concluded that Nova Scotia is structurally and culturally
ready for entity regulation and PMBR, we embarked on Phase 2 of
the project: to design a model of PMBR that would embed ethical
behaviour and competent practice in law firms that is relevant and
appropriate for Nova Scotia.
In order to design such a model, we commenced by looking at the
regulatory and cultural landscape in Nova Scotia as discussed in the
first report. Following this inquiry, we then considered the regulatory
instruments that form the basis of Nova Scotia’s regulatory framework,
such as the Code of Professional Conduct and the Standards; the types
of models that already exist for entity regulation; the demographics
of the Nova Scotia Bar; and
finally, the types of complaints
made against lawyers in Nova
Scotia. This analysis provided
substantial information for the
development of an appropriate
ethical infrastructure.
Entity regulation embodies a shift
from individual lawyer conduct to a
focus on firm culture and behaviour,
from a focus on discipline alone to
After considering all of the
material we ultimately identified
10 regulatory targets, which we
referred to as “elements”, that we
believed should form the basis of
ethically based management systems for Nova Scotia. All 10 elements
reflect the content and theme of Nova Scotia’s regulatory instruments
and, in particular, the Code of Professional Conduct:
PMBR and ethical infrastructure
play in entity regulation. It was
generally agreed that Nova Scotia’s
current regulatory framework –
which already allows complaints
to be made against law firms and
mandates that firms must already
file an annual law firm report – is
amenable to entity regulation.
Attendees also embraced the
purpose and the benefits of entity
regulation. There was a general
agreement that enabling a closer relationship between the regulator
and the regulated will be one of the most important benefits of entity
regulation. Attendees also appeared to recognize the benefits of
regulating law firm conduct rather than just focusing on individual
lawyer conduct. It was generally agreed that regulating law firm
culture, in addition to individual lawyer behaviour, is a better way
to influence cultural change and could assist in reducing complaints
against lawyers while also promoting greater professionalism and
client protection. Further, there was a great deal of support for a
regulatory system that moved away from discipline alone to assistance
by the regulator to improve the profession.
process improvement.
1.
2.
3.
4.
5.
6.
7.
8.
9.
Developing competent practices to avoid negligence;
Achieving effective, timely and courteous/civil communication;
Ensuring confidentiality requirements;
Avoiding conflicts of interest;
Maintaining appropriate records/file management;
Ensuring effective firm/staff management;
Charging of appropriate fees and disbursements;
Ensuring reliable trust accounts practices;
Sustaining effective relationships with clients, colleagues, courts,
regulators and the community; and
10. Achieving access to justice.
We proposed that Nova Scotia’s model be called “A Management
System for Ethical Legal Practice.”
Following this process, we then engaged in Phase 3 of this project – a
consultation phase with relevant stakeholders about entity regulation
and the proposed model for Nova Scotia.
The consultations commenced with a general overview of entity
regulation, PMBR and ethical infrastructure. The overview included
a discussion of the purpose and benefits of entity regulation, and the
role played by the regulator in administering such a framework. We
invited attendees to comment and voice any concerns or issues they
had with the concepts.
After discussion of entity regulation had subsided, we then asked
attendees to consider the 10 elements and the proposed list of
questions we had developed for Nova Scotia’s ethical infrastructure.
We invited attendees to comment and voice any concerns or issues
they had about the proposed 10 elements and list of questions. At
the conclusion of the workshop, we invited attendees to commit
to moving forward with entity regulation and ethical infrastructure
in Nova Scotia. The Phase 3 report outlined the issues raised by
attendees during the workshops, as well as our observations as to the
effectiveness of the consultation phase.
Following delivery of the Phase 3 report, we then engaged in a series
of discussions with the Society about the recommendations and how
the elements and questions (statements) should be amended. These
discussions produced several iterations of the elements and questions
(statements). The final version of the elements – and a proposed
self-assessment regime that allows firms to self-assess their practices,
apropos the elements and statements – comprised a Phase 4 report.
Council is holding a full day meeting on November 14 for the
purpose of policy level discussion and hopefully approval of the
draft Regulatory Objectives, and the proposed structure for the
Management System for Ethical Legal Practice, set out above.
Following policy direction from Council, two remaining phases exist
in the coming months: a further consultation phase; and finally the
implementation phase, including design of an ‘audit’ or ‘review’
function.
Our journey thus far has been both enlightening and educational. We
have thoroughly enjoyed working with the Society in designing entity
regulation for Nova Scotia, and are delighted that we have been able
to visit the province and consult a considerable number within the
legal profession.
We look forward to embarking on the final two phases of this exciting
project.
For more information, read the consultants’ reports in full at
nsbs.org/transform-regulation.
As described in the Phase 3 report, the discussions during the
consultations were extremely productive. Very little concern
emerged about the move to the new regulatory framework and the
changes that will need to take place in order for entity regulation
to be implemented. Attendees appeared to have achieved a good
understanding of how entity regulation works in practice, and the role
Fall 2014
33
‘Triple-P’ regulation in
Nova Scotia
VEHICLE ACCIDENT
RECONSTRUCTION
What does it really mean to regulate in a manner that
is proactive, principled and proportionate? The Nova
Scotia Barristers’ Society does this now through the
creation and ongoing maintenance of Professional
Standards.
When a new Professional Standard is developed, as
a starting point, it articulates what a lawyer must do.
This is a proactive regulatory statement.
The Standards themselves are also principled – they
are based on case law, regulation, legislation and, in
some circumstances, expert opinion on the required
standard of care.
C.R.Tyner & Associates
FORENSIC ENGINEERING
CONSULTANTS
Stuart D. Smith, B.Eng., Ph.D., P.Eng.
251 Mount Edward Road
Dartmouth, Nova Scotia B2W 3L4
phone:
(902) 435-5315
cellular: (902) 471-3197
facsimile: (902) 435-7647
e-mail:
[email protected]
web:
www.crtynerassociates.ns.ca
Finally, the Standards are proportionate. While they
dictate what a lawyer must do, they do not prescribe
how a lawyer fulfils that requirement, which will be
CHOOSE FROM CANADA’S TOP
MEDIATORS AND ARbITRATORS
dependent on and determined by such factors as the
size of firm and type of practice.
Real Estate Standards for lawyers have existed for the
past decade in Nova Scotia. Family Law Standards
were introduced in 2011, and draft criminal law
standards will be ready for the consultation process
in the near future. Since 2012, the Society has been
developing Law Office Management Standards
for client service, records retention, handling of
electronic data and more.
Once created, the Standards are not static – they
are reviewed regularly as “living” documents that
continue to evolve with changes in legal practice. Find
the Standards online at lians.ca/standards.
34
The Society Record
The Honourable
Stewart McInnes
P.C., Q.C., FCIArb
Nova Scotia Panel
ADR Chambers is pleased to announce that
Stewart McInnes has joined its mediation and
arbitration panels. Stewart has a wealth of
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Legal research
Note: This article is adapted from a presentation to the Annual Meeting
of the Nova Scotia Barristers’ Society held on June 14, 2014.
Part I: General tips on cost-effective and efficient legal research
E
fficiency in legal research can only be achieved with the right
tools and a solid strategy. Jumping straight into keyword
searching might seem like the most efficient approach, but
taking a step back to consider your research question in context, and
to plan what resources you will check and how you will check them,
will save time and money in the long run. (Taking a few deep breaths
can help too.)
Let’s start with time- and money-saving tools: It’s worth investing
in a few key legal texts in your practice area(s), along with up-to-date
versions of any annotated statutes that you use on a regular basis
(e.g., the Divorce Act, the Bankruptcy and Insolvency Act, etc.). The
up-front cost may seem daunting, but consider it an investment
in your practice. Having a comprehensive resource on the subject
matter at your fingertips—in hard copy or electronic form—will be a
worthwhile asset, whether you are looking for a refresher on general
principles, or a quick answer to a specific question.
It may also be worth investing in an online research tool, to
complement your secondary sources and what’s available on CanLII.
Legal publishers such as LexisNexis Canada, Thomson Reuters, and
Wolters Kluwer offer comprehensive online research products as well
as discrete subject-specific products that may provide more value,
depending on your practice. Legal publishers often offer free training
opportunities as well (check InForum for upcoming sessions).
When you’re building your toolkit of research sources, take
Staying in control, on
budget and in the know
advantage of what is
Deborah Copeman, Librarian, NSBS
available for free. Most
Jennifer Taylor, Research Lawyer,
of us are familiar with
Stewart McKelvey
CanLII, but what about
CanLII Connects? Practitioners and academics are adding summaries
and commentaries to the site every day. Law firm blogs are another
great way to get a feel for a particular topic, and many of the leading
Canadian “blawgs” can be found (for free) on www.lawblogs.ca.
There are also “subject research guides” on the Society’s website.
In that vein, take advantage of libraries. The Society’s Library &
Information Services staff, based out of the Halifax Barristers’ Library,
can assist practising lawyers and articled clerks no matter where you
are in the province. See the Library services portion of the Society’s
website for information on distance borrowing, document delivery
services and licensed resources available for use at Barristers’ Libraries
in Halifax, Kentville and Sydney.
It’s not just law libraries, either: the Borrow Anywhere, Return
Anywhere program of Libraries Nova Scotia allows cardholders to
borrow materials from the Sir James Dunn Law Library, Dalhousie
University, the Cape Breton University Library, and most college,
university and public libraries in Nova Scotia. The Nova Scotia
Legislative Library is another option: it provides access to current and
historical Canadian provincial and federal legislation.
So you have your tools. Now what is your strategy? It’s important
to have a basic system that captures the foundational tools outlined
below. Before embarking on a specific research question, map out
how you’re going to search for the answer in accordance with your
systematic approach. If you have to research an issue related to expert
evidence, for example, your checklist might include the following
Fall 2014
35
items: Sopinka, Lederman & Bryant on The Law of Evidence; Nova
Scotia Evidence Act and the Canada Evidence Act; Nova Scotia Civil
Procedure Rule 55 (and cases annotated therein); targeted keyword
searches on CanLII and your online research tool; and an online scan
for any recent journal articles or blog posts.
Part II: The seven legal research tools for a systematic approach
#1: Texts and updated publications
Sitting at your desk, you’re probably tempted to start your research by
keyword searching a case law collection in Westlaw ($$), Quicklaw ($$)
or CanLII (free). Resist the urge! Save yourself time and effort, and start
by consulting commentary first. Textbooks and updated publications,
such as loose-leafs, provide a concise and authoritative summary of the
state of the law; identify key terms to use in an online search; hone in
on relevant legislation; and provide citations to leading cases.
It’s likely worth purchasing key text(s) in your practice area(s). Here
are some ways to help you choose:
• Ask a librarian or senior practitioner for guidance.
• Check which titles judges are citing.
• Consult an online portal such as Legaltree.ca (but update).
Make sure to squeeze all possible value out of your texts:
• Peruse the table of contents: Sometimes seeing how the author
has organized the topics will trigger a coherent way to approach
your research.
• Read the footnotes: That’s where you can find additional
commentary, plus references to the leading cases in the area, which
you can then take to your online research tool and note up.
• Scan the index: Make sure you have reviewed all the relevant
references to your topic that are sprinkled throughout the text.
For free commentary, keep an eye on CanLII’s Commentary section,
currently offering four resources, including Lancaster House’s eText
on Wrongful Dismissal and Employment Law (1st ed). WestlawNext
Canada is licensed for lawyers’ use in Barristers’ libraries in Halifax,
Kentville and Sydney, and provides access to key commentary—e.g.,
McLeod & Mamo’s Matrimonial Property Law in Canada; Gibson’s
Criminal Law Evidence, Practice and Procedure; Widdifield on Executors
and Trustees, 6th ed.—within licensed criminal, family, and estates
and trusts content.
Cost-effective approaches:
• Don’t buy the latest edition of every text.
• Don’t subscribe to loose-leaf updates.
• Investigate format options (ebook or web-only access).
• Consider purchasing annotated statutes as well or instead, if
appropriate for your practice.
#2: Statutes & Regulations
Before diving in to legislation, revisit your strategy. Your checklist
should look something like this: Is there an applicable statute?
What are the relevant sections? Are they or were they in force at the
relevant time? Is there an annotated version? (Commentary and case
law provided could be worth the investment of purchasing, or check
the holdings of the closest law library.)
Thankfully, free access to Canadian legislation via federal and
provincial government websites is getting better and better with
36
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regard to currency, scope, depth and status. Differences abound
across jurisdictions though, so be sure to note when the site was last
updated, and whether the consolidated, annual or point-in-time
version you’re viewing is official.
As of June 1, 2009, all consolidated statutes and regulations available
through Justice Laws (laws.justice.gc.ca) are official and can be used
for evidentiary purposes. Annual statutes (not official) are provided
from 2001 to date. Point-in-time versions are available from January
1, 2003 onward for Acts and March 22, 2006 onward for regulations.
Free online tools for federal statutory research:
• Table of Public Statutes and Responsible Ministers on Justice
Laws;
• LEGISinfo for Bills before Parliament
(www.parl.gc.ca/LEGISINFO);
• A Nation’s Chronicle: The Canada Gazette, 1841-1997
(www.collectionscanada.gc.ca/databases/canada-gazette/
index-e.html); and
• Hansard, current and prior sessions to 35th Parliament, 1994
(www.parl.gc.ca/HouseChamberBusiness/ChamberSittings.
aspx) and Historical Debates of the House of Commons, 18671993 (parl.canadiana.ca).
Nova Scotia’s Office of the Legislative Counsel (nslegislature.ca/
legc/by_sess.htm) provides access to bills, statutes and proclamations
from the 1998-1999 session to date. Official PDF versions of Acts
as passed are provided from 2003, 2nd session to date. The Registry
of Regulations (www.novascotia.ca/just/regulations/rg2/issues.htm)
provides unofficial copies of the Royal Gazette, Part II online in PDF
from Volume 26 (2002).
Free online tools for provincial (NS) statutory research:
• Table of Public Statutes and Index to Local and Private Acts
from the Nova Scotia Office of Legislative Counsel;
• Status of Bills before the House
(nslegislature.ca/index.php/proceedings/status-of-bills);
• Hansard, current and prior sessions to 56th General Assembly,
1994 (nslegislature.ca/index.php/proceedings/hansard); and
• Proclamations (nslegislature.ca/legc/procla.htm).
CanLII is also a free online source for federal and provincial legislation
(not official). The site offers point-in-time versions of legislation
(caution: incomplete) as well as a noting-up function (caution: not
comprehensive). CanLII’s usability, breadth of content and free valueadded features make it a great place to begin researching primary
sources but it should not be the only or last place you look.
When tracing legislative history, online sources may not provide the
historical depth required. Look to library collections for copies of
Acts not freely available online: Nova Scotia Barristers’ Libraries;
Sir James Dunn Law Library at Dalhousie University; and the Nova
Scotia Legislative Library.
#3: Rules of Court
Rules of court contain much more valuable information than just
filing deadlines and page limits, and should not be overlooked as a
research source. The first step sounds obvious but it’s an important
one: Ensure you’re working with the right set of rules. Each level of
court in Nova Scotia (including the Small Claims Court) has its own
rules. There are also separate rules for the Federal Courts and the
Supreme Court of Canada, with annotated versions available as well.
If your matter is proceeding in the Supreme Court of Nova Scotia,
the Supreme Court Family Division, or the Court of Appeal, you will
turn to the Nova Scotia Civil Procedure Rules. Whether using a hard
copy looseleaf version, the online version from the Barristers’ Society
or the Courts of Nova Scotia, or both, there is added research value in
the case annotations, practice memoranda and tables of concordance.
(The Judicature Act is a handy companion here as well.)
#4: Case law
This article has warned against proceeding directly into case law
keyword searches the moment you have a research problem. But once
you have canvassed background sources and then reached the stage of
searching for case law, how can you stay cost-effective and efficient?
Three free sources will be reviewed here: CanLII, Maritime Law
Book’s Raw Law, and the Nova Scotia Courts’ Decisions Database.
First, CanLII: This free Canada-wide online legal research tool
contains statutes, cases, commentary (on CanLII itself and on
CanLII Connects), and links to
international research sites.
If the decision you’re seeking was released that same day from the Courts
of Nova Scotia, you won’t find it in any other free or fee sources: check
the Courts’ Recent Decisions webpage for a link under Today’s releases,
and / or follow the Courts’ Twitter feeds. The Courts also maintain
a Decisions Database providing nearly comprehensive coverage of
decisions from 2003, selective coverage from 1992, and some unique
coverage (among free online sources) within these time periods, as well.
#5: Articles and commentary
Journal and periodical articles are especially helpful when you are
researching new, emerging or rapidly changing areas of law. Locating
one good, recent article on your topic can save you hours of research.
Licensing an online research tool like Quicklaw or WestlawNext
equips you with access to a wide variety and number of Canadian (and
potentially international) journals and newsletters. Or, depending on
your research topic and your location, this may be a time to make a
trip to a Barristers’ library in Halifax, Kentville or Sydney to access
WestlawNext (30+ Canadian journals) and HeinOnline (1,700+
U.S. and international journals, 75+ Canadian). In addition, it may
be worth subscribing to a print journal or two coinciding with your
main practice areas.
CanLII is freely accessible, but is it
CanLII has a federal database
along with a database for each
province, which contain further
subcategories. When keyword
searching, CanLII lets you sort
your results by “document
relevance”; “most recent”; “most
cited”; and “court level” – play
around with the filters to find what works best for your question.
Click on the “show headnotes” option when you find a relevant case,
for links to the cases and statutes cited in the case; links to Supreme
Court of Canada decisions on leave to appeal (if available on CanLII);
and to CanLII Connects for commentary.
Thanks to the scholarly open
access movement, a number
of reputable, authoritative law
journals are freely available
online: the McGill Law Journal,
Osgoode Hall Law Journal,
Dalhousie Journal of Legal Studies
and many more—consult the list
maintained by the Western Journal
of Legal Studies (ir.lib.uwo.ca/uwojls/about.html). Many Canadian
legal authors and academics also submit papers to the Social Science
Research Network (SSRN).
free? No! It’s funded by Canadian
law societies’ annual fees – about
$35 per practitioner year.
As with any resource, be mindful of CanLII’s limitations: there is
an approximately two-day lag for newly released decisions; historical
coverage is not the same for each province / court (e.g., at present,
continuous SCC coverage goes back to 1907, but continuous NSCA
coverage only goes back to 1990); and you may not get perfectly
comprehensive results when noting up your case to see whether it has
been appealed and how it has been treated in subsequent cases.
When you’ve come up against the limits of CanLII’s historical depth,
turn to Maritime Law Book’s Raw Law for free access to the Nova
Scotia Reports (2d)—that’s back to 1970!—and National Reporter
System cases, as released by the Courts.
The search functionality of this site is not as forgiving as CanLII; select
database(s) to limit by jurisdiction, and use the search tools to limit
searches to words in the headnote or style of cause, or to statutes noticed.
The search syntax can be picky; to “find case by MLB citation” enter a
reported citation exactly as shown—77 N.S.R. 2d 113—in the search
box. Ensure you select “Raw Law Version of Case (no headnotes)” in
your results or you may be prompted to pay for access. If your firm runs
disbursement software, you may see pay prompts where you needn’t;
clarify access with your firm librarian or appropriate staff.
For tips and websites to get you started with international legal
research (#6), as well as further suggested free online sites for legal
commentary, citation guides and tools (#7), site-specific assistance,
and an overview of research techniques for tracing legislative history
and coming into force, please see the slides of our Annual Meeting
presentation available at www.nsbs.org/archives/CPD/81565.pdf.
Sources to help you stay in the know
• Free or inexpensive webinars (many law firms put these on)
• Papers and PowerPoints from professional development
conferences
• Legal magazines (like this one!)
• CanLII Connects
• Blawgs
- Canadian law Blogs List: www.lawblogs.ca
- Slaw: www.slaw.ca & MLB-Slaw Selected Case
Summaries: cases.slaw.ca
• Law society websites
• Twitter (follow the Society’s updates @NSBS)
• LinkedIn
• See Keeping Current on the Society’s website for more
sources and tips to get started (nsbs.org/keeping-current)
Fall 2014
37
Summation
Reflections as Nova Scotia’s representative at
the national regulatory table
A
s I finish my term at the Federation of Law Societies of
Canada and bid farewell to my colleagues, I have taken a
moment to reflect on my four past years as the Nova Scotia
representative at the Federation Council table. The environment
within which law societies’ regulatory work is being carried out has
changed considerably since 2010. It is increasingly more national and
international in perspective and focus.
As Council representative, the work I was asked to do was widely
varied, and in many respects built on my volunteer time at the Society.
A few highlights include canvassing the role of public representatives
within the Federation and law societies, and working on the National
Requirement for the accreditation of law degrees for purposes of
admission to law society licensing programs.
The time commitment, while significant, was well worth the effort. I
made many good friends and enjoyed the warm collegiality of working
with representatives from all 14 law societies across Canada. Working
with lawyers whose practice experiences and areas are so diverse – and
yet amazingly, in many ways, similar in terms of day-to-day practice
challenges – always served to reinforce my continued respect for fresh
perspectives.
The move towards collaboration and national consistency is apparent
in the work of the Federation. The Federation recommended the
development of a new national Model Code of Conduct and has
formed a committee to deal with questions arising from various
jurisdictions, as lawyers work with that new codification of longstanding ethical principles.
38
The Society Record
National Discipline Standards
have been developed and the
National Admission Standards
project is well underway.
Catherine S. Walker QC
Federation Council Member
representing NSBS
Access to justice initiatives are first and foremost on bencher agendas
across the country. All law societies in Canada have accepted the
challenges that this work has identified, and are committed to
addressing them with practical strategies.
Efforts are focused both on access to justice in the traditional context
of courts and family services, and access to legal services generally.
This includes answering such questions as: What does this really mean
contextually to all our communities within which we live and work?
How can we continue to challenge ourselves in changing times, while
maintaining the integrity of the work we do?
My thanks to the Society and its Council for the opportunity to serve
Nova Scotia at the national regulator governance table. It was both a
privilege and an experience I will remember for many years to come.
There is much work ahead for the Federation and I wish my successor
Council representative, J. René Gallant, much success as he embarks
on his adventure in that new role. I am confident he will serve Nova
Scotia well in the years to come.
For more details on the ongoing work of the Federation of Law Societies
of Canada, visit flsc.ca.
Fall 2014
39
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