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Copyright © 2000: Queen’s Printer,
St. John's, Newfoundland, Canada

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Statutes of Newfoundland 1999


CHAPTER L Ė 9.1

AN ACT TO REVISE THE LAW RESPECTING THE LAW SOCIETY OF NEWFOUNDLAND

(Assented to December 14, 1999)

Analysis

1. Short title

2. Definitions

PART I
THE LAW SOCIETY

3. Society continued

4. Visitors

5. Powers

6. Continuation of benchers

7. Composition of benchers

8. Appointing lay benchers

9. Annual election

10. Entitlement to vote

11. Eligibility

12. How vote held

13. Term of office

14. Annual vacancies

15. When term begins

16. Resignation

17. Convocations

18. Powers of benchers

19. Special funds

20. Treasurer and secretary

21. Duty of treasurer

22. Duty of secretary

23. Executive committee

24. Annual general meeting

25. Special general meeting

26. Quorum

27. Effect of resolution

28. Rolls and register

29. Enrolment and removal

30. Resignation from society

31. Judicial appointments

32. Non-practising members

33. Right to practise law

34. Enrolment as solicitor

35. Education committee

36. Admission as students

37. Enrolment

38. Appeal

39. Special admissions

40. Interjurisdictional law firms

PART II
DISCIPLINE OF MEMBERS

41. Definitions

42. Committees

43. Allegation

44. Effect of filing allegation

45. Complaints authorization committee

46. Discipline committee

47. Hearing

48. Powers of adjudication panel

49. Filing of decisions

50. Disbarment and suspension

51. Failure to comply

52. Reinstatement and readmission

53. Appeal to the benchers

54. Qualification of the benchers

55. Appeal to Court of Appeal

PART III
CLIENT'S PROPERTY WITH MEMBERS

56. Definitions

57. Appointment of custodian

58. Seizure by sheriff

59. Powers of judge re client's property

60. Notice to public

61. Delivery of property

62. Solicitor's lien

63. Taxation of costs and fees

PART IV
LAW FOUNDATION

64. Foundation established

65. Composition of board

66. Vacating office

67. Objects and powers of board

68. Liability for trust money

69. Duty to maintain trust account

70. Saving

71. By-laws

PART V
GENERAL PROVISIONS

72. Protection

73. Communications

74. Recovery of fees

75. Fees, levies, assessments, etc.

76. Authority to practise law

77. Employment of suspended or disbarred member

78. Branch offices

79. Offences

80. Injunction

81. Notice of standing

82. Transition

83. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


Short title

1. This Act may be cited as the Law Society Act, 1999.

Definitions

2. (1) In this Act

(a) "bencher" refers to a person who serves on the governing body of the society and the expression "the benchers" refers to the governing body of the society;

(b) "foreign jurisdiction" means a foreign country or, in the case of a foreign country that is a federation of internal jurisdictions in which the legal profession is regulated by the internal jurisdictions, one of its internal jurisdictions;

(c) "former Act" means the Law Society Act;

(d) "interjurisdictional law firm" for the purpose of section 40, means a law firm

(i) that maintains an office in the province together with an office in a foreign jurisdiction or in another Canadian jurisdiction, or both, and

(ii) in which not all the partners, or in the case of a professional law corporation, not all the voting shareholders, are qualified to practise law in the province;

(e) "law firm" means a partnership, professional law corporation of 2 or more voting shareholders, or another joint arrangement carrying on, or holding out to the public its willingness to carry on, the practice of law;

(f) "member" means a person enrolled as a member of the society who has not been struck off the roll of the society, and a "member in good standing" refers to a member whose fees, levies and assessments are current and who has not been suspended;

(g) "rules" means rules, regulations or by-laws made by the benchers of the society under authority vested in them under this Act;

(h) "secretary" means the secretary of the society;

(i) "society" means the Law Society of Newfoundland; and

(j) "student" means a student-at-law who is bound by a written contract, known as "articles", to serve with a member and who is entered on the register of students of the society;

(2) For the purpose of this Act, the practice of law includes

(a) acting as a barrister or solicitor;

(b) appearing as counsel or advocate;

(c) drawing, preparing, revising or settling,

(i) articles under the Corporations Act, or an application, statement, affidavit, minute, resolution, bylaw or other document relating to the incorporation, registration, organization, reorganization, dissolution or winding up of a corporation,

(ii) a document for use in, or relating in any way to, a proceeding, judicial or extra-judicial,

(iii) a will, deed of settlement, trust deed, power of attorney, testamentary document or a document relating to the estate of a deceased person, or

(iv) a document relating to real or personal property which is intended, permitted or required to be registered, recorded or filed in a registry or other public office;

(d) doing an act or negotiation for the settlement of, or settling, a claim or demand for damages;

(e) agreeing to place at the disposal of another person the services of a barrister or solicitor;

(f) providing legal advice;

(g) the making of an offer to do anything referred to in paragraphs (a) to (f);

(h) the making of a representation by a person that the person is qualified or entitled to do anything referred to in paragraphs (a) to (f); and

(i) the making of a representation by a person that the person is a member or student,

but it does not include

(j) the drawing or preparing of an instrument by a public officer in the course of his or her statutory duty;

(k) the lawful practice of a notary public;

(l) the usual business carried on by an insurance adjuster who is licensed under the Insurance Adjusters, Agents and Brokers Act;

(m) agreeing to do something referred to in paragraph (e), where the agreement is under a prepaid legal services plan or other liability insurance program;

(n) the preparation, execution and delivery by real estate agents of formal agreements of sale negotiated by them; or

(o) the doing of other acts expressly authorized by this Act or the rules.

PART I
THE LAW SOCIETY

Society continued

3. The Law Society of Newfoundland is continued as a corporation.

Visitors

4. The judges of the Supreme Court continue to be visitors of the society.

Powers

5. For the purpose of this Act, the society has all the powers and capacity of a natural person.

Continuation of benchers

6. The benchers of the society continue to be the governing body of the society.

Composition of benchers

7. (1) The benchers consist of

(a) elective benchers;

(b) the Registrar of the Supreme Court;

(c) honorary benchers; and

(d) appointed benchers.

(2) The elective benchers are:

(a) 2 members in good standing and practising and resident in the Western District, that is, the area of the province that comprises all that part of the Island of Newfoundland lying west of a line drawn from Robert's Arm in Green Bay to Hermitage Bay;

(b) one member in good standing and practising and resident in the Labrador District, that is, the area of the province that comprises all of the mainland portion of the province known as Labrador;

(c) 2 members in good standing and practising and resident in the Central District, that is, the area of the province that comprises all that part of the Island of Newfoundland lying east of a line drawn from Robert's Arm in Green Bay to Hermitage in Hermitage Bay exclusive of the Avalon Peninsula; and

(d) 12 members in good standing and practising and resident in the Eastern District, that is, the area of the province that comprises the Avalon Peninsula.

(3) The honorary benchers are former treasurers of the society who are members in good standing.

(4) The appointed benchers are the 4 persons appointed under section 8.

Appointing lay benchers

8. (1) There shall be a committee, referred to as the appointing committee, composed of

(a) the Chief Justice of the Trial Division, or a judge of the Trial Division designated by him or her, who shall be chairperson of the committee;

(b) the Minister of Justice or his or her designate; and

(c) 2 persons, not being members or persons having a degree in law, to be appointed by the Chief Justice of the Trial Division after consultation with the Minister of Justice,

who shall select and appoint as benchers of the society 4 persons who are not members but who are resident in the province and suitable to represent the point of view of those throughout the province who may need or use the services of the members.

(2) An appointment as a bencher under subsection (1) is for a maximum term of 4 years but he or she may be reappointed upon the expiration of his or her term.

(3) The appointments of persons under subsection (1) shall be made by the appointing committee before the day set for the election of elective benchers in a year in which an appointment shall be made under that subsection.

(4) Where a person appointed as a bencher under this section dies or is unable or unwilling to fulfil his or her term of office, the appointing committee may appoint another person to fill the vacancy and serve as a bencher for the remainder of the term.

(5) An appointed bencher shall be paid out of the funds of the society those reasonable daily allowances that the benchers may prescribe to defray his or her expenses in attending meetings of the benchers.

Annual election

9. (1) An election of elective benchers shall be held every year as provided in this Act.

(2) Every member in good standing on the date that nominations close for election of benchers may vote at an election of benchers in that year.

(3) Following May 1 in each year the secretary shall prepare an alphabetical list of the persons entitled under subsection (2) to vote at the election of benchers in that year, referred to as the "voting list".

(4) A member may, at a reasonable time, examine the voting list at the office of the secretary.

(5) Where a person entitled to vote complains in writing to the treasurer before the day on which the election for benchers takes place of the improper inclusion or omission of a name from the voting list, the secretary shall immediately inquire into the complaint and, if it is in his or her opinion well founded, the secretary shall rectify the voting list.

Entitlement to vote

10.  A person whose name is not on the voting list on the day on which the election for benchers takes place is not entitled to vote.

Eligibility

11. A person who is a member in good standing and whose name is on the voting list on the day on which the election for benchers takes place is eligible for election as a bencher.

How vote held

12. (1) The benchers may make rules governing the election of benchers.

(2) Voting for the election of benchers shall be held in the manner provided by the election rules.

Term of office

13. (1) An elective bencher holds office for a term of 4 years but a bencher is eligible for re-election after the expiry of his or her term of office.

(2) Where an elective bencher holds office for a period of 8 consecutive years the bencher stops being eligible for election as a bencher until the expiration of 12 months from the year in which he or she last held office as a bencher.

Annual vacancies

14. (1) In each year 4 elective benchers and one appointed bencher shall cease holding office.

(2) Where in a year there are fewer than 4 elective benchers whose term of office expires in that year, the benchers shall designate the elective benchers whose term of office expires in the next following year and those elective benchers shall by lot determine who among them will retire in order to ensure that 4 elective benchers will cease holding office in that year.

(3) The term of office of those elective benchers who are determined by lot for retirement under subsection (2) expires in that year.

When term begins

15. (1) The benchers elected in a year in accordance with the election rules take office following the meeting at which the election takes place and hold office until their successors take office.

(2) A person against whose election a petition has been filed as provided by the election rules may not take office until the benchers declare that he or she has been elected.

Resignation

16. (1) An elective bencher may resign the office of bencher by written notice of resignation to the society.

(2) Where an elective bencher fails to attend 3 successive regular meetings of the benchers, he or she then ceases being a bencher unless he or she has been given leave of absence by resolution of the benchers or unless his or her failure to attend is excused by resolution of the benchers.

(3) Where

(a) there is a vacancy caused by the death or resignation of an elective bencher;

(b) there is a failure to elect the number of benchers required under this Act; or

(c) there is a vacancy resulting from another cause,

the remaining benchers shall with all convenient expediency appoint a member in good standing to fill the vacancy until the next election for benchers.

(4) A member appointed as a bencher because of a vacancy described in subsection (3) holds office until the term of the bencher whom he or she replaces would have expired in the normal course under sections 14 and 15.

Convocations

17. (1) Regular meetings of the benchers, which may be called "convocations", shall be held at those places and times that the benchers determine but at least 5 meetings shall be held in each year.

(2) Five elective benchers and one appointed bencher constitute a quorum of the benchers.

(3) Special meetings of the benchers may be called

(a) by the treasurer;

(b) by the secretary in the absence or inability of the treasurer to call a meeting; or

(c) by 2 elective benchers in the absence or inability or refusal of the treasurer or secretary to call a meeting.

Powers of benchers

18. (1) The benchers shall govern the society, administer its affairs and exercise in the name and on behalf of the society the powers, privileges and rights of the society.

(2) The benchers may

(a) make rules for the exercise of the powers, privileges and rights of the society;

(b) enter into contracts on behalf of the society;

(c) regulate and conduct convocations, proceedings and meetings of the benchers, a committee of benchers and the society, and provide for practice and procedure before the benchers, panels and committees;

(d) establish committees, appoint persons to serve on the committees in accordance with the rules, determine the duties of these committees, and delegate authority to them;

(e) appoint delegates or representatives of the society to represent the society and authorize their expenses;

(f) employ persons on behalf of the society, prescribe their duties and establish and pay compensation and benefits;

(g) remunerate and compensate persons who are assisting the society in the pursuit of its objectives;

(h) print, publish, sell or distribute legal resources or other material;

(i) establish and maintain a system of legal education including,

(i) the setting of requirements for the enrolment of students or the admission of members,

(ii) the operation of programs of legal education and service under articles for students,

(iii) the operation of voluntary and compulsory programs of continuing and remedial legal education for members,

(iv) the operation and maintenance of law libraries in the province, and

(v) the granting of scholarships, bursaries, awards and loans to persons engaged in a program of legal education;

(j) grant degrees in law;

(k) make rules governing the categories of membership and the members in those categories;

(l) establish and maintain systems of practice area designations whereby members may hold themselves out as restricting, preferring or specializing in practice areas and to make rules governing the qualifications required for the use of such designations;

(m) establish the fees, levies and assessments to be paid to the society by members and students and the time for payment;

(n) establish standards of competency that the benchers consider necessary or advisable to ensure that members and students are bringing adequate skill and knowledge to the practice of law;

(o) establish standards of financial responsibility relating to the integrity and financial viability of a memberís professional practice and standards of accountability for clientsí property;

(p) establish or adopt rules of professional ethics or conduct;

(q) make rules determining those acts that do not constitute the practice of law;

(r) provide for inquiries, investigations, inspections and audits for the purpose of ascertaining compliance with the Act or rules;

(s) prescribe the consequences of non-compliance with the Act or rules and enforce penalties and orders;

(t) raise funds by the issue of debentures, with or without a trust deed;

(u) invest the funds of the society only in investments authorized under the Trustee Act;

(v) establish, support and contribute to systems of public legal information and referral;

(w) establish and operate compulsory or voluntary professional liability insurance programs for the benefit and protection of members and the public and to provide for the recovery of the costs from members or classes of members;

(x) establish and operate programs of life, accident, income replacement, property and other types of insurance for the benefit of members, former members, employees of members or the society and students, and their dependants;

(y) establish and operate other programs for the benefit of members, former members, employees or former employees of the society and students, and their dependents; and

(z) establish and operate programs of liability insurance protecting the society, its present and former benchers, officers, employees, agents and representatives arising out of anything done or not done in good faith on behalf of the society.

Special funds

19. (1) The benchers may maintain and augment by the levy of an annual assessment of the amount that may be fixed by them on members, students or a category of either of them, a special fund for the purpose of reimbursement of persons sustaining monetary loss because of the misappropriation or conversion by a member or student practising in the province, of money or other property entrusted to or received by the member or student in his or her professional capacity.

(2) The benchers may administer the special fund and for that purpose may make those rules that they consider necessary.

(3) The special fund shall be deposited in an account in a chartered bank or loan or trust company separate and apart from all other funds of the society and is the property of the society.

(4) The special fund and the proceeds from it may be invested in investments described in paragraph 18(2)(u) in the manner that the benchers may prescribe and the special fund is not subject to a trust.

(5) The benchers shall, not later than one month before the date of the annual election of benchers, prepare a report concerning the special fund and all disposition of it made during the last preceding financial year.

(6) The society may annually contribute an amount to a fund established by the Federation of Law Societies of Canada for the purpose of compensating claimants who sustain a financial loss arising from the misappropriation or conversion of money or property by a member while engaged in the practice of law outside the province.

Treasurer and secretary

20. (1) The benchers shall, from among the elective benchers, appoint 2 officers of the society, namely,

(a) the treasurer, who shall be the chief executive officer of the society and its presiding officer and who may be styled as president of the society as an alternate title; and

(b) the secretary of the society, who may be styled the vice-president of the society as an alternate title.

(2) The treasurer and secretary shall be appointed by the benchers by a special meeting to be held immediately after the meeting at which the yearly election of benchers is held.

(3) The treasurer and secretary hold office until the end of the next meeting at which the yearly election of benchers is held.

(4) Where the treasurer is absent or unable to act, the secretary shall act as treasurer, and when the secretary is absent or unable to act the treasurer shall appoint one of the elective benchers to act as secretary.

(5) Where both the treasurer and secretary are absent and unable to act, the benchers shall appoint from among the elective benchers persons to act as treasurer and secretary.

Duty of treasurer

21. The treasurer has general supervision of the affairs of the society and shall perform other duties that may be assigned to him or her by the benchers and this Act.

Duty of secretary

22. (1) The secretary shall keep the records of the society and shall perform other duties that may be assigned to him or her by the benchers and this Act.

(2) The benchers may delegate the duties of the secretary to a bencher or employee of the society whenever they consider it necessary or desirable to do so.

Executive committee

23. (1) The benchers shall establish an executive committee of not less than 5 benchers.

(2) The benchers may determine the duties of the executive committee and delegate authority to it.

(3) A quorum of the executive committee shall be not less than 4.

(4) Where the complaints authorization committee has made a recommendation to the executive committee under subsection 45(1), or in any other case where the executive committee determines it to be appropriate, and where the executive committee

(a) on reasonable grounds believes it is in the public interest;

(b) has furnished a member or student with the notice the executive committee considers reasonable in the circumstances; and

(c) has heard the explanation that may be offered by the member or student at the hearing provided for in the notice,

the executive committee may order by 75% voting majority

(d) that the memberís or studentís rights and privileges be suspended or restricted pending the completion of an investigation initiated under Part II and, where a complaint is laid, pending the hearing and adjudication of that complaint;

(e) that an investigation be conducted of the memberís practice;

(f) that an application be made under Part III that a custodian be appointed of the memberís practice; and

(g) that an order made under paragraph (d), (e) or (f) be revoked or varied.

(5) Notwithstanding section 55, an order of the executive committee made under paragraph (4)(d) is subject to appeal to a judge of the Trial Division.

(6) An appeal under subsection (5) does not stay the order being appealed unless the judge orders otherwise.

Annual general meeting

24. (1) There shall be an annual general meeting of the society in each year to be held in the month of June at the place and time that the benchers may determine.

(2) At each annual general meeting the treasurer shall report the general condition of the society and its affairs and may bring before the members for consideration and discussion those matters and subjects that the benchers think necessary for the promotion of the general interests of the legal profession and the improvement of the laws of the province.

(3) At least 30 days before an annual general meeting the secretary shall mail to each member in good standing a notice of the meeting and a statement of the financial position of the society during the previous financial year.

Special general meeting

25. (1) A special general meeting of the society shall be called by the secretary when required to do so by a written request from 10 or more members in good standing who wish a meeting to be called for an object for which the general interest of the society may demand the meeting.

(2) A special general meeting of the society shall be called by the secretary when the benchers so direct.

(3) At least 10 days before a special general meeting, the secretary shall mail to each member in good standing a notice of the meeting which shall express the object of the meeting.

(4) Where the secretary fails to call a meeting under subsection (1) or (2), the treasurer or the petitioners may call the meeting.

Quorum

26. Ten members in good standing constitute a quorum for an annual general or a special meeting of the society.

Effect of resolution

27. A resolution passed at an annual general meeting or a special general meeting of the society shall be considered by the benchers at their next meeting but it is not binding on the benchers.

Rolls and register

28. (1) The secretary shall keep a record, in books or other form, to be called the roll of the society, in the manner that the rules may prescribe.

(2) The secretary shall keep a record, in books or other form, respecting persons admitted to the society as students, that shall be known as the Register of Students.

(3) The roll and register shall be held in the secretary's office and shall be open to inspection when the office is open.

Enrolment and removal

29. (1) A person becomes enrolled as a member when a memorandum of his or her enrolment is entered on the roll.

(2) Where the secretary receives notice from the chairperson of the education committee that it has approved the enrolment of a person under section 37, or when the benchers have approved the enrolment of a person under section 39, and the prescribed fees, levies and assessments have been paid, the secretary shall issue a certificate directed to the Registrar of the Supreme Court that the person is entitled to be enrolled in the society.

(3) A memorandum entered on the roll shall indicate the date of its entry and be authorized by the secretary.

(4) A member is suspended when a memorandum of the suspension is entered on the roll and,

(a) where the suspension is for a stated period of time, the memorandum shall indicate the duration of the suspension; and

(b) where the suspension is for a reason other than as a penalty for conduct unbecoming a barrister or solicitor, the memorandum shall indicate the reason.

(5) The name of a member is struck off the roll when a memorandum to that effect is entered on the roll.

(6) When a member dies, the secretary shall enter a memorandum of that fact on the roll.

Resignation from society

30. (1) A member may not resign from the society unless his or her resignation is submitted to and approved by the benchers.

(2) Where the resignation of a member is approved, the member's name shall be struck off the roll by entering a memorandum of his or her resignation on the roll.

Judicial appointments

31.  Where a member becomes a judge of a court established by the Parliament of Canada or by the legislature of this or another province, his or her name shall be struck off the roll by entering a memorandum of that fact on the roll.

Non-practising members

32. (1) A member who does not wish to practise in the province in a year may apply to become a non-practising member in that year and shall pay the fees, levies and assessments in the amount and manner prescribed under the rules and, upon approval of the application, a memorandum to that effect shall be entered on the roll.

(2) Subject to the rules that may be made by the benchers, a non-practising member in good standing may apply to the secretary to be reinstated as a practising member, and where the application is approved a memorandum of reinstatement shall be entered on the roll.

(3) A member may be designated as a non-practising member by the benchers where the member has not been actively engaged in the practice of law for a period of 3 years and has not elected to become a non-practising member during that period.

(4) A period during which a person is a member of either of the Houses of Parliament, or of the House of Assembly, or the holder of an office under the Crown that the Lieutenant-Governor in Council may designate, shall not be counted for the purpose of subsection (3) as time during which that person has not been actively engaged in the practice of law.

Right to practise law

33. (1) A person who has been enrolled as a solicitor of the Supreme Court of Newfoundland is entitled to be called to the bar by the benchers and to become a member and to engage in the practise of law in the province.

(2) Members shall be designated as barristers and solicitors and are officers of the Supreme Court of Newfoundland and all other courts of record in the province and have a right of audience in those courts.

(3) A person who has been called to the bar and on the date that this Act shall come into force is entitled to engage in the practise of law in the province continues to be entitled to engage in the practise of law in the province.

(4) The right to engage in the practice of law in the province and to be a member or a student is subject to adherence to this Act and the rules that the benchers may establish or adopt.

Enrolment as solicitor

34. (1) A person who is entitled to be enrolled in the society may be enrolled as a solicitor of the Supreme Court.

(2) Upon production to a judge of the Trial Division of a certificate of entitlement to be enrolled in the society issued by the secretary under this Act, the judge shall endorse his or her authorization on the certificate and the judge shall enroll the person named in the certificate as a solicitor of the Supreme Court.

(3) The Registrar of the Supreme Court shall issue, under the seal of the court, a certificate of an enrolment under subsection (2) and the documents upon which an authorization of admission was obtained shall be filed and retained on record in the office of the registrar.

(4) Before enrolment as a solicitor, the person applying shall take and sign the oath or affirmation of allegiance and the following oath or affirmation before a judge of the Trial Division in open court:

"I ............................... do swear [affirm] that I will truly and honestly conduct myself in the practice of a solicitor according to the best of my knowledge and ability." (Where an oath is taken, add "So help me God".).

Education committee

35. (1) The evaluation of the academic qualifications of, and the examination of an applicant for, enrolment as a member or for admission as a student, is under the control of an education committee which the benchers shall establish and maintain.

(2) The education committee shall examine into the educational attainments of an applicant for enrolment as a member or for admission as a student and shall prescribe the contents of bar admission examinations and other special examinations or educational requirements.

(3) The education committee may enter into arrangements with another organization in Canada under which that organization in consultation with the society may prescribe the contents of and conduct bar admission examinations under the general supervision of the education committee.

(4) A person who is required to take a bar admission examination by the education committee shall also take a bar admission course.

(5) Notwithstanding anything in this Part, the benchers, where they consider that special circumstances so warrant with respect to a person, may exempt the person from taking a bar admission course or examination or both.

Admission as students

36. (1) The education committee shall approve the admission of a person as a student where that person proves to its satisfaction and in accordance with the rules that the person

(a) is of good character and reputation; and

(b) is receiving or has received a degree in law from a university in Canada recognized by the education committee or is receiving or has received a degree in law that, in the opinion of the education committee, is equivalent to the degree of Bachelor of Laws granted by a university in Canada recognized by the education committee.

(2) The education committee shall approve the admission of a person as a student where that person proves to its satisfaction and in accordance with the rules that the person

(a) is of good character and reputation;

(b) has received a degree in law from a university in Canada recognized by the education committee or has received a degree in law that, in the opinion of the education committee, is equivalent to a degree in law granted by a university in Canada recognized by the education committee;

(c) is enrolled as a barrister or solicitor in another province; and

(d) has been actively engaged in the practice of law for a period of less than one year in the year immediately preceding the personís application for enrolment,

and the education committee shall prescribe the period of articles, not exceeding 6 months, to be served by that person.

(3) The education committee shall approve the admission of a person as a student where the person proves to its satisfaction and in accordance with the rules that the person

(a) is of good character and reputation;

(b) either

(i) has received a degree in law from a university recognized by the education committee that, in the opinion of the education committee, is equivalent to a degree in law granted by a university in Canada recognized by the education committee, or

(ii) was a legal education student in the United Kingdom and holds qualifications equivalent, in the opinion of the education committee, to a degree in law granted by a university in Canada recognized by the education committee; and

(c) has been actively engaged in the practice of law in the jurisdiction mentioned in subparagraph (b)(ii) for a period totalling at least 3 years in the 5 year period immediately preceding the personís application for enrolment,

and the education committee shall prescribe the period of articles, not exceeding one year, to be served by that person.

Enrolment

37. (1) The education committee shall approve the enrolment of a person admitted as a student under subsection 36(1) where the person proves to its satisfaction and in accordance with the rules that the person

(a) continues to be of good character and reputation;

(b) is 19 years of age or over;

(c) has served under articles for a period totalling at least one year or another period prescribed by the education committee;

(d) has attended and successfully completed the bar admission course and the examinations prescribed by the education committee; and

(e) has passed the special examinations and satisfied the other requirements that the education committee may determine.

(2) The education committee shall approve the enrolment of a person admitted as a student under subsection 36(2) where the person proves to its satisfaction and in accordance with the rules that the person

(a) continues to be of good character and reputation;

(b) is 19 years of age or over;

(c) has served under articles for the period prescribed by the education committee;

(d) has attended and successfully completed the bar admission course and the examinations as prescribed by the education committee; and

(e) has passed the special examinations and satisfied the other requirements that the education committee may determine.

(3) The education committee shall approve the enrolment of a person admitted as a student under subsection 36(3), where the person proves to its satisfaction and in accordance with the rules that the person

(a) continues to be of good character and reputation;

(b) is lawfully entitled to work in Canada and is domiciled or resident in Canada;

(c) has attended and successfully completed the bar admission course and the examinations prescribed by the education committee;

(d) has passed the special examinations and satisfied the other requirements that the education committee may determine; and

(e) has served under articles for the term prescribed by the education committee.

(4) The education committee may in a case under subsection (3) waive the requirement for service under articles and approve the enrolment of a person as a member where the person proves to its satisfaction and in accordance with the rules that the person has complied with all the requirements of subsection 36(3) and subsection (3) of this section other than the requirement to serve under articles.

(5) The education committee shall approve the enrolment of a person as a member of the society where the person proves to its satisfaction and in accordance with the rules that the person

(a) is of good character and reputation;

(b) is enrolled as a barrister or solicitor in a province of Canada;

(c) has been actively engaged in the practice of law in another Canadian jurisdiction for a period totalling one year or more, but less than 3 years, in the 3 year period immediately preceding the personís application for enrolment;

(d) has attended and successfully completed the bar admission course and the examinations as prescribed by the education committee; and

(e) has passed the special examinations and satisfied the other requirements that the education committee may require.

(6) The education committee shall approve the enrolment of a person as a member of the society where the person proves to its satisfaction and in accordance with the rules that the person

(a) is of good character and reputation;

(b) is enrolled as a barrister or solicitor in a province of Canada;

(c) has been actively engaged in the practice of law in another Canadian jurisdiction for a period totalling at least 3 years in the 5 year period immediately preceding the personís application for enrolment; and

(d) has passed the examinations and has satisfied the other requirements that the education committee may determine.

Appeal

38. (1) A person affected by a decision of the education committee may appeal to the benchers who may confirm the decision or direct the education committee to vary or reverse it.

(2) Before making a decision on a matter, the education committee may refer the matter to the benchers who shall direct the committee as to the decision to be made.

Special admissions

39. (1) The benchers may make rules respecting the conditions under which a person who is qualified to practise law in another Canadian province or territory may practise law in the province, including rules respecting the extent to which the person may appear in courts of record in the province.

(2) The benchers may permit a person who is qualified to practise law in a country other than Canada or in an internal jurisdiction of that country, to act as a consultant in the province with respect to the law of that country or internal jurisdiction, subject to any rules or conditions, including the payment of a fee, prescribed by the benchers.

(3) The provisions of this Act and the rules respecting the competence, discipline and financial responsibility of members, former members, students and former students apply, with the necessary changes, and so far as they are applicable, to a person given permission under subsection (2) to act as a foreign legal consultant in the province, but the benchers have no power to disbar the person.

Interjurisdictional law firms

40. (1) An interjurisdictional law firm may provide legal services to the public in the province only where,

(a) at least one partner, or in the case of a professional law corporation, at least one voting shareholder, is a member in good standing and qualified to practise law in the province and does practise law principally in the province; and

(b) in the case of an interjurisdictional law firm which maintains an office in one or more foreign or other Canadian jurisdictions,

(i) it operates only in foreign or other Canadian jurisdictions which offer substantially the same treatment to law firms from this jurisdiction that the society offers to interjurisdictional law firms, or

(ii) it satisfies the society that a substantial number of foreign or other Canadian jurisdictions in which that interjurisdictional law firm operates offers substantially the same treatment to law firms from this jurisdiction as the society offers to interjurisdictional law firms.

(2) An interjurisdictional law firm that maintains an office in one or more foreign jurisdiction shall keep within Canada the books, records and accounts which it is required to keep with respect to its practice in the province, and shall make them available in the province on demand by the society or its designated agent.

(3) An interjurisdictional law firm that maintains offices only in 2 or more Canadian jurisdictions shall make available in the province, on demand by the society or its designated agent, the books, records and accounts which it is required to keep with respect to its practice in the province.

(4) A member shall not practise law in the province as an affiliate of an interjurisdictional law firm unless the firm complies with the requirements of this section.

(5) A member in good standing who is an affiliate of an interjurisdictional law firm that does not comply with subsection (1) may only practise in the province as a foreign legal consultant, provided that the member holds a current permit issued under subsection 39(2).

(6) Where an interjurisdictional law firm or its lawyer,

(a) does anything in the province or permits anything to be done in the province that would, if done by a member, former member, student or former student constitute conduct deserving of sanction; or

(b) fails or ceases to comply with a requirement imposed under this section,

the discipline committee may, after a hearing in accordance with this Act and the rules,

(c) reprimand the interjurisdictional law firm; or

(d) impose a fine on the interjurisdictional law firm in an amount not exceeding $100,000.

(7) The benchers may make rules that they consider necessary or advisable for the purpose of this section and, without limiting the foregoing, may make rules respecting procedures for disciplinary action against an interjurisdictional law firm, including the adaptation, in a manner that the benchers consider necessary or advisable, of rules respecting disciplinary proceedings on matters of practice and procedure.

(8) This Act, the rules and the powers of the benchers apply to interjurisdictional law firms permitted to provide legal services to the public under this section, with the necessary changes in so far as they are applicable.

PART II
DISCIPLINE OF MEMBERS

Definitions

41. For the purpose of this Part

(a) "allegation" means a written document alleging that a respondent has engaged in conduct deserving of sanction;

(b) "complainant" means a person making an allegation described in section 43; and

(c) "conduct deserving of sanction" includes

(i) professional misconduct,

(ii) conduct unbecoming a member of the society,

(iii) acting in breach of this Act or the rules, and

(iv) failing to adhere to the Code of Ethics, whether or not that conduct relates to the respondentís practice as a barrister and solicitor or as a student, and whether or not that conduct occurs in the province; and

(d) "respondent" means a member, former member, student, former student, an interjurisdictional law firm or a person referred to in subsections 39(1) or (2) whose conduct is being inquired into under this Part.

Committees

42. (1) The benchers shall appoint the chairperson, vice-chairperson and members of the complaints authorization committee and the discipline committee.

(2) The complaints authorization committee shall consist of at least 3 persons, all of whom shall be benchers, and at least one of whom shall be an appointed bencher.

(3) The discipline committee shall consist of not less than 30 members and not less than 15 persons who are not members who shall be appointed by the minister.

(4) The benchers, the complaints authorization committee and the discipline committee may summon witnesses and require those witnesses to give evidence orally or in writing upon oath or affirmation, and produce the documents and things that may be considered necessary to the full investigation and hearing of allegations and complaints and shall have the powers, privileges and immunities that are conferred on commissioners appointed under the Public Inquiries Act.

Allegation

43. (1) An allegation shall be in writing and signed by the complainant or his or her solicitor, and filed with the secretary.

(2) The secretary may on his or her own motion make an allegation and file it, and the allegation shall have the same effect as an allegation referred to in subsection (1).

(3) A report to the society in respect of a respondent under subsection 66(2) of the Legal Aid Act shall be dealt with by the secretary as an allegation, irrespective of disciplinary action taken against that person by the Newfoundland Legal Aid Commission under that Act.

(4) Where the secretary has been informed that a respondent has been convicted of an offence under the provisions of the Criminal Code or has been suspended or disbarred by a governing body of the legal profession in another province or territory for reason of professional misconduct, professional incompetence or failing to adhere to a code of legal ethics established or adopted by a governing body of the legal profession, the information shall be dealt with by the secretary as an allegation.

Effect of filing allegation

44. (1) Where it appears to the secretary that the allegation may be resolved satisfactorily without investigation and in the opinion of the secretary there is no other reason appropriate to investigate the allegation, and where the complainant and the respondent consent, the secretary may refer the allegation to mediation in accordance with the rules.

(2) The mediator shall provide written confirmation of the resolution of the allegation to the secretary.

(3) Where an allegation is not satisfactorily resolved by mediation, or in the opinion of the secretary it is for another reason appropriate to investigate the allegation, the secretary shall conduct the investigation that in his or her opinion the allegation requires and the matter shall be submitted to the complaints authorization committee at its next meeting or at a special meeting that the complaints authorization committee may call to consider the allegation.

Complaints authorization committee

45. (1) After an allegation has been submitted to the complaints authorization committee, the committee may exercise one or more of the following powers:

(a) dismiss the allegation;

(b) refer the allegation back to the secretary for further investigation or mediation;

(c) conduct further investigation itself;

(d) require the respondent to appear before it;

(e) recommend to the executive committee that the respondentís practice be suspended or restricted;

(f) recommend to the executive committee that an investigation be conducted of the respondentís practice; and

(g) recommend to the executive committee that an application be made under Part III that a custodian of the respondentís practice be appointed.

(2) Where the complaints authorization committee is of the opinion that there are reasonable grounds to believe that a respondent has engaged in conduct deserving of sanction, the allegation shall be considered as constituting a complaint, and the committee may

(a) counsel or caution the respondent; or

(b) instruct the secretary to file the complaint against the respondent and refer it to the discipline committee; and

(c) make a recommendation referred to in subsection (1) at any time before a final determination has been made.

(3) Notwithstanding section 55, a decision of the complaints authorization committee made under subsection (1) or (2) is final and is not subject to appeal.

Discipline committee

46. (1) For the purpose of dealing with complaints referred to the discipline committee, the chairperson shall appoint from the discipline committee an adjudication panel consisting of 2 members, one of whom he or she shall appoint to be chairperson of the panel, and one person who is not a member, and an adjudication panel has the powers, duties, privileges and immunities of the discipline committee.

(2) Where, prior to the commencement of a hearing, the respondent pleads guilty to one or more of the charges set out in a complaint, the adjudication panel, without calling evidence or hearing witnesses, unless the panel believes, in the circumstances, it is appropriate to do so, shall hear submissions from the parties.

(3) Following submissions under subsection (2), the adjudication panel may

(a) refer the complaint back to the discipline committee where on reasonable grounds the adjudication panel believes it is in the public interest to do so; or

(b) accept the guilty plea and reprimand the respondent; and

(c) order that the respondent

(i) make restitution to the complainant or other person affected by the conduct of the respondent,

(ii) obtain medical treatment,

(iii) obtain psychological counselling,

(iv) obtain substance abuse counselling or treatment,

(v) engage in continuing legal education programs,

(vi) report on his or her compliance with an order made under this section and authorize others involved with his or her treatment or supervision to report,

(vii) notify employers and partners of the respondent's disciplinary status,

(viii) give notice of an order made under this section to a person affected by the conduct giving rise to the order,

(ix) meet with committees or representatives of the society,

(x) restrict his or her professional practice to specified areas of law or continue his or her practice under other specified conditions,

(xi) maintain a specific type of trust account or a trust account for limited purposes,

(xii) accept specific co-signing controls on trust accounts, or

(xiii) accept any other requirements that are just and reasonable in the circumstances.

Hearing

47. (1) Where a complaint has been referred under paragraph 45(2)(b) or 46(3)(a), an adjudication panel shall hear the complaint.

(2) The chairperson of the discipline committee may direct one or more adjudication panels to sit separately, whether or not concurrently, as he or she may consider necessary.

(3) The rules of evidence applicable in civil proceedings are applicable at a hearing except as varied by this Act or the rules.

(4) The parties to a hearing are the society, the respondent and another person designated by the adjudication panel and a party may be represented by counsel at a hearing.

(5) A hearing shall be conducted in public but an adjudication panel may exclude the public from a hearing, or from part of it, where it considers the desirability of protecting a party to the complaint against the consequences of possible disclosure of intimate financial or personal matters to outweigh the desirability of holding the hearing in public.

Powers of adjudication panel

48. (1) Upon the hearing of a complaint, an adjudication panel shall decide whether or not a respondent is guilty of conduct deserving of sanction.

(2) Where an adjudication panel decides that a respondent is not guilty, it shall dismiss the complaint and may

(a) order that those costs that the panel considers appropriate be paid by the society to the respondent; and

(b) make another order, either upon terms or otherwise, that it may consider appropriate.

(3) Where an adjudication panel decides that a respondent is guilty, it shall take one or more of the following disciplinary actions:

(a) reprimand the respondent;

(b) order that the respondent be suspended for a fixed period that it considers appropriate, until conditions which it may impose are fulfilled, or until further order of the adjudication panel or the benchers;

(c) order that the respondent be permitted to resign from the society upon those conditions that may be considered appropriate;

(d) order that the respondent be disbarred;

(e) impose a fine not to exceed $10,000;

(f) strike the respondentís name from the roll of students;

(g) refuse the respondentís admission to usual examinations or refuse to grant a certificate of fitness, either absolutely or for the period of time that it considers appropriate;

(h) order that the respondentís right to practice law under subsection 39(1) be suspended for a fixed period, or revoked;

(i) order that the permission granted under subsection 39(2) be suspended for a fixed period, or revoked;

(j) order that permission for members to practise with a respondent that is an interjurisdictional law firm be revoked, or suspended for a fixed period;

(k) order the respondent to pay to the society for the assurance fund the amount that the adjudication panel may fix;

(l) order that the respondent pay the expense or a part of the expense incurred by the society in the investigation or hearing of the complaint;

(m) make an order specified in paragraph 46(3)(c); and

(n) make another order, either upon terms or otherwise, that it considers appropriate.

Filing of decisions

49. An adjudication panel shall file a decision or order made under subsection 46(3) or section 48 with the secretary.

Disbarment and suspension

50. (1) Where a member is disbarred or a student is struck off the roll, his or her rights and privileges as a member or student cease.

(2) Where a member or student is suspended, his or her rights and privileges as a member or student cease for the period of suspension.

(3) Where conditions or restrictions have been imposed upon a respondentís ability to carry on the practice of law, his, her or its rights and privileges as a member, student, interjurisdictional law firm or otherwise shall be limited to the extent specified by the conditions or restrictions.

Failure to comply

51. (1) On application by the society to the discipline committee, an adjudication panel may make an order suspending the rights and privileges of a respondent where it determines that the respondent has failed to comply with a decision or an order under this Part.

(2) The parties to the application are the society, the respondent and another person added as a party by the adjudication panel.

(3) An order of an adjudication panel under this section may suspend the rights and privileges of the respondent for a fixed period that the adjudication panel considers appropriate, or until conditions which it may impose are fulfilled, or until further order of the adjudication panel or the benchers.

Reinstatement and readmission

52. (1) Where a decision or order made by an adjudication panel has suspended the rights and privileges of a respondent or has imposed conditions on, or restricted the manner in which a respondent may carry on the practice of law, an adjudication panel may, on application by the respondent to the discipline committee, make an order discharging or varying the decision or order on the basis of fresh evidence or a material change in circumstances.

(2) Where a decision or order made by an adjudication panel has revoked a respondentís membership in the society as a member or student, an adjudication panel may, on application by the respondent to the discipline committee, make an order readmitting the respondent as a member or student on the basis of fresh evidence or a material change in circumstances.

(3) The parties to an application under this section are the applicant, the society and another person added as a party by the adjudication panel.

(4) An adjudication panel may make an order under this section that it considers appropriate including,

(a) that the respondent successfully pass examinations in specified subjects; and

(b) that the manner in which the respondent may carry on the practice of law be restricted as specified by the adjudication panel.

Appeal to the benchers

53. (1) A party aggrieved by a decision or order of an adjudication panel may, within 30 days after receiving notice of the decision or order, appeal the decision or order to the benchers in accordance with the rules by filing with the secretary a notice of appeal alleging an error in fact or law.

(2) An appeal to the benchers does not stay the decision or order being appealed unless the benchers order otherwise.

(3) An appeal to the benchers shall be on the record of proceedings of the adjudication panel whose decision or order is being appealed.

(4) On the hearing of an appeal, the benchers may, as they consider just, make an order reversing, confirming, varying or referring for further consideration a decision or an order of an adjudication panel.

Qualification of the benchers

54. (1) A bencher is qualified to participate in or vote at proceedings before the benchers under this Part unless that bencher

(a) participated as a member of the complaints authorization committee or the adjudication panel in proceedings of that committee or panel relating to the matter that is the subject of the appeal;

(b) did not receive a copy of the record respecting the decision or order being appealed; or

(c) is otherwise disqualified.

(2) A bencher hearing an appeal is not disqualified from continuing to hear the appeal solely because the bencher ceases to be a bencher after the commencement of the appeal.

Appeal to Court of Appeal

55. (1) A party aggrieved by a decision or order of the benchers under Part I or this Part may, within 14 days after receiving notice of the decision or order, appeal the decision or order to the Court of Appeal by filing with the Registrar of the Supreme Court a notice of appeal.

(2) An appeal under this section does not stay the decision or order being appealed unless the Court of Appeal orders otherwise.

PART III
CLIENT'S PROPERTY WITH MEMBERS

Definitions

56. In this Part

(a) "client's property" means property in the custody of an inactive member or someone on his or her behalf for or on behalf of a client or of another person, in the course of the practice of law;

(b) "custodian" means the member appointed under section 57;

(c) "depository" means a bank, trust company or person holding by deposit or otherwise, money, trust funds or assets relating to the practice of law by a member; and

(d) "inactive member" means a member or former member

(i) who has no law partners and who has been disbarred or has otherwise stopped being a member, or has been suspended, or is, by reason of physical or mental illness or for another reason, unable to practise law,

(ii) who has died and who, at the time of his or her death, had no law partners,

(iii) who has absconded or is otherwise improperly absent from his or her practice or whose practice has been neglected for an extended period,

(iv) who, there are reasonable grounds for believing, does not hold sufficient trust money to meet his or her trust liabilities, or

(v) in respect of whom sufficient grounds for making an order under section 57 otherwise exist.

Appointment of custodian

57. A judge of the Trial Division, upon application by or on behalf of the society or by or on behalf of a person in respect of whom an inactive member holds client's property, shall, either unilaterally, or on the notice that the judge may require, by order, appoint a member as custodian to have custody of client's property and to manage, arrange for the conduct of, or the winding up of, the legal practice of the inactive member.

Seizure by sheriff

58. (1) An order under section 57 may direct the sheriff to seize and remove and place in the custody of the custodian client's property and to that end the order may authorize the sheriff to enter upon premises to open a safety deposit box or other receptacle where there are reasonable grounds for believing that client's property may be found.

(2) Unless otherwise directed by the judge, the order shall be served upon the inactive member or his or her personal representative.

Powers of judge re client's property

59. A judge of the Trial Division may, in an order under section 57 or by subsequent order made unilaterally or upon the notice that the judge may require,

(a) direct a depository of client's property to deal with, pay over or deliver the client's property to the custodian or as the judge may otherwise direct;

(b) remove a custodian appointed by the order and appoint another in his or her place;

(c) give directions and advice to the custodian as to the disposition of client's property in the hands of the custodian; and

(d) give those directions or make those orders that the nature of the situation requires.

Notice to public

60. Where client's property has been placed in the custody of a custodian, the secretary, or other person that the benchers may designate, shall examine it and the custodian shall, by publication in a newspaper and by other notice that he or she thinks appropriate, inform a client of the inactive member and those other persons that he or she may consider necessary

(a) that the client's property is in the custody of the custodian and that an examination of it indicates that the client or other persons may have an interest in it; and

(b) that the client and the other persons may apply, subject to a solicitor's lien of the inactive member, to the custodian for the delivery to them of the client's property in which they appear to have an interest, or for leave to make copies of documents and papers among the client's property they may require, in respect of transactions or dealings that he or she or they had with the inactive member.

Delivery of property

61. Where a custodian is satisfied that a person is entitled to property in his or her custody and that no solicitor's lien is claimed or appears to exist, or where the lien is satisfied, he or she may deliver the property to the person claiming it.

Solicitor's lien

62. (1) Where an inactive member or his or her personal representative claims to be entitled to a solicitor's lien on client's property in the custody of a custodian

(a) he or she may, within 30 days from the service of the order upon him or her, file notice of the claim for lien with the custodian giving full particulars of the claim; and

(b) the custodian shall immediately give notice of the claim for lien to the apparent owner of the client's property upon which a lien is claimed,

and the rights of the parties shall then be determined according to law.

(2) Where an inactive member or his or her personal representative fails to file a claim for lien under subsection (1), a lien that he or she might otherwise be entitled to is extinguished and the custodian may deliver the clientís property to the claimant if otherwise satisfied that it is appropriate to do so.

(3) Notwithstanding anything in this Part, a judge of the Trial Division may summarily determine the validity of a claim to a solicitor's lien.

Taxation of costs and fees

63. The costs and fee of a party to proceedings under this Part are recoverable against the inactive member or his or her estate and shall be taxed by a taxing master upon the application of the person claiming the costs and fee or of the inactive member or his or her personal representative.

PART IV
LAW FOUNDATION

Foundation established

64. The "Law Foundation of Newfoundland", called the "foundation", is continued as a corporation.

Composition of board

65. (1) The foundation shall be administered by a board of governors, called the "board".

(2) The board shall consist of

(a) the Minister of Justice or his or her appointee;

(b) a person who is not a member or a bencher, who shall be appointed by the Minister of Justice; and

(c) 5 members in good standing who shall be appointed by the benchers.

(3) The benchers shall by their instrument of appointment designate one of the persons appointed under paragraph (2)(c) to be chair of the board.

(4) The maximum term of office of a governor shall be 4 years commencing at the date this Act comes into force.

(5) A governor is eligible for reappointment after the expiry of his or her term of office.

(6) Where a governor holds office for a period of 8 consecutive years, the governor stops being eligible for appointment until the expiration of 12 months from the years in which he or she last held office.

(7) Where a vacancy occurs on the board, the vacancy shall be filled by another appointment from the party that made the original appointment.

(8) Four governors constitute a quorum of the board.

(9) An act of the board is not invalid because of a defect occurring in the appointment of its governors.

Vacating office

66. (1) A governor shall vacate office,

(a) when he or she has completed his or her term;

(b) ceases holding the qualifications necessary for the appointment;

(c) becomes bankrupt;

(d) is convicted of a criminal offence;

(e) is unable to act; or

has joined the executive committee of the benchers.

(2) A governor may resign from the board upon giving one month's notice to the board of his or her intention to do so, and the resignation takes effect upon the expiration of the notice or upon its earlier acceptance by the board.

Objects and powers of board

67. (1) The objects of the foundation are to establish and maintain from the revenues derived under section 69 a fund, to be known as the "foundation fund", to be used for the following purposes:

(a) legal education and legal research;

(b) law reform;

(c) assistance in funding the Newfoundland Legal Aid Commission as established under the Legal Aid Act;

(d) the establishment, operation and maintenance of a legal referral service for the residents of the province;

(e) the establishment, operation and maintenance of law libraries; and

(f) the provision of scholarships for studies in matters relevant to law.

(2) The board shall transfer 2/3 of the net revenue received in each calendar year directly to the Newfoundland Legal Aid Commission.

(3) In order to further its objects the foundation may, as ancillary or incidental to its objects, do the things that it considers calculated to further the objects of the foundation and it may borrow, raise and secure the payment of money upon the credit of the foundation as the board thinks appropriate and may for that purpose issue notes, bonds, debentures or other evidences of indebtedness.

Liability for trust money

68. A member or student is not liable, by virtue of the relation between the member or student and a client or the relation between the member or student as trustee and a beneficiary, to account to a client or beneficiary for interest received by the member or student on money

(a) deposited in a bank, trust company or other depository approved by the board; and

(b) deposited with other money received or held for or on account of his or her clients generally.

Duty to maintain trust account

69. (1) A member shall maintain a regular interest-bearing trust account in a chartered bank, a trust company or other depository approved by the board, into which he or she shall deposit all money received or held by him or her for or on account of clients upon trust.

(2) A member who is credited by a bank, trust company or other depository approved by the board with interest on money received or held for, or on account of, clients generally holds that interest in trust for the foundation and shall remit it to the foundation in accordance with the by-laws of the foundation.

Saving

70. Nothing in sections 68 and 69 or in the by-laws of the foundation

(a) affects a written arrangement, whenever made, between a member and a client respecting the application of the client's money or the interest on it; or

(b) applies to money deposited in a separate account for a client at interest that is, and is intended to remain, the property of the client.

By-laws

71. The board may make by-laws for matters related to the affairs, property and purposes of the foundation and, in particular, may make by-laws respecting

(a) the number and designation of officers of the foundation;

(b) the resignation or removal from office of officers of the foundation;

(c) the number and designations of employees of the foundation other than officers, and their terms and conditions of employment;

(d) the remuneration of officers and employees of the foundation;

(e) the operation of the foundation fund;

(f) the deposit and remission of funds under section 69; and

(g) the terms, conditions and limitations upon which funds may be used for the purpose of the foundation.

PART V
GENERAL PROVISIONS

Protection

72. An action does not lie against a bencher, a member of a committee or panel, a custodian, the treasurer, the secretary or another officer or employee of or counsel for the society, for anything done by him or her in good faith in purporting to act under this Act, the rules or an order made under Part III.

Communications

73. An action for defamation against a bencher, a member of a committee or panel, the treasurer, the secretary or another officer or employee of or counsel for the society may not be founded on the publication of a communication that consists of or pertains to an allegation or complaint, where the communication is published in the course of investigating the allegation or complaint or in the course of proceedings under Part II.

Recovery of fees

74. (1) In this section "fees" means fees, costs, charges and disbursements.

(2) A member may sue for and recover the member's reasonable and lawful fees arising from services performed by the member while engaged in the practice of law.

(3) A bill of fees may be taxed before the Registrar of the Supreme Court or a master of the Supreme Court.

(4) Notice of taxation of a bill of fees may be given

(a) by the member claiming payment to a person from whom payment is claimed;

(b) by a person from whom a payment is claimed to the member claiming payment; or

(c) by the benchers to the member claiming payment where the benchers receive a complaint concerning the bill from the person from whom the payment is claimed.

(5) Five clear days' notice of taxation of a bill of fees shall be given.

(6) A copy of the bill of fees to be taxed shall be served with the notice of taxation.

(7) Where the party to be served with notice of taxation fails to attend the taxation and it is proved by affidavit that he or she has been served with the notice or that he or she is absconding or absent from the province, the bill of fees may be taxed in the absence of the party to be served.

(8) An amount in excess of the bill of fees as taxed and allowed in respect of the professional services specified is not recoverable and where paid shall be refunded.

(9) The bill of fees as taxed and allowed under this Part may be entered as a judgment in a court of record having jurisdiction as a judgment of that court.

(10) The taxation of a bill of fees under this Part may be appealed to the Trial Division or a judge of the court in the same way as costs are taxed between parties to an action or proceeding in the court.

(11) A person is not entitled to recover fees as a member or to tax a bill of fees as a member unless he or she was a member in good standing at the time that the fees were incurred.

(12) Where a person receives money or other consideration in payment of fees as a member that were incurred at a time when that person was not a member in good standing, other than by way of an amount actually reimbursed to another person entitled to receive it, the money or other consideration shall be refunded to the person from whom it was received and the person from whom it was received may recover it by action in a court.

(13) Subsection (3) does not apply to the retention of fees paid or agreed to be paid by a client to a member in advance of his or her undertaking a professional service where the service is rendered.

Fees, levies, assessments, etc.

75. (1) Notwithstanding section 68 of the Judicature Act, the fee for an originating document or statement of claim except unilateral originating applications issued by a solicitor out of the Trial Division shall be paid to the Registrar of the Supreme Court for the society and when received shall be paid by the registrar to the secretary for the purpose of the society.

(2) The fee referred to in subsection (1) shall be set by the minister.

(3) A member shall pay to the society fees, levies and assessments in the amount and manner prescribed under the rules.

(4) Fees, levies, assessments, costs, expenses, fines or other money payable by a member, former member, student or former student under this Act or the rules or a decision or an order under this Act or the rules are the property of the society and unless otherwise ordered shall be paid to the society.

Authority to practise law

76. (1) Subject to subsections (3), (4), and (5), no person, other than a member in good standing, shall engage in the practice of law, except

(a) an individual acting on his or her own behalf in a proceeding to which he or she is a party other than a person to whom a debt has been assigned for collection only;

(b) a person drawing, preparing, revising or settling a testamentary document or a document pertaining to real or personal property or a document that is intended to be enforceable by law or to have a legal effect for his or her own use, or for others without receiving or expecting to receive a fee, gain, reward or benefit ;

(c) a person appearing as an agent for another person before a Provincial Court judge or Justice of the Peace when authorized to do so by an Act of the Parliament of Canada or the Legislature or before an administrative tribunal where permitted by the practice of the tribunal; and

(d) students, to the extent authorized by the benchers.

(2) The authority granted by paragraphs (1)(a) and (c) includes the drawing, preparing, revising or settling of related documents.

(3) A person who is employed by a member, a firm of members or the province and who, acting under the supervision of a member, complies with any rules prescribed by the benchers, does not contravene subsection (1).

(4) A member who is suspended or who has elected non-practising status or who is a life member or honorary member shall not do an act described in paragraphs 2(2)(a) to (h).

(5) A former member who has been disbarred or who, as a result of discipline proceedings has resigned from membership in the society, or who has otherwise ceased to be a member shall not do an act described in paragraphs 2(2)(a) to (i).

Employment of suspended or disbarred member

77. A member shall not employ in connection with his or her practice a suspended member or a member whose name has been struck off the roll of the society except under the authority of a resolution of the benchers and in accordance with those rules that may be made by the benchers.

Branch offices

78. A member shall not open or maintain a branch office for the practice of law in the province unless the office is under the personal and actual control and management of a member in good standing.

Offences

79. (1) A natural person or corporation and an officer, employee or agent of a corporation who contravenes this Part is guilty of an offence and liable

(a) for the first offence, to a fine of not more than $2000;

(b) for a second offence, to a fine of not more than $5,000; and

(c) for a third and subsequent offence to a fine of not more than $10,000.

(2) A person who contravenes a provision of this Act, other than a provision of this Part, is guilty of an offence and liable to a fine of not more than $5,000.

(3) In a prosecution under this Part it is sufficient proof of an offence if it is proved that the accused committed a single act prohibited by this Part.

(4) A proceedings in respect of an offence under this Act may be instituted within but not later than 2 years after the subject matter of the proceedings is discovered.

Injunction

80. Upon application by the society, a judge of the Trial Division may make an order restraining a person from contravening or continuing to contravene a provision of this Part, whether or not a conviction has been adjudged in respect of the contravention.

Notice of standing

81. (1) Notice of every admission and enrollment and of every disbarment, suspension, resignation, readmission or other change in the status of a member or a student shall be given in the manner prescribed in the rules.

(2) A certificate purporting to be signed by the secretary and stating that a named person was or was not on a specified day or during a specified period

(a) a member;

(b) a member in good standing;

(c) an honorary member;

(d) a life member;

(e) an inactive member;

(f) a suspended member;

subject to restrictions on his or her ability to engage in the practice of law, including without limitation whether he or she is a practising or a non-practising member and whether he or she is insured or uninsured,

(g) a student;

(h) an officer of the society; or

(i) a bencher,

is admissible in evidence as, in the absence of evidence to the contrary, proof of the facts stated without proof of the secretary's appointment or signature.

Transition

82. (1) A person who, immediately before the day this Act comes into force, held office as a bencher under the former Act, shall be considered to be a bencher under this Act.

(2) Before the day this Act comes into force a period of time during which a person held office as a bencher under the former Act shall be considered, for the purpose of this Act, to be a period of time during which the person held office as a bencher.

(3) Where, before the day this Act comes into force, a hearing was commenced under Part I or Part II of the former Act, the proceeding, including an appeal in the proceeding, shall be continued and completed in accordance with the former Act, and the rules made under the former Act.

(4) Where, before the day this Act comes into force, a hearing was not commenced in a proceeding referred to in subsection (3), the proceeding shall, with the necessary changes, be continued under the provisions of this Act.

(5) Orders may be made under this Act and proceedings may be commenced under this Act in respect of events that occurred and time periods that commenced before this Act came into force.

Commencement

83. This Act comes into force, and except to the extent contemplated in subsection 82(3) the former Act is repealed, on January 1, 2000.

©Earl G. Tucker, Queen's Printer