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Statutes of Newfoundland and Labrador 2021


CHAPTER 27

AN ACT TO AMEND THE LAW SOCIETY ACT, 1999

(Assented to November 16, 2021)

Analysis


        1.   S.2 Amdt.
Definitions

        2.   S.8 Amdt.
Appointing lay benchers

        3.   S.17 Amdt.
Convocations

        4.   S.18 Amdt.
Powers of benchers

        5.   S.20 Amdt.
President and vice-president

        6.   S.34 Amdt.
Enrolment as solicitor

        7.   S.38 Amdt.
Appeal

        8.   S.41 Amdt.
Definitions

        9.   S.42 Amdt.
Committees

      10.   S.44 Amdt.
Effect of filing allegation

      11.   Ss.44.1 & 44.2 Added
44.1 Fitness to practice

                      committee referrals
44.2 Fitness to practice

                      committee agreements

      12.   S.45 Amdt.
Complaints authorization committee

      13.   S.49 Amdt.
Guilty plea by respondent

      14.   S.50 Amdt.
Powers of adjudication tribunal

      15.   S.51 R&S
Filing and publication of decisions

      16.   S.52 Amdt.
Disbarment and suspension

      17.   S.55.1 Amdt.
Collection of fine

      18.   S.55.2 Amdt.
Appeal

      19.   S.56.1 Amdt.
Order against a professional law corporation

      20.   S.57 Amdt.
Appointment of custodian

      21.   S.59 Amdt.
Powers of judge re client's property

      22.   S.62 Amdt.
Solicitor's lien

      23.   S.65 Amdt.
Composition of board

      24.   S.69 Amdt.
Duty to maintain trust account

      25.   S.70.1 Amdt.
Unclaimed trust funds

      26.   S.74 Amdt.
Recovery of fees

      27.   S.75 Amdt.
Fees, levies, assessment, etc.

      28.   S.80 Amdt.
Injunction

      29.   RSNL1990 cP-43 Amdt.

 


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

SNL1999 cL-9.1
as amended

        1. Subsection 2(1) of the Law Society Act, 1999 is amended by adding immediately after paragraph (f) the following:

        (f.01)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

        (f.02)  "National Mobility Agreement" means the 2013 National Mobility Agreement of the Federation of Law Societies of Canada, as amended from time to time;

        (f.03)  "net revenue" means funds received from trust accounts less administrative expenses of the foundation;

 

 

        2. (1) Paragraph 8(1)(a) of the Act is amended by deleting the words "Trial Division" wherever they appear and substituting the words "Supreme Court".

             (2)  Paragraph 8(1)(b) of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister".

             (3)  Paragraph 8(1)(c) of the Act is repealed and the following substituted:

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

 

        3. Section 17 of the Act is amended by adding immediately after subsection (5) the following:

             (6)  Honorary benchers are not entitled to vote at regular or special meetings of the benchers.

 

        4. Subsection 18(2) of the Act is amended by adding immediately after paragraph (c) the following:

          (c.1)  make rules respecting the procedures to be used by the fitness to practice committee;

          (c.2)  establish the circumstances in which, and the procedures by which, a matter may be referred

                      (i)  by the vice-president to the fitness to practice committee under subsection 44.1(1) or (2),

                     (ii)  by the fitness to practice committee to the complaints authorization committee or the vice-president under subsection 44.1(3), and  

                    (iii)  by the complaints authorization committee to the fitness to practice committee under subsection 44.1(4);

 

        5. Paragraph 20(1)(a) of the Act is repealed and the following substituted:

             (a)  the president who shall be its presiding officer; and

 

        6. (1) Subsection 34(2) of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

             (2)  Subsection 34(4) of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

 

        7. Subsection 38(3) of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

 

        8. (1) Section 41 of the Act is amended by adding immediately after paragraph (a) the following:

         (a.1)  "capacity" means a member's ability to practice law with reasonable skill and judgment that is not substantially impaired by a physical, mental or emotional condition, disorder or addiction;                  

             (2)  Section 41 of the Act is amended by deleting the word "and" at the end of paragraph (e) and adding immediately after paragraph (e) the following:

          (e.1)  "medical assessment" means a physical, mental health or addictions assessment or examination by a qualified health professional approved by the society; and

             (3)  Paragraph 41(f) of the Act is repealed and the following substituted:

             (f)  "respondent" means

                      (i)  a member, former member, law firm, former law firm, student, former student or a person referred to in subsection 39(1) or (2) whose conduct is being inquired into under this Part, and

                     (ii)  a member, former member, student, former student or a person referred to in subsection 39(1) or (2) whose capacity is being inquired into under this Part.

 

        9. (1) Section 42 of the Act is amended by adding immediately after subsection (3) the following:

         (3.1)  The benchers shall appoint 2 members who are not elective benchers and the minister shall appoint one person to represent the public interest who is not a bencher or member who shall together constitute the fitness to practice committee.

         (3.2)  The benchers shall appoint 4 members who are not elective benchers and the minister shall appoint 2 persons who are not benchers or members to be alternates for the fitness to practice committee.

             (2)  Subsection 42(9) of the Act is repealed and the following substituted:

             (9)  The complaints authorization committee, the fitness to practice committee, an adjudication tribunal appointed under section 46 and a person appointed by any of them may summon a respondent or other person and require the respondent or other person to give evidence, orally or in writing, upon oath or affirmation, and produce the documents and things that any of them considers necessary for the full investigation and hearing of an allegation or complaint and shall have the powers, privileges and immunities that are conferred on a commissioner appointed under the Public Inquiries Act, 2006.

 

      10. (1) Section 44 of the Act is amended by adding immediately after subsection (1) the following:

         (1.1)  Where the allegation is not satisfactorily resolved by the vice-president or through alternate dispute resolution under subsection (1), the vice-president may conduct an investigation of the allegation and submit the results of the investigation to the complaints authorization committee.

             (2)  Subsection 44(2) of the Act is repealed and the following substituted:

             (2)  Where the allegation is not satisfactorily resolved by the vice-president or through alternate dispute resolution under subsection (1) and the vice-president does not conduct an investigation under subsection (1.1), the vice-president shall refer the allegation and all other allegations to the complaints authorization committee.

 

      11. The Act is amended by adding immediately after section 44 the following:

Fitness to practice committee referrals

   44.1 (1) Notwithstanding anything contained in this Act or the rules, where an allegation concerns a respondent's capacity, or where a person, in the absence of an allegation, raises concerns about a respondent's capacity to the society, the vice-president may, with the consent of the respondent, refer the matter to the fitness to practice committee in accordance with the rules.          

             (2)  Notwithstanding anything contained in this Act or the rules, where the respondent, in the absence of an allegation, raises concerns about the respondent's capacity to the society, the vice-president may refer the matter to the fitness to practice committee in accordance with the rules.                    

             (3)  The fitness to practice committee may refer a matter to the complaints authorization committee or the vice-president in accordance with the rules.

             (4)  The complaints authorization committee may, with the respondent's consent, refer a matter to the fitness to practice committee in accordance with the rules.

             (5)  Where a matter is referred by the fitness to practice committee to the complaints authorization committee under subsection (3), the matter shall be considered an allegation.

Fitness to practice committee agreements

   44.2 (1) Where a matter has been referred to the fitness to practice committee by the vice-president or the complaints authorization committee, the fitness to practice committee may, where it is in the public interest to do so and the respondent consents, enter into one or more agreements with the respondent.

             (2)  An agreement referred to in subsection (1) may, with the respondent's consent, include one or more of the following terms and conditions:

             (a)  that the respondent submit to a medical assessment to determine the respondent's capacity;

             (b)  that the respondent undertake to complete or complete a course of treatment approved by the fitness to practice committee and designed to address any issues concerning the respondent's capacity;

             (c)  that the respondent authorize the fitness to practice committee to receive reports from medical assessments or treatment referred to in paragraphs (a) and (b);

             (d)  that the respondent accept practice restrictions or conditions on the respondent's practice or withdraw from practice pending completion of the terms and conditions in the agreement; and

             (e)  that the respondent comply with other terms and conditions agreed upon by the respondent and the fitness to practice committee.

             (3)  Where a respondent fails to comply with an agreement under subsection (1), the fitness to practice committee may refer the matter to the complaints authorization committee or the vice-president, based on who referred the matter to the fitness to practice committee.

             (4)  Where a respondent is subject to ongoing terms and conditions of an agreement the fitness to practice committee shall monitor the respondent's compliance with the agreement and may, at any time with the consent of the respondent, amend the terms and conditions of the agreement where the fitness to practice committee determines that it is in the public interest to do so.

 

      12. (1) Paragraph 45(1)(a) of the Act is repealed and the following substituted:

             (a)  refer the allegation back to the vice-president for

                      (i)  an investigation in accordance with the rules,

                     (ii)  further investigation in accordance with the rules where the vice-president conducted an investigation in accordance with subsection 44(1.1), or

                    (iii)  alternate dispute resolution in accordance with the rules;

             (2)  Section 45 of the Act is amended by adding immediately after subsection (1) the following:

         (1.1)  An investigation referred to in paragraph (1)(a) or (b) may be delegated by the vice-president or the complaints authorization committee to the staff of the society.

             (3)  Section 45 of the Act is amended by adding immediately after subsection (4) the following:

         (4.1)  The president, vice-president, executive director and chair and vice-chair of the complaints authorization committee shall disclose to a law enforcement authority any information regarding possible criminal activity on the part of a member that is obtained during an investigation.

             (4)  Subsection 45(7) of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

 

 

      13. Paragraph 49(2)(m) of the Act is amended by deleting the reference "subsection 51(4)" and substituting the reference "subsection 51(7)".

 

      14. Paragraph 50(3)(m) of the Act is amended by deleting the reference "subsection 51(4)" and substituting the reference "subsection 51(7)".

 

      15. (1) Section 51 of the Act is repealed and the following substituted:

Filing and publication of decisions

      51. (1) An adjudication tribunal shall file a decision or order made under subsection 49(2), 50(2) or 50(3) with the society and provide a copy to the complainant, the respondent and the respondent's partners and employers, as designated in the rules, and the minister.

             (2)  The society shall maintain a copy of a decision or order filed under subsection (1) for a minimum of 10 years after the day the decision or order is filed and shall upon receiving a request to view the disciplinary records in relation to a respondent permit a person to view the summary prepared in accordance with subsection (7).

             (3)  The society shall publish a summary of a decision or order of an adjudication tribunal within 14 days of the expiry of the appeal period provided in section 55.2, where the decision or order

             (a)  suspends the respondent;

             (b)  allows or directs the surrender of the respondent's licence;

             (c)  restricts the respondent’s practice;

             (d)  disbars the respondent;

             (e)  specifies conditions for the continuing practice of the respondent; or

             (f)  requires that a summary of the decision or order be published.

             (4)  Where the society is required to publish a summary of a decision or order under subsection (3), the society shall publish the summary of the decision or order on the society's website.

             (5)  Where the society publishes a summary of a decision or order in accordance with subsection (4), the society shall

             (a)  advise at least 2 media outlets in or nearest to the community in which the respondent practices that a summary of the decision or order has been published; and

             (b)  keep a summary of the decision or order on the website

                      (i)  for a period of not less than 3 months, or

                     (ii)  where one or more of the following apply, for a period not less than the period referred to in clause (A), (B) or (C), as applicable:

                            (A)  where the respondent is suspended for a period greater than 3 months, the period of suspension,

                            (B)  where the respondent’s practice is restricted for a period greater than 3 months, the period of restriction, or

                            (C)  where conditions are imposed for the continuing practice of the respondent for a period greater than 3 months, the period during which conditions are imposed.

             (6)  Where the society publishes a summary of a decision or order in accordance with subsection (4), the society may also publish a summary of the decision or order in the society's annual report or another publication approved by the society.

             (7)  Unless a court orders otherwise, the summary of the decision or order published under this section shall include

             (a)  the name of the respondent and the address where the respondent practises;

             (b)  the date, location and a brief description of the conduct of the respondent that was found to be deserving of sanction;

             (c)  the name of the complainant, where requested by the complainant;

             (d)  the contents of the decision or order in relation to the actions referenced in paragraphs (3)(a) to (e); and

             (e)  other information specified for publication in the decision or order.

             (8)  Where a decision or order, the summary of which is published under this section, is varied or set aside, the society shall within 14 days of the filing of the subsequent decision or order publish a summary of the decision or order and subsections (3) to (7) apply, with the necessary changes.

             (9)  The society may give notice of the decision or order and information respecting the decision or order to the other persons the benchers may direct and shall include a summary of the decision or order in a certificate of good standing issued in relation to the respondent.

          (10)  Nothing in this section prohibits the society from publishing a decision or order of an adjudication tribunal, including publishing it in a database or repository for adjudication decisions approved by the minister, provided that the name and any identifying information of the complainant or witnesses is not published unless the complainant or witness requests that it be published.

 

      16. Subsection 52(3) of the Act is amended by deleting the word "respondents" and substituting the word "respondent's".

 

      17. Section 55.1 of the Act is amended by deleting the words "Trial Division" wherever they appear and substituting the words "Supreme Court".

 

      18. Section 55.2 of the Act is amended by deleting the words "Trial Division" wherever they appear and substituting the words "Supreme Court".

 

      19. Section 56.1 of the Act is amended by deleting the words "Trial Division" wherever they appear and substituting the words "Supreme Court".

 

      20. Section 57 of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

 

      21. Section 59 of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

 

      22. Subsection 62(3) of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

 

      23. (1) Paragraph 65(2)(a) of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister".

             (2)  Paragraph 65(2)(b) of the Act is amended by deleting the words "Minister of Justice" and substituting the word "minister".

             (3)  Subsection 65(3) of the Act is repealed and the following substituted:

             (3)  The board shall elect a chair of the board and a vice-chair of the board from the members of the board.

             (4)  Section 65 of the Act is amended by adding immediately after subsection (5) the following:

         (5.1)  Where the term of a governor expires, the governor continues to be a governor until reappointed or replaced.

             (5)  Subsection 65(6) of the Act is repealed and the following substituted:

             (6)  Where a governor holds office for a period of 8 consecutive years, the governor is not eligible for appointment as a governor until the earlier of

             (a)  the expiration of 12 months from the end of the year in which the governor was last a governor; or

             (b)  where the governor's term was continued in accordance with subsection (5.1), the expiration of 12 months from the end of the year in which the governor's term would have ended had it not been continued under subsection (5.1).

 

      24. (1) Subsection 69(2) of the Act is repealed and the following substituted:

             (2)  A member or professional law corporation 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 each year shall pay to the foundation the interest earned on the member’s trust account.

             (2)  Section 69 of the Act is amended by adding immediately after subsection 69(2) the following:

             (3)  A member or professional law corporation shall not deduct administration and service charges imposed by a bank, trust company or other depository approved by the board from the amount referred to in subsection (1).

 

      25. Subsection 70.1(8) of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

 

      26. (1) Subsection 74(10) of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

             (2)  Section 74 of the Act is amended by adding immediately after subsection (14) the following:

          (15)  This section applies to a lawyer practising in the province under the National Mobility Agreement.

 

      27. Subsection 75(1) of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

 

      28. Section 80 of the Act is amended by deleting the words "Trial Division" and substituting the words "Supreme Court".

RSNL1990 cP-43 Amdt.

      29. Schedule C of the Public Service Commission Act is amended by deleting the reference "Law Society Act, 1999, section 42(4) with respect to ministerial appointments and paragraph 65(2)(b)" and substituting the reference "Law Society Act, 1999, subsections 42(3.1), (3.2) and (4) with respect to ministerial appointments and paragraph 65(2)(b)".