BILL 63 - An Act to Amend An Act Respecting the Law Society of New Brunswick

BILL 63

An Act to Amend An Act Respecting the Law Society of New Brunswick

WHEREAS the Law Society of New Brunswick prays that it be enacted as hereinafter set forth:

THEREFORE, Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 5 of An Act Respecting the Law Society of New Brunswick, chapter 89 of the Acts of New Brunswick, 1996, is amended

(a) in paragraph (d) by adding "and" at the end of the paragraph;

(b) in paragraph (e) by striking out ", and" and substituting a period;

(c) by striking out paragraph (f).

2 Section 6 of the Act is amended

(a) in paragraph (b) by striking out "lay Members of Council" and substituting "public representatives";

(b) in paragraph (e) by adding "or a person designated by the Dean" after "Law";

(c) in paragraph (f) by adding "or a person designated by the Dean" after "Law".

3 Subsection 7(1) of the Act is amended

(a) in paragraph (a) by striking out "five" and substituting "four";

(b) in paragraph (c) by striking out "three" and substituting "four".

4 Subsection 8(2) of the Act is repealed and the following is substituted:

8(2) The term of office of an elected Member of Council is for such period as provided in the rules and commences the day after the annual general meeting of the Society at which the member is elected.

5 Section 12 of the Act is amended

(a) by repealing the heading "Lay Members of Council" preceding subsection (1) and substituting "Public Representatives on Council";

(b) by repealing subsections (1), (2), (3) and (4) and substituting the following:

12(1) Council shall appoint not more than three persons who are not members to be public representatives on Council.

12(2) The term of a public representative on Council appointed under subsection (1) shall be the same as the term of a Member of Council elected under section 8.

12(3) A public representative on Council appointed under subsection (1) shall not hold the position of President, Vice-President or Treasurer.

12(4) Where a public representative on Council appointed under subsection (1) ceases to hold office, Council may appoint a replacement under that subsection to hold office for the remainder of the term of the public representative being replaced.

6 Section 16 of the Act is amended

(a) by adding after paragraph (2)(j) the following:

(j.1) obtain insurance for the purpose of indemnifying claims against the Compensation Fund arising out of the misappropriation, wrongful conversion or dishonesty of members, and act as agent for members and former members in obtaining such insurance,

(j.2) obtain insurance for the purpose of indemnifying claims against members as a result of dishonesty, fraud or criminal acts in the issuance of certificates of title or the submission of electronic instruments under the provisions of the Land Titles Act, and act as agent for members and former members in obtaining such insurance,

(b) in paragraph (2)(r) by striking out "Professional Conduct Handbook" and substituting "Code of Professional Conduct";

(c) by adding after paragraph (2)(s) the following:

(s.1) acquire real property by ownership or lease to provide office facilities reasonably necessary to carry out the objects of the Society, including the right to construct, maintain and operate such facilities, and to borrow and give security for such purposes,

(d) in paragraph (2)(t) by striking out "and its members, and" and substituting a comma;

(e) in paragraph (2)(u) by striking out the period and substituting a comma followed by "and";

(f) by adding after paragraph (2)(u) the following:

(v) establish standards and obligations governing the resignation of lawyers from membership in the Society, including their obligations with regard to client files, trust funds and property of clients, and accounting for such funds and property, and any other matters that should be dealt with before a member is permitted to resign.

(g) in subsection (6) by adding "including the right to attend meetings of Council," after "and by Council,";

(h) by adding after subsection (7) the following:

16(7.1) The Executive Director may delegate to one or more employees of the Society any of the Executive Director's powers, duties or functions.

7 Section 17 of the Act is amended

(a) in paragraph (2)(ee) by striking out the comma and adding "and limited liability partnerships used to carry on the practice of law,";

(b) by adding after paragraph (2)(ee) the following:

(ee.1) regulate multi-disciplinary practices between lawyers and non-lawyers used to carry on the practice of law, including conditions of practice and any requirements respecting such arrangements as are necessary to protect the public interest,

(c) in subsection (3) by striking out "Professional Conduct Handbook" and substituting "Code of Professional Conduct".

8 Subsection 18(2) of the Act is repealed and the following is substituted:

18(2) The Executive Director shall give notice of the annual general meeting to each member of the Society by whatever means is approved by Council at least twenty-one days before the meeting is to be held.

9 Subsection 20(6) of the Act is repealed and the following is substituted:

20(6) The Executive Director shall give notice of any special general meeting to each member of the Society by whatever means is approved by Council at least twenty-one days before the meeting is to be held stating the business to be considered at the meeting.

10 Subsection 23(2) of the Act is repealed and the following is substituted:

23(2) Members of the Admissions Committee shall be appointed for a term of one year.

11 Section 24 of the Act is amended

(a) in subsection (1) by striking out the portion preceding paragraph (a) and substituting the following:

24(1) If, in the opinion of the Executive Director, there are matters that require consideration by the Admissions Committee it shall, upon the request of the Executive Director, inquire into

(b) in paragraph (1)(c) by striking out "and" at the end of the paragraph;

(c) in paragraph (1)(d) by striking out the period at the end of the paragraph and substituting a comma;

(d) by adding after paragraph (1)(d) the following:

(e) an application by a lawyer or firm of lawyers to engage in any capacity having to do with the practice of law a person who

(i) is under suspension as a result of disciplinary proceedings in any jurisdiction,

(ii) has been disbarred in any jurisdiction and has not been reinstated, or

(iii) has been permitted to resign from a law society in any jurisdiction while facing disciplinary proceedings and who has not been reinstated, and

(f) an application for a permit or the renewal of a permit to act as a foreign legal consultant as provided in the rules.

(e) in subsection (5) by adding "and the Society, when in its sole discretion it considers it necessary to dispose of the application" after "applicant" ;

(f) by repealing subsection (6) and substituting the following:

24(6) At a hearing before a panel of the Committee ordered under subsection (5), the panel may, in its sole discretion, where it considers it necessary for the effective conduct of a hearing

(a) compel the applicant to give evidence under oath,

(b) order the applicant to produce all relevant documents that are in the applicant's possession or power,

(c) order the applicant to produce documents or disclose information referred to in paragraph 28(2)(e),

(d) issue a summons to witness signed by the chairperson of the panel in a form provided by the rules,

(e) allow the applicant and the Society to be represented by counsel, and

(f) establish its own procedure.

12 Section 25 of the Act is amended

(a) by repealing the heading "Report to Council" preceding subsection (1) and substituting "Decision of Admissions Committee";

(b) in subsection (1) in the portion preceding paragraph (a) by striking out the comma following "subsection 24(1)" and adding "or a hearing under subsection 24(5),";

(c) by repealing paragraph (1)(c) and substituting the following:

(c) approve the application subject to conditions.

(d) by repealing subsection (3) and substituting the following:

25(3) The Admissions Committee shall give its decision in writing with reasons and may fix the time and conditions to be met by the applicant before a new application can be made.

(e) by repealing subsection (4) and substituting the following:

25(4) The decision of the Admissions Committee shall be given to the applicant and the Society and shall be final and binding unless the applicant or the Society, within twenty days after receiving the decision, requests a review by Council.

(f) by adding after subsection (4) the following:

25(4.1) The purpose of a review under subsection (4) is to ensure that the Admissions Committee in reaching its decision has taken all relevant facts and issues into consideration and has followed the proper procedures.

25(4.2) Council may appoint a panel of five members of Council to consider a review under subsection (4), one of whom shall be appointed chairperson.

25(4.3) The panel appointed under subsection (4.2) may establish its own procedure and may, in its sole discretion, require the filing of written submissions or may hear the parties.

(g) by repealing subsection (5) and substituting the following:

25(5) In reviewing a decision under subsection (4), Council or a panel appointed under subsection (4.2) may, by simple majority,

(a) confirm the decision of the Admissions Committee, or

(b) refer the application back to the Admissions Committee with directions to take such action as it considers necessary to ensure that all relevant facts and issues concerning the application have been properly considered.

13 Subsection 26(1) of the Act is amended by striking out "A" and substituting "Subject to subsection 25(3), a".

14 Section 29 of the Act is amended

(a) in the portion preceding paragraph (1)(a) by striking out "Council" and substituting "The Admissions Committee";

(b) in paragraph (1)(a) by striking out "or Council" and substituting ", Competence Committee, Admissions Committee or Council";

(c) in subsection (2) by striking out "Council" and substituting "The Admissions Committee";

(d) in subsection (3) by striking out "Council" and substituting "The Admissions Committee".

15 Section 30 of the Act is amended

(a) in the portion preceding paragraph (1)(a) by striking out "a practising member's annual fee" and substituting "practising member's annual fees";

(b) in paragraph (1)(a) by striking out "the members" and substituting "Council";

(c) in paragraph (1)(b) by striking out ", as fixed by Council under paragraph 16(2)(i)," and substituting "fixed by Council under paragraphs 16(2)(i), (j.1) and (j.2),";

(d) in paragraph (1)(c) by adding "including special assessments for the purpose of building a reserve fund," after "fee," and by striking out "the members" and substituting "Council";

(e) in the portion preceding paragraph 2(a) by striking out "a non-practising member's annual fee" and substituting "non-practising member's annual fees";

(f) in paragraph (2)(a) by striking out "the members" and substituting "Council";

(g) in paragraph (2)(b) by adding "including special assessments for the purpose of building a reserve fund," after "fee," and by striking out "the members" and substituting "Council";

(h) in subsection (3) by adding "annual fees or" after "permit the";

(i) in subsection (4) by striking out "annual fee" and substituting "annual fees" and by striking out "fee is" and substituting "fees are";

(j) in the portion preceding paragraph (5)(a) by striking out "fee" and substituting "fees";

(k) by repealing subsection (6) and substituting the following:

30(6) A member who fails to pay the amount owing and the late payment fee referred to in subsection (5) by the end of the fifth year following the year in which those amounts became due, is deemed to have resigned and ceases to be a member of the Society.

(l) by repealing paragraph (10)(c) and substituting the following:

(c) pays all or a pro-rated portion of the non-practising member's annual fees referred to in subsection (2) as determined by the Executive Director, and

16 Section 31 of the Act is amended by repealing subsection (3).

17 Subsection 33(1) of the Act is amended

(a) in paragraph (b) by striking out "and";

(b) in paragraph (c) by striking out the period at the end of the paragraph and substituting a semi-colon followed by "and";

(c) by adding after paragraph (c) the following:

(d) a student of the Faculty of Law of the University of New Brunswick or the Université de Moncton during the period the student is participating in a legal aid or clinical law program operated by or under the supervision of the Faculty or under the authority of an enactment.

18 Section 39 of the Act is amended by adding after subsection (2) the following:

39(3) In circumstances in which the Registrar or Executive Director are not able to act, or it is not appropriate that they do so, Council may appoint a practising member in good standing to act as Registrar for a specified purpose and with all of the powers of the Registrar under this Act.

19 Subsection 41(4) of the Act is amended

(a) by adding at the end of the portion preceding paragraph (a) "do one or a combination of the following:";

(b) in paragraph (e) by striking out "or" at the end of the paragraph;

(c) in paragraph (f) by striking out the period at the end of the paragraph and substituting a comma followed by "or";

(d) by adding after paragraph (f) the following:

(g) issue a written caution or warning to the respondent in circumstances considered by the Registrar not to justify other forms of sanction.

20 Section 44 of the Act is amended

(a) in subsection (1) by adding "or more" after "six";

(b) by repealing subsection (2) and substituting the following:

44(2) Members of the Competence Committee shall be appointed for a term of one year.

21 Section 45 of the Act is amended by striking out "is not required to conduct a hearing, but".

22 Section 49 of the Act is amended

(a) in subsection (1) by adding "or more" after "six";

(b) by repealing subsection (2) and substituting the following:

49(2) Members of the Complaints Committee shall be appointed for a term of one year.

23 Section 50 of the Act is amended by striking out "is not required to conduct a hearing, but".

24 Section 51 of the Act is amended

(a) by renumbering section 51 of the French version as 51(1);

(b) in the portion preceding paragraph (1)(a) by striking out "Notwithstanding section 52, upon" and substituting "Upon" and by adding "consider the complaint and may do one or a combination of the following:" after "shall";

(c) in paragraph (1)(a) by striking out "consider the complaint and may";

(d) by adding after paragraph (1)(b) the following:

(b.1) issue a written caution or warning to the respondent in circumstances considered by the Committee not to justify other forms of sanction,

(b.2) order a practice or quality assurance review of the respondent's practice,

(b.3) order a financial audit of the respondent's practice,

(b.4) for the purpose of determining whether a respondent is professionally competent, order the respondent to submit to a medical or psychological examination or assessment if it appears to the Committee that the respondent may not be medically capable of conducting practice or is or may have been addicted to or influenced by the use of drugs or alcohol,

25 Section 52 of the Act is amended

(a) in the portion preceding paragraph (a) by striking out "without a formal hearing";

(b) by adding after paragraph (a) the following:

(a.1) caution or warn the respondent;

26 The Act is amended by adding after section 53 the following:

Decisions of Complaints Committee

53.1 All decisions of the Complaints Committee under sections 51, 52 and 53 shall be provided to the complainant and respondent.

27 Section 55 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

55(1) There shall be a Discipline Committee consisting of

(a) ten or more practising members appointed by Council for a term of one year, and

(b) four public representatives appointed by Council for a term of one year.

(b) in subsection (4) by striking out "five, which shall include one lay member" and substituting "three or five, which shall include one public representative";

(c) by adding after subsection (6) the following:

55(7) If, under subsection (6), the chairperson is unable to continue to act for the completion of the matter before the panel, the remaining members of the panel shall appoint one of such members to act as chairperson until the matter is concluded.

28 Section 56 of the Act is amended

(a) in subsection (1) by striking out "If referring a complaint" and substituting "When a complaint is referred";

(b) by repealing subsection (3) and substituting the following:

56(3) A respondent shall reply to a notice of complaint and shall do so by filing the reply with the Registrar within twenty days of being served with the notice of complaint.

(c) by adding after subsection (4) the following:

56(4.1) A respondent who fails to file a reply under subsection (3), or who fails to appear at a hearing before the Discipline Committee, shall be deemed to have admitted all of the charges in the notice of complaint and the Committee may make whatever decision it considers appropriate.

29 Subsection 60(1) of the Act is amended by adding after paragraph (d) the following:

(d.1) order that the respondent, within a fixed time, pay to the complainant or the Compensation Fund restitution for any financial losses or expenses, or compensation paid as a result of the actions for which the respondent is being sanctioned;

30 Section 61 of the Act is amended

(a) by repealing subsection (2) and substituting the following:

61(2) The Registrar shall notify the following of any order suspending or disbarring a respondent from the practice of law:

(a) the Director of Legal Aid;

(b) the Registrar of the Court;

(c) the Clerks of the Court;

(d) the judges of the Court of Appeal, the Court and the Provincial Court; and

(e) the governing body of the legal profession in all other Canadian jurisdictions.

(b) by adding after subsection (2) the following:

61(2.1) The Registrar may disclose to the governing body of the legal profession in a jurisdiction outside of New Brunswick information respecting disciplinary proceedings against a member that may affect the qualifications or fitness of the member to practise in that jurisdiction.

(c) in subsection (4) by striking out "the result of all decisions of the Complaints Committee and" substituting "all decisions of";

(d) by adding after subsection (4) the following:

61(4.1) Subject to any publication ban ordered by the Discipline Committee, all of its decisions published under subsection (4) shall include reasons notwithstanding that members of the public may have been excluded from the hearing or part of the hearing.

31 Section 62 of the Act is amended

(a) by repealing subsection (2);

(b) in subsection (6) by adding "or civil" after "criminal" whereever it appears.

32 The Act is amended by adding after section 62 the following:

62.1(1) Information gathered in the course of any investigation under this Part is privileged and may only be disclosed at the discretion of the Registrar when considered relevant and necessary for the prosecution of complaints and is not admissible in any civil proceeding.

62.1(2) Evidence given before the Discipline Committee is relevant only for the purpose of prosecuting a complaint before that Committee and is not admissible in any civil proceeding.

Public Hearings

62.2(1) Subject to subsection (2), hearings before the Discipline Committee arising from notices of complaint issued under section 56 after this section comes into force shall be open to the public.

62.2(2) The Discipline Committee may order that the public, in whole or in part, be excluded from a hearing or any part of a hearing if it is satisfied that

(a) matters involving solicitor-client privilege that have not otherwise been waived may be disclosed;

(b) financial, personal or other matters that would otherwise be disclosed are of such a nature that it is within the public interest that they not be disclosed; or

(c) the safety or security of a person may be jeopardized.

62.2(3) The Discipline Committee may make whatever order it considers necessary to prevent public disclosure, including orders prohibiting publication, broadcasting, or any other means of communication that the Committee considers may risk disclosure.

62.2(4) No order shall be made pursuant to subsection (3) that prevents the publication of anything that is otherwise available to the public.

62.2(5) The Discipline Committee may order that the public be excluded from that part of a hearing dealing with a motion for an order pursuant to subsection (2).

62.2(6) The Discipline Committee may make any order it considers necessary to prevent public disclosure of matters disclosed in a submission relating to any motion under this section, including any order it could make under subsection (3).

62.2(7) The Discipline Committee shall state at the hearing its reasons for any order made pursuant to this section.

62.2(8) Where the Discipline Committee makes an order pursuant to subsection (2), it

(a) shall allow the parties and their legal or other representatives to attend the hearing; and

(b) may allow such other persons as it considers necessary to attend all or part of the hearing.

62.2(9) Notwithstanding anything contained in this section, public attendance at a hearing does not constitute authorization to take photographs, record sound, videotape, or otherwise mechanically, electronically, or by any other means record the proceedings, and no such recording is permitted, unless specifically authorized by the Discipline Committee.

62.2(10) It is professional misconduct for any member to disclose or in any way facilitate the disclosure of matters ordered by the Discipline Committee not to be disclosed.

33 Section 76 of the Act is amended by adding after paragraph (f) the following:

(f.1) report to the Registrar any facts of which the custodian becomes aware that may constitute conduct deserving sanction against the member,

34 Section 81 of the Act is amended

(a) in subsection (2) by striking out " , or the dishonesty of an agent or servant of a member,";

(b) in subsection (9) by striking out "of a member or of an agent or servant of a member," and substituting "by a member";

(c) in subsection (12) by striking out ", or by an agent or servant of a member,";

(d) by repealing subsection (13) and substituting the following:

81(13) In deciding the amount of compensation, if any, payable from the Fund under subsection (12), Council shall have regard to all relevant factors.

(e) in paragraph (17)(b) by adding "or" at the end of the paragraph;

(f) by repealing paragraph (17)(c);

(g) by repealing paragraph (17)(d) and substituting the following:

(d) to a member who has suffered a loss due to that member's dishonesty.

(h) by repealing paragraph (19)(a) and substituting the following:

(a) to which the person receiving payment is entitled against the member who caused the loss, or

(i) in paragraph 19(b) by striking out "or the agent or servant of the member".

35 Section 85 of the Act is amended

(a) in paragraph (9)(b) by striking out "ninety" and substituting "one hundred and twenty";

(b) in paragraph (9)(c) by striking out "ninety" whereever it appears and substituting "one hundred and twenty" and by striking out "pament" and substituting "payment";

(c) in paragraph (9)(d) by striking out "ninety" and substituting "one hundred and twenty".

36 Section 87 of the Act is amended

(a) by adding after subsection (1) the following:

87(1.1) When issuing a certificate under subsection (1) the reviewing officer may, when considered just and reasonable, award costs against the member payable to the Society.

(b) by adding after subsection (2) the following:

87(2.1) Failure by a member to pay costs ordered under subsection (1.1) or to pay a refund ordered under subsection (2) is professional misconduct for which disciplinary action may be taken.

(c) by adding after subsection (3) the following:

87(4) A certificate referred to in subsection (3) shall not be filed later than thirty days after the expiration of the time for an appeal under section 91.

37 Section 89 of the Act is amended by striking out "the Court may, on terms it considers proper" and substituting "the Registrar may, on terms considered proper".

38 Section 97 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

97(1) The Foundation shall be administered by a Board of Directors constituted as follows:

(a) five members of the Society appointed by Council; and

(b) two public representatives appointed by Council.

(b) in subsection (2) by striking out ", other than the Minister," and by striking out "two years" and substituting "one year";

(c) by repealing subsection (4);

(d) in subsection (5) by striking out "appointed by it";

(e) in subsection (6) by striking out "the Minister or" and "by whom that director was appointed,";

(f) in subsection (9) by striking out "An appointed" and substituting "A".

39 Subsection 106 of the Act is amended

(a) in paragraph (1)(b) by striking out "or" at the end of the paragraph;

(b) in paragraph (1)(c) by striking out the period at the end of the paragraph and substituting a comma followed by "or";

(c) by adding after paragraph (c) the following:

(d) by any electronic means by which the person is known to communicate and which is likely to bring the notice or other document to that person's attention.

40 Section 108 of the Act is amended by striking out "or a firm of chartered accountants" and substituting ", certified general accountant, certified management accountant, or a firm of such accountants".

41 Section 110 of the Act is amended

(a) by adding after subsection (1) the following:

110(1.1) No action lies against any person for the disclosure of any information, any document, or anything therein, provided such disclosure was made in good faith under the provisions of this Act or the rules.

110(1.2) No member of the Society or officer, agent or employee of the Society is personally liable for any of the debts or liabilities of the Society unless such person expressly agrees to be liable.

(b) in subsection (2) by striking out "subsection (1)" and substituting "subsection (1), (1.1) or (1.2)".

42 Subsection 111(1) of the Act is amended by adding "or identify" after "locate".

43 This Act comes into force on July 1, 2009.