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          BILL NO. 52
          
                              Private Member's Bill
                                                     
                                                                        
                                                     
                                                     3rd Session, 56th General Assembly
                         Nova Scotia
                   44 Elizabeth II, 1995-96
                                
                                                                        
                                                     
                                                     
                                                     
                                                     
                                                     
                                                     
                                                     An Act to Amend Chapter 30
                of the Revised Statutes, 1989,
          the Barristers and Solicitors Act, and to
                            Amend
          Chapter 58 of the Revised Statutes, 1989,
           the Cape Breton Barristers' Society Act
                                          
          
          
          
                          CHAPTER 18
                       ACTS OF 1995-96
                                          
          
          
          
                                                                        
                                                     
                                                     
                                                     Bruce F. Holland
                      Timberlea-Prospect
                                          
          
                                                                        
                                                     
                                                     
                                                     
                                                     
                                                     
                                                     
                                                     AS ASSENTED TO BY THE LIEUTENANT GOVERNOR
                       JANUARY 11, 1996
                                          
          
          
          
          
          
                                                                        
                                                     
                                                     Halifax
          Printed by Queen's Printer for Nova Scotia
An Act to Amend Chapter 30 of the Revised Statutes, 1989, the Barristers and Solicitors Act and Chapter 58 of the Revised Statutes, 1989, the Cape Breton Barristers' Society Act Be it enacted by the Governor and Assembly as follows: 1 Subsection 5(1) of Chapter 30 of the Revised Statutes, 1989, the Barristers and Solicitors Act, is repealed and the following subsection substituted: (1) No person who is not a member of the Society and entitled to practise as a barrister shall carry on the practice or profession of a barrister. 2 Chapter 30 is further amended by adding immediately after Section 5 the following Section: 5A (1) In this Section, (a) "law corporation" means a corporation that is issued a permit by the Society; (b) "permit" means a permit issued pursuant to the regulations to a corporation permitting the corporation to carry on the practice or profession of a barrister in the Province; (c) "practising member" means a person who is a member of the Society and entitled to practise as a barrister in the Province; (d) "prescribed person" means a person prescribed by the regulations. (2) No corporation shall carry on, engage or hold itself out as carrying on or engaging in the practice or profession of a barrister except as provided by this Act. (3) Subject to the regulations, a law corporation holding a permit that is not under suspension may carry on the practice or profession of a barrister in its own name or under a business name. (4) Notwithstanding anything contained in this Section, a law corporation shall not be entered on the roll as a barrister pursuant to this Act. (5) All persons who carry on the practice or profession of a barrister on behalf of a law corporation shall be practising members. (6) For the purpose of subsection (5), the practice or profession of a barrister is deemed not to be carried on by articled clerks, clerks, secretaries and other assistants employed by a law corporation to perform the services that are not ordinarily considered by law, custom or practice to be services that may be performed only by a practising member, nor is the practice or profession of a barrister deemed to be carried on by articled clerks employed by a law corporation to do anything in the course of their duties as articled clerks if it is done under the direction or supervision of a practising member and in accordance with this Act and the regulations. (7) The following principles apply to a law corporation: (a) all issued voting shares shall be legally and beneficially owned by one or more practising members or by a trust of which all the trustees and all the beneficiaries are practising members; (b) all issued non-voting shares, if any, shall be legally and beneficially owned by prescribed persons or by a trust of which all the trustees and all the beneficiaries are prescribed persons; (c) notwithstanding clause (a), issued voting shares may be legally and beneficially owned by a corporation of which (i) all the issued voting shares are legally and beneficially owned by one or more practising members or by a trust of which all the trustees and all the beneficiaries are practising members, (ii) all the issued non-voting shares are legally and beneficially owned by prescribed persons or by a trust of which all the trustees and beneficiaries are prescribed persons, and (iii) all the officers and directors are practising members; (d) notwithstanding clause (b), issued non-voting shares, if any, may be legally and beneficially owned by a corporation of which (i) all the issued shares are beneficially and legally owned by prescribed persons or by a trust of which all the trustees and beneficiaries are prescribed persons, and (ii) all the officers an directors are prescribed persons; (e) no voting shareholder of a law corporation shall enter into a trust agreement, proxy or any other type of agreement vesting in another person who is not a practising member the voting rights attached to any or all of the shares of a law corporation; (f) no shareholder of a corporation owning shares of a law corporation shall enter into a trust agreement, proxy or any other type of agreement vesting in another person who is not a practising member the voting rights attached to any or all of the shares of the corporation; (g) no corporation holding voting shares of a law corporation may authorize any person to represent it at a meeting of the shareholders of the law corporation unless that person is a practising member; and (h) no corporation holding non-voting shares of a law corporation may authorize any person to represent it at a meeting of the shareholders of the law corporation unless that person is a prescribed person. (8) All officers and directors of a law corporation shall be practising members and (a) no officer or director of a law corporation or a corporation owning voting shares of a law corporation shall enter into a trust agreement, proxy or any other type of agreement vesting in a person who is not a practising member any authority or voting rights as an officer or director of a law corporation and any attempt to do so is invalid to the extent that it purports to vest such authority or rights in a person who is not a practising member; and (b) no officer or director of a corporation owning non-voting shares of a law corporation shall enter into a trust agreement, proxy or other type of agreement vesting in a person who is not a prescribed person any authority or voting rights as an officer or director of the corporation and any attempt to do so is invalid to the extent that it purports to vest such authority or rights in a person who is not a prescribed person. (9) Where there is any change in the shareholders, shareholdings, officers, directors, name or business name of a law corporation, the corporation shall provide notice, in writing, to the Executive Director within fifteen days of the change. (10) Every person who is a voting shareholder of a law corporation and every person who is a voting shareholder of a corporation owning voting shares of the law corporation is liable to every person for whom professional services of a barrister are undertaken or provided by the law corporation in respect of such professional services to the same extent and in the same manner as if such voting shareholders were carrying on the practice or profession of a barrister in partnership or, if there is only one such voting shareholder, as an individual carrying on the practice or profession of a barrister. (11) The following principles apply to the practice or profession of a barrister carried on by a corporation: (a) the relationship of a practising member or of an articled clerk to a corporation carrying on the practice or profession of a barrister, whether a shareholder, director, officer or employee, does not affect, modify or diminish the application to that person of this Act and the regulations; (b) nothing contained in this Section modifies or limits any law applicable to the fiduciary, confidential or ethical relationships between a barrister and a person receiving professional services of a barrister; (c) the relationship of a corporation carrying on the practice or profession of a barrister and a person receiving the professional services of the corporation is subject to all applicable law relating to the fiduciary, confidential and ethical relationship between a barrister and the barrister's client; (d) all professional responsibilities and obligations pertaining to communications made to or information received by a barrister, or the advice of the barrister therein, apply to the shareholders, directors, officers and employees of a corporation carrying on the practice or profession of a barrister; and (e) any undertaking given by or on behalf of a corporation carrying on the practice or profession of a barrister that, if given by a practising member, would constitute a specific undertaking, is deemed to be a solicitor's undertaking given by the corporation and the practising members who give it, sign it or authorize it. (12) Notwithstanding anything contained in this Section, all provisions of this Act and the regulations that are applicable to practising members apply with all necessary modifications to a law corporation, and a law corporation is deemed, for this purpose, to be a practising member and, without limiting the generality of the foregoing, proceedings that may be taken under this Act or the regulations against a practising member who is an individual may also be taken against a law corporation, and any order that may be made against an individual may be made against a law corporation. (13) Subject to this Act and the regulations, a law corporation may commence an action and sue to recover its account for the provision of any services provided by it in the course of carrying on the practice or profession of a barrister if those services were performed while the law corporation was a holder of a valid permit that was not under suspension. (14) A corporation shall not, while it is the holder of a permit, carry on any business prohibited by the regulations and no act of a corporation, including the transfer of property to or by a corporation, is invalid by reason only that it contravenes this subsection. (15) A permit may be refused, suspended, revoked, cancelled or reinstated by the Society, a committee established by the Society for that purpose or the Executive Director as prescribed by the regulations. (16) The Council may make regulations (a) prescribing the requirements for the issue of a permit permitting a corporation to carry on the practice or profession of a barrister in the Province; (b) prescribing the requirements for the renewal of a permit; (c) providing for the refusal, suspension, revocation, cancellation or reinstatement of a permit by the Society or the Executive Director; (d) prescribing forms necessary or desirable to carry out the procedures pursuant to this Section; (e) regulating the practice or profession of a barrister carried on by a law corporation; (f) regulating the name of a law corporation and the name under which a corporation may carry on the practice or profession of a barrister; (g) defining "prescribed person" for the purpose of this Section; (h) prescribing business and undertakings that a law corporation is prohibited from carrying on, engaging in, or holding itself out as carrying on or engaging in; (i) providing for an appeal from any decision of the Executive Director pursuant to this Section; (j) prescribing liability insurance to be carried by persons carrying on, or engaged in, the practice or profession of a barrister; (k) that the Council considers necessary or advisable to carry out effectively the intent and purpose of this Section. 3 Subclause 8(1)(e)(ii) of Chapter 30 is repealed and the following subclause substituted: (ii) any contested matter, with the consent in writing of the client and either of the barrister to whom the clerk is articled or of the barrister who is responsible for the file, other than a hearing involving custody of or access to a child; 4 Chapter 30 is further amended by adding immediately after Section 10 the following Section: 10A Notwithstanding Sections 4 and 5, the Society may grant approval to a person, who is qualified to practise law in a country other than Canada or an internal jurisdiction of that country, to practise in the Province the law of that country or internal jurisdiction, as the case may be, subject to any conditions required by the Society, including the payment of a fee. 5 (1) Subsection 32(5) of Chapter 30 is amended by striking out "been convicted" in the second line and substituting "pleaded guilty to or been found guilty". (2) Subsection 32(9) of Chapter 30 is amended by striking out "and" in the seventh line and substituting ", receiver, custodian or". 6 Chapter 30 is further amended by adding immediately after Section 35 the following Sections: 35A (1) A person who, in the course of carrying out duties pursuant to this Act or the regulations, becomes privy to information, files or records that are confidential or are subject to solicitor-client privilege, has the same obligation respecting the disclosure of that information as the barrister from whom the information, files or records were obtained. (2) Notwithstanding subsection (1), a person who becomes privy to information pursuant to subsection (1) may disclose the information to the Society or a committee for the purpose of an investigation or inquiry under this Act or the regulations. (3) Where a barrister, former member of the Society or articled clerk required to produce information, files or records to a person carrying out duties pursuant to this Act or the regulations does not object to the production of a document on the grounds that the document is subject to solicitor-client privilege, the person carrying out duties pursuant to this Act or the regulations is deemed not to have breached any duty or obligation not to disclose information protected by solicitor-client privilege. 35B (1) Where a barrister, former member of the Society or articled clerk is required to produce information, files or records to a person carrying out duties pursuant to this Act or the regulations and the barrister, former member of the Society or articled clerk objects to the production of a document on the grounds that the document is subject to solicitor-client privilege and that a client objects to its disclosure, the document shall be sealed, without inspection or copying, and placed into the custody of the prothonotary. (2) The prothonotary shall return the document to the barrister, former member of the Society or articled clerk unless the Society delivers, within thirty days, to the prothonotary (a) a written waiver of solicitor-client privilege signed by the client; or (b) a certification by the Executive Director that the client has been contacted and has given an oral waiver of solicitor-client privilege, in which case, the prothonotary shall deliver the document to the Executive Director. 7 (1) Subsection 40(7) of Chapter 30 is repealed and the following subsections substituted: (7) No payment shall be made out of the Reimbursement Fund unless notice of the loss is received by the Executive Director within six months after the loss came to the knowledge of the person sustaining the loss. (7A) Notwithstanding subsection (7), where a notice is not received within the time period referred to in subsection (7), the Council may extend that period for a further period of six months, but in no case shall a claim be filed more than twelve months after the loss came to the knowledge of the person sustaining the loss. (2) Section 40 of Chapter 30 is further amended by adding immediately after subsection (10) the following subsection: (11) 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 moneys or property by a member while engaged in the practice of law outside the Province. 8 (1) Subsection 50(1) of Chapter 30 is amended by striking out "the sum of three dollars" in the last line and substituting "a sum determined by the Governor in Council". (2) Subsection 50(2) of Chapter 30 is amended by striking out "the sum of three dollars" in the second and third lines and substituting "a sum determined by the Governor in Council". 9 Clause 59(1)(e) of Chapter 30 is amended by adding "investigation of the standards of practice of barristers," immediately after "including" in the second line. 10 (1) Subsection 7(1) of Chapter 58 of the Revised Statutes, 1989, the Cape Breton Barristers' Society Act is amended by striking out "the sum of three dollars" in the last line and substituting "a sum determined by the Governor in Council". (2) Subsection 7(2) of Chapter 58 is amended by striking out "the sum of one dollar" in the last line and substituting "a sum determined by the Governor in Council". 11 Sections 8 and 10 come into force on such day as the Governor in Council orders and declares by proclamation.