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BILL NO. 52
Private Member's Bill
3rd Session, 56th General Assembly
Nova Scotia
44 Elizabeth II, 1995
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
Bruce F. Holland
Timberlea-Prospect
Halifax
Printed by Queen's Printer for Nova Scotia
Explanatory Notes
Clause 1 removes the provision in the Barristers and Solicitors Act which prohibits a
corporation from carrying on the practice or profession of a barrister.
Clause 2 permits the incorporation of law firms.
Clause 3 provides that an articled clerk cannot appear on a contested matter before a
judge of the Family Court where the matter involves the custody of or access to a child.
Clause 4 permits foreign legal consultants to practise law in the Province in certain
circumstances. This is a requirement of the North America Free Trade Agreement.
Subclause 5(1) clarifies when a Discipline Committee may order a show cause hearing.
Subclause 5(2) clarifies those costs which the Discipline Committee can order to be paid
by a member found guilty of professional misconduct.
Clause 6 adds to the Barristers and Solicitors Act provisions dealing with solicitor-client
privilege.
Subclause 7(1) clarifies the time within which claims against the Reimbursement Fund
must be made.
Subclause 7(2) permits the Nova Scotia Barristers' Society to contribute to a national
compensation fund to protect clients in the event that a lawyer misappropriates money while
engaging in the interjurisdictional practice of law.
Clause 8 provides that the amount of the law stamp will be set by the Governor in Council.
At present, the amount of the law stamp is set out in the Barristers and Solicitors Act.
Clause 9 clarifies the power of the Council of the Nova Scotia Barristers' Society to order
a practice investigation.
Clause 10 amends the Cape Breton Barristers' Society Act to provide that the amount of
the law stamp will be determined by the Governor in Council. This amendment is the same as
the amendment contained in Clause 8 of this Bill.
Clause 11 provides that Clauses 8 and 10 come into force on proclamation.
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) 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.