COUNCIL MEETING AGENDA THE BORDEN ROOM, NOVA SCOTIA BARRISTERS’ SOCIETY

Date July 22, 2016

Time 12:00 noon

Chair R. Daren Baxter QC, President

1. INTRODUCTORY MATTERS Welcome and Introduction A reorientation of Governance Policies, Council’s Work

2. CONSENT AGENDA MATTERS Page:

i. Minutes May 27, 2016 4

ii. Committee Appointments: QC Appointments Advisory Committee John Fitzpatrick QC, Catherine Benton QC, Barry Mason QC, Jennifer MacLellan QC

iii. Resignations: Mr. Nigel Philip Allan, Ms. Angela M. Byrne, Ms. Valerie A.E. Dyer, Mr. Robert Andrew Fleig, Ms. Lisa Marie Hamilton, Ms. Lindsay Dawn Holland, Mr. Jason Ifran Jaffer, Mr. Kenneth N. Langley, Mr. James David MacDonald, Mr. Donald MacLennan, Ms. Gillian Elizabeth MacNeil, Ms. Kathleen Marrie, Ms. Catherine Louise Meade, Mr. Lee Wayne Mitchell, Ms. Louise Y. Walsh Poirier QC, Mr. David W. Richey, Mr. Matthew William Stokes, Mr. Paul Thomas, Ms. Natasha Teressa Wirtanen

iv. Regulation Amendments — fees and suspensions • July 11, 2016 Memo • Amendments

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3. EXCELLENCE IN REGULATION AND GOVERNANCE

a) Items for Approval

i. Strategic Framework 2017-2019 • Framework 19

ii. Legal Services Regulation — Scope of Regulation • May 27, 2016 Memo to Council 20

iii. Professional Standards — Law Office Management — Equity

• July 22, 2016 Memo to Council • Equity and Diversity Standard

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v. Appointments: Council Member – Northern District recommendation to bemade by Governance and Nominating Committee

b) In Camerai. LIANS integration J. Bodurtha in conflict; privileged material to be provided via

email• Memo from Executive Committee May 6, 2016• Letter from LIANS June 17, 2016

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c) Items for discussioni. 2016-17 Activity Plan – matters for inclusion and priorities — D. Pink

ii. Monitoring Report — Library & Information Services (L&IS) — D. Copeman 54

d) Items for Informationi. Slaw: Law’s Reverse Musical Chair Challenge 64

4. IMPROVING THE ADMINISTRATION OF JUSTICEa) Items for approval

b) Items for Discussioni. A2J CC SenseMaker Project Plan — D. Pink 67

5. FOUNDATIONAL ACTIVITIESa) Items for approval

b) Items for Information

c) Items for discussion

6. IN CAMERA

i. NSBS v. Lyle Howe – Confidential Briefing material to be provided

ii. Executive Director Performance Review

7. ITEMS FOR INFORMATION / REPORTSi. 2016-2017 Council Calendar 73 ii. President’s Report 75 iii. Executive Director’s Report material to be provided

iv. Jordan Furlong 9 Emerging truths about legal service delivery 76

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v. FLSC M. Malcom, Unmet Legal Needs 79

8. MEETINGSUnless otherwise stated, Council meetings commence at 9:00 am with lunch at noon and finish at 2:00 pm

• Friday, September 23, 2016

• Friday, October 28, 2016 [Recognition Reception 4:00 pm]

• Friday, November 25, 2016

• Friday, January 20, 2017

• Friday, February 24, 2017

• Friday, March 24, 2017

• Friday, April 28, 2017

• Friday, May 26, 2017

• Saturday, June 17, 2017 - Annual Meeting

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COUNCIL MEETING MINUTES Date: May 27, 2016

Time 9:00 am

Location The Borden Room, Nova Scotia Barristers’ Society

Chair Jill Perry, President

Present: Jill Perry, President R. Daren Baxter, QC,TEP, First Vice-President Julia Cornish QC, Second Vice-President Darrel Pink, Executive Director Mike Baker Nancy Barteaux QC Natalie Borden John Bodurtha Dean Camille Cameron Sheree Conlon Frank Demont QC Heidi Foshay-Kimball, QC Karen Fitzner Rene Gallant Gavin Giles QC Loretta Manning Diane McGrath QC Andrew Nickerson QC Dr. Manoj Vohra

Regrets: Jillian MacNeil Kelly Middlestadt Alonzo Wright Tuma Young

Staff: Marla Cranston Elaine Cumming Emma Halpern Jane Willwerth Jackie Mullenger Victoria Rees Shirley Shane, Recording Sean Walker

Guests: Christa Brothers QC Pat Cassidy QC Kathryn Dumke Larry Evans QC Angela Walker

IIS

INTRODUCTORY MATTERS 1. Welcome and Introduction

Jill, President and Chair, extended a welcome to the last meeting of the 2016-17 Council year.Christa Brothers QC, Larry Evans QC, Pat Cassidy QC and Kathryn Dumke are present to reporton their respective Committee’s 2015-16 activities.

CONSENT AGENDA MATTERS 2.

i. Agenda for Councilii. Minutes April 22, 2016iii. Resignations: (Effective July 1, 2016) Erica Ann Fraser, Ivan George Cecil Nault, Jai B. Pachai,

Michele Suzie Poirier, Heather Lynn Potter, Michael Christopher Reddy, Ahila Srikandarajahiv. Committee Appointments: John Bodurtha to Provincial Court Appointments Advisory Committee

Lisa Richards to Civil Procedure Rules Committee

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v. Amendment to Regulation 6: Lawyers from Other Jurisdictions Regulation

IT WAS MOVED (Giles/Nickerson) that the consent agenda be approved for adoption.

Motion carried.

EXCELLENCE IN REGULATION AND GOVERNANCE

3. Items for Approvali. Professional Standards (Family Law) Committee, Scope of Representation standard

Angela Walker a member of the Committee, requested approval of the revised Standard 11 –Scope of Representation.

Following introduction to Council in 2011, the proposed Standard was communicated to theprofession for review and consultation. Based on feedback , the expanded standard has beenamended to add an exemption for counsel providing summary advice. Additional case law,commentary and resources have been added to assist lawyers in meeting the Standard.

Discussion followed on handling of communications with opposing counsel.Those present were informed that the Society is reviewing all the Standards to ensure theyexemplify Triple P regulation. This initiative will be incorporated into the Activity Plan.

IT WAS MOVED (Foshay Kimball/Baker) that the revised Family Law Standard 11 be approved.

Motion carried.

ii. Legal Services Regulation• LSR Framework and plans for next phase of project – PresentationVictoria Rees presented the Legal Services Regulation Framework. The goals are tounderstand the complete framework; approve the direction of the work under the Legal ServicesRegulation Policy Framework; MSELP Pilot Project; and the Legislation &Regulation WorkingGroup preliminary recommendations.

The Presentation in its entirety is available in the Council package.

The nature of the MSELP Pilot Project Plan was discussed and the Pilot project plan was approved.

• Scope of Legal Services, revised policy options

The Steering Committee has made considerable progress with advancing thinking onamendments to the Legal Profession Act; however, greater clarity is needed regarding someaspects of the policy framework relating to the “scope” of legal services regulation by theSociety. In particular, to what extent and in what manner should we allow for non-lawyerswho are not part of legal entities to deliver legal services?

A memorandum dated May 27, 2016 from the Legal Services Regulation SteeringCommittee outlining three options is included in the Council package. Each optioncontemplates that the Society will regulate the work of lawyers and legal entities and allowfor delivery of legal services by non-lawyer/legal entities in a manner that enhances accessto these services and protects the public interest. The options vary with respect to themanner and extent that non-lawyers may provide legal services. The memorandum

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identified possible “pros” and “cons” of each optionOption 1 [No action necessary if vote for Option 1]

• Regulate legal services delivered by lawyers and legal entities.• Define legal service delivery and reserve legal service delivery for lawyers and legal

entities with exceptions.• Create a list of exceptions for classes in legislation to include regulated service

deliverers and certain public sector actors.• Add an exception to cover occasional advice or representation between individuals.• Specify a set of criteria in legislation that would allow the Society (Council or the

Executive Director) to authorize individuals or organizations to deliver legal serviceswhen applications are made by those individuals / organizations. The criteria couldinclude:o the level of complexity does not require a lawyer or legal entity;o there is little or no risk posed to the public by the provision of the legal service;o there is limited availability of the legal service;o the services will be offered on a not for profit or cost recovery basis.

Consideration needs to be given to an application and approval process, the costs thereof and the ongoing obligations of the Society, if any.

Option 2 • Regulate legal services delivered by lawyers and legal entities.

This option allows for an unregulated delivery of legal services by non-lawyers.

Option 3 • Regulate legal services delivered by lawyers and legal entities.• The following will be reserved services for regulated lawyers and legal entities;

o criminal matters where the charge is proceeding by indictmento child protection matters under the Children and Family Services Acto Real estate matters involving the Land Registration Act

Like Option 2, this option allows for unregulated delivery of legal services by non-lawyers.

The Chair noted, among other things, that with option No. 2 there will be no restriction on who can practice law or provide legal services, and that Option No. 3 is the same with the exception of the three limited areas of services reserved for lawyers.

The Chair opened the floor to discussion on which is the preferable approach for the Society.

There were many speakers expressing various views on the options. Some of the issues, comments or questions arising during discussion include:

o a concern the way we are opening the door in Option 1 that we are regulating muchmore than lawyers if we rubberstamp a group or a class; where does that end to overseethem? Some did not feel there would be an obligation to conduct oversight.

o Does there need to be an application process with Option 1?o What groups would be permitted under Option 1, or how determined?o Options 2 and 3 avoid the application process.o a desire for uniformity with other jurisdictions.o a fundamental change with Options 2 and 3 would require greater consultation and

study.

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o Difficulty reconciling Options 2 and 3 with the mandate to protect the public.o Concern that all three options present vagueness. Option 2 the clearest.o How do these options affect rural lawyers?o Option 1 can be adjusted.o How do we adopt Option 1 without regulating the non-lawyers?o There is an access to justice crisis in Canada we are trying to address.o All three Options provide for unregulated legal services. The question for us is ‘what is

the best public interest scope we have as a regulator' and what belongs to government(imperative to look at the public if harm is being done not just by barristers).

o If we have no role why are we considering permission as contemplated under Option 1?

No consensus ensued during discussion as to which option, if any, is favourable.

IT WAS MOVED (Fitzner/DeMont) that the Legal Services Regulation Option 2 be approved as presented and return the matter to Council following further work from the Committee.

IT WAS MOVED to defer (DeMont/Baker the motion to return to next Council July. This motion was not debateable so the president called the question on the motion to table. The motion passed so the matter will return to Council at its July meeting.

iii. Strategic Planning R. Gallant - What are Council’s priorities? What should we be doing?Strategic or not?

This matter has been deferred to the Strategic Planning Workshop at the Society June 16 and 17, 2016.

iv. Code of Professional Conduct, Amendment to Code s.3.5On behalf of the Code of Professional Conduct Committee, Frank DeMont QC outlined theCommittee’s recommendation. Council of the Federation of Law Societies adopted a package ofomnibus amendments to the Model Code in October 2014. These amendments include the finalversion of a rule regarding physical evidence relevant to a crime. The Committee reviewed priordrafts several times since late 2013, consulted with stakeholders including the PublicProsecution Service, the Criminal Lawyers Association and the Professional Standards(Criminal) Committee and recommends the amendments regarding this rule for adoption inNova Scotia.

IT WAS MOVED (DeMont/McGrath) that the amendments to the Commentary to rule 3.5-7 and the addition of a new rule 5.1-2A, including Commentaries [1] through [6] be approved.

Motion carried.

v. Central By-electionRene Gallant, Chair, spoke to the GNC’s recommendation that Council direct them to recruit a nominee for Council’s approval to fill the vacancy that will exist in the final year of the 2015-2017 Council as a result of the acclamation of Frank DeMont as Second Vice-President.

The following timing is recommended: Notice and a call for volunteers to be provided to Central District members during the week of May 30; GNC commences recruitment immediately from qualified lawyers in the Central District. GNC will bring a nominee to Council not later than the July meeting. The successful

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candidate will be oriented to Council to enable joining Council immediately following appointment.

UPON MOTION (Gallant/Nickerson) that the recommendations suggested by GNC be approved for adoption

Motion carried.

4. Items for discussion

i. Professional Responsibility Monitoring and Committee Chairs ReportThe Professional Responsibility Department manages the Society’s key public protection andregulatory risk management processes and tools. We are, in effect, responsible for ensuring thatmembers comply with the Legal Profession Act and Regulations, the Legal Ethics Handbook, theNova Scotia Barristers’ Society Code of Professional Conduct, and, where applicable, the LandRegistration Act, and all Practice Standards.

The PR Department is trying to help lead the way, organizationally, in terms of adoption of newways to integrate concepts of Triple P – proactive, principled and proportionate – into ourprocesses. Various committees, including the PR Policies and Procedures Committee, Code ofConduct Committee and Complaints Investigation Committee have been extremely supportiveof this approach. Examples: changing the conversation with complainants and lawyers at theearliest intake call stage; sharing of risk information among other departments; consideringcreative solutions; finding a place for restorative justice concepts; seeking regulatoryamendments to enhance the ‘toolboxes’.

The PR Department is responsible for the following regulatory, risk and compliance matters: Complaints intake, mediation/resolution, dismissal and letters of advice Complaints investigation Prosecutions and hearings Fitness to Practice Program Trust account regulation breaches, Trust Audit Program, and unclaimed trust fund

applications Monitoring bankruptcies and judgments Unauthorized practice investigations Ethics education and advice Custodianships and receiverships Lawyers’ Fund for Client Compensation claims

Victoria Rees, Director, Professional Responsibility, presented a slide show that indicated trends and details of the past year’s activities and provided an oral summary of the Monitoring Report. She extended appreciation to the work of the Chairs and Committee members and recognition to her staff. She reiterated that PR has taken a leadership role in the Triple Ps (proactive, principled, and proportionate) and initiated ‘round meetings’ as a mode of sharing information internally.

In response to a query as to why we do not pursue claims more aggressively from vexatious litigants, this is done on a case by case basis; however, if we do not pursue, it is important to get the judgement whether there is a collection possibility or not.

Lawyers Fund for Compensation Committee

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The Fund established under Part IV of the Act is to compensate claimants who have sustained pecuniary losses because of misappropriation or wrongful conversion of the claimant’s money or property by a member of the Society or a Law Corporation.

On behalf of Chair Bill Mahody, QC, Kathryn Dumke, provided the Committee’s report. The Committee will be considering policy issures relative to HST on payments made from the Fund.. She also advised they would like a public representative to join the Committee.

Complaints Review Committee

The Committee’s written report covers how they support Councils goals of excellence in regulation, Triple P (proactive, principled and proportionate) and risk focus by ensuring they maintain independence from the Society and provide a fair and thorough review of all files referred. This committee provides the public with a second look at their complaint by an independent body to ensure that the dismissal by the Executive Director was correct, based on the regulatory authority and the evidence on the file.

Complaints Investigation Committee

Reviews staff and counsel complaint investigation reports; carries out authority with regard to risk management, compliance and public protection under Part 3 of the Act, and Part 9 of the Regulations.

Christa Brothers QC, Chair acknowledged the work of Society staff and the engagement of the Committee members. She explained their mandate and that they are using Triple P approach along with some traditional methods. She emphasized that the PR Department extends guidance to the membership not just discipline.

Complaints come from lawyers, the public and variety of other ways including the reports from the Courts on their website. The Society’s Education & Credentials Department compiled a document explaining the advantages and what is involved with educating not punishing regarding specific issues. They participated in an annual training on year cultural competency.

Professional Responsibility Policies & Procedures Committee

Develops, reviews, and amends operational policies and procedures for the professional responsibility process, including complaints handling and investigation, settlement and hearing procedures.

Daren Baxter QC speaking for Ray Larkin QC, Chair advised this year they reviewed nature of the work of the CIC particularly in light of our Triple P approach. Next will concentrate on the hearing case management process and sharing of appropriate information between LIANS and the Society and how that fits in Triple P.

Fitness to Practise Receives referrals respecting a member’s potential incapacity through self-reports, complaints or referral from the Complaints investigation Committee (CIC), assesses these reports, and where appropriate, takes such steps as needed and agreed upon between the member and the Committee to resolve conduct concerns.

Pat Cassidy QC advised this Committee is unique as half is constituted mental health professionals. He explained the process in determining capacity and explained the monitoring

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that ensures that the member is following the requests of the FTP

Code of Professional Conduct Committee Reviews amendments brought forward by staff and the National Model Code Steering Committee, and makes recommendations to Council for adoption of amendments to the Code of Conduct. Frank DeMont QC introduced himself as the new Chair and commended the members’ dedication. They are working with FLSC and their proposed amendments to the Code that addresses the issue of fee sharing and indicated they will finalize the FLSC recommended changes for 2015 to bring us up to date. They await input from the FLSC on the fee sharing project which is a high priority for FLSC. They are also using Triple P guidelines

Hearing Committee

The Hearing Committee is a fully independent committee of the Society, which carries out responsibilities assigned to it under Sections 41 to 48 of the Legal Profession Act and Part 9 of the Regulations made pursuant to the Act. The Committee and any hearing panel thereof have all the powers conferred by the Act and the Regulations as well as the powers, privileges and immunities of a commissioner under the Public Inquiries Act.

Larry Evans QC, Chair explained some of the workings of this Committee. They contemplate new appointments to diversify the Committee to make it more representative of today’s membership He attended the National Discipline Conference hosted last November by the Society and indicated that Nova Scotia displays a strong leadership role in this area applauded the contributions of the Executive Director, Director of PR and staff. A cultural competency workshop was held in April 2016 with the Committee and was worthwhile. He expressed appreciation to the PR Department.

ii. Role of liability insurance program within legal services regulation structureThe Executive Committee is asking Council to consider whether the mandatory liability claimsprogram under Part 5 of the Legal Profession Act should be integrated into the new regulatorymodel for the delivery of legal services by the Society instead of provided through a separatecorporate entity. This issue has come to the fore as a result of and following discussions thathave ensued over the last several months regarding certain matters involving the relationshipbetween LIANS and the Society. Council has been fully briefed on those matters.

D. Baxter QC spoke to this matter and noted that in order to practise law a lawyer must haveindemnity insurance or protection. When thinking of how legal services regulation will unfold, thequestion is, do we need two legal entities? For Triple P to be most effective would it be best tobe able to share certain program information and resources, while some information willcontinue to be kept confidential remaining behind a fire wall as occurs with the indemnityprograms in most other law societies. Following discussion it was determined that Executivewill liaise with the Board of LIANS and provide more information at the next meeting with adecision made in July or September 2016.

5. Items for Informationi. MSELP Pilot Project Planii. Committee Reports

• Complaints Review• Court of Appeal Liaison• Credentials♦ Finance

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♦ Governance & Nominating♦ Racial Equity♦ Professional Standards (Criminal)♦ Professional Standards (Family)♦ Professional Standards (Law Office Management)♦ Professional Standards (Real Estate)

IMPROVING THE ADMINISTRATION OF JUSTICE 6. Items for approval

7. Items for informationi. Equity & Access Office Year-End Update

FOUNDATIONAL ACTIVITIES

8. Items for approval

9. Items for Informationi. Schedule of Meetings 2016-2017

10. Items for discussion

IN CAMERA 11.

i. Council EvaluationMemo from Governance & Nominating Committee, Council Comments, Survey Results

IT WAS MOVED (Manning/Baxter) that Council accepts the 2016 Performance Survey Report attached as Appendix A and directs the Executive Committee to consider next steps arising from the report.

Motion carried.

ii. Distinguished Service Award• Memo from DSA CommitteeAndrew Nickerson QC spoke on behalf of the DSA Committee and referred to the email fromChair Ronald Creighton QC.

IT WAS MOVED (Nickerson/Baker) to accept the candidate as recommended by theGovernance and Nominating Committee for two-year appointment commencing June 18, 2016.

Motion carried.

ITEMS FOR INFORMATION / REPORTS 12.

i. 2015-2016 Council Calendarii. 2015-2016 Activity Planiii. Financial Results April 30, 2016iv. President’s Reportv. Executive Director’s Report

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Perry v. Nova Scotia Barristers’ Society, 2016 NSSC 121 (Ctrl and Click here) vii. A National Code of Conduct? Alice Wooleyviii. Mental Health, Law Society of Upper Canada

MEETINGS

• Thursday-Friday, June 16-17, 2016 Strategic Planning Workshop - NSBS Offices• Friday, June 17, 2016 Council Dinner - Delta Halifax• Saturday, June 18, 2016 - Annual Meeting - Marion McCain Building, Dalhousie

The Chair adjourned the meeting at 2:00 pm.

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MEMORANDUM TO COUNCIL

From: Elaine Cumming, Professional Responsibility Counsel

Date: July 11, 2016

Subject: Regulation amendments regarding payment of fees

Date – July 8, 2016 Executive Committee Approved for submission to Council

Date – July 22, 2016 Council

Recommendation/Motion:

It is recommended that the amendments to subregulations 4.1.2, 4.6.1, 4.6.6, 4.7.1, 4.7.8, 4.7.9, 4.7.9.1, 4.6.12, and 4.6.13 be approved.

Executive Summary:

The regulations regarding payment of fees were amended some time ago to permit pre-authorized monthly payments (instead of quarterly payments); however the subregulation regarding suspensions (reg. 4.6.1) was not amended at that time and continues to refer to quarterly payments. In the process of drafting this amendment, it was noted that further amendments were required to ensure clarity regarding pre-authorized payments, payments by post-dated cheques and credit card payments and the administrative fees associated therewith.

As well, amendments are proposed that will permit the Society to decline to accept pre-authorized payments, post-dated cheques or credit card payments from lawyers who demonstrate a history of dishonoured payments. These lawyers will now be required now be required to pay the balance of the year’s outstanding fees in the event that two payments have been dishonoured by the lawyer’s financial institution.

Finally, there are a couple of minor typographical amendments included in this package.

Exhibits/Appendices:

Appendix A – draft amendments to subregulations 4.1.2, 4.6.1, 4.6.6, 4.7.1, 4.7.8, 4.7.9, 4.7.9.1, 4.6.12, and 4.6.13

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Appendix “A”

REGULATION AMENDMENTS

Existing Regulation Proposed Regulation Rationale

Obligations of practising lawyers or law firms 4.1.2 A practising lawyer must, by June 30 of each year: (a) pay the practising fee prescribed by Schedule A; (b) unless exempted from doing so by subregulation 4.1.8 or subregulation 6.6.20, maintain a minimum of $1,000,000.00 of liability insurance provided by the Association; (c) pay the amount prescribed by Schedule A to be contributed to the Fund; (d) pay the amount prescribed by Schedule A to be contributed to the fund established pursuant to s. 60(2) of the Act; (e) file the annual lawyer report prescribed by subregulation 4.9.1; and (f) satisfy the continuing professional development requirements prescribed by Regulation 8.3.4.6 …

Suspensions 4.6.1 A practising lawyer will be suspended if:

(a) the requirements of subregulation 4.1.2(a) - (f) are not met by June 30;

(b) a quarterly payment permitted by subregulation 4.7.10 is not made at the appropriate time;

(c) the requirements of subregulation 4.2.2,

Obligations of practising lawyers or law firms 4.1.2 A practising lawyer must, by June 30 of each year: (a) pay the practising fee prescribed by Schedule A; (b) unless exempted from doing so by subregulation 4.1.8 or subregulation 6.6.20, maintain a minimum of $1,000,000.00 of liability insurance provided by the Association; (c) pay the amount prescribed by Schedule A to be contributed to the Fund; (d) pay the amount prescribed by Schedule A to be contributed to the fund established pursuant to s. 60(2) of the Act; (e) file the annual lawyer report prescribed by subregulation 4.9.1; and (f) satisfy the continuing professional development requirements prescribed by Regulation subregulation 8.3.4.6 …

4.6 Suspensions 4.6.1 A practising lawyer will be suspended if:

(a) the requirements of subregulation 4.1.2(a) - (f) are not met by June 30;

(b) a quarterly payment permitted by subregulation 4.7.10 is not made at the appropriate time;

Correction for consistency

Quarterly payment of fees is no longer permitted; need clarity that failure to pay preauthorized monthly payments or dishonoured post-dated cheques will result

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Existing Regulation Proposed Regulation Rationale

4.2.3, and 4.2.3.1 are not met by the specified time;

(d) the requirements of subregulation 4.1.5 are not met by the specified time,

and while suspended the practising lawyer must not engage in the practice of law and is not entitled to any of the rights and privileges of a member of the Society. …

Reinstatement After Suspension 4.6.6 When a member has been suspended pursuant to subregulation 4.6.1, the member may apply to be reinstated upon filing the required forms or completing the required continuing professional development unless the Executive Director extends the time for satisfying this requirement and payment of the prescribed fees. …

a pre-authorized monthly payment permitted by subregulation 4.7.9(b) is not made at the appropriate time;

(c) a post dated cheque permitted by subregualation 4.7.9(c) is returned as nonsufficient funds;

(d) the requirements of subregulation 4.2.2, 4.2.3, and 4.2.3.1 are not met by the specified time;

(e) the requirements of subregulation 4.1.5 are not met by the specified time,

and while suspended the practising lawyer must not engage in the practice of law and is not entitled to any of the rights and privileges of a member of the Society. …

Reinstatement After Suspension 4.6.6 When a member has been suspended pursuant to subregulation 4.6.1, the member may apply to be reinstated upon: (a) filing the required forms; (b)completing the required continuing professional development unless the Executive Director extends the time for satisfying this requirement; and (c) payment of the prescribed fees reinstatement fee prescribed by Schedule A to these Regulations and the remainder of the annual fees outstanding at the time of the suspension. . …

in suspension.

This change is to add clarity to a long regulation that has a number of requirements. As well, this amendment will provide authority to demand payment of the entirety of the year’s fees following an administrative suspension for failing to make a payment.

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Existing Regulation Proposed Regulation Rationale

4.7 Fees 4.7.1 Fees payable to the Society are set out in Schedule A to these Regulations.

… 4.7.8 Fee Paid when Received Any fee, levy, surcharge or other payment due to the Society is not paid until it is received at the office of the Society or deposited in the account of the Society through on line payment or by pre-authorized payment.

4.7.9 Form of Payment Notwithstanding subregulation 4.1.2(a), a practising lawyer may pay the total amount required to be paid to the Society under that subregulation by:

(a) payment in full by cash, cheque, or electronic payment;

(b) preauthorized monthly payment if the Society has been provided with bank account information so that the Society may draw the amount;

(c) post dated cheques equivalent to the amounts that would be drawn through preauthorized payment

4.7.9.1 The Society will not accept credit card payment for any payments required under subregulation 4.1.2.

4.7 Fees 4.7.1 Fees payable to the Society are set out in Schedule A to these Regulations. …

4.7.8 Fee Paid when Received Any fee, levy, surcharge or other payment due to the Society is not paid until it is received at the office of the Society or deposited in the account of the Society through on line payment or by pre-authorized payment.

4.7.9 Form of Payment Notwithstanding subregulation 4.1.2(a), a practising lawyer may pay the total amount required to be paid to the Society under that subregulation by:

(a) payment in full by cash, cheque, credit card or electronic payment;

(b) preauthorized monthly payment if the Society has been provided with bank account information so that the Society may draw the amount, including the applicable administrative fee;

(c) post dated cheques equivalent to the amounts that would be drawn through preauthorized payment, including the applicable administrative fee;

(d) credit card payments equivalent to the amounts that would be drawn through preauthorized payment, including the applicable administrative fee.

4.7.9.1 The Society will not accept credit card payment for any payments required under subregulation 4.1.2.

The Society has determined that credit card payments for fees can be accepted with the addition of an administrative fee.

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Existing Regulation Proposed Regulation Rationale

4.7.10 Proportioning Fees When a fee being paid is for a portion of the year, that fee is determined by dividing the total fee by twelve and that amount will be multiplied by the number of months remaining in the year without allowance for any partial month.

…

Waiver of Suspension 4.6.12 Notwithstanding subregulations 4.6.1 and 4.6.2, the Executive Director may waive the suspension of a member for non-payment of fees is that member has made an application to change membership category and that application was received prior to the date the payment was due.

4.6.13 In the cases where subregulation 4.6.12 applies, the member will retain his membership category until the next meeting of the Credentials Committee.

4.7.9.1 A lawyer will be considered ineligible for payments pursuant to subregulation 4.7.9 (b) –(d) if

(a) two payments made pursuant to subregulation 4.7.9.1(b) - (d) are not honoured for any reason, including insufficient funds in the lawyer’s account; and

(b) the lawyer is suspended pursuant to subregulation 4.6.1(b),

and must pay the remainder of the annual fees then due to the Society.

4.7.10 Proportioning Fees When a fee being paid is for a portion of the year, that fee is determined by dividing the total fee by twelve and that amount will be multiplied by the number of months remaining in the year without allowance for any partial month.

…

Waiver of Suspension 4.6.12 Notwithstanding subregulations 4.6.1 and 4.6.2, the Executive Director may waive the suspension of a member for non-payment of fees is if that member has made an application to change membership category and that application was received prior to the date the payment was due.

4.6.13 In the cases where subregulation 4.6.12 applies, the member will retain his their membership category until the next meeting of the Credentials Committee.

There have been several members who have had multiple preauthorized payments dishonoured by their financial institutions, usually as a result of nonsufficient funds. The Society is proposing to restrict members from using PAP when they have had more than one payment dishonoured.

Typographical amendments.

Drafting standards are evolving to allow the use of ‘their’ rather than ‘his or her’

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Existing Regulation Proposed Regulation Rationale

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DRAFT 2017 – 2020 Strategic Framework

Purpose The purpose of the Society is to uphold and protect the public interest in the practice of law.

Vision The Society is an independent, trusted and respected regulator of the legal profession. Acting in the public interest, we provide leadership, value and support to a competent, ethical, inclusive and engaged legal profession. We enable the legal profession to enhance access to justice and uphold the rule of law.

Strategic Directions Excellence in Regulation and Governance Administration of Justice

Priorities Transforming regulation in the public interest

Enhance access to legal services and the justice system

Promote equity, diversity and inclusion in the legal profession

Strategic Initiatives

Implement and adjust as necessary legal services regulation

Promote increased access to legal services through regulatory initiatives and monitor their impact

Engage with justice sector players and equity-seeking communities to enhance access to legal services and the justice system

Implement the Regulatory Objectives

Promote substantive equality and freedom from discrimination in the delivery of legal services and the justice system

Respond to the Calls to Action of the Truth and Reconciliation Commission

Implement a framework for enterprise risk management

Advance cultural competence and inclusiveness in the legal profession and the justice system

Foundational Activity

Evaluating outcomes across all areas of activity and consistently measuring performance Contributing to national regulatory initiatives and adopting best practices Promoting and maintaining effective relationships through sincere, substantive and sustained engagement and the adoption of restorative approaches Focusing on the future and making sound, informed financial decisions

Values Commitment to Excellence Fairness Respect Integrity Visionary

Leadership Diversity Accountability

The Society advances this Strategic Framework through the work of a motivated and professional staff and members of Council and committees. The Society follows an Annual Activity Plan, which establishes the specific outcomes, initiatives and timeline to achieve the Society’s strategic priorities and initiatives. The Society strives to work collaboratively and in partnership with justice system participants.

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MEMORANDUM TO COUNCIL

From: Legal Services Regulation Steering Committee

Date: May 27, 2016

Subject: Scope of Legal Services Regulation

Date – Executive Committee N/A

Date – May 27, 2016 Council

RECOMMENDATION/MOTION

There are three options outlined in the document and Council is asked to consider them, and direct which it considers to be the appropriate direction.

EXECUTIVE SUMMARY

The issue for Council’s consideration is to what extent, and in what manner, should we allow for non-lawyers who are not part of legal entities to deliver legal services?

ANALYSIS

Introduction

The LSR Steering Committee and the Legislation & Regulation Working Group have been focusing on the form and content of the legislative amendments required to implement the policy framework that Council has approved. The Framework is attached as Appendix 1. While other aspects of the project are moving ahead, as is evident from the Pilot Project Work Plan that is in this Council package, the Steering Committee has concluded that Council needs to have some additional discussion to clarify some aspects of the policy framework relating to the ‘scope’ of legal services regulation by the Society.

The policy framework includes the following statements relating to this issue in Policies 5-8:

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1. The Society will seek amendments to the Legal Profession Act and will amend its regulationsto state that its public interest role is to regulate the delivery of legal services in the provincein accordance with the approved Regulatory Objectives.

2. The Society will regulate the delivery of legal services by lawyers and will also regulate thedelivery of legal services by legal entities, which include lawyers, law firms, law corporations,law departments and other similar entities. The type of legal services and clients of the legalentity will be the key determinants of the extent of risk there is to the public from suchpractices, and therefore the nature of the risk-focused regulation. Lawyers and legal entitieswill be entitled to practice law / deliver legal services, which may be defined as follows:

The delivery of legal services involves the provision of services in circumstances where the application of legal principles and judgment with regard to those circumstances or the objectives of a person requires the service provider to have the knowledge and skill of a person trained in the law.

3. Legal services may be delivered by lawyers and legal entities regulated by the Society or bydefined classes of approved legal services providers.

4. Council will have the authority to allow specific organizations or individuals to provide limitedscope legal services

The Issue

As the Legislation & Regulation WG considered how to turn these policy formulations into legislative language, it began to ask how policy statement #4 above (‘allow(ing) specific organizations or individuals to provide limited scope legal services’) would practically work. How would these ‘organizations’ be identified; what types of organization should be allowed to deliver legal services; by whom will authorization be given; using what mechanism? The core aspects of the policy framework are not in question. There is no dispute with respect to the following statements.

a) The Society’s public interest role is to regulate the delivery of legal services.

b) The Society will regulate the delivery of legal services by lawyers and legal entities.

c) Legal services delivery will be defined as: the provision of services in circumstances wherethe application of legal principles and judgment with regard to those circumstances or the objectives of a person requires the service provider to have the knowledge and skill of a person trained in the law/as a lawyer. (There is some additional work to be done regarding the last three words to clarify the meaning, but that is not an area of concern).

d) Legal services may be delivered in combination with other services as long as allservices are subject to the same ethical and professional standards.

e) The Society will create the authority to regulate paralegals.

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f) Only lawyers or legal entities will be allowed to be held out as having either of these titles(lawyer and legal entity).

g) Injunctive relief will be the means used to protect the public interest when legal servicesare delivered by an individual or organization that is not a lawyer or legal entity and thereis actual harm or demonstrable risk of actual harm to the public by the unregulatedindividual or entity.

Options Developed by the Steering Committee re: scope of regulation

Last November, Council approved a policy direction which would allow for ‘classes’ or a list of specified exemptions similar to the present section 16(4 ) and would allow for other groups / individuals to apply to Council for a specific exemption. There is no longer any unanimity that this is the best way to approach the scope of our regulation.

The Steering Committee has identified three options for Council’s consideration. These options – and some pros and cons for each – are described below.

Option 1

• Regulate legal services delivered by lawyers and legal entities.• Define legal service delivery and reserve legal service delivery for lawyers and legal entities with

exceptions.• Create a list of exceptions for classes in legislation to include regulated service deliverers and

certain public sector actors.• Add an exception to cover occasional advice or representation between individuals.• Specify a set of criteria in legislation that would allow the Society (Council or the Executive

Director) to authorize individuals or organizations to deliver legal services when applications aremade by those individuals / organizations. The criteria could include:

o the level of complexity does not require a lawyer or legal entity;o there is little or no risk posed to the public by the provision of the legal service;o there is limited availability of the legal service;o the services will be offered on a not for profit or cost recovery basis.

Option 2

• Regulate legal services delivered by lawyers and legal entities.

Option 3

• Regulate legal services delivered by lawyers and legal entities.• • The following will be reserved services for regulated lawyers and legal entities;

o criminal matters where the charge is proceeding by indictmento child protection matters under the Children and Family Services Acto Real estate matters involving the Land Registration Act

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The options start from the same place – regulate the work of lawyers and legal entities and allow for delivery of legal services by non-lawyer/legal entities in a manner that enhances access to these services and protects the public interest. .

Issues and considerations for Council

In sum, the issue for Council is to what extent, and in what manner, should the Society, give permission to individuals or organizations to deliver legal services when they will not otherwise be regulated by the Society by virtue of being a lawyer or member of a legal entity.

For Option 1 we must consider the costs associated with such an application and approval process as well as the ongoing obligations of the Society, if any, regarding the approved organization. If any terms and conditions are set out for the exception, how will the Society know that the conditions in the original application continue to be satisfied? Who bears the costs of this form of regulation (and policing)?

“Pros” of Option 1 - Involves the Society in all aspects of legal services delivery - Articulates principles for the Society to authorise non-lawyer legal services delivery - May create a means for the Society to encourage/enable not for profit legal services to be

developed, i.e. actively address A2J issue

“Cons” of Option 1 - Extends the Society’s regulatory role to those who do not bear or share the burden or costs of

regulation; acceptable to government; at what risk to the Society - No certainty that any organization will take advantage of this option - Costs of creating the application mechanism and ongoing oversight are unknown - May run counter to the emerging policy of government to both simplify regulation and to

promote regulation with a ‘light touch’

The concern with Options 2 & 3 is that they will allow an unregulated marketplace for legal services, as it is recognized that there will be many opportunities for legal services to be delivered that would not require the Society to seek an injunction. In other words, there would be unregulated legal services being delivered.

“Pros” of Options 2 & 3 - Limits the Society to regulating lawyers and the services they deliver - No regulatory burden for overseeing non-regulated entities - Focus of regulation is on the virtues and values of an independent legal profession and its role - Option 3 creates a limited scope of reserved services in areas of high risk/public interest - Recognizes the status quo respecting the unregulated provision of legal services (e.g. internet)

“Cons” of Options 2 & 3 - Enables a non-regulated legal services sector, with the uncertainty that goes with it

SUMMARY

The Steering Committee has made considerable progress, as will be evident from the presentation being made at Council in May. The project is advancing. However, greater clarity is needed regarding the scope of the Society’s regulation and the extent to which we will permit non-lawyers / non-legal

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entities to enhance access to legal services. When Council approved these policies in November, 2015, there had not been the level of consideration given to the ramifications of each policy as the Steering Committee and its working groups have now had an opportunity to provide. For this reason, we are asking Council for the further policy direction that will enable this work to continue.

Exhibits/Appendices: Legal Services Policy Framework

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APPENDIX 1 LEGAL SERVICES REGULATION

THE POLICY FRAMEWORK As approved by Council, November 20, 2015

1. Council adopts the six regulatory objectives for the Society as follows:

i. Protect those who use legal servicesii. Promote the rule of law and the public interest in the justice systemiii. Promote access to legal services and the justice systemiv. Establish required standards for professional responsibility and competence in the delivery

of legal servicesv. Promote diversity, inclusion, substantive equality and freedom from discrimination in the

delivery of legal services and the justice systemvi. Regulate in a manner that is proactive, principled and proportionate

2. In accordance with the Regulatory Objectives, the Society’s regulation and manner of operation willbe proactive, principled and proportionate, and each specific change in the nature or extent ofregulation will be evaluated against this approach.

3. In carrying out its further work to transform regulation, the Society will focus on the anticipated risksassociated with each area of regulated activity and, in assessing risk, will always give priority to theprotection of the public.

4. In order to ensure the public continues to benefit from an independent legal profession, together withthe protection afforded by it (e.g. lawyer-client privilege, high ethical practice standards and security oftrust funds and property), the Society’s regulation will, as a matter of principle and as confirmed by theregulatory objectives, enhance public protection. However it will also, by limiting its scope of regulation,enable the expanded delivery of legal services.

5. The Society will seek amendments to the Legal Profession Act and will amend its regulations to state thatits public interest role is to regulate the delivery of legal services in the province in accordance with theapproved Regulatory Objectives.

6. The Society will regulate the delivery of legal services by lawyers and will also regulate the delivery oflegal services by legal entities, which include lawyers, law firms, law corporations, law departments andother similar entities. The type of legal services and clients of the legal entity will be the keydeterminants of the extent of risk there is to the public from such practices, and therefore the nature ofthe risk-focused regulation. Lawyers and legal entities will be entitled to practice law / deliver legalservices, which may be defined as follows:

The delivery of legal services involves the provision of services in circumstances where the application of legal principles and judgment with regard to those circumstances or the objectives of a person requires the service provider to have the knowledge and skill of a person trained in the law.

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7. Legal services may be delivered by lawyers and legal entities regulated by the Society or by defined classesof approved legal services providers.

8. Council will have the authority to allow specific organizations or individuals to provide limited scope legalservices.

9. Legal services may be delivered by legal entities in combination with other services, so long as all deliveredservices are subject to the same ethical and professional standards as are required of the legal services.

10. The Code of Professional Conduct will be amended to eliminate barriers to fee sharing with non-lawyers.

11. In its regulations, the Society will require each law firm and legal entity to:

i. designate an individual who will be responsible to the Society for the entity’s compliancewith its regulatory requirements;

ii. ensure that all persons associated with the entity who deliver or assist in the delivery of legalservices comply with the Society’s Code of Professional Conduct and other regulatoryrequirements;

iii. comply with the applicable regulations and Code provisions, as they may be modified to apply toentities;

iv. establish and maintain a management system that promotes competent and ethical legalpractice; and

v. undertake to self assess and report to the Society on its management system. Thefrequency of such reporting is to be determined

12. The Society will create the authority to regulate paralegals.

13. Retired lawyers may be permitted to offer limited scope services under a new category ofmembership.

14. No one who is not a lawyer or legal entity will be permitted to be held out as having either of these titles.

15. The Society will have the authority and mandate to seek injunctive relief when legal services are deliveredby an individual or organization that is not a lawyer or legal entity and there is actual harm ordemonstrable risk of actual harm to the public by the unregulated individual or entity.

16. While advancing its work to implement these policies, the Society should:

i. continue consultation with the profession;

ii. develop implementation plans for each policy and table them at Council for approval. Eachimplementation plan should contain a time frame for coming into effect, a financial analysisrelating to the costs for the Society to implement the planned change and, if possible, adescription of the impact on lawyers and law firms from the proposed change;

iii. engage with other law societies and particularly with the Atlantic law societies about theproposed changes, and share information and resources to allow for consideration by them ofthe applicability of any of these policies to their jurisdiction; and

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iv. identify matters that have national implications and therefore ought to be addressed on thatbasis, including but not limited to:

• the applicability of the Code of Professional Conduct to legal entities;• the income tax issues surrounding the possible expansion of delivery of

legal services by corporations (including law corporations);• development of training or credentialing materials for employees of legal

entities who are not lawyers;• consideration of whether legal services need to be delivered by regulated

paralegals and whether legal entities could be constituted by them. In thenational discussion this has been referred to as “scope of practice”; and

• considerations related to professional liability insurance coverage.

17. The Society will develop the capacity to measure the impact of the regulatory changes on thepublic.

18. The Society will develop materials and promote training opportunities for lawyers and others on thechanges to the regulatory framework.

19. The Executive Director will provide a proposed timetable to Council for implementation of these policies,together with identification of requisite staffing and other resources required and budget implications.

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00076833-2

MEMORANDUM TO COUNCIL

From: Professional Standards (Law Office Management) Committee

Date: July 22, 2016

Subject: New Standard - Equity and Diversity

March 24, 2016 Council Introduction

July 22, 2016 Council Approval

Recommendation/Motion:

This is a request for approval of the standard respecting Equity and Diversity, which is attached as Appendix 1.

Executive Summary:

Following introduction to Council, the proposed standard was communicated to the membership for review and consultation. All comments received from the membership were reviewed and considered by the Committee and the Standard (as amended) is being presented to Council for final approval.

The Work Plan for this Committee included a project related specifically to this standard. The goal of the Committee was to articulate the standard a lawyer is required to meet when considering equity and diversity within their practice, both with respect to staff matters as well as client relationships. Given the mandate of the Society in its Strategic Framework, the Committee felt it was important to take on this work at this time. This was particularly important in the context of the Society’s work relating to improving the administration of justice.

In keeping with the mandate of the Committee, the Standard is intended to be a succinct articulation of the existing requirements of lawyers and a comprehensive listing of other pertinent information. As with other standards, the proposed Standard itself is relatively brief and straightforward.

In this regard, the Standard reiterates the lawyer’s obligations under the Code of Professional Conduct and Human Rights legislation. A variety of best practice pieces and guidance on this topic then follow. In particular, the paper authored by Kathryn Dumke and Kevin Hong entitled ‘Equity and Diversity in Legal Practice’, which accompanied the original draft, is particularly compelling.

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No other Standard contemplated by this Committee met with as much initial resistance or reserve as did this topic. However, it is important to note that following careful research, extensive discussion and debate, the Committee now unanimously supports the draft Standard that is being presented.

When this Standard was first presented to Council, some concern was raised with respect to the requirement for a written policy, particularly in the absence of any templates. As indicated at that time, the resources below the line for this Standard have been amended to include a variety of templates that lawyers can use to prepare their own policy.

The Committee met with the Chairs of the Gender Equity and Racial Equity Committees as well as the Society’s officers to review the Standard. We benefited from the input of the two equity committee chairs. As with all of this and other Standards Committees’ work, we recognize the need for our proposals to advance the Regulatory Objectives adopted by Council. In our view this standard specifically advances RO 5 which states:

Promote diversity, inclusion, substantive equality and freedom from discrimination in the delivery of legal services and the justice system

It also does so in a manner that is ‘principled and proportionate’ as is required by RO 6. The requirement for a written statement, while objectionable to some, we believe is essential so that if need be, even a sole practitioner can show ‘the policy’ which governs their behavior as it relates to matters of equity as it relates to their practice. As is noted above the Standard is intended to guide all a lawyers’ and legal entities’ relations – both internal and external – so that dealings with all individuals and communities are guided by it.

We further have assurances that the work of the Equity and Access Office, as is evident from what already exists on the Equity Portal, will provide support to lawyers, law firms and other legal entities to achieve the results that this standard sets. We expect that through the Pilot Project which will be undertaken over the next several months, especially as the Society engages with lawyers on Element 9 (Equity and Diversity) of the Management System for Ethical Legal Practice, further resources and tools will be identified that will assist the profession in meeting the requirements that are at the core of the Standard.

As with other draft standards from this committee, the draft (attached) is not in the usual three column format since there is no existing standard against which they are to be compared.

Exhibits/Appendices: • Proposed Standard on Equity and Diversity

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Appendix 1

Equity and Diversity Standard

A lawyer and law firm must treat all persons in a manner consistent with best practices in human rights law and the Code of Professional Conduct, and have a proportionate and principled written policy with regards to such practices.1

These best practices include management and conduct of the practice of the lawyer or law firm that respects equity and diversity.2

In considering policies selected for these best practices, in the context of the particular lawyer or law firm, the lawyer or law firm shall consider all relevant factors for that lawyer or law firm including:

(a) the development of fair and unbiased criteria in the recruitment, selection, and retention of clerks, lawyers, and staff; (b) management policies appropriate for the lawyer or law firm including parental leave, accommodations for persons with disabilities, cultural competence, (c) management policies appropriate for the lawyer or law firm including anti-harassment, anti-discrimination, and ( d ) a meaningful process to enforce such policies.3

Footnotes 1 Nova Scotia Human Rights Act, RSNS chapter 214, s. 3. Employment Equity Act, SC 1995, c. 44. Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, ch 6-3, and 3-1, consider Element #9 of the Management System for Ethical Legal Practice.

2 Vision and Values Statement of the Nova Scotia Barristers’ Society 3 Shah v George Brown College [2009] OHRTD No 934 (Ont. Human Rights Trib.)

Additional Resources and Templates • Workplace equity – model policy - https://www.lawsociety.bc.ca/docs/practice/resources/Policy-

Equality.pdf • Model Equity Policies for Law Firms http://www.lawsociety.ab.ca/lawyers/equity/equity_policies.aspx• Sample Diversity and Equality Policy -

http://www.lawsociety.ab.ca/files/equity/Guidelines_for_Drafting_and_Implementing_Diversity_and_Equality_Policy_2005.pdf

• Guide to Developing a Policy regarding Workplace Equity in Law Firms -http://rc.lsuc.on.ca/pdf/equity/workplaceEquity.pdf

• Model Policies http://www.lawsociety.mb.ca/equity• Equity Model Policies http://www.lsuc.on.ca/with.aspx?id=2147487014

Documents • Equity and Diversity in Legal Practice, Kathryn Dumke and Kevin Hong• NSBS Equity Portal http://nsbs.libguides.com/equityportal• Cultural Competency and Diversity in the Nova Scotia Legal Profession, (Babiuk, Buchert, Chiekwe,

Hong) Final Summary Report, November 25th, 2014 Halifax• Solicitors Regulatory Authority, http://www.sra.org.uk/sra/equality-diversity.page• Solicitors regulatory Authority, http://www.lawsociety.org.uk/advice/practice-notes/equality-and-

diversity-requirements--sra-handbook/• Equality and Diversity Strategy 2011-2014,

http://www.lawscot.org.uk/media/465296/lss%20_%20equality_%20diversity%20strategy%20_%202011-14.pdf

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• https://www.barstandardsboard.org.uk/about-bar-standards-board/equality-and-diversity/equality-and-diversity-rules-of-the-bsb-handbook/

• http://www.lsuc.on.ca/media/convmay08_retention_of_women_executive_summary.pdf• http://nsbs.org/sites/default/files/ftp/EQSept2014_MalatestRpt_EmploymentEquityNSBS.pdf• Disability Research Working Group, Lawyers with Disabilities: Overcoming Barriers to Equality,

(Vancouver: Law Society of British Columbia, 2004)• http://www.manitobahumanrights.ca/developingapolicy.html• Gail H. Morse, “Is It Time for a LGBT Call to Action?” (2009) 2:4 Embracing Diversity at 2, online:

<https://jenner.com/system/assets/publications/1133/original/GailMorse_EmbracingDiversity.pdf• Lawyers Weekly, “Kirby says gay lawyers still face discrimination”, (24 June 2010), Lawyers Weekly,

online: < http://www.lawyersweekly.com.au/news/6363-kirby-says-gay-lawyers-still-face-discrimination>.

• Jennifer Brown, “Survey of lawyers to examine experience of sexual minorities in profession”, (20September 2013), Legal Feeds (blog), online: <http://www.canadianlawyermag.com/legalfeeds/1687/survey-of-lawyers-to-examine-experience-of-sexual-minorities-in-profession.html>.

• Hanna N. Rouse, “Lawyers Discuss LGBT Barriers”, (18 November 2010), The Harvard Crimson,online: <http://www.thecrimson.com/article/2010/11/18/law-gay-students-school/>.

• Challenges Faced by Racialized Licensees Working Group, Developing Strategies for Change:Addressing Challenges Faced by Racialized Licensees, (Toronto: Law Society of Upper Canada, 2014).

• Aboriginal Law Graduates Working Group, Addressing Discriminatory Barriers Facing Aboriginal lawStudents and Lawyers (Vancouver: Law Society of British Columbia, 2000).

• Equity Initiatives Department, Final Report – Aboriginal Bar Consultation (Toronto: Law Society ofUpper Canada, 2009)

• Report of the Commission on Equality in Employment; Rosalie Silberman Abella, October 1984• Equality in Employment: A Royal Commission Report. General Summary; Published in Canadian

Woman Studies (1984) Vol. 6, no. 4, p 5-7. • Royal Commission on the Donald Marshall, Jr., Prosecution: digest of finding and recommendations Nova Scotia. Royal

Commission on the Donald Marshall, Jr., Prosecution, December 1989 • Touchstones for Change : Equality, Diversity and Accountability; Canadian Bar Association. Task Force on Gender

Equality in the Legal Profession, 1993 • BLAC Report on Education: Redressing Inequity - Empowering Black Learners; Black Learners Advisory Committee

(BLAC), 1994 • Fostering Employment Equity and Diversity in the Nova Scotia Legal Profession; Nova Scotia Barristers' Society.

Employment Equity Guidelines Committee, August 2000 • Nova Scotia Barristers’ Society -- Practicing Law: Minority Groups: final report; Nova Scotia Barristers Society. Race

Relations Committee, June 2008 • Employment Equity in the Legal Profession in Nova Scotia; Nova Scotia Barristers’ Society, 2012

Case Law • Andrews v. Law Society (British Columbia) 1989 Carswell BC 16• Gichuru v. Law Society (British Columbia) 2011 BCHRT 185• J.(E.) v. Catholic Children’s Aid Society of Toronto, 2014 ONSC 3277• Johal v. Dhesi, 2012 BCSC 550• Law Society of Upper Canada v. Robinson (2013), 4C.N.L.R. 129

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• R. v. Fraser 2011 NSCA 70• R. v. Kennedy 2013 ONSC 6419• R. v. Spence 2005 SCC 71• R. v. T.(B.H.) [1998] 4 C.N.L.R. 262• R v S (RD), [1997] 3 SCR 484• R v Gladue, [1999] 1 SCR 688• R v Armitage, 2015 ONCJ 64• R v. X, 2014 NSPC 95• R v Kapp, 2008 SCC 41, [2008] 2 SCR 483• Moore v British Columbia (Education), 2012 SCC 61, [2012] 3 SCR 360• Cardinal v. Douglas College and another, 2013 BCHRT 64

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00076782-2

Equity and Diversity Standard

A lawyer and law firm must treat all persons in a manner consistent with best practices in human rights law and the Code of Professional Conduct, and have a proportionate and principled written policy with regards to such practices.1

These best practices include management and conduct of the practice of the lawyer or law firm that respects equity and diversity.2

In considering policies selected for these best practices, in the context of the particular lawyer or law firm, the lawyer or law firm shall consider all relevant factors to that lawyer or law firm including:

(a) the development of fair and unbiased criteria in the recruitment, selection, and retention of clerks, lawyers, and staff;

(b) management policies appropriate for the lawyer or law firm including anti-harassment, anti-discrimination, parental leave, accommodations for persons with disabilities, cultural competence, and

( c ) a meaningful process to enforce such policies.3

Footnotes

1 Nova Scotia Human Rights Act, RSNS chapter 214, s. 3. Employment Equity Act, SC 1995, c. 44. Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, ch 6-3, and 3-1, consider Element #9 of the Management System for Ethical Legal Practice.

2 Vision and Values Statement of the Nova Scotia Barristers’ Society

3 Shah v George Brown College [2009] OHRTD No 934 (Ont. Human Rights Trib.)

Additional Resources

Templates

• Workplace equity – model policy -https://www.lawsociety.bc.ca/docs/practice/resources/Policy-Equality.pdf

• Model Equity Policies for Law Firmshttp://www.lawsociety.ab.ca/lawyers/equity/equity_policies.aspx

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00076782-2

• Sample Diversity and Equality Policy -http://www.lawsociety.ab.ca/files/equity/Guidelines_for_Drafting_and_Implementing_Diversity_and_Equality_Policy_2005.pdf

• Guide to Developing a Policy regarding Workplace Equity in Law Firms -http://rc.lsuc.on.ca/pdf/equity/workplaceEquity.pdf

• Model Policies http://www.lawsociety.mb.ca/equity• Equity Model Policies http://www.lsuc.on.ca/with.aspx?id=2147487014

Documents

• Equity and Diversity in Legal Practice, Kathryn Dumke and Kevin Hong• NSBS Equity Portal http://nsbs.libguides.com/equityportal• Cultural Competency and Diversity in the Nova Scotia Legal Profession, (Babiuk, Buchert,

Chiekwe, Hong) Final Summary Report, November 25th, 2014 Halifax• Solicitors Regulatory Authority, http://www.sra.org.uk/sra/equality-diversity.page• Solicitors regulatory Authority, http://www.lawsociety.org.uk/advice/practice-notes/equality-

and-diversity-requirements--sra-handbook/• Equality and Diversity Strategy 2011-2014,

http://www.lawscot.org.uk/media/465296/lss%20_%20equality_%20diversity%20strategy%20_%202011-14.pdf

• https://www.barstandardsboard.org.uk/about-bar-standards-board/equality-and-diversity/equality-and-diversity-rules-of-the-bsb-handbook/

• http://www.lsuc.on.ca/media/convmay08_retention_of_women_executive_summary.pdf• http://nsbs.org/sites/default/files/ftp/EQSept2014_MalatestRpt_EmploymentEquityNSBS.pdf• Disability Research Working Group, Lawyers with Disabilities: Overcoming Barriers to Equality,

(Vancouver: Law Society of British Columbia, 2004)• http://www.manitobahumanrights.ca/developingapolicy.html• Gail H. Morse, “Is It Time for a LGBT Call to Action?” (2009) 2:4 Embracing Diversity at 2, online:

<https://jenner.com/system/assets/publications/1133/original/GailMorse_EmbracingDiversity.pdf

• Lawyers Weekly, “Kirby says gay lawyers still face discrimination”, (24 June 2010), LawyersWeekly, online: < http://www.lawyersweekly.com.au/news/6363-kirby-says-gay-lawyers-still-face-discrimination>.

• Jennifer Brown, “Survey of lawyers to examine experience of sexual minorities in profession”,(20 September 2013), Legal Feeds (blog), online: <http://www.canadianlawyermag.com/legalfeeds/1687/survey-of-lawyers-to-examine-experience-of-sexual-minorities-in-profession.html>.

• Hanna N. Rouse, “Lawyers Discuss LGBT Barriers”, (18 November 2010), The Harvard Crimson,online: <http://www.thecrimson.com/article/2010/11/18/law-gay-students-school/>.

• Challenges Faced by Racialized Licensees Working Group, Developing Strategies for Change:Addressing Challenges Faced by Racialized Licensees, (Toronto: Law Society of Upper Canada,2014).

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• Aboriginal Law Graduates Working Group, Addressing Discriminatory Barriers Facing Aboriginallaw Students and Lawyers (Vancouver: Law Society of British Columbia, 2000).

• Equity Initiatives Department, Final Report – Aboriginal Bar Consultation (Toronto: LawSociety of Upper Canada, 2009)

• Report of the Commission on Equality in Employment; Rosalie Silberman Abella, October1984

• Equality in Employment: A Royal Commission Report. General Summary; Publishedin Canadian Woman Studies (1984) Vol. 6, no. 4, p 5-7.

• Royal Commission on the Donald Marshall, Jr., Prosecution: digest of finding andrecommendations Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution, December 1989

• Touchstones for Change : Equality, Diversity and Accountability; Canadian Bar Association.Task Force on Gender Equality in the Legal Profession, 1993

• BLAC Report on Education: Redressing Inequity - Empowering Black Learners; Black LearnersAdvisory Committee (BLAC), 1994

• Fostering Employment Equity and Diversity in the Nova Scotia Legal Profession; Nova ScotiaBarristers' Society. Employment Equity Guidelines Committee, August 2000

• Nova Scotia Barristers’ Society -- Practicing Law: Minority Groups: final report; Nova ScotiaBarristers Society. Race Relations Committee, June 2008

• Employment Equity in the Legal Profession in Nova Scotia; Nova Scotia Barristers’ Society,2012

Case Law

• Andrews v. Law Society (British Columbia) 1989 Carswell BC 16• Gichuru v. Law Society (British Columbia) 2011 BCHRT 185• J.(E.) v. Catholic Children’s Aid Society of Toronto, 2014 ONSC 3277• Johal v. Dhesi, 2012 BCSC 550• Law Society of Upper Canada v. Robinson (2013), 4C.N.L.R. 129• R. v. Fraser 2011 NSCA 70• R. v. Kennedy 2013 ONSC 6419• R. v. Spence 2005 SCC 71• R. v. T.(B.H.) [1998] 4 C.N.L.R. 262• R v S (RD), [1997] 3 SCR 484• R v Gladue, [1999] 1 SCR 688• R v Armitage, 2015 ONCJ 64• R v. X, 2014 NSPC 95• R v Kapp, 2008 SCC 41, [2008] 2 SCR 483• Moore v British Columbia (Education), 2012 SCC 61, [2012] 3 SCR 360• Cardinal v. Douglas College and another, 2013 BCHRT 64

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MEMORANDUM TO COUNCIL

From: Executive Committee

Date: May 6, 2016

Subject: Legal Services Regulation and delivery of the mandatory professional liability claims program

Date – May 6, 2016 Executive Committee Approved for submission to Council

Date – Council

Introduction

1. The Executive Committee is asking Council to consider whether the mandatoryprofessional liability claims program under Part 5 of the Legal Profession Act should be integrated into the new regulatory model for the delivery of legal services by the Society instead of provided through a separate corporate entity. This issue has come to the fore as a result of and following discussions that have ensued over the last several months regarding certain matters involving the relationship between LIANS and the Society. Council has been fully briefed on those matters.

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2. The Executive Committee is of the view that this question arises directly out of thefundamental rethinking of legal service regulation in Nova Scotia initiated by the 2013 – 2016 Strategic Framework which has resulted in the adoption of a preventative risk based approach to legal services regulation. This approach is founded on the adoption by Council of regulatory objectives for legal service regulation in Nova Scotia and an articulation of the regulatory outcomes which the Society aspires to achieve, measure and monitor. The risk based regulatory approach which has been accepted by Council involves systematic assessment of the risks associated with the delivery of legal services by members of the Society and regulating in accordance with the identified risks. For these reasons it is imperative that Council be briefed and determine the policy direction to be adopted and that it do so as part of the broad decision-making it is engaged in relating to legal services regulation.

Regulatory Objectives & Outcomes

3. The key components of the risk based regulatory approach are the regulatory objectivesapproved by Council on November 14, 2014 and recently confirmed on April 22, 2016. The Society’s regulatory objectives are the following:

1. Protect those who use legal services.2. Promote the rule of law and the public interest in the justice system.3. Promote access to legal services and the justice system.4. Establish required standards for professional responsibility and competence in the

delivery of legal services.5. Promote diversity, inclusion, substantive equality and freedom from discrimination in

the delivery of legal services and the justice system.6. Regulate in a manner that is proactive, principled and proportionate.

4. Related to these regulatory objectives are the regulatory outcomes articulated by theSociety, which provide as follows:

1. Lawyers and legal entities provide competent legal services.2. Lawyers and legal entities provide ethical legal services.3. Lawyers and legal entities safeguard client trust money and property.4. Lawyers and legal entities provide legal services in a manner that respects and promotes

diversity, inclusion, substantive equality and freedom from discrimination.5. Lawyers and legal entities provide enhanced access to legal services.

5. Fundamental to the implementation of ‘Triple P’ regulation is the establishment of apreventative and risk based approach to all the Society’s work so that we will effectively regulate in a manner that is proactive, principled and proportionate. This concept has been core to the transforming legal regulation strategic priority since its earliest inception and the concepts were recently re-articulated in a report to Council, which provided the following description:

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Good regulation by the Society is characterized by proactivity, principles and proportionality. Proactivity requires the Society to not simply react but to reach out to the profession and the community to ensure that the regulatory objectives are met. Principles require the Society to set a regulatory framework that is aspirational rather than based solely on narrowly focused riles. Proportionality calls for the application of efficient and effective regulatory measures to achieve regulatory objectives using, among others, risk assessment and risk management tools. It calls for a balancing of interests and a ‘proportionate’ response, both in terms of how the Society regulates and how it addresses matters of non-compliance.

6. The vehicle for moving forward with this approach to t regulation of legal services is therequirement that providers of legal services establish management systems for ethical legal practice (MSELP) to create and maintain an effective ethical infrastructure that fits with the characteristics of their practice. Though a self-assessment process, the Society will receive information from legal service providers about their compliance with the MSELP. The elements of an effective ethical infrastructure have been articulated as follows:

1. Developing competent practices;2. Communicating in an effective, timely and civil manner;3. Ensuring confidentiality;4. Avoiding conflicts of interest;5. Maintaining appropriate file and record management systems;6. Ensuring effective management of the legal entity and staff;7. Charging appropriate fees and disbursements;8. Sustaining effective and respectful relationships with clients, colleagues, courts,

regulators and the community;9. Working to improve diversity, inclusion and substantive equality; and10. Working to improve administration of justice and access to legal services.

7. The Society will use the information provided by the self- assessment to determine thelegal service provider’s degree of compliance and where its efforts can/should be directed to assist the legal entity to improve its practices. A key goal is to prevent regulatory issues, in the form of complaints, claims and other interventions from arising. When analyzing the self-assessments the Society will do so by considering a broad range of identified risks. It will use all available and reliable information to properly assess risks to design and develop appropriate regulatory responses in light of what is actually happening in the profession in Nova Scotia1. Within this overall context, Council needs to consider the question of where the mandatory professional liability claims program optimally fits and whether that mandatory professional liability claims program should continue to be delivered by a separate legal entity or as part of the overall regulation of legal services by the Society in a comprehensive risk based approach.

1 Appendix A contains the Risk Framework approved by Council and the Risk Matrix that has been developed.

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8. The immediate context for consideration of this question by Council is an importantissue which has come to light recently which is addressed in Appendix ‘D’ to this paper from legal counsel which provides legal advice to Council.

History of Lawyers’ Insurance Association of Nova Scotia

9. As described on its website, the Lawyers’ Insurance Association of Nova Scotia (LIANS) isa not-for-profit association that provides mandatory liability insurance and administers the insurance program for practicing insured members of the Nova Scotia Barristers’ Society. LIANS is administered by a Board of Directors and is a member of the Canadian Lawyers’ Insurance Association (CLIA), an insurance reciprocal that acts as the insurer for the program.

10. Part 5 of the Legal Profession Act establishes LIANS as a separate corporate entity with amandate to conduct a mandatory professional liability claims program. Section 63 authorizes Council to make regulations that give broad policy directions to LIANS and to govern key aspects of its operation. Council has issued policy directions in the past which recognize that LIANS operates in be best interest of insured lawyers, in accordance with accepted insurance principles2. The administration of LIANS is conducted by a board of directors.

11. The purpose of the Society as set out in s. 4 of the Legal Profession Act is protection ofthe public in the provision of legal services. Part of that public protection is the requirement for a mandatory professional liability claims fund so that members of the public who are harmed by negligence or other actions by lawyers have a fund from which to recover damages. At the same time, insured lawyers benefit substantially from access to a superior quality liability claims program and the active risk and practice management program provided to them at reasonable cost.

12. Before 1990, the professional liability claims program was provided by the Society. In1990, Section 37 of the Barristers and Solicitors Act was enacted to incorporate the Nova Scotia Barristers’ Liability Claims Fund. The Fund was created as an arm of the Nova Scotia Barristers’ Society to administer the claims program as a separate corporate entity with its own board of directors. When the Legal Profession Act was enacted in 2004 the name of the Nova Scotia Barristers’ Liability Claims Fund was changed to Lawyers’ Insurance Association of Nova Scotia. Attached as Appendix C are excerpts from Council minutes between 1988 and 1994 when the structural decisions regarding the program were made. It is noteworthy that in that period Council was actively involved in discussing policy decisions around insurance and did so in an open forum. That contrasts to today’s situation where LIANS decision making is not open, as its meetings and minutes are not in the public domain.

2 See Appendix B

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13. Practicing insured lawyers who are faced with claims are protected by the provision oflegal representation and coverage for damages for which they become liable. LIANS claims counsel investigates the claims which may be settled or defended by LIANS. This aspect of the services delivered by LIANS has enjoyed a high level of satisfaction from members of the Society.

14. LIANS also engages in a mentorship program to provide regular encouragement and supportto newer lawyers. Through the provision of staff support it plays an important role in the development of standards for professional practice, currently in the areas of family law, real-estate, law office management and criminal law. LIANS provides an active risk and practice management program that provides resources and support for insured lawyers. As well the Lawyers’ Assistance program, which is funded by the Society, is housed in LIANS, in order to provide appropriate confidentiality.

Legal Services Regulation and the Liability Claims Program

15. The development of a preventative risk based approach to legal services regulation inNova Scotia substantially overlaps with the program delivered by LIANS. In order to undertake a systematic assessment of risks associated with the delivery of legal services by lawyers and legal entities there is required an assessment of the risks covered by the liability claims program and use of statistical and non-identifying claims related infomation. The risk based regulatory approach requires consideration not only of the risks to the public of unethical conduct by lawyers, but also conduct which can result in liability for negligence or otherwise. To meet the goals of the transforming legal regulation initiative and new approach to regulation all information, from multiple resources, should be available to the Society to undertake proactive, principled and proportionate regulation.

16. The regulatory objectives of the Society apply to the activities of LIANS; in particular:

• Regulatory objective 1 – “Protect those who use legal services”;• Regulatory objective 4 – “Establish required standards for professional responsibility

and competence for lawyers and legal entities.”; and• Regulatory objective 6 – “Regulate in a manner that is proactive principled and

proportionate.”

17. The regulatory outcomes to which the Society aspires join the outcome that “Lawyersand legal entities provide competent legal services” with the outcome that “Lawyers and legal entities provide ethical legal services”. In all aspects of its work the Society will have to give real meaning to these expected outcomes, for they are the measures for ultimate accountability.

18. The active risk and practice management program delivered by LIANS in support ofinsured lawyers to prevent losses to the liability claims fund deals with the same risks and the same lawyers and law firms that are dealt with in the overall preventative risk based approach

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to legal services regulation. The risk and practice management program provides support in most of the areas relating to the elements in the management systems for ethical practice requirements that will be launched over the next period of time.

The Issues

18. Council needs to consider whether the preventative risk based approach which has beenadopted by the Society should be administered by two separate corporate entities, or by a single legal service regulator which is comprehensively organized to apply a risk based approach and be proactive in ensuring competent practice by members of the Society. Given the changes in the regulation of legal services, two separate entities engaging in risk management to ensure high standards and ethical legal practice is not the most effective way of achieving the regulatory objectives set by the Society.

19. As presently constituted, the liability claims program is isolated from the broaderregulation of legal services by the Society. Although the program is delivered by employees of the Society, it is administered separately in its own space and without exchange of information with the Society other than basic statistical information.

20. The Professional Responsibility Policies and Procedures Committee has beenconsidering the application of proactive, principled and proportionate regulation of professional responsibility. Often a member facing complaints has also faced issues of liability. The Society will often assess whether a member should be diverted from the complaints stream to an alternative stream, including the fitness to practice program or a practice assistance stream. Yet there is no sharing of non-privileged information relating to a member between LIANS and the Society. When LIANS closes a claim file, no information is shared even where non-privileged information could benefit the member by enabling the Society to better construct an effective regulatory response to issues that it is addressing.

21. The evolution of the professional responsibility program into one which is proactive andproportionate is hampered when it isn’t possible to have comprehensive risk based assessment of members generally, and of the circumstances of particular members. Measures now being taken to enhance the “staff toolbox” to support changing lawyer behavior through education and guidance rather than written warnings and sanctions – the proactive, principled and proportionate approach to professional responsibility – would be greatly enhanced by a more comprehensive approach.

22. The proactive risk based approach is permitting the Society to change its focus fromreacting to complaints to recognizing issues before they become problems, and to offer assistance to members as situations arise in their practices, such as illnesses, stresses, financial burdens and succession planning for aging sole practitioners. Conducting risk assessments and

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risk in practice management through two corporate entities and responding from those two perspectives, rather than a single comprehensive assessment and response, is a significant flaw in the preventative risk based approach to legal services regulation.

23. In considering whether to move the mandatory liability claims program into a singlelegal entity, Council should recognize both the excellence of the program which has been delivered by LIANS and its predecessors as well as the core principles, properly belonging in an ‘insurance program’ that will need to be preserved. It should also recognize that in most of the CLIA jurisdictions, there is not a separate entity providing liability claims protection, but rather their programs operate as departments with the law societies.

Preservation of Core Values

24. Successive boards of directors have devoted their time and expertise to ensuring thatLIANS has been managed in a fiscally responsible manner, ensuring that adequate resources are available for the long-term health of the program and in a manner which has generated considerable satisfaction among members of the Society who have had to contend with issues of civil liability. The satisfaction and reputation that the program rightly deserves are understood to stem from the notion that LIANS ‘operates in the best interest of insured lawyers’. There are several key elements to this concept – communications with the claims program are confidential and claims are managed so that privilege is preserved (There are exceptions to the confidentiality of claims such as disclosure required by the Code, and disclosure for QC and judicial appointment applications, so the question will be what type of disclosure is appropriate relating to present and past claims); the program operates in accordance with the legal principles of ‘utmost good faith’ that are fundamental to the law of insurance; if liability is in issue, economic settlements are not made; active loss prevention is undertaken that specifically targets the causes of claims or developments in areas of frequent claims , e.g real estate. Any consideration of creating a single legal entity must seek to preserve these important beneficial aspects of the program. By working with the current Board and staff, the specifics of how to preserve these core values, while ensuring that appropriate information pertaining to risk can be used, will be identified.

25. Nevertheless, the question facing Council is whether the fundamental changes indirection in legal services regulation which are being implemented by the Society can be effective if delivery of the liability claims program remains through a separate entity rather than as part of a comprehensive preventative risk based approach to legal services regulation. Council needs to consider whether its regulatory objectives and the regulatory outcomes to which it aspires require delivering the liability claims program through a unified process.

26. Consideration of delivering the liability claims program through a unified process istimely now for reasons other than the adoption of a preventative risk based approach to legal services regulation. A legal issue has arisen which must be addressed now. Advice received by the Society in respect of this issue is privileged and confidential and is therefore provided to members of Council separately in Appendix ‘D’. There may be operational efficiencies and

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lower costs derived from the elimination of certain duplications that now exist in administration. For example there are different fiscal year ends involved; there are two audits, two financial managers, and two budgets. No analysies have yet been undertaken but these may lead to lower administrative costs. The Director of Insurance has recently resigned to pursue another opportunity. The choice of her replacement should reflect the policy decision by Council whether to deliver the liability claims program through a separate corporate entity or as part of a comprehensive approach by the Society itself.

Process and Decision Making

27. Council is being asked to determine that the issues identified in this memorandum dorequire its determination. There is some urgency to this but before any decision can be made Council will want input from the LIANS Board in order to ensure that all issues are properly considered and weighed. The President has kept the LIANS Board Chair, Cheryl Canning, appraised of this matter and this memo has been shared with the Board. Council will want to hear from them and it is suggested that the Executive continue to liaise with the Board Committee assigned to address these matters; that the Board be invited to speak to Council at its July meeting and that through InForum the fact that this matter is on Council’s agenda be noted for the profession. It is proposed that the matter, with an appropriate resolution, return to Council in July at which time it can be determined if further consultation or study is required before a final decision is made.

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LAWYERS' INSURANCEASSOCIATION OF NOVA SCOTIA

June 17, 2016

VIA EMAIL

Daren Baxter, Q.C.

First Vice-president

Nova Scotia Barristers' Society

Dear Mr. Baxter:

Re: LIANS and NSBS

I write on behalf of LIANS the Board of Directors, to provide the NSBS ExecutiveCommittee with the Board's feedback following our review of the Memorandum toCouncil dated May 6, 2016. The purpose of this memo was to provide information forCouncil to consider regarding whether the mandatory professional liability claimsprogram under Part 5 of the Legal Profession Act should be integrated into the Societyas part of the new regulatory model for the delivery of legal services, or whether itshould continue to be administered through a separate corporate entity. Thank you forproviding a copy of the Memorandum to us. We look fonvard to having furtherdiscussions about it and this letter in the form of a meeting among the Executive andLIANS' sub-committee.

I will note that the Memorandum refers to Appendices A. B. C and D. The Board wasprovided only with Appendix C, which contained excerpts from Council minutes from1988-1994.

In the context of reviewing this memo and discussing the issues raised therein, theBoard also considered the PRPPC proposal with regard to whether NSBS staff shouldbe authorized to "obtain information about open (non-privileged information) and closedinsurance claims in order to understand all possible issues relating to a lawyer'scompetence and quality of sen/ice". This is ostensibly a separate issue from the one ofpossible integration of the Society and LIANS, but, in the Board's view, these issues areinextricably linked.

Summary of the issue

The Memorandum indicates that the question of possible integration comes out of therethinking of legal services regulation in Nova Scotia. This has resulted in the adoptionof a preventative risk based approach, referred to as "Triple P" regulation. Triple P

Cogswell TowerSuite 801

2000 Barrington Street

Halifax. NS B3J 3K1T902.423.1300

F 902.421.1822

info@lians.ca

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refers to the core principles of a risk based approach to regulation that is proactive,principled and proportionate.

An integral aspect of such an approach to regulation is the ability to assess the risksassociated with the delivery of legal services. To aid in that assessment, the Societyplans to employ a self-assessment process to monitor compliance with themanagement systems for ethical legal practice (MSELP). The Society will use theinformation provided by the self-assessment to determine not only the degree ofcompliance of the provider of legal services, but also to assist in determining whetherthe Society's efforts should be directed to assist the legal entity to improve its practice.The Memo says that "when analyzing the self-assessments the Society will do so byconsidering a broad range of identified risks. It will use all available and reliableinformation to properly assess risks to design and develop appropriate regulatoryresponses in light of what is actually happening in the profession in Nova Scotia."

Part of that reliable information includes information related to insurance claims, someof which may be accessible already (through statistics, etc.), and some of which is not.The PRPPC proposal indicates that there is a desire to access particular informationabout insurance claims so that it can understand issues relating to a lawyer'scompetence and quality of service. It is not clear to the Board what particularinformation is being sought, and this will require further discussion.

The wording of the PRPPC proposal suggests that open claims information would belimited to non-privileged information while closed claims information would not be solimited. The Board is gravely concerned about this prospect.

From this background the Board surmises that one of the goals of integration is tofacilitate the sharing of information between the Society and LIANS. Another goalidentified in the Memo is to create a more unified and efficient risk and practicemanagement program, rather than having such a program delivered by two separateentities. These two goals overlap, in that the sharing of information would assist in theefficient delivery of a risk and practice management program.

The Board's feedback

The Memorandum indicates that there is overlap between the regulatory objectives ofthe Society and the objectives of LIANS. This is true in some respects, but it overlooksone fundamental difference: the Society's primary regulatory objective is the protectionof those who use legal services; LIANS' primary objective is to protect those who deliverlegal services.

The LIANS Board of Directors owes a fiduciary duty to the insured lawyers and to theprogram that insures them. This perspective is the foundation for the Board's commentsthat follow.

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the Memo why integrating the two entities would be a good idea andwould create efficiencies in achieving the Society's regulatory goals. However, it isvague on the notion that Integration may be required In order to allow the Society toachieve its new regulatory objectives.

Respectfully, there is a difference between the assertions that:

- integration would make regulation more convenient and less expensive; and- the Society needs to "own" a liability claims program in order to be able to

regulate entities.

If this discussion is really about the latter concept, it needs to be elaborated upon.

Why is integration required? Can the objectives be met without integration?

If the proposal is that integration is necessary for reasons other than information sharingand efficient risk management, the Board doesn't feel equipped to have a conversationbased on the information currently before it.

An integral part of the success of the insurance program is the trust lawyers have inLIANS If integration is meant to assist in achieving the goal of efficient riskmanagement, which includes the sharing of information, the Board is concerned thatintegration could create a significant potential negative outcome unnecessarily,confidential information lawyers share with LIANS is disclosed, it will erode their trustand adversely affect their willingness to communicate with LIANS. This will impact theeffectiveness of the program, to the detriment of both lawyers and the public. The Boardbelieves efficient risk management and sharing of appropriate information can beattained without integration and without compromising one of the most valuable assetsLIANS currently has - the trust of lawyers.

Information is shared between LIANS and the Society every day in various fornis andthrough various channels. If certain information is needed to help the Society identi^patterns of risk, then LIANS and the Society should be discussing what can be sharedwhat should be shared, and how it can be shared. What can and should bebetween the two does not change with organizational structure. It should not be thecase that the Society has greater access to information simply because LIANS is adepartment rather than a separate entity.

The Board has a number of concerns about what information should be shared, but thePRPPC proposal provides an important example. The PRPPC proposes that claimsrelated disclosure would "likely" occur with the consent of the member. This conceptcauses the Board concern.

In each and every professional responsibility Investigation, members are advised oftheir duty to cooperate with the Society. A failure to provide consent for the Society to

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access LIANS' claims information might be seen as a failure to cooperate. At the ve^least the insured lawyer would certainly be concerned about this possibility and wounot be providing consent entirely of his or her own volition. The Board is of the view t athis perception on the part of the insured lawyer would exist whether it is happeningwithin the current entity structure or within an integrated model, but it would be amplifiedin an integrated model.

As we discuss sharing of information, perhaps the most significant reason for concernon the part of the Board is confidentiality.

The confidentiality of the information possessed by LIANS is a vital principle that has tobe maintained regardless whether the insurance program is integrated or continues as aseparate entity. Regulation 12.55 of the Legs! Profession Act states.

Confidentiality . . . • ^ v...Unless disclosure of specific claims information is authorized or required bylaw, all such information shall be considered to be confidential and shall notbe disclosed, and shall not be used for purposes other than for those of theassociation.

The duty of confidentiality is an inextricable component of the relationship betweenLIANS and the insured. LIANS owes the insured a duty of good faith and fair dealingflowing from LIANS' exclusive powers in conducting the defence of a claim. Clearly, it isan implied term of the insurance contract that LIANS exercise due care, skill anddiligence in providing insurance coverage and that LIANS respects the insure sinterests, privacy, confidentiality and security of personal information. The propose ythe PRPPG runs contrary to LIANS' obligation of confidentiality and overlooks theinherent duties that exist in an insurance relationship. These duties cannot be alteredunder the guise of regulation. We do not believe the PRPPG proposal has properlyconsidered the duties an insurer owes to its insured.

LIANS and the Society have long held that the Complaints process and the claimsprocess should remain independent and distinct. There are many good reasonsand one reason was highlighted in the recent case of Perry v. NovaSociety 2016 NSSC121. There, the plaintiff, Mr. Perry, alleged, among other things,that the Society was biased against him. Part of the alleged evidf ce of his bias wasthat the Society had access to information arising from claims dealt with by LIANS. Theseparate structure and independence of LIANS allowed the Executive Director of theSociety to accurately and confidently testify that such an allegation of bias wasunfounded.

Beginning at paragraph 77, Hood, J. stated;

[771 Mr. Pink explained that the fund had, and now LIANS has, completeautonomy with respect to claims. It is true their offices are on the same floor

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but Mr Pink explained they are separate and independent Mr. Pink saidalthough he Is on the LIANS board and may have been In the past on theFund board, neither obtained Information In the course of their duties \«lthrespect to claims.

[78] He said the goal is to have the regulator, the Nova Scotia BarristersSociety, and the insurer separate, and the system is set up to accomplish thatgoal. He said the Director of Professional Responsibility would only know of aclaim if told by the lawyer or by a complainant. Of course, if it became publicknowledge she as a member of the public would know of it.

[79] I am satisfied there is no evidence that claims information would, as amatter of course, be known to the Executive Director or any staff member erfthe Nova Scotia Barristers' Society. Furthermore, it is difficult to understandthat, if it were otherwise, this could have an effect on the CRC to bias itagainst a complainant, especially Mr. Perry.

The duty of confidentiality is not only an appropriate answer to claims of bia^ it is anessential part of LIANS ability to carry out its duty of good faith to its insured^ T, „of good faith creates an environment wherein the insured member knows that full andopen disclosure of information can occur without fear of disclosure. Such arienvironment is essential to providing full answer and defence to claims of professionalnegligence. LIANS and the Society have spent many years assuring insured lawyersthat such an environment exists.

LIANS' promise to maintain confidentiality has been a prominent feature ofcommunications with lawyers over the past many years. After years of assuring lawyersthat LIANS and the Society are separate entities and that this should provide the lawyerwith a level of comfort with regard to his or her disclosure, integration would be seen asa curious move. It would, without any doubt, affect the level of trust LIANS currentlyenjoys with the lawyers in Nova Scotia.

Indeed, the independence of LIANS is a fundamental principal that is enshrined in theprogram, and this is seen in the history leading to its creation as a separate eritity. Asseen in the Council minutes appended to the Memorandum, discussions relatirig toseparation of the two entities began in 1988, culminating in the incorporation of theNova Scotia Barristers' Liability Claims Fund in 1990. One of the benefits of this movewas increased lawyer confidence in confidentiality, but it also offered the protection ofeach entity's assets in the event the other entity was sued. This alone was an importantconsideration. As part of any consideration of integration, one of the Board's goals mustbe the protection of the integrity of LIANS' investment fund.

Clearly the Society's goai of preventing risk is shared by LIANS. Given that riskmanagement is a key feature of the preventative goals of both the Society and theBoard, we agree that there ought to be combined efforts in that area to allow for

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maxFrnurn efFciency and effectiveness. Sharing Information is one cornponent ofeffective risk management. We recognize that LIANS is in possession of informationthat can assist in identifying risks. However, there appears to be a key ass"mPt!°"underpinning the proposal for sharing information; that evidence of negligence is a signof incompetence and vice versa. While this point is best saved for future discussion, theBoard would be remiss if it did not point out now that an insurance claim b notnecessarily evidence of negligence, and, in turn, negligence is not necessarily evidenceof incompetence, if information sharing is a goal, the first task must beinformation can actually provide meaningful data for a riskalso, how that data should be interpreted. Respectfully, the Board believes moreconsideration needs to be given to this.

LIANS currently operates a risk management program. The Society also undertakesrisk management initiatives. These initiatives could be combined^ As exampleLIANS has attempted to fill a gap by providing educational opportunities to insuredlawyers following the Society's departure from the realm of providing '®g®education Within an entity regulation environment, where the Society intends ̂available and reliable data to properly assess risk areas thecould be better focused and directed, whether delivered by the Society or LIANS Itwould be possible to create one unified risk management program thatstrengths of the two entities without integration, simply through appropriate coiiaboratioand sharing of resources.

Conclusion

A significant amount of work was done over the past 28 yeare to buildprogram with ail the checks and balances needed to, among ^of the lawyers it protects. The Board is at a loss as to why we would want to tear that alldown and rebuild it if it is not necessary. Improvements can always be rnade recreation is simply not necessary. In the Board's view, the risks of integration faroutweigh the potential benefits. While it is true that there are provinces with integratedprograms that operate successfully, there are others who maintain that separation is aLre appropriate model. One province (British Columbia) is currently moving towardsseparatL as a progressive change. Having already separated, it is the Board s viewthat integrating would be a step backwards for a province that is currently a leader inregulatory thinking.

The Board's conclusion based on the information we have seen is that '®necessary to achieve the Society's goals under the new regulatory regime. Shanng ofinformation must be done judiciously and cooperatively. Lawyere rus ®°J' g,compromised if the sharing of information is accomplished through the o®® ^lAindependence. Appropriate information sharing can be achieved without integration.

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With regard to a unified risk management program, the Board believes this can beachieved without integration. Whether the program is housed with LIANS or theSociety, It does not require integration to be efficient and effective.

If the stated goals of the Society can be achieved without integration, the Board isstrongly of the opinion that there is too much at risk to contemplate an unnecessarymove. The efforts of Council and the Board are better spent focused on improving theinterplay between the entities within the current structure.

Finally, I would like to point out on behalf of the Board that there is still an unrelated andunresolved issue to be addressed, which is the issue that has become known as "theHST issue". The Board has repeatedly expressed its concern that LIANS is at asignificant financial risk, which increases every day that the issue is not addressed.After much discussion between the Society Executive, the LIANS Sub-Committee andtheir respective advisors, we are no closer to a solution to this problem. It is still verymuch top of mind for the Board.

CheryChair,

anning

Board of Directors

CAC/

cc: LIANS Board of Directors

Darrel Pink

Jill PerryJulia Cornish, Q.C.

July 22, 2016 Council Meeting Package

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July 22, 2016 Council Meeting Package

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July 22, 2016 Council Meeting Package

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EXECUTIVE DIRECTOR 2017 JANUARY

Prepare for Council & 2nd VP elections FEBRUARY

Budget preparation ED Performance Review

MARCH Introduce budget Councill District & 2nd VPelection if required

APRIL At-large elections Staff evaluations including Directors Begin Annual Report prep C’tee Report prep for May Council Annual Lawyer Report

MAY Audit Directors’ evaluations Annual Report & Annual meeting Fee invoicing and collection DSA selection

JUNE

Annual meeting Fee collection Main Call to Bar

EXECUTIVE COMMITTEE 2017JANUARY FEBRUARY MARCH

Budget Introduction Entity Regulation – Plan for Pilot project and MSELP Report on LSR Pilot Project

APRIL MAY JUNE

COUNCIL 2017* Matters in italics are reports from the ED

JANUARY Monitoring Report Communications & Engagement

FEBRUARY Min of Justice to address Council Committee Mid-year reports Monitoring Report – Finance & Admin

MARCH Budget Introduction Legal Services Reg – Report on LSR Pilot Project Elections- Consider gaps before at-large election

APRIL Monitoring Report - Equity and Access Office Budget - Approval Annual Lawyer Report - Approve Council Evaluation Strategic Planning – Review of plan

MAY

Monitoring Report - Professional Responsibility Distinguished Service Award Committee reports - on work plans

JUNE Annual Meeting – June 17, 2017 Begin to update Strategic Framework Strategic Planning - workshop

July 22, 2016 Council Meeting Package

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MEMORANDUM TO COUNCIL

From: Deborah Copeman, Librarian

Date: July 15, 2016

Subject: Library & Information Services Monitoring Report

For: Approval Introduction Information √

Introduction

Library & Information Services (L&IS) provides information, knowledge, and collections management services to support the Society’s regulatory mandate and the work of professional staff. For lawyers, L&IS facilitates timely access to organized, current Canadian legal information essential to the practice of law, contributing to the competency of lawyers and the successful administration of justice in Nova Scotia.

L&IS curates print and digital current legal resource collections in Halifax, Kentville, and Sydney to meet the information needs of Society staff and the basic information needs of practicing lawyers throughout Nova Scotia. Our focus is on curating resources of most practical use and value to most lawyers in Nova Scotia, with an emphasis on the needs of lawyers in smaller firms, solo practitioners, articled clerks and newer calls.

L&IS also curates resource materials required by Society staff to carry out the Society’s regulatory mandate. This includes resources in legal ethics and professional responsibility, regulation of the legal profession, law practice management, and materials to support the delivery of the Skills Course and Equity & Access Office programs.

Library & Information Services Team

Deborah Copeman Librarian

Jennifer Haimes Library Technician

Lisa Woo Shue Library Technician

Purpose and values

The Legal Profession Act enables Council to provide library services, support the publication of legal materials, and provide support for legal education, research, public legal information or other matters as part of the Society’s mandate to protect the public1.

1 Legal Profession Act, SNS 2004, c 28, s 28(3)(b).

July 22, 2016 Council Meeting Package

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Regulation 8.4 names the ‘Nova Scotia Barristers’ Library’ and 8.4.1 sets out the Library’s purpose to support the work of the Society and the competent and professional practice of law2 through what we now call content curation – systematically finding, organizing, annotating/describing and sharing the most relevant and highest quality Canadian legal information for our users.

To support the work of the Society, L&IS provides in-depth research, writing, social media/web content development and design and information management expertise to Society initiatives.

To support lawyers, we provide information services, access to web-based and print resources, and training to all, with an emphasis on the needs of lawyers in smaller firms, solo practitioners, and newer calls.

This Monitoring Report outlines L&IS’ activities through quantitative data – number of print resources borrowed, questions answered, in-person library visits – and qualitative data – stories and statements from L&IS clients about the impact our collections and services have on their practice – are given in this report.

The Nova Scotia Barristers’ Society is signatory to resource sharing, preservation, core collection and reciprocal service agreements with the Atlantic provinces law societies and to a national resource sharing agreement with each of the provincial and territorial court and law society library systems and the Supreme Court of Canada Library, consisting of reciprocal interlibrary loan and document delivery arrangements between partners.

2 Regulations made pursuant to the Legal Profession Act, SNS 2004, c 28, ss 8.4, 8.4.1.

“Back in September 2015, I made the leap from private practice to in-house counsel and Privacy Officer. The leap was a pretty daunting one because I was moving into two practice areas (aviation and privacy) where I had minimal experience. To make matters more challenging, we have a very small legal department (3 lawyers) and do not have the resources to build and maintain any form of an in-house library. My transition from private practice to in-house counsel and Privacy Officer was made so much less daunting as a result of the support and services provided by the library and its staff. On a number of occasions I have made trips down to the library, or picked up the phone, and in every instance this has been extremely helpful. Staff discussed and directed me to most appropriate textbooks, commentary, online resources, and precedent documents to help me survive in this adventure. The staff also assisted me with learning how to use online resources. When faced with having to get up-to-speed in a particular area of the law, in my experience there really is no substitute to making a trip down to the library or picking up the phone.”

Daniel McMillan, Jazz Aviation LP

“I have recently had the pleasure of using the resources of the NSBS Library. The accessibility of the publications far exceeded my expectations with a delivery of the requested publications to Amherst within 24 hours of request. The materials available were up-to-date and directly on point. In a matter dealing with conspiracy and conversion, we were able to confirm that our conclusions for our legal opinion to our client followed the latest court decisions. I also borrowed a textbook on bankruptcy and quickly found answers regarding procedure and the format of pleadings. I have consistently been pleased with the services provided by library staff and by the up-to-date catalogue. As a direct result of the resources of the Nova Scotia Barristers' Society Library, I have been able to provide better quality and timely service to our clients.”

Catherine Hirbour, Creighton Shatford Hirbour

July 22, 2016 Council Meeting Package

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Budget and finances

In 2012, noting that loose-leaf subscriptions took up 60 per cent of the total library resources budget, staff began tracking in-library use and circulation of these updated publications. We evaluated in-library usage, circulation, relevance, authority and cost in determining the value of updated publications. We also consider the currency, quality and cost of monograph (bound text) alternatives.

Loose-leaf publications have become prohibitively expensive. Annual cost increases over the last three years calculated for a sample of loose-leaf titles have ranged from 8 to 170 per cent. Over the last eight years, while the books & subscriptions budget has decreased by 48% overall, L&IS has cancelled loose-leaf subscriptions every year in an attempt to contain costs.

In February 2015, following assessments of usage and relevance, we made a decisive change, cancelling updates for two-thirds of subscribed loose-leaf titles.

In place of subscribing to updated publications, we will consider purchasing replacement contents every three years. Users may use cancelled loose-leaf like a bound text, noting the currency and consulting other sources for changes in the law since publication.

Since 2013, an agreement with Thomson Reuters Legal Canada has provided in-library access in Halifax, Kentville and Sydney barristers’ libraries to digitized commentary sources in criminal, estates and trusts and family law on WestlawNext. In-library access to seven divisions of O’Brien’s Forms Online and HeinOnline, a source for 1,700+ law journals are also offered.

Usage statistics show that use of the Halifax Barristers’ Library print collection is on the increase (see the year-to-year comparison on page five). Licensed users in the three libraries are also increasingly using digitized

“Access to the services offered by the Barristers’ Library is very important to my practice. I use the Library regularly when conducting research, drafting submissions, and preparing books of authorities for the court, especially when the material is not available online. Several times this past year I found myself going back to the books when researching a novel point of law, which always began with a call to Deborah or her associates, who pointed me in the right direction by sourcing academic articles and identifying relevant text books. If the Library does not have the information we are looking for, they will source it from another library or online service and email the results to us. For me, the services and collections available through our Barristers’ Library are invaluable.”

Tammy Manning, Merrick Jamieson Sterns Washington & Mahody

July 22, 2016 Council Meeting Package

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current versions of key commentary available through the WestlawNext platform. The use of e-commentary as a percentage of overall Westlaw use has increased from 1.8 per cent in October 2013 to 10.5 per cent in October 2014 to 40.7 per cent in October 2015.

Evolution of law libraries and access to the law

Law libraries have seen rapid change since the 1990's, and dramatic change since the 2011 organizational review. While there is increasing access to and reliance on digitized legislation and judicial decisions, in 2016 the scope and depth of digital holdings – especially that freely available online through CanLII or government sources – is shallow, and much of the legal commentary and legislation remains in print format only.

Due to the factors of availability, cost and access, the continued need for print collections is generally accepted by law libraries. As John Palfrey, former law professor and director of the Berkman Center for Internet and Society at Harvard University and the Harvard Law School Library, writes:

“The simplest example of the enduring need for physical library space is that not all materials have yet been digitized. It’s simply not true that you can find everything you need through a Google search. Many materials that are available in digital form are very expensive to obtain; when a library has a physical copy, it makes sense to provide that to a patron rather than to pay again for a digital copy.”3

The two main Canadian legal publishers, Thomson Reuters Legal Canada and LexisNexis Canada, continue to produce core texts in print format. While both publishers continue to migrate their supplemented services to fee-based digital platforms, a library e-book lending platform has not yet been developed for the Canadian offerings of these two key publishers.

The Alberta Law Libraries Review Report, released in October 2015, found following extensive consultation with more than seventy justice sector stakeholders and other legal services players and law libraries across Canada that “while the use of online legal resources is established across all stakeholder groups, the “digital age” of libraries is, currently, more myth than reality.”4

3 John Palfrey, BiblioTECH: Why libraries matter more than ever in the age of Google, (New York: Basic Books, 2015) p. 70. 4 Alberta Law Libraries Review: Final Report, September 2015, online: Alberta Law Libraries <http://www.lawlibrary.ab.ca/attachments/Documents/ALLRC_Final_Report_September_22_2015.pdf> p. 9.

“The NSBS Library is a resource that is critical to the success of small firms and solo practitioners. This is because the depth of analysis presented in textbooks and other print materials that are available at the Library cannot be matched by electronic repositories such as Westlaw or Quicklaw, unless one has the financial means to subscribe to their premium content. In my experience, subscription to Westlaw’s and Quicklaw’s premium content is cost-prohibitive for all but the largest of firms. Textbooks provide deep and holistic analyses of the law that Westlaw and Quicklaw simply cannot.”

Martin P. Glogier, NS Department of Justice

July 22, 2016 Council Meeting Package

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The table below provides year-to-year comparisons of selected key Barristers’ Library statistics: questions asked, print resource circulation, and in-library and after hours visits.

While law firms and firm libraries eliminate loose-leaf services and reduce print resource purchases and digital subscriptions, our statistics show that lawyers, judges, clerks and law librarians use the Halifax Barristers’ Library’s print and digital fee-based services more heavily.

Online Lawyers’ Reading Room

L&IS staff are developing a member-only portal providing Nova Scotia lawyers and clerks with access to licensed ebook collections from Irwin Law and Emond Publishing, at a reasonable cost.

The Irwin Law elibrary includes 50 titles in the Essentials of Canadian Law series and seven titles in the Young Advocates Series; Emond’s Working With The Law series is “a la carte” and hosted on a dedicated webpage.

“The Library’s print materials also provide practical tools that support a lawyer’s practice, such as sample pleadings, which may not otherwise be accessible to the small firm or solo practitioner. During my time at a small firm located in the Annapolis Valley, the Library’s materials were invaluable to my practice. We did not have the same in-house resources that one might find at a large, regional firm. If it were not for the resources available at the Library, it is likely that we would have had to turn clients away (and most of our clients were locals who did not have the resources to hire a $450/hour litigator in HRM), because we would be forced to spend two to three times more time and effort than normally required to serve these clients. For example, I was tasked with launching the firm’s first defamation suit. The firm had no precedent pleadings nor any resources on the topic. Westlaw had no precedents on which we could rely, unless our firm was able to pay significant costs for a subscription to Litigator. Brown on Defamation – which we borrowed from the Library – came to our client’s rescue. With this resource in hand, we were able to draft strong pleadings that spurred the successful resolution of the claim outside of court. Without it, we would have had to turn the client away, because working on the matter essentially from ‘scratch’ (i.e. without recourse to a solid textbook and sample pleadings) would have been unsustainable.”

Martin P. Glogier, NS Department of Justice

“The nature of my practice sometimes requires very quick turnaround. One day a client needed an opinion regarding a pension issue. My firm's library did not have the latest edition of the leading pension text, so I ran down to the Barristers’ Library only to discover it was checked out. Librarians to the rescue! Turns out they had a demo of a new electronic resource that included the pension text, so I was still able to consult the most up-to-date resource immediately. Happy lawyer; happy client.”

Krista Smith, Barteaux Durnford

July 22, 2016 Council Meeting Package

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Licensing these ebook collections provides significant value to lawyers challenged to visit a Barristers’ Library location to access legal commentary. We anticipate that the delay in “going live” with this new service due to a technical issue will be addressed before the end of summer 2016.

Web curation: the Society’s Equity Portal

Staff in Equity & Access and Library & Information Services collaborated on the development of the Society’s Equity Portal: Developing an equity strategy in your legal workplace (nsbs.libguides.com/equityportal). The portal provides guidance on employment equity and cultural competence, including model policies, educational videos and assessment tools.

The Information Specialist led the team in generating user personae to inform site design; the Library technician developed architecture to organize site contents optimized for users’ needs. We carried out user experience testing and made changes based on that feedback prior to launching the site in December 2015.

In 2016-2017, L&IS will upgrade the software application, LibGuides, that provides the platform for this resource collection to enhance user-friendliness, design options, and site maintenance tools for staff.

Code Web Platform: a “Triple P” tool in development

L&IS is developing a new web platform for the Code of Professional Conduct, related rulings and guidance5. The goals are to migrate the Code into a web environment and provide related and contextually linked rulings, dispositions, and ethics guidance 6.

Supporting innovation in legal services

L&IS’ primary mission is to support the regulatory mandate of the Society. To achieve this goal, we align our services and collections with the Society’s strategic priorities.

Many legal sector innovators – including several featured on the Society’s online Innovation Profiles – rely on the collections, print and digital, and services of the Barristers’ Library. Solo practitioners and new small firms – lean, nimble, office-less – are strong users of the Library’s legal commentary and practice managementmaterials and the Library as a work space.

5 A need identified by Professional Responsibility. 6 Attendees of the informational session given at the Society’s 2016 Annual Meeting were given a preview of the interactive, searchable, mobile-friendly platform, still in development. Attendees were interested in features to help keep current with what’s changed in the Code and the provision-specific annotations/guidance – ethics Q&A and discipline decision digests – curated to inform and add value, not overwhelm.

“Anecdotally, the Equity & Access Office is receiving fewer questions relating to cultural competence, and with those that we do field, it is easier to be able to refer to the Equity Portal. The process of creating the Equity Portal has also deepened our understanding of the universe of available resources out there. The skills and resources that L&IS has brought to the project have allowed us to keep pace with the increasing demand for cultural competence instruction and resources in Nova Scotia.”

Emma Halpern, Equity & Access Officer

July 22, 2016 Council Meeting Package

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Web curation: the Society’s website

L&IS staff contribute their skills in information architecture and design, expertise in user experience, and content knowledge to develop, update and enhance parts of the Society’s website, including resources for the public, tools for legal services practitioners to keep current, and sites to support substantive legal research.

CanLII and CanLII Connects

CanLII – the freely accessible Canada-wide online legal research tool containing statutes, cases, commentary (on CanLII itself and on CanLII Connects), note-up and point-in-time features, and links to international research sites supported by contributions from Canadian law societies – is of enormous value7.

L&IS’ work with CanLII to enhance Nova Scotia content on the service in the past year has included contributing hundreds of case digests and Civil Procedure Rules annotations to CanLII Connects.

In response to concerns raised by labour and employment practitioners and legal information specialists of coverage gaps, L&IS staff have also begun to reach out to Nova Scotia arbitrators to encourage and facilitate submission of labour arbitration decisions to the service.

7 At a cost of $38 per practitioner per year.

A member of the public who L&IS had referred to the Law Courts’ Free Legal Clinic several months prior returned to the library for assistance in searching CanLII. After a brief primer, the user researched independently for more than hour before asking for assistance, as there was a case that was not linked. Not knowing how to decipher a citation, the user only knew that this seemingly important case was not online. L&IS staff could immediately recognize it as an older Supreme Court of Canada case, which should be available on CanLII back to 1876. This gap was promptly filled by library staff walking to the print Dominion Law Reports, pulling the correct volume off the shelf, and inviting the library user to photocopy the case at no charge. L&IS staff thought the case seemed familiar and checked the documentation of issues reported to CanLII when adding links to the Society’s Bar Review materials earlier that year. L&IS staff had alerted CanLII of this content gap and it had not yet been addressed. L&IS contacted colleagues at the Supreme Court of Canada Library, as the case was missing from the SCC judgments website as well. This precedential decision was added to CanLII within a day. L&IS staff updated the link in the Bar Review materials.

“The Barristers' library has made all the difference for my small firm. I started up CSLegal with Natalie Clifford in 2013, the same year we were both called to the bar. We knew that to survive as a business and as young professionals we would have to provide competent legal services. This obvious requirement became an immediate challenge. We were operating from a shoe-string budget and had never before worked as lawyers. It was difficult to know where to begin. Many of the tools we had learned to use in law school - lexis, westlaw, looseleaf texts, etc. - were costly, and we were hesitant to spend too much on such resources until our work flow and client base became more predictable. This is where the library came in. We were familiar with the Barristers' library from our articling year and knew that we could browse loose-leaf texts, precedents, and subscription services at no added cost. We also knew that the librarians could help track down subject-specific resources and fill in our research gaps. This foundation of materials and support helped build our confidence as we sought to serve our clients well. As we grew our firm and took on more complex files, access to the library proved all the more invaluable. The library's materials and services enabled us to keep up with more established firms and ultimately supported the development of niche practice areas. We can state with confidence that the Barristers' library provides an essential benefit to legal entrepreneurs in Nova Scotia. “

Sarah Shiels, Clifford Shiels Legal

July 22, 2016 Council Meeting Package

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Strategic legal information advisors

Selecting, collecting and curating legal information resources – some exclusively in print, some in print and digital formats (with differences in content or scope), some in digital only, with web-based access free, pay-per-use or licensed – for effective use is increasingly complex.

Navigating this legal information environment is also increasingly complex. While finding tools like the Barristers’ Library Discovery Catalogue (catalogue.nsbs.org) launched in September 2015 ease the process, the contributions of skilled library staff in curating web and print resource collections and assisting lawyers, staff and other searchers in efficient, cost-effective and comprehensive research navigation remains essential.

Library staff began closely tracking inquiries from members of the public who call, email or visit the Halifax Barristers’ Library in 2014-2015, recording month, type of question, method of contact, whether self-representing, and details of the encounter.

Since we began documenting these substantive interactions, our data shows in 44 to 50 per cent of cases a need for access to legal commentary, case law or other legal research resources motivated their visit. In 23 of these 53 documented interactions, visitors with substantive legal needs or questions were self-represented litigants.

“First, your collections and staff are invaluable in a substantive way... For example, I appeared in the Family Division in June on a rather obscure motion seeking determination of whether there was a presumption that interest could be claimed on an equalization entitlement payment made in installments over time. I first did a CanLII search and came up with nothing. I checked with a senior colleague, and still can up blank. But when I walked into the Barristers’ Library at the Halifax Law Courts, the Librarian was immediately absorbed in the challenge I threw out her way. She directed me to a relevant index to find key terms that could offer the correct parameters for my research. Based on her direction, I resumed my search and found two supporting cases in CanLII. Of course, I was successful on my motion. But more importantly, the presiding judge extensively quoted verbatim from my brief in her oral decision. My first takeaway is that the CanLII service, while relevant, would not have helped me without first narrowing down and correctly articulating my subject matter which Library staff did in a tailored, made-to-measure way. My second takeaway is that Library staff and services were not just a convenient service for my benefit and that of my client. More importantly, it had the effect of contributing in a substantive way to meeting my obligation as an officer of the court in assisting the Court in making its determination (quoting verbatim from my brief).”

Gilles Deveau, Barrister & Solicitor

July 22, 2016 Council Meeting Package

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Most users concluded their use of library materials within 30 to 60 minutes; one self-represented litigant spent three full days at the library conducting research.

Public visitors expressed a need for guidance on court forms, procedure and etiquette and sought on-site access to court forms on the Web, word processing and printing services to prepare documents for filing or for court.

Inquiries from the public are increasing in frequency and complexity. Since May 1, 2016, we have fielded 14 such in-person visits to the Halifax Barristers’ Library. We see repeat clients and self-represented individuals seeking a full range of navigational assistance: information about the law, coaching assistance with legal procedures and forms, access to resources to explain the law and primary law.

In many cases, we provide information and referral services to other organizations and services, including AJEFNE’s Acces Justice Access Centre, the Legal Information Society of Nova Scotia (LISNS), Halifax Public Libraries, and the Halifax Law Courts’ Free Legal Clinic. In turn, many of these organizations and services refer clients to the Halifax Barristers’ Library for access to the law and legal research needs.

A possible future collaboration is to pull together from existing information resources a simple training tool for public library staff to increase their capacity to be effective access to justice agents.

Over the last two years, the Librarian has met regularly with and developed stronger liaision with staff at AJEFNE’s Acces Justice Access Centre; the Legal Information Society of Nova Scotia; the Manager, Community Engagement, Halifax Public Libraries; and Halifax Law Courts’ Free Legal Clinic.

“I am a frequent user of the Barristers' Library; it is an invaluable resource for solo practitioners, small firms and medium-size firms for whom it is not economically practical to maintain significant internal libraries. Legal research is essential to the practice of law. The availability of these resources promotes access to justice and, from a smaller firm's perspective, is essential to being able to deliver affordable and effective legal services to non-institutional clients. With the increase of self-represented litigants before our courts, the availability of these types of resources to the public (if only to photocopy) is crucial. As a lawyer who volunteers with the Free Legal Clinic, I try to make self-represented litigants aware of the existence of the Barristers' Library as an invaluable resource for legal research and information.”

Justin E. Adams, Blois Nickerson & Bryson LLP

“I write to thank you and your staff for the valuable service and resources that Library & Information Services provide, not just to me but to many practising lawyers in Nova Scotia, and by extension those members of the public who access our services. Your collections, both print and digital as well as the programs, tools and services that Library & Information Services provides, enhances our ability to deliver quality legal services to clients and contributes to increased and more affordable access to justice for the public.”

Deborah E. Gillis QC, Crowe Dillon Robinson

July 22, 2016 Council Meeting Package

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Conclusion and moving forward

As the Society carries forward its work in transforming regulation of legal services and enhancing access to legal services and the justice system, the L&IS team will continue to work closely with Society staff across departments to

• Expand our internal content curationo Improve file managemento Implement records retention plano Provide tools, training and systems to help Society staff collaborate and share information

• Continue and expand our external content curationo Maintain and develop the Equity Portalo Build a resource hub for the Management Systems for Ethical Legal Practice (MSELP) pilot

• Help develop the Society’s understanding of its impact through use of metrics and tools, including webanalytics

• Build effective relationships through substantive, sustained and sincere engagement• Increase access to legal information through our activities and partnerships

"Finally, it is the tone of services provided by Library staff that is remarkable. I am a sole practitioner. I have a solid network of colleagues that I can count on for mentoring and for bouncing ideas. But I consider the Barristers’ Library staff as an extension of my law office. They are particularly welcoming, resourceful and competent, on the phone or in person on site at the Library, especially as I get closer to a court appearance and the legal writing and research intensifies. It is not that welcoming, competent service is a new concept. Rather, it is in desperately short supply these days, general everywhere in the administration of justice and legal service delivery (vaguely worded “pink slips” accompanying rejected documents, long waiting times to file documents, unacceptably long times for the issuance of documents, etc.). The “welcoming” tone, set by former director Barbara Campbell, now continued admirably by Librarian Deborah and her team, is an oasis of calm and understanding that provides a little welcomed “lagniappe” and makes the private practice of law more enjoyable."

Gilles Deveau, Barrister & Solicitor

July 22, 2016 Council Meeting Package

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Slaw: Law’s Reverse Musical Chair Challenge

Law’s Reverse Musical Chair Challenge Posted: 16 Jun 2016 04:00 AM PDT

Despite recent years of decades-low law school application levels, law school seats are still heavily over-subscribed. Similarly, for those who graduate (which, to be

honest, is nearly every single admitted student that manages to pay tuition), the

opportunities to be called and to practice as a lawyer is case of too many grads and

too few jobs. Yet when it comes to supporting the legal needs of the public, lawyers

aren’t even close to filling the chairs that exist, much less the new ones added each

day. Worse, we’re increasingly less interested in doing so.

Estimates and sources vary, but we routinely hear numbers in the range of 70-85%

when people discuss the prevalence of legal or justiciable issues that could be but

aren’t addressed by a lawyer. That’s a lot of empty chairs!!!

Our lives aren’t getting any less complicated, and the need for guidance on legal

matters will not only remain significant but will surely grow. So if the same or even

an increasing number of “chairs” are being added, who will step up to fill them?

With the exception of a closing thought at the end, I’ll refrain in this post from

getting into the protectionist regulatory environments through which lawyers limit

the opportunity for others to step in and serve the public need and the public

interest. Instead, I’ll focus on the trends showing that fewer lawyers are seeking

careers where we serve the public directly.

17% decline in total number of solo practitioners and 10% decline among total number of licensees working in Ontario law firms

July 22, 2016 Council Meeting Package

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In the 2013 Annual Report of the Law Society of Upper Canada we learn that

9,072 lawyer licensees declared their primary business activity as operating their

one-person law firm. In the 2015 report that number was down dramatically to

7,577.

Those same reports tell us that in 2013, there were 26,731 lawyers and licensed

paralegals working in Ontario law firms. In 2015 we saw a surprising drop down to

23,938 licensees.

These numbers are all the more shocking considering that during this two-year

period, Ontario admitted 4,200 new lawyers and 2,500 new paralegals. Even

accounting for offsetting departures from both streams of the Ontario legal

profession, the province still saw a net increase of 3,000 lawyers and 1,700

paralegals to the rolls of the Law Society.

When we note further that the population of Ontario increased by 241,000 people

during this same period, it’s hard to avoid concluding that the chairs of legal need

keep appearing, but our fellow licensees are not rushing to fill them.

Barely half of Ontario’s lawyers are even insured to serve the public.

The law in Ontario provides that any lawyer who practices law must have

malpractice insurance, yet there are many categories for which the lawyer is

exempt from the obligation. These include categories for non-practicing lawyers as

well as for lawyers whose practice is strictly limited to serving their employer – be it

corporate, government, or other. LawPRO, the malpractice insurer for Ontario

lawyers, reports that it provided Errors and Omissions insurance to 25,500 lawyers

in 2015. Relative to the 49,040 Ontario lawyers on the rolls, that means just 52%

of us are choosing to keep the door open to serving the public.

In terms of “full-time-equivalent” lawyers,serving the public, the number is

certainly below 50% since within the insured cohort, a little over 7% are insured for

July 22, 2016 Council Meeting Package

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part-time practice only. “Part-time” lawyers declare that they intend to allocate less

than 20 hours a week to the practice of law. How many of those, like me, practice

for well below the 20 hour limit is unknown.

Now, Ontario isn’t necessarily representative of the rest of Canada – or of the

United States or any other jurisdiction struggling with access to justice challenges

and an underserved population. But neither is Quebec, where we learn from the

Barreau du Quebec that at the end of 2014, only 39.8% of lawyers are in private

practice. Representative or not, it is remarkable that across Canada’s two largest

provinces – which account for nearly 75% of the Canadian legal profession – the

majority of lawyers do not serve the public directly.

When we see more and more people wanting to be lawyers, and most of them are

choosing careers where they do not serve the public directly, it this the tipping

point we needed to invite others into law’s game of reverse musical chairs? If not,

what other signs could we possibly be waiting for to definitively conclude that the

public’s need for legal assistance will not be addressed by lawyers alone?

July 22, 2016 Council Meeting Package

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1 | P a g e

Access to Justice Coordinating Committee

SenseMaker Pilot Project Plan

v2 2016-05-24

1. Problem Statement

The dominant formal conception of justice in Nova Scotia (and, indeed, throughout the western world) is one rooted in liberal tradition that places the individual and the laws of the state at its centre. This conception fails to fully consider how relationships are affected by legal issues in general and wrongdoing in particular. This includes relationships between individuals, their communities and the state; between communities and the state; between the different bodies that make up the justice system; between justice and the law.

The table below summarises the major points of the proposal presented to the A2JCC this past March:

How people experience the justice system How the justice system engages/evaluates/innovates

Whole Siloed Relationship focused Program focused

Ripple effects on others Considers only the individual Narrative Polls/focus groups/questionnaires

Continuous Finite Identifying who is accountable/empowered “Program improvement”

Highly contextualized to circumstance Decontextualized from circumstance Complex Simple

Putting the public first requires us to align the columns of this table (i.e. they should overlap).

2. Purpose

When the National Action Committee on Access to Justice in Civil and Family Matters released its report “A Roadmap for Change,” it called upon justice organizations throughout Canada to “put the public first” in its work.

This pilot project attempts to create a process of community engagement, innovation and evaluation that puts the public first when considering and implementing improvements in working to improve the justice system.

Our purpose is to improve access to justice outcomes thorough the creation of an iterative engagement/innovation/evaluation process where improved relationships is the shared goal of all members of the A2JCC.

3. Scope

The pilot project covers a period of one year. The A2JCC should seek:

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• public participants• justice system “insiders” – front line workers, judges, lawyers, policymakers, etc

The pilot should focuses on experiences in court. Court experience is a valuable source of stories because it involves all justice system players interacting in the same space.

• TBD: Geographic scope. The project, if successful, should be province-wide but the pilotmay need to be more concentrated due to limited resources.

4. Approach

Our approach (“sensemaking,” described in the original proposal) is informed by complexity theory. In short, complexity theory divides problems into four realms: simple, complicated, complex and chaotic:

Type of problem What it looks like What to do about it

External example

Justice system example

Simple Clear cause and effect Best practice Replacing a

lightbulb

Using a mobile app to address the public’s legal information needs

Complicated

Cause and effect are discoverable but not immediately apparent

Expertise Fixing a car that won’t start

Providing unbundled legal services to self-reps

Complex

Cause and effect are unpredictable and are only obvious in retrospect

Emergent practice:

experimentation and collaboration

Protecting an endangered

species

Addressing systemic discrimination

Chaotic Cause and effect are unknowable; no time to think

Novel practice: ad-hoc urgent decisions to

stabilize situation

Fleeing a house fire

Addressing widespread public protest in the face of an unpopular judicial decision

Complex problems require innovation, experimentation and collaboration to solve. This makes the A2JCC uniquely well-placed to tackle them.

Sensemaking is iterative. Rather than result in the creation of a single, over-arching program, it seeks to result is manageable experiments that can be scaled up or stopped as results warrant. The steps are as follows:

• Anecdote circles

Stories about accessing the justice system are collected through in-person events run by hiredfacilitators. Multiple perspectives are heard: both the public and those working within the systemhave an opportunity to tell stories. Note that the focus is on experiences rather than on opinions or

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ideas. We intend to work with facilitators with deep connections to our local communities to strengthen and engage relationships through these circles.

• Re-gather

Once the stories are collected, members of the circle gather once again to analyze the stories. Whatthemes emerge? What is most important? How can the problems identified be classified into thedomains in the table above?

• Develop structure for questionnaire

The structure of a SenseMaker questionnaire is very different from more traditional research methods.Consequently, this phase will require us to retain outside experts to guide the process. In short, thisstep involves creating the story prompts and other elements that make up a SenseMakerquestionnaire.

• Create questionnaire

The use of SenseMaker software is described in more detail in the proposal. This phase involvescreating the questionnaire using the software.

• Distribute questionnaire

This will be done mostly online, but can involve paper and in-person facilitation methods for thosewithout internet access

• Analysis

As stories come in, data is collected and patterns emerge. What do we learn? How can we put thisinformation to use?

This phase will also require us to retain outside experts to guide the process.

• Innovation

Following distribution of results to A2JCC members, we must consider how we apply what we havelearned through “safe-to-fail” experiments.

• Anecdote circle

How have the stories changed? This is the beginning of the next iteration: the process begins again.

This phase is when we hope to leverage the skills and local connections of Rachel Derrah (BraveSpace) and LaMeia Reddick (Kinnected Leadership) to maintain momentum in community.

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5. Outcomes Measurement

The A2JCC terms of reference make it clear that the impact of its work must be measured. The effectiveness of community engagement work should be measured at several different levels. The members of the A2JCC should identify how to measure short term outcomes, such as:

• The reach of the engagement itself (e.g. participation levels);

• The A2JCC’s ability to disseminate the stories gathered;

Medium term outcomes, such as:

• The speed at which the dissemination of information leads to action within eachorganization;

• The extent to which relevant relationships are established, maintained or restored;and

Long term outcomes, such as:

• Whether experiences for justice system users have actually improved (e.g. are thestories that people are sharing changing as interventions are introduced?).

6. Communications

Communication about this project will have to occur on two fronts: with the public and within the A2JCC member organizations.

It is important that the communications strategy also use a restorative approach: we seek to bring personal accountability and sense of empowerment to individuals at all levels of the justice system, including participants. Given that a restorative approach places relationships at its centre, we must also stress the importance of collecting stories on an ongoing basis. Everybody must be encouraged to feed stories into the system, and the A2JCC must be dedicated to disseminating findings generated from the stories among its member organizations and the general public.

7. Risks and Assumptions

The following assumptions have been made:

• That each A2JCC member will identify available staff resources and will prepare theirstaffs for the shift to this new approach

• That sufficient numbers of the public and justice system staff will volunteer to take partin this process

• That the resource requirements identified will be sufficient to achieve the stated goals• That putting the public first requires a shift to a restorative approach

Potential risks to the completion or success of this project plan include:

• Loss of volunteer technical assistance (Ray McNeil/Diane Crocker)

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• Loss of support from community team members (Rachel Derrah/LaMeia Reddick)• Lack of interest or support in the community and/or within A2JCC organizations• Loss of access to software/server, whether through loss of license or technological failure• A shift in priorities determined by the A2JCC or any of its member organizations

8. Budget

The proposed budget is attached. Most costs are borne through in-kind contributions, with the hiring of professional facilitators and SenseMaker experts being the major out of pocket expenses.

9. Next steps

• The creation of an advisory team consisting of representatives from every A2JCCmember organization

• Plans from each A2JCC member organization for distribution of SenseMaker informationinternally

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Sensemaking/Community Engagement work: A2JCC

June 2016 – May 2017

COSTS:

PROFESSIONAL SERVICES Anecdote circles (Kinnected Leadership & Brave Space) $6,000 Questionnaire development expertise (SenseMaker) $6,000 Data analysis expertise (SenseMaker) $6,000 Technical support (Ray McNeil) $2,000 Information dissemination (Kinnected Leadership & Brave Space) $4,000

MISCELLANEOUS COSTS Event (space rental/food/incidentals) $1,500

TOTAL COST: $25,500

IN-KIND DONATIONS

DISBURSEMENTS SenseMaker license and server (through DoJ)1 $2,450 Printing (NSBS) $1,000 Cognitive Edge membership (NSBS) $250

STAFF/VOLUNTEER TIME2 NSBS $50,000 Technical advising (Diane Crocker, St. Mary’s University) $10,000 Angela Poirier (DoJ) $TBD Peg McInnes (Courts) $TBD

TOTAL IN-KIND DONATIONS: $73,700

1 Based on 25% share of full Sensemaker license/server 2 Other A2JCC members to provide estimates

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EXECUTIVE DIRECTOR 2016 JULY

Activity 3.2: Relationshipsarrange for officers to meet with AG & key liaison activities Activity 3.2: Relationships Recognition reception - schedule

AUGUST Activity 3.2: Relation-shipsstart to organize County Bar visits Set meetings with CBA, NSLA, PPS, DoJ (NS) Legal Services, County Bars, Large Firms, LRC, Law Foundation, LISNS

SEPTEMBER OCTOBER Activity 3.2: Relation-shipsInvite Minister to address Council in January Notices re election processCouncil and 2nd VP FLSC Conference

Activity 3.2: Relationships Recognition reception Oct. 28

NOVEMBER DECEMBER

EXECUTIVE COMMITTEE 2016 JULY

Engagement Activities - review Committee Chairs Orientation 2016-17 Activity Plan - review1st draft

AUGUST

Review legislation work

SEPTEMBER Engagement Activities Committee work plans

OCTOBER Engagement Activities Preliminary Report on LSR Pilot Project Compliance Reporting – proposal from ED Regulatory Risk - Review

NOVEMBER Engagement Activities Strategic Planning – Begin preparation for process Enterprise Risk Management -

DECEMBER Engagement Activities Plan for Strategic Planning

COUNCIL 2016*Matters in italics are reports from the ED

JULY Council Education: Council Policies Review: Overview of Council role Strategic Framework - Approval 2016-17 Activity Plan – Monitoring Report – Library & Information Services A2J Business Plan

AUGUST No meeting

SEPTEMBER Council Policies Review: 7, 10, 12-15 Council Education: Report – LIANS overview and update Report - 2016 ALR Committee Work plans – review for content and alignment with strategic framework Legal Services Regulation - Legislation FLSC President to visit\ Workshop on leading the next phase of change

OCTOBER Legal Services Regulation – Legislation Recognition reception Compliance Reporting - approval

NOVEMBER

Legal Services Regulation - Legislation – final package Monitoring Report - Credentials ALR – Risk Monitoring Report – Equity and A2J

DECEMBER No meeting

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EXECUTIVE DIRECTOR 2017 JANUARY

Prepare for Council & 2nd VP elections FEBRUARY

Budget preparation ED Performance Review

MARCH Introduce budget Councill District & 2nd VPelection if required

APRIL At-large elections Staff evaluations including Directors Begin Annual Report prep C’tee Report prep for May Council Annual Lawyer Report

MAY Audit Directors’ evaluations Annual Report & Annual meeting Fee invoicing and collection DSA selection

JUNE

Annual meeting Fee collection Main Call to Bar

EXECUTIVE COMMITTEE 2017JANUARY FEBRUARY MARCH

Budget Introduction Entity Regulation – Plan for Pilot project and MSELP Report on LSR Pilot Project

APRIL MAY JUNE

COUNCIL 2017* Matters in italics are reports from the ED

JANUARY Monitoring Report Communications & Engagement

FEBRUARY Min of Justice to address Council Committee Mid-year reports Monitoring Report – Finance & Admin

MARCH Budget Introduction Legal Services Reg – Report on LSR Pilot Project Elections- Consider gaps before at-large election

APRIL Monitoring Report - Equity and Access Office Budget - Approval Annual Lawyer Report - Approve Council Evaluation Strategic Planning – Review of plan

MAY

Monitoring Report - Professional Responsibility Distinguished Service Award Committee reports - on work plans

JUNE Annual Meeting – June 17, 2017 Begin to update Strategic Framework Strategic Planning - workshop

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President’s Report

July 14, 2016

The following is a summary of my activities as President to date:

June 18 – Attend NSBS Annual Meeting and speak on The Year Ahead”

June 21 – Interview with Eva Hoare, Allnovascotia.com June 22 – Telephone conference with Atlantic Law Societies Presidents re

Federation of Law Societies Canada nominee for 2nd VP June 24 – Attend meeting among Society Executive and Law Office Management

Sub Committee members June 24 – Attend media training with Society Executive June 29 - Telephone conference with Atlantic Law Societies Presidents re

Federation of Law Societies Canada nominee for 2nd VP July 8 – Attend Executive Committee meeting July 8 – Attend meeting between Society Executive and LIANS Board

representatives July 21 – Scheduled to attend Governance and Nominating Committee meeting July 21 – Scheduled to attend Pride Week Annual Reception

Daren Baxter, QC, TEP

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July 13, 2016 « Return to complete report

Unmet Legal Needs – the Challenge to Legal Practice and to Self-Regulation

OPINION/ BLOG/ SLAW/ by Malcolm Mercer/ posted July 13, 2016

Regulation of legal services differs in important ways across the common law world. In Canada, self-regulation is generally the approach. Canadian law societies are authorized by provincial legislatures to decide who can practice law and provide legal services. The substantial majority of the governors of the law societies are lawyers elected by lawyers. In Ontario, paralegal benchers are elected by regulated paralegals.

In England and Wales, the Solicitors Regulation Authority and the Bar Standards Board are the regulators. The majority of the governors of these regulators are not solicitors or barristers.

In the United States, the state courts are the regulators. While lawyers have an active role, the courts are the ultimate decision-makers.

The American Bar Association plays an interesting role in the U.S. context. The ABA is not a regulator, rather is “the national representative of the legal profession”. As a voluntary bar association, the ABA is governed by its House of Delegates. The ABA promulgates its Model Code of Professional Responsibility which is the starting point for the rules adopted in most states. The ABA plays an important harmonizing role with respect to legal education and legal ethics.[4]

With this background, it is interesting to consider struggles within the ABA to address the question of innovation in the provision of legal services. The “modern” starting point is probably the ABA Kutak Commission of 1983. The Kutak Commission proposed a rule permitting non-lawyer ownership of law practice entities. The proposal was on the basis that “[a]dherence to the traditional prohibitions has impeded development of new methods of providing legal services”. The proposal was soundly defeated by the lawyers in the House of Delegates. As James Moliterno has put it “The attractive possibility that ordinary Americans might be able to obtain simple legal services quickly and easily was of no matter.”

The next time the ABA addressed this question was during the Ethics 20/20 Commission commenced in late 2011. A discussion draft from the Commission invited comment on limited non-lawyer ownership in law firms. The response from lawyers was little different than in 1983. The Illinois State Bar Association and the Senior Lawyers Division filed a resolution apparently designed to prohibit even discussion of the topic. The 20/20 Commission abandoned further discussion of the topic.

In 2015, William Hubbard, the then President of the ABA, established the ABA Commission on the Future of Legal Services, which was established to “make recommendations on how technology and innovation can help expand the availability of affordable legal services to the poor and middle class”. This approach was notably different that the Kutak Commission and Ethics 20/20 being expressly focused on unserved and underserved legal needs.

After an impressively thorough and thoughtful process, the Final Report of the Commission on the Future of Legal Services is expected to be released in August 2016. The Commission has proposed one resolution to the House of Delegates which was adopted (with a significant amendment).

Specifically, the Commission proposed and the House of Delegates adopted the ABA Model Regulatory Objectives for the Provision of Legal Services as follows: 1. Protection of the public2. Advancement of the administration of justice and the rule of law 3. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems4. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and theavailability of regulatory protections 5. Delivery of affordable and accessible legal services6. Efficient, competent, and ethical delivery of legal services7. Protection of privileged and confidential information8. Independence of professional judgment9. Accessible civil remedies for negligence and breach of other duties owed, disciplinary sanctions for misconduct, and advancement ofappropriate preventive or wellness programs 10. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system

The resolution urged that:

each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.

This resolution was consistent with approach taken in the establishment of the Commission, which was to focus on legal needs and not just providers of legal services. Significantly, the resolution proposed a principled approach by the regulators (the state courts) in assessing existing and proposed regulatory frameworks concerning non-traditional legal service providers.

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While the House of Delegates adopted this regulation in February 2016, there was controversy and an amendment to the original proposal namely that:

… nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates.

During the winter of 2016, the Commission released three Issues Papers one of which was regarding Alternative Business Structures. The comments received were, by now, predictable. Perhaps the most precise was the response of the ABA Family Law Section:

On behalf of the Section of Family Law, we pose the following question: WHAT PART OF “NO!” DO YOU NOT UNDERSTAND? We remain unalterably opposed to these repeated, previously failed efforts to foist ABS upon our profession or our ethics.

When the time for presenting further resolutions by the Commission passed in the spring of 2016, the Commission did not make any proposals. This is not particularly surprising given the nature of the ABA. Some will no doubt see the responses by the House of Delegates as principled. Others will see self-interested protectionism by a voluntary bar.

What seems to me most interesting is that this is an issue that clearly isn’t going away yet the ABA seems unable to come to terms with it. This seems inevitably tied to the reality that market incumbents tend to perceive issues in accordance with their own interests and to protect their own interests.

One conclusion that might be drawn is that non-lawyer investment in law firms is a dead letter in the U.S. because the lawyers in the House of Delegates will never allow it. But I think the better conclusion is that the ABA has ceased to be the practical decision-maker because of its conflicted and ineffective governance in this context.

So, what is the evidence for the later conclusion?

The first is the decision of the United States Supreme Court in North Carolina Board of Dental Examiners v. Federal Trade Commission in which the Board of Dental Examiners took issue with “non-dentists” whitening teeth. At issue was whether the Board was protected from anti-trust prosecution by state-action immunity. The majority held that:

When a controlling number of the decision makers on a state licensing board are active participants in the occupation the board regulates, the board can invoke state-action immunity only if it is subject to active supervision by the state.

Where the state courts are the decision-makers or actively supervise state bars, this decision appears irrelevant. However, the decision clearly raises the risk of anti-trust prosecution for voluntary bar organizations and reinforces that the state courts are the decision makers with respect to practice of law. Recourse to the courts becomes a choice where self-regulation limits competition.

The second is activity within the state courts (as regulators rather than as adjudicators) to address impediments to access to justice. While focused on access in the litigation context rather than legal services more generally, the state courts are fairly seen as innovators compared to the ABA House of Delegates.

The New York State Court provides an example with its New York State Courts Access to Justice Program. The stated mission of the program is:

To ensure access to justice in civil and criminal matters for New Yorkers of all incomes, backgrounds and special needs, by using every resource, including self-help services, pro bono programs, and technological tools, and by securing stable and adequate non-profit and government funding for civil and criminal legal services programs.

The limited reference to “civil and criminal matters” is notable but so too is the reference to using “every resource” including “technological tools”.

The Illinois Supreme Court Access to Justice Commission similarly is charged with “promoting, facilitating and enhancing equal access to justice with an emphasis on access to the Illinois civil courts and administrative agencies for all people, particularly the poor and vulnerable”.

The third is activity from legislature and from competition authorities. The end of self-regulation in England and Wales came in large part from concern that self-regulation was inherently protectionist and was limiting access to legal services by limiting innovation in the provision of legal services. The result was the Solicitors Regulation Authority and the Bar Standards Board.

There is recent evidence of such activity in the United States. A bill has just been adopted in North Carolina which would “exclude from the statutory definition of the practice of law the operation of a website that offers consumers access to interactive software that generates legal documents in response to consumer input”. This bill follows litigation between the North Carolina State Bar and Legal Zoom that was recently settled. At issue was the application of the North Carolina Board of Dental Examiners case to attempts by the North Carolina State Bar to ban Legal Zoom as unauthorized practice.

On June 10, 2016, the Federal Trade Commission and the Ant-Trust Division of the US Department of Justice wrote sharing their views on the North Carolina Bill. As they wrote:

The Division and FTC staff believe that “the practice of law” should mean activities for which specialized legal knowledge and training is demonstrably The Division and FTC staff believe that “the practice of law” should mean activities for which specialized legal knowledge and training is demonstrably necessary to protect consumers and an attorney-client relationship is present. Overbroad scope-of-practice and unauthorized-practice-of-law policies can restrict competition between licensed attorneys and non-attorney providers of legal services, increasing the prices consumers must pay for legal services, and reducing consumers’ choices.

The underlying theory of this bill appears to be to draw a line between traditional legal practice (the practice of law) and new forms of legal service delivery. The intent would appear to be to separate regulation of “the practice of law” from regulation of new ways of providing legal services and thereby to limit the ability of lawyers to inhibit competition.

The strong position of the House of Delegates has been to seek to ensure that the practice of law is not contaminated by other interests. The conundrum is that the practice of law, as currently permitted, does not fully satisfy the legal needs of middle and low income people.

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There are two paths through this conundrum. One is to encourage innovation in the practice of law by allowing access to capital and expertise, particularly technological. The other is to allow innovation by “non-lawyers” while keeping the practice of law unchanged.

With the ABA House of Delegates having firmly drawn a line in the sand, it may be that the state bars will become the regulatory innovators permitting change in the way that law is practiced. It may also be that the ambit of “practice of law” will become important with innovation being permitted outside of the “practice of law” as narrowly defined. The later course suggests that the role of the legislatures and competition authorities could increase in importance and that the courts (and the House of Delegates) will be limited to the traditional practice of law.

What are the implications for Canada, if any?

We know that lawyers primarily serve people in criminal law, family law, personal injury, real estate and wills & estates work. Outside of these areas (the so-called 85%), ordinary people don’t use lawyers to address legal problems. Within the traditional areas, approximately two-thirds of family law litigants do not use lawyers.

Self-regulation in Canada is challenged by unserved and underserved legal needs and by new ways of providing legal services. There is no doubt but that protectionist pressures on law societies exist both in election campaigning and by fact that the majority of law society governors are market incumbents. While professional interests and the public interest are aligned in much of what professional self-regulators do, this is not so where policy choices involve competition for the profession. Presumably, the challenge is less where needs are unserved or underserved. In areas of existing professional practice, the challenge is much greater.

North Carolina may be taking a different approach than the usual approach to ABS which is to facilitate new ways of providing legal services without affecting existing legal practices.

This is resonant with English legal services regulation where it is necessary to be “authorized” to provide legal services only in certain “reserved areas”. The legal services regulators do not have authority over unreserved areas except where services are provided by regulated persons. In effect, the North Carolina bill would create an unreserved area by limiting the definition of “practice of law”.

One of the available policy choices for us is to allow new service provision in unserved and underserved needs while leaving existing practices to serve the legal needs that they now serve. Embedded in this policy choice is the question of whether new service providers should be regulated and, if so, by whom. The English experience suggests that ordinary consumer protection law may be sufficient to address unreserved areas. The U.S. experience suggests that self-regulators may be too conflicted to be regulate new market entrants in the public interest.

The same question and challenge was raised in Ontario when paralegal regulation was being considered. Having the Law Society become the self-regulator of lawyers and paralegals was naturally of concern to many paralegals and to policy observers. Would lawyer self-interest compromise paralegal regulation? The answer is mostly that things have worked out pretty well despite early tensions. However, it is also right to observe that human nature is unchanged and both lawyer and paralegal benchers are affected by their professional self-interests. But this tends to get worked through because benchers work together and, on most issues, can collectively get past their self-interest. But this is not so on all issues.

A point of this reflection on paralegal regulation is that a self-regulator that regulates new professions or new ways of providing services thereby must change its nature. The Law Society of Upper Canada became different when it became the regulator of Ontario paralegals. If law societies seek to regulate new forms of providing legal services, it inevitably follows that the nature of law societies will change. This is not necessarily a bad thing given the additional perspectives would result. But for those who see independence of the legal profession (as well as independence of individual lawyers) as of fundamental importance, this prospect will be of concern.

Where does this leave us? It seems to me inevitable and proper that new ways of providing legal services will be allowed in unserved and underserved areas. Whether Canadian law societies are up to the challenge of allowing this is unclear. But if they don’t, someone else will.

If encouraging the evolution of the existing practice of law with new forms of capital and expertise is not in the cards, permitting new entrants is the alternative. The question then will be how new entrants should be regulated and by whom.

For traditionalists, it seems to follow that the preferred approach would be the English approach; to allow new entrants in areas not currently well served and not to seek to have the law societies regulate them. In this way, existing legal practises and self-regulation are protected while innovation is encouraged where it is most needed. While ironic, the answer for those who wish to avoid competition from new entrants may be limited de-regulation.

For those who prefer to see traditional legal practices evolve to address unmet legal needs, there is also some value in this approach. New entrants in underserved areas will challenge those now providing services. This competition will cause evolutionary change for the incumbents. However, limiting access to capital and expertise to incumbents will limit the ability of the incumbents to evolve to face new challenges.

Do we allow new entrants where there are unmet legal needs? It seems to me that if law societies don’t then someone else will. Should law societies seek to regulate new entrants? If they do, they will change as a result, which isn’t necessarily a bad thing – but it is a thing. Should existing legal practices be allowed new resources to evolve? If so, there will be change. Probably not as much change as is feared by many – but again a thing. On the other hand, refusing to permit evolution has its own risks.

Making choices is hard. But, as Chief Justice McLachlin has said, “The question is not whether the rules governing the legal profession should be liberalized, but how”.

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