BarTalk February 2001
Volume 13, Number 1

by Shelley Bentley

There are 72 BC Branch provincial Sections. These Sections play a vital role in keeping members up-to-date on changes in the law and aware of legal and political issues affecting a given area of practice. They are the main resource utilized by the BC Branch in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of many Sections.

Business Law
Gary Gill and Bill Cotter from KPMG Investigation and Security Inc. and Ron Usher from the Law Society of BC spoke about fraud in e-commerce. The major concerns include privacy considerations, intellectual property protection and prevention of money laundering and theft by electronic funds transfer. Mr. Gill noted the common ways in which corporations are unprepared to deal with e-fraud:

• Businesses often rush into using a system they don’t understand in the hope of gaining a competitive advantage.

• Businesses don’t recognize the attacker. Organized crime is a much greater threat than the “teenage hacker” tying up a network or hacking in to obtain confidential information.

• Businesses don’t recognize the potential for damage from inside and outside the corporation. Property transfer and intellectual property transfer can be accomplished easily by casing the physical plant and entering to obtain data or software or by installing software into the computer system firewall, allowing unlawful remote access.

• There is often insufficient recognition of the threat posed by disgruntled employees and former employees who have physical or password access to information systems.

Criminal Justice-Vancouver
Panelists Judge Jane Godfrey, Janet Henchey, Deputy Regional Prosecutor for the Department of Justice, Leslie Anne Wall, Legal Services Society defence counsel and John Conroy, QC discussed Drug Treatment Court and dealing with drug addicted offenders in other jurisdictions. Ms. Henchey described Drug Treatment Court as a partnership between the health and justice systems. This voluntary program is a cooperative effort to provide treatment assistance with “clean and sober” housing as well as job training.

Drug Treatment Court programs take approximately one year to complete and eligibility for the program is currently restricted to drug offences. There is hope that property offences and others will be included in the future. Candidates for the program are screened to ensure that those accepted do not pose a danger to the community. There is also an investigation into whether the offender is drug addicted.

After the initial appearance and during a 14 day “opt in period”, eligible candidates start but are not committed to the program. A counselor is assigned to each candidate and a treatment program is begun. If a candidate chooses to enter the program he or she must enter a guilty plea and be monitored for a year as well as attending court regularly. The counselor advises the judge about the candidate’s progress in the program. The progress is also discussed amongst defence counsel, crown counsel and the counselor. If any problems arise, for example if a candidate tests positive for drug consumption or is not attending drug treatment, the candidate is given an opportunity to respond and be involved in the discussions about the issue. Although the judge has the final say, it is hoped that this process will bring consensus among all persons involved. When an offender is employed, has a place to live and is drug–free, then he or she is released from the program. If the charge is sufficiently minor it will be stayed. For more serious offences, it is likely that the offender would avoid jail and be given a probationary term with continued monitoring.

General Practitioners-Lower Mainland
Bob Eades spoke about the Lawyers Property Exchange, an initiative he is spearheading with the help of the CBA to systematize and centralize the service of buying and selling properties through lawyers. This is a service that lawyers have provided for years, but generally only for select clients. The idea behind this Exchange, which has been very successful in many parts of the British Isles, is that in addition to just conveyancing, lawyers will provide clients with the ability to list and sell the clients property, arrange financing, mortgages, insurance and, generally, to provide full service in the buying and selling of real estate.

A Web site will be created to list clients’ property. A corporate logo and identity for the LPE will be used by all participating lawyers who will pay an annual membership fee. There will be universal rather than individual advertising. Individuals will be encouraged to become clients for the purpose of purchasing property.

Benefits to the public are that it will be less costly for the client than under the current system. Lawyers will be involved at the outset rather than after the deal has been made. There will be considerably more disclosure than at present. The exposure on the Internet and other forms of advertising will be better organized. Currently most real estate companies advertise their properties separately.

Immigration
Entry requirements for temporary visitors were outlined by Denise Hall, a Senior Immigration Officer from Immigration Canada. Upon entry to Canada all non-Canadians or non-permanent residents of Canada are required to show:

• proof of citizenship (U.S. citizens are not required to have a valid passport but citizens from all other countries must have one);

• proof of funds to support themselves during their stay in Canada;

• a form of transportation for leaving Canada; and

• the intention to visit Canada for a temporary period.

The rule of thumb to follow is that all visitors should have approximately $50 per day for the length of their intended stay. An immigration officer may ask the intended visitor to return to the U.S. to obtain proof of finances such as a bank machine slip.

A person may not enter Canada where they have been convicted of an indictable offence or if they have two summary convictions within the last five years. After five years an applicant may apply for a permanent waiver. There is some discretion for minor offences but for indictable offences punishable with 10 or more years of imprisonment the applicant must obtain a Minister’s Permit in order to enter Canada.

Minor children crossing the border without both parents are looked at very carefully. The child must have identification and the accompanying adult should show proof of custody or consent from the other parent. The immigration officer has discretion to deny entry.

Securities
Jack Olsen from the Law Society of BC spoke about conflicts of interest between lawyers and clients and the issue of equity ownership in corporate clients by law firms and lawyers providing legal services. Mr. Olsen noted that the issue is a topical one particularly in light of moves by some firms attempting to provide much needed venture capital financing for cash starved start-up companies in the “hi-tech” sector. Among other things, Mr. Olsen believes that Chapter 7 of the Professional Conduct Handbook provides a prima facie prohibition against lawyers taking shares in their corporate client’s companies in lieu of charging fees in the usual way. Relief from this prohibition is found in Section 5, which deals with shares acquired in market transactions or in shares for debt transactions, where after rendering a bill, the lawyer agrees to accept payment in shares. Mr. Olsen agreed that BC’s Professional Conduct Handbook is more restrictive than the rules in most North American jurisdictions including other Canadian provinces. He noted that in 1997 the Law Society’s Ethics Committee recommended to the Benchers that this rule be changed to permit the taking of shares provided taking the interest in the client would not reasonably be expected to affect the lawyer’s professional judgment. In declining to accept this recommendation the Benchers may have been influenced by a quote from the Superintendent of Brokers to the effect that very few manipulations or other serious market offences could have been done without some degree of participation by lawyers. Mr. Olsen encouraged the Section to review the current provisions and to send suggested amendments to the Ethics Committee.

This article originally appeared in the February 2001 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.