BarTalk August 2004
Volume 16, Number 4

By Shelley Bentley

The CBABC sponsors 74 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting given areas of practice. They are the main resource utilized by the CBABC in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Family-Vancouver
With increasing regularity, clients who cannot afford legal representation are requesting that family counsel provide them with limited service, such as assistance with preparation of affidavits and briefs. Family lawyer Maureen Lundell, Law Society Bencher Grant Taylor, and Legal Services Society lawyer, Heidi Mason discussed this growing trend of unbundling legal services, the role of the lawyer in unbundling, and the ethical and liability issues that arise when a lawyer is not retained generally.

Maureen Lundell noted that although there is nothing wrong with providing unbundled services, lawyers must be wary of the ethical considerations. Chapter 10 of the Professional Conduct Handbook provides that lawyers must disclose to the court and others the fact that they are on a limited retainer. It is important to have a specific retainer agreement where in limitations of the services to be performed are clearly spelled out.

Ms. Lundell brought one of her clients to speak about his experience in receiving unbundled family law services. The client took over his own case and conducted his own trial. Initially, Ms. Lundell represented the client at the commencement of the proceedings. Although attempts were made to settle, those attempts failed. It appeared that the client’s spouse’s instructions were to do as much as possible to increase costs and, as a result, a shift in strategy was necessary. Ms. Lundell and her client thought that unbundling would work because of their long history of working together and their good relationship of trust and communication. By the time Ms. Lundell withdrew as counsel there had been 10 court applications. By the trial date 23 interim applications had been made. The trial lasted 13 days. Ms. Lundell and her client divided the work. The client forwarded documents he received; Ms. Lundell would then review them and explain what needed to be completed and how to complete the forms. She did a lot of the preparation. She drafted the direct examination of the client, and the cross-examination of the client’s spouse and summarized the discovery transcript.

The client called Ms. Lundell every day of the trial during the lunch break and at the end of each day they met for one to two hours. The client was satisfied with the result and felt that there was an advantage to representing himself. For example, he knew the facts better than anyone else, which made it easier to catch false testimony.

International Law
International Development Committee (IDC) member, Margaret Ostrowski, QC, spoke about the CBA’s contribution to the international advancement of the Rule of Law.

With the fall of the Iron Curtain, Central and Eastern European countries were faced with rebuilding their economic, political and social structures as well as their legal institutions. In 1990, the CBA responded by establishing a legal internship program with lawyers from Hungary. Within three years, the program had expanded to Poland, Slovakia, the Czech Republic and the Ukraine. The program facilitated the training in Canada of more than 75 lawyers from Central Europe and was a resounding success largely because of the active participation of the CBA and law firms across Canada. It highlighted the importance of the establishment of the Rule of Law and led to the establishment in 1994 of the IDC of the CBA. The IDC’s mission is to enhance the Rule of Law in democratizing countries through systemic change by promoting fair justice systems, facilitating effective law reforms and representing the profession internationally. It is comprised of nine lawyers and judges from across Canada and nine staff members.

Ms. Ostrowski outlined the basic tenets of the Rule of Law. She referred to CBA Past President Paul Fraser, QC’s proposed fundamental requirements for a system of laws to maintain the respect of those who are governed by it:

• Laws should be prospective, not retroactive. Those who are governed by the law must know that the rules will not be changed after the fact.

• Laws should be open and clear. Those who are to be governed by the law must be able to understand it.

• Laws should be relatively stable. If the law is in a constant state of flux people will abandon efforts to be guided by it.

• Principles of natural justice must be adhered to in order to promote respect for the processes of the law.

• Courts and legal services must be accessible.

• The independence of the judiciary must be guaranteed. If the courts are not free to apply the law, the task of finding out what law will be applied becomes impossible.

Ms. Ostrowski noted that defending the Rule of Law will not necessarily rank high on any survey of CBA member needs. Members must be concerned with finding clients, staying acquainted with good practice habits and the latest changes in legislation and case law. But she commented that bar associations, as vehicles for higher collective activity, are required to engage in higher collective matters as well. As defenders of the Rule of Law, bar associations ensure that their own citizens understand it, respect it and assist other countries with a similar goal.

Wills and Trusts-Okanagan
Philip Renaud, Chair of the national Wills, Estate and Trusts (WET) Section, spoke about the role of the national Section and outlined their current projects. The national Section is comprised of an executive committee and representatives from the Branch Sections across Canada. Its mandate is to develop a united voice among the provincial bars in the reform of wills, estates and trusts. Currently the national WET Section is developing a proposal to lobby for changes that would:

• allow RRSP’s and RRIF’s to be rolled over on a tax-free basis to spousal trusts;

• allow RRSP’s and RRIF’s to be rolled over on a tax-free basis to discretionary trusts for handicapped children without the necessity of purchasing an annuity;

• provide creditor protection for RRSP’s and RRIF’s;

• create uniform laws dealing with recognition and enforcement of enduring Powers of Attorney; and

• create uniform laws dealing with definitions of common-law spouses and same sex-partners for legislation in the area of estate and succession planning.

Shelley Bentley is in private practice at G Davies & Company.

This article originally appeared in the August 2004 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.