Part 4 – Obligations of Lawyers and Law Firms

4.1 Compliance obligations of lawyers

List of obligations

4.1.1 A practicing lawyer must:

  1. pay fees annually in accordance with subregulations 4.2.2 and 4.2.4;
  2. pay other fees in accordance with subregulation 4.2.3;
  3. unless exempted from doing so by subregulation 4.1.8 or subregulation 6.6.2, maintain a minimum of $1,000,000.00 of liability insurance in the form provided by the Association;
  4. file the Annual Lawyer Report prescribed by subregulation 4.3.2;
  5. satisfy the continuing professional development requirements prescribed by Regulation 8.3; and
  6. if applicable, provide notice to the Society as prescribed by Regulation 4.4.

Required payments

4.1.2 A practicing lawyer must, by June 30 of each year:

  1. pay the practising fee prescribed by Schedule A;
  2. unless exempted from doing so by subregulation 4.1.8 or subregulation 6.6.2, pay the amount due to the Association as prescribed by Schedule A;
  3. pay the amount prescribed by Schedule A to be contributed to the Fund; and
  4. pay the amount prescribed by Schedule A to be contributed to the fund established pursuant to Section 60(2) of the Act

Pre-authorized Payment Plan

4.1.3  Despite subregulation 4.1.2, a practising lawyer or law firm may pay the annual fees by means of pre-authorized payment plan in a form prescribed by the Executive Director.

Other Fees

4.1.4  A practising lawyer or law firm must pay any special assessments, surcharges or transaction fees by the dates prescribed by Schedule A.

Practising Certificate

4.1.5  Following receipt of the items listed in subregulation 4.1.2, the Executive Director will issue a practising certificate to each practising lawyer and make available a receipt for fees.

Obligations of Non-practising Members

4.1.6  A non-practising member must, by June 30 of each year, pay the fee prescribed by Schedule A.

Obligations of Retired Members

4.1.7  A retired member must, by June 30 of each year, pay the fee prescribed by Schedule A.

Insurance Exemption

4.1.8  The following practising lawyers are exempt from maintaining the liability insurance provided by the Association:

  1. a practising lawyer employed by a department of the Government of Canada;
  2. a practising lawyer whose only practice is as an adjudicator under the Small Claims Court Act and who files with the Executive Director satisfactory proof of that fact;
  3. a practising lawyer who
    1. is also a lawyer in good standing of another Law Society of Canada with a current practising certificate in the jurisdiction,
    2. maintains a minimum of $1,000,000.00 of liability insurance which coverages provides protection for acts or omissions arising out of professional services performed in Nova Scotia, and
    3. provides proof of such insurance in a form satisfactory to the Executive Director,
  4. a practising lawyer who by resolution of Council is exempted from the requirement.

Insurance and Mobility

4.1.9  Subject to subregulation 4.1.8, the Society will, on application, exempt a lawyer from acquiring liability insurance in Nova Scotia if the lawyer does the following in the jurisdiction of another governing body:

  • is resident in the jurisdiction of another governing body;
  • is a member of that governing body; and
  • maintains liability insurance required in that jurisdiction that provides occurrence or claim limits of $1,000,000.00 and $2,000,000.00 annual per member aggregate and that insurance applies to the applicant’s practice in Nova Scotia.

Resident of Quebec

4.1.10  For the purposes of subregulation 4.1.9, a lawyer or an applicant who is resident in Quebec and who is also a member within the jurisdiction of another governing body other than the Barreau is deemed resident in one (1) of the other jurisdictions in which the lawyer is a member, and will be required to maintain liability insurance in both Quebec and one (1) of the other jurisdictions in which the applicant is a member.

Deemed Residence

4.1.11  Unless otherwise provided, the lawyer applicant will be deemed resident in the jurisdiction in which the lawyer has been a member continuously for the longest period of time.

Member of Barreau

4.1.12  A lawyer who is a member of the Barreau and one (1) or more of the other signatory governing bodies must comply with the liability insurance requirements of the Barreau and at least one (1) of the other signatory governing bodies of which the lawyer is a member.

Insurance

4.1.13  If subregulation 4.1.12 applies, insurance coverage is to be provided as follows:

  • by the professional liability insurance program of the Barreau with respect to services provided by the lawyer as a member of the Barreau;
  • by the professional liability insurance program of the other governing body other than the Barreau with respect to services provided by the lawyer as a member of the governing body other than the Barreau.

4.2 Fees

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

4.2.2  Council must, by resolution, set the fees for:

  • practising lawyers;
  • any administrative fees;
  • non-practising members;
  • retired members; and
  • Canadian Legal Advisors.

4.2.2.1  Council may, by resolution, set reduced fees for practising lawyers.

4.2.2.2  The reduced fee set pursuant to subregulation 4.2.2.1 may be available to lawyers who apply in writing to the Executive Director and demonstrate:

  • that the eligibility criteria for reduced fees has been met, including financial need; and
  • it is in the public interest that their fees be reduced.

Special Assessments

4.2.3  Council may, by resolution, set special assessments, surcharges or transaction fees to be paid for the purpose of the Society by practising lawyers and must set the dates by which the special assessment, surcharge or transaction fee must be paid.

4.2.4  Council must, by resolution, confirm the fees payable to the Association for a:

  • practising lawyer;
  • practising lawyer employed by Nova Scotia Legal Aid Commission or Dalhousie Legal Aid Service; and
  • practising lawyer employed in the civil service in the province of Nova Scotia.

4.2.5  Council may, by resolution, set fees for:

  • articling clerks;
  • Bar Admission Program;
  • Bar Examination;
  • admission to the Bar;
  • Changes of Category Applications;
  • reinstatements;
  • temporary practice;
  • transfer applicants;
  • Foreign Legal Consultants; and
  • Canadian Legal Advisors.

4.2.6  Council may, by resolution, set fees for:

  • application to change category of membership from a practising lawyer to a non-practising, retired or life member;
  • application to change category of membership from a non-practising category of membership to a practising lawyer and may set different fees depending on the length of time the applicant has held the non-practising category of membership;
  • a Certificate of Standing;
  • confirmation of a lawyer’s status, including authentication of a lawyer’s signature;
  • an application for a law corporation under subregulation 7.4.2;
  • the renewal of a law corporation permit under subregulation 7.4.7;
  • changes to a law corporation permit under subregulation7.4.14;
  • reinstatement of a law corporation permit under subregulation 7.4.21;
  • an application to register a limited liability partnership under subregulation 7.3.2, based on an amount per Nova Scotia partner;
  • an application to register an extra-provincial limited liability partnership under subregulation 7.3.5, based on an amount per Nova Scotia partner; and
  • renewal of registration of a limited liability partnership under subregulation 7.3.12, based on an amount per Nova Scotia partner.

Fees Paid When Received

4.2.7  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.

Form of Payment

4.2.8  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:

  • payment in full by cash, cheque or electronic payment;
  • payment in full by credit card, including the applicable administrative fee;
  • 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; or
  • post-dated cheques equivalent to the amounts that would be drawn through pre-authorized payment, including the applicable administrative fee.

4.2.9  A lawyer will be considered ineligible for payments pursuant to subregulation 4.2.8(b) – (d) if:

  • two (2) payments made pursuant to subregulation 4.2.8(b) – (d) are not honoured for any reason, including insufficient funds in the lawyer’s account; and
  • the lawyer is suspended pursuant to subregulation 4.5.1(b);

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

Proportioning Fees

4.2.10  When a fee being paid is for a portion of the year, that fee is determined by dividing the total feel by twelve (12) and that amount will be multiplied by the number of months remaining in the year without allowance for any partial month.

4.2.11  There will be no proportioning or refunding of any amount paid pursuant to subregulation 4.2.3.

4.2.12  Payment of fees for admission as a lawyer under subregulations 3.8.3, 6.2.3, and 6.6.3 will entitle the admittee to the status of practising lawyer until the last day of the month in which the call to the Bar occurs.

4.3 Annual Lawyer Report

Obligation to File

4.3.1  A lawyer must file the Annual Lawyer Report in the prescribed form by June 30 of each year.

Extension or Waiver

4.3.2  The Executive Director may:

  •  extend the date by which the Annual Lawyer Report is due; or
  • waive the requirement to file the Annual Lawyer Report;

if, in the opinion of the Executive Director, it is appropriate to do so.

Fee for Extension

4.3.3  If, pursuant to subregulation 4.3.2(a), an extension of the date by which the report is due is granted, the lawyer must:

  • file the required report by the new date; and
  • pay the fee prescribed by Schedule A.

Fee for Waiver

4.3.4  A request for a waiver pursuant to subregulation 4.3.2(b) must be accompanied by the fee prescribed by Schedule A.

4.3.5  The Executive Director may, in exceptional circumstances, waive the fee required by subregulations 4.3.2 or 4.3.4.

Annual Lawyer Report Contents

4.3.6  The Annual Lawyer Report will be in the prescribed form and contain:

  • the lawyer’s mailing and civic address;
  • the lawyer’s telephone number;
  • the lawyer’s email address;
  • a lawyer’s language proficiencies for the practice of law and delivery of legal services;
  • a lawyer’s areas of practice and the approximate percentage associated with each area;
  • whether a lawyer has handled trust money or property;
  • whether a lawyer has held trust money or property in a representative capacity as defined in subregulation 10.1.2;
  • whether a lawyer has borrowed from or loaned money to clients;
  • information about the planning for continuing professional development and continuing legal education undertaken by the lawyer in accordance with Regulation 8.3; and
  • such other information as Council may prescribe.

4.4 Notice to Society: Bankruptcy, Judgment, Criminal Charges, Guilty of Offence

Duty to Report

4.4.1  A lawyer, law corporation, or the lawyer designated under Regulation 4.7 must immediately advise the Executive Director when the lawyer or law corporation:

  1. is served with a petition in bankruptcy under the Bankruptcy and Insolvency Act (Canada);
  2. makes an assignment of property for the benefit of creditors, including an assignment under the Bankruptcy and Insolvency Act (Canada);
  3. presents a proposal in bankruptcy to creditors under the Bankruptcy and Insolvency Act (Canada);
  4. earns that a judgment has been entered against the lawyer;
  5. is subject to an order for costs against the lawyer personally;
  6. is charged with, pleads guilty to or is found guilty of any offence under the
    1. Criminal Code (Canada),
    2. Controlled Drug and Substances Act (Canada),
    3. Income Tax Act (Canada),
    4. Customs and Excise Act (Canada), or
    5. Securities Act of any province of Canada,
  7. is suspended by the governing body of the legal profession in another jurisdiction;
  8. is charged with a discipline offence in another jurisdiction; or
  9. is found guilty of a discipline offence in another jurisdiction.

Obligations when Bankrupt

4.4.2  From the date of the event set out in subregulation 4.4.1(a) – (c), until the petition, assignment or proposal has been satisfied, withdrawn, discharged or is otherwise of no further force or effect, the member and the trustee of the estate of the lawyer in bankruptcy must not, without written permission of the Executive Director, accept from or on behalf of clients any money or other property, except in payment of costs and fees of the lawyer, and then only on such conditions imposed by the Executive Director.

Judgments – Particulars

4.4.3  A notice under subregulation 4.4.1(d) must contain:

  • the name of the lawyer for the judgment creditor, if any;
  • the amount of the judgment;
  • where no appeal has been taken from the judgment, whether the member intends to take such an appeal;
  • where an appeal from the judgment has been taken, the fact the appeal has been taken; and
  • whether or not arrangements, which are satisfactory to the judgment creditor, have been made to pay the judgment.

Additional Information

4.4.4  The Executive Director may require the lawyer to provide additional information for more complete examination outlining the circumstances relating to any of the matters referred to in subregulation 4.4.1 and the lawyer must respond fully within the time prescribed by the Executive Director.

4.5 Suspensions

Lawyer is Suspended

4.5.1  A lawyer will be suspended if:

  • the requirements of subregulation 4.1.1 are not met by June 30;
  • the payment of any special assessments, surcharges or transaction fee required by subregulation 4.1.4 is not made by the dates prescribed by these Regulations or Schedule A;
  • a pre-authorized monthly payment permitted by subregulation 4.1.3 is not made at the appropriate time;
  • the requirements of subregulations 4.11.2 and 4.11.4 are not met by the specified time;
  • the payments of any individual deductible required by Regulation 12.6 is not made in accordance with the Regulation; or
  • all fees have not been paid by June 30 as required by subregulation 8.4.4;

and while suspended the lawyer must not engage in the practice of law or the delivery of legal services and is not entitled to any of the rights and privileges of a member of the Society.

Suspension Effective July 1

4.5.2  The suspension of a lawyer pursuant to subregulation 4.5.1(a) will be effective on July 1.

Alternate Date

4.5.3  Despite 4.5.2, the Executive Director may, on receipt of the lawyer’s written request, set an alternative date for suspension if such alternate date is in the public interest.

Obligation of Lawyer Suspended

4.5.4  A lawyer who practices as a sole practitioner and who is suspended at the time that a Trust Account Report is due remains obligated to file the trust account report.

Waiver of Suspension

4.5.5  Notwithstanding subregulations 4.5.1 and 4.5.2, the Executive Director may waive the suspension of a lawyer for non-payment of fees if that member has made application to change membership category and that application was received prior to the date the payment was due.

4.5.5.1  The Executive Director may, in exceptional circumstances, waive the suspension of a lawyer for non-payment of fees pursuant to subregulation 4.5.1(f).

Notification

4.5.6  When a lawyer has been suspended under this Regulation, the Executive Director must:

  • notify both the lawyer and the Designated Lawyer of the suspension and the effective date;
  • amend the records of the Society to reflect the suspension and the effective date; and
  • notify all Prothonotaries, Court Administrators and Registrars and other public offices that may be affected by the suspension.

Publication

4.5.7  When a lawyer has been suspended under this Regulation, the Executive Director may:

  • cause a notice of the suspension to appear in a newspaper of general circulation in the Province, which advises that the lawyer has been suspended and is not entitled to practice law or deliver legal services; and
  • unless otherwise directed by the Executive Committee, require the suspended lawyer to reimburse the Society for all reasonable costs associated with publishing the notice as a condition precedent to the lawyer’s reinstatement.

Reinstatement After Suspension

4.5.8  When a lawyer has been suspended pursuant to subregulation 4.5.1, the lawyer must apply to be reinstated after:

  • filing the required forms; and
  • payment of the reinstatement fee prescribed by Schedule A to these Regulations and the remainder of the annual fees and any special assessments, surcharges or transaction fees outstanding at the time of the suspension.

Executive Director May Approve

4.5.9  The Executive Director may approve an application under subregulation 4.5.8 unless the Executive Director is required to refer the application to the Credentials Committee under subregulation 4.5.10.

Public Interest

4.5.10  If the facts disclosed in the application or otherwise known to the Society raise public interest issues which require, in the opinion of the Executive Director, consideration by the Credentials Committee, the Executive Director will forward the application to the Committee.

Credentials Committee May Approve

4.5.11  When the Credentials Committee is satisfied that it is consistent with the public interest, it may approve the application for reinstatement upon such terms and conditions as it deems appropriate.

Notice of Reinstatement

4.5.12  When a suspended lawyer has been reinstated under this Regulation, the Executive Director must:

  • notify both the lawyer and the Designated Lawyer of the reinstatement and the effective date;
  • notify all Prothonotaries, Court Administrators and Registrars and other public offices of the reinstatement and the effective date; and
  • amend the records of the Society to reflect the reinstatement and the effective date.

Notice – Suspended or Disbarred

4.5.13  When a lawyer has been suspended or disbarred pursuant to Sections 37 or 45 of the Act, the Executive Director must:

  • cause a notice to appear in a newspaper of general circulation in the Province, with advises that the lawyer has been suspended or disbarred and is not entitled to practice; and
  • notify all Prothonotaries, Court Administrators and Registrars and other public offices that may be affected by the suspension or disbarment.

Manner of Notice

4.5.14  Whenever any notice is required by the Act or the Regulations to be given to a lawyer, such notice may be personally served on the lawyer or mailed by ordinary mail or left at the lawyer’s last known address.

Effect of Notice

4.5.15  Failure of any person to receive the notice to which he or she is entitled will not invalidate the ensuing proceedings.

Suspension of Non-practising Lawyer

4.5.16  A non-practising lawyer who does not pay the annual fee pursuant to this Regulation is suspended.

Notification

4.5.17  When a non-practising lawyer has been suspended pursuant to subregulation 4.5.16, the Executive Director must:

  • notify the non-practising lawyer of the suspension and the effective date; and
  • amend the records of the Society to reflect the suspension and the effective date.

Reinstatement

4.5.18  When a non-practising lawyer has been suspended pursuant to subregulation 4.5.16, the non-practising lawyer may apply to be reinstated after payment of the annual fee and the reinstatement fee prescribed by Schedule A.

4.6 Compliance Obligations of Law Firms and Sole Practitioners

List of Obligations – Law Firm

4.6.1  A law firm must:

  • keep the Society informed of its current mailing address, civic address, telephone number and email address;
  • keep the Society informed of the names of all lawyers associated with the law firm and the electronic contact information, including email addresses, for all lawyers and law corporations associated with the law firm;
  • appoint a Designated Lawyer in accordance with subregulation 4.7.1;
  • have a management system for ethical legal practice;
  • provide to the Society the self-assessment in the form and with the frequency prescribed by the Executive Director or these Regulations;
  • maintain a written succession plan in accordance with subregulations 4.6.4 through 4.6.6;
  • submit an Annual Firm Report;
  • if the law firm operates a trust account, file a Trust Account Report, as required by Regulation 4.11 and, if required by the Executive Director, an accountant’s report on the Trust Account Report;
  • provide written notice to the Executive Director of the closure of a general trust account;
  • if the law firm or an office of the law firm with more than one (1) office in the Province is a principal, designate a lawyer, who individually qualifies to be a principal, to be the supervising lawyer responsible for the Education Plan and individual Articling Plans and to oversee the educational experience of articled clerks pursuant to Part 3 of these Regulations; and
  • maintain foundation documents on behalf of lawyers practising real estate in the law firm pursuant to Part 8 of these Regulations, unless the obligation is transferred pursuant to that Part.

List of Obligations – Sole Practitioner

4.6.2  A sole practitioner must:

  • keep the Society informed of their current mailing address, civic address, telephone number and email address;
  • have a management system for ethical legal practice;
  • provide to the Society the self-assessment in the form and with the frequency prescribed by the Executive Director or these Regulations;
  • maintain a written succession plan in accordance with subregulations 4.6.4 through 4.6.6;
  • submit an Annual Firm Report;
  • if the sole practitioner operates a trust account, file a Trust Account Report as required by Regulation 4.11 and, if required by the Executive Director, an accountant’s report on the Trust Account Report;
  • provide written notice to the Executive Director’s office of the closure of a general trust account; and
  • maintain foundation documents pursuant to Part 8 of these Regulations, unless the obligation is transferred pursuant to that Part.

Succession Plan

4.6.3  A law firm or sole practitioner must maintain a current succession plan for the practice, including all lawyers in the firm:

  • annually review the succession plan; and
  • pursuant to Regulation 4.11, report to the Executive Director regarding the succession plan.

4.6.4  A succession plan must contemplate the unique arrangements that will be necessary in the event of the cessation of the lawyer’s practice for any reason, including:

  • temporary disability or incapacity;
  • long term disability or incapacity; and
  • death of the lawyer.

4.6.5  At a minimum, a succession plan must include information and adequate arrangements to allow for the handling of clients and management of the practice with regard to the following, where applicable:

  • open and closed files;
  • wills and wills indices;
  • foundation documents and other important records;
  • other valuable property;
  • passwords and the means to access computers, email, accounting, and other electronic records;
  • trust accounts and trust funds;
  • other accounts related to the member’s practice; and
  • any other arrangements necessary to carry on or wind up the lawyer’s unique practice.

4.7 Designated Lawyer

Appointment

4.7.1    Every law firm must appoint a Designated Lawyer.

Qualifications

4.7.2  For the purposes of these Regulations, a Designated Lawyer is:

  • a practising lawyer; and
  • of sufficient authority within the law firm to fulfill the duties of the role.

Designated Lawyer’s Obligations

4.7.3  The Designated Lawyer:

  • must submit, on behalf of the law firm, the self-assessment tool as required by Regulation 4.9;
  • must use reasonable efforts to provide complete and accurate information when submitting the self-assessment, but by submitting the form is not personally responsible for the firm’s obligations;
  • must complete the Trust Account Assessment pursuant to subregulation 4.10.2.1, if applicable;
  • will receive communications from the Society;
  • must ensure that the law firm maintains foundation documents as required by Part 8 of these Regulations;
  • will receive communications from the Association relating to claims; and
  • must submit the Annual Firm Report, including, if applicable, the Trust Account Report, as required by Regulation 4.11.

Appoint New Designated Lawyer

4.7.4  If the Designated Lawyer for a law firm of two (2) or more lawyers:

  • has been charged pursuant to Part III of the Act;
  • has been suspended pursuant to Part III of the Act;
  • has any practice restrictions imposed by order of the Complaints Investigation Committee or otherwise under the Act or Regulations; or
  • becomes unable to fulfill their obligations under this Regulation for any other reason;

the law firm must appoint a new Designated Lawyer at the earliest opportunity and advise the Society of the appointment.

Communications

4.7.5  The Designated Lawyer will receive communications from the Society, including:

  • a complaint against the law firm under Part 9 of these Regulations;
  • reports regarding an LRA Audit under Part 13 of these Regulations;
  • a copy of each complaint against a member of the Society associated with the law firm under Part 9 of these Regulations;
  • a copy of each determination or decision made pursuant to Part 9 of these Regulations or Part III of the Act relating to a member of the Society associated with the law firm;
  • information about a lawyer’s failure to comply with the requirements for continuing professional development as reported in the Annual Lawyer Report filed pursuant to subregulation 4.3.1; and
  • a copy of other materials relating to the processes prescribed by Part III of the Act, if so requested by the Designated Lawyer, provided that the member of the Society was associated with the law firm at the time the matter which is the subject matter of the complaint took place.

Firm Change

4.7.6  If a lawyer changes law firms after the matter which is the subject of a complaint took place, the Designated Lawyer of the original firm will receive a copy of the materials listed in subregulation 4.7.5 and the Designated Lawyer of the lawyer’s current law firm must be notified of the existence of the complaint and any other information that is not subject to lawyer-client privilege or confidentiality that the Executive Director determines is proper to convey.

Other Firm Communications

4.7.7  The Designated Lawyer may, by notice in writing to the Executive Director, appoint a person associated with the law firm to receive communications or copies of communications from the Society and to deal with matters of an administrative nature.

4.8  Registration of Law Firms

Registration

4.8.1  The Executive Director must maintain within the records of the Society a list of all law firms, which will be considered to be registered law firms pursuant to Section 24 of the Act.

Purpose of Registration

4.8.2  The purpose of registering a law firm is to:

  • assist the Society in its engagement with law firms; and
  • enable the law firm to effectively carry out their obligations as law firms under the Act and these Regulations.

Confirmation of Registration

4.8.3  Each law firm registered by the Executive Director pursuant to subregulation 4.8.1 will receive confirmation:

  • it has been registered;
  • of the names of the lawyers associated with the firm;
  • of the name of the Designated Lawyer; and
  • it may correct the information provided by the Executive Director.

Registration Required

4.8.4  After December 31, 2017, a new law firm musts be registered as a law firm by the Executive Director before it practises law and delivers legal services.

Registration Process

4.8.5  A new law firm must file a request for registration with the Executive Director in the prescribed form that must include:

  • the names of the lawyers and law corporations associated with the law firm;
  • the nature of the association between the lawyers and law corporations within the firm;
  • the name of the Designated Lawyer;
  • the names of any individuals who are not lawyers, who will assist in or deliver legal services through the law firm;
  • the mailing address, civic address, telephone number, and email address for the law firm;
  • the electronic contact information, including email addresses, for all lawyers and law corporations associated with the firm; and
  • unless approval has been granted pursuant the subregulation 4.10.4, an undertaking from the proposed Designated Lawyer that the law firm will not hold money or property in trust until the law firm has received approval to operate a trust account.

Prior to Registration

4.8.6  If a new law firm begins to practice law and deliver legal services prior to being registered, the Executive Director will:

  • require the law firm to provide the information required by subregulation 4.8.5; and
  • specify the timeframe within which the information is to be provided.

Review of Obligations

4.8.7  The Executive Director may meet with the Designated Lawyer or all lawyers associated with the new registered law firm to review:

  • the law firm’s regulatory obligations;
  • the law firm’s knowledge and ability to comply with the regulatory requirements applicable to law firms;
  • the law firm’s knowledge of the elements required for a management system for ethical legal practice;
  • the requirement to complete the self-assessment pursuant to subregulation 4.9.1 and the likely timing as it pertains to the law firm;
  • the resources available from the Society and otherwise to assist the law firm in its practice of law and delivery of legal services;
  • the role and obligations of the Designated Lawyer; and
  • such other matters that the Executive Director determines are appropriate given the circumstances and plans for the new law firm.

Sole Practice – New

4.8.8  A lawyer who is opening a sole practice must notify the Executive Director before the lawyer begins to practise law and deliver legal services as a sole practitioner.

Sole Practice – Review of Obligations

4.8.9  Following the notification in subregulation 4.8.8, the Executive Director may meet with the sole practitioner to review:

  • the lawyer’s regulatory obligations;
  • the lawyer’s knowledge of and ability to comply with the regulatory requirements applicable to sole practitioners;
  • the lawyer’s knowledge of the elements required for a management system for ethical legal practice;
  • the requirement to complete the self-assessment pursuant to subregulation 4.9.1 and the likely timing as it pertains to the sole practitioner;
  • the resources available from the Society and otherwise to assist the lawyer in the practice of law and delivery of legal services; and
  • such other matters that the Executive Director determines are appropriate given the circumstances and plans for the new sole practice.

Two or More Law Firms Join

4.8.10  When two (2) or more law firms join together to create a new law firm, the provisions of subregulations 4.8.4 to 4.8.7 apply with any necessary changes.

Law Firm Changes Ownership

4.8.11  If there is a material change in ownership of a law firm, the provisions of subregulations 4.8.4 to 4.8.7 apply with any necessary changes, unless the Executive Director otherwise determines.

Additional Requirements

4.8.12  The requirements of this Regulation are in addition to the requirements for a lawyer or a group of lawyers to apply to become a law corporation under subregulation 7.4.4 or a limited liability partnership under subregulation 7.3.4.

4.9  Self-Assessment

Request to Submit

4.9.1  Commencing January 2018, the Executive Director may request that a law firm or sole practitioner:

  • record the findings from their self-assessment for the prescribed reporting period; and
  • submit the completed self-assessment tool to the Executive Director by a specified date.

Purpose of Self-Assessment

4.9.2  The purpose of self-assessment is to assist:

  • law firms and sole practitioners in maintaining and enhancing their management system for ethical legal practice; and
  • the Society in its engagement with law firms and sole practitioners.

Tri-Annual Reporting

4.9.3  The regular reporting period for the self-assessment is once every three (3) years.

Reporting Outside the Regular Period

4.9.4  The Executive Director may, when it is in the public interest to do so, require a law firm or sole practitioner to complete the self-assessment outside of the regular reporting period.

Failure to Submit

4.9.5  A failure to comply with subregulations 4.9.1 or 4.9.3 will not result in an investigation pursuant to subregulation 9.2.1.

Information Obtained

4.9.6  If a self-assessment indicates that a law firm or sole practitioner does not have in place appropriate policies, practices and systems to support the elements for a management system for ethical legal practice, such reporting will not result in an investigation pursuant to subregulation 9.2.1.

Revised Deadline

4.9.7  If a self-assessment is not submitted by the date specified by the Executive Director, the Executive Director will set a revised deadline and assist the law firm in submitting the self-assessment.

4.10 Operating a Trust Account

Approval to Operate a Trust Account

4.10.1  After January 1, 2018, a practising lawyer or law firm that does not operate a general trust account may not accept trust money or trust property without approval to operate a general trust account pursuant to subregulation 4.10.4.

Application

4.10.2  A lawyer or law firm may apply to the Executive Director to operate a general trust account.

Trust Account Assessment

4.10.2.1  If a lawyer or law firm applying to open a general trust account has not previously had such an account or has not operated a trust account in the last three (3) years, the lawyer or in the case of a law firm, all practising lawyers who will have signing authority on the trust account, must successfully complete a Trust Account Assessment, prescribed by the Executive Director, that demonstrates familiarity with Part 10 of the Regulations and an ability to operate a general trust account and maintain proper accounting records in compliance with those Regulations.

Requirements for Operating a Trust Account

4.10.3  Prior to operating a general trust account, a lawyer or law firm through its Designated Lawyer, must:

  • successfully complete a Trust Account Assessment as required by subregulation 4.10.2.1;
  • provide a certificate in the prescribed form from a licensed professional accountant confirming that the practising lawyer or law firm has in place a trust accounting system that will enable compliance with Part 10 of the Regulations;
  • confirm that appropriate arrangements, in writing, have been made with the financial institution to comply with the requirements of Section 30 of the Act;
  • in the case of a lawyer, hold a practising certificate; and
  • meet such other requirements as may be prescribed by Council.

Executive Director Must Approve

4.10.4  When the requirements of subregulation 4.10.3 have been met, the Executive Director must approve a practising lawyer or law firm to operate a general trust account.

Signing Authority

4.10.4.1  After January 1, 2019, any practising lawyer who has not previously operated a trust account or has not operated a trust account in the last three (3) years, must successfully complete the Trust Account Assessment before they are permitted to be added as a signatory to a trust account.

4.10.4.2  Any employee of the practising lawyer or law firm who has signing authority or other direct involvement in the operation of a trust account should successfully complete the Trust Account Assessment.

Trust Account Closure

4.10.5  Upon the closing of a general trust account, the practising lawyer or law firm must immediately give written notice to the Executive Director and provide:

  • confirmation that the account has been closed; and
  • if applicable, confirmation that the Law Foundation has been advised of the trust account closure.

Final Trust Account Report

4.10.6  The practising lawyer or law firm must file a final Trust Account Report in compliance with subregulations 4.11.2 and 4.11.4, unless the Executive Director waives the requirement.

4.10.7  The Executive Director will provide a practising lawyer or law firm with assistance in closing a trust account upon receipt of a written request accompanied by the prescribed fee.

 4.10.8 The Executive Director may, in exceptional circumstances, waive the fee required by subregulation 4.10.7.

4.11 Annual Reporting

Annual Firm Report

4.11.1  An annual firm report must be filed by March 31, for the twelve (12) months ending December 31 each year, unless another time is prescribed by the Executive Director, that confirms:

  • the names of all lawyers associated with the law firm, and the nature of their association;
  • the names of individuals who are not lawyers, who assist in or deliver legal services through the law firm and the nature of the legal services they provide;
  • the location and particulars of all law firm bank accounts and trust accounts operated by the law firm;
  • the names and responsibilities of employees of the law firm, or others, who maintain the accounting records of the firm;
  • all lawyers associated with the law firm have written succession plans and the location of those succession plans;
  • all lawyers associated with the law firm are in compliance with the obligations to create and adhere to a continuing professional development plan pursuant to subregulation 8.3.5 to 8.3.11; and
  • such other information as may be required by Council.

Trust Account Report

4.11.2  A Trust Account Report in the prescribed form must be filed with the Executive Director by March 31 of each year by all practising lawyers or law firms operating one (1) or more general trust account.

Content of Trust Account Report

4.11.3  The Trust Account Report must confirm the books, records and accounts and related files of the practising lawyer or law firm have been maintained in respect of the obligations prescribed by Parts 4 and 10 of the Regulations.

Accountant’s Report on the Trust Account

4.11.4  Subject to subregulation 4.11.8(b), an accountant’s report on the trust account, in the prescribed form, must be filed with the Executive Director by March 31 each year.

Report by a Public Accountant

4.11.5  The accountant’s report must be:

  • prepared by a public accountant licensed under the Public Accountant’s Act;
  • confirm that the review required to be performed by the public accountant has been done in accordance with the prescribed standards; and
  • verify the accuracy of information contained in part of the Trust Account Report prepared by the practising lawyer or law firm.

Additional Information on Reports

4.11.6  When a Trust Account Report indicates that the practising lawyer or law firm has not maintained books, records and accounts as required by Part 10 of the Regulations, the Executive Director may:

  • require the practising lawyer or Designated Lawyer to provide additional information;
  • require the practising lawyer or Designated Lawyer to file documents with the Society to demonstrate compliance with Part 10 of the Regulations;
  • require the practising lawyer or Designated Lawyer to file additional Trust Account Reports at times or intervals specified by the Executive Director; and
  • take such other action as is necessary to ensure compliance by the practising lawyer or law firm with Part 10 of the Regulations.

Additional Information from Accountant

4.11.7  In order to assist the Society in fulfilling its purpose, the Executive Director may request the public accountant who prepared the accountant’s report to provide additional information about the books, records and accounts of the practising lawyer or law firm.

Extension or Waiver

4.11.8  The Executive Director may:

  • extend the date by which a report is due pursuant to subregulation 4.11.1 or 4.11.2; or
  • waive the requirement to file the accountant’s report;

if, in the opinion of the Executive Director, it is appropriate to do so.

Fee for Extension

4.11.9  If, pursuant to subregulation 4.11.8(a), an extension of the date by which a report is due is granted, the lawyer or law firm must:

  • file the required report by the new date; and
  • pay the fee prescribed by Schedule A.

Fee for Waiver

4.11.10  A request for a waiver pursuant to subregulation 4.11.8(b) must be accompanied by the fee prescribed by Schedule A.

4.11.11  The Executive Director may, in exceptional circumstances, waive the fee required by subregulations 4.11.9 or 4.11.10.

4.12 Cash Transactions

Definitions

4.12.1  In Regulation 4.12:

  1. “cash”means coins referred to in Section 7 of the Currency Act, notes issued by the Bank of Canada pursuant to the Bank of Canada Act that are intended for circulation in Canada and coins or bank notes of countries other than Canada;
  2. “disbursements”means amounts paid or required to be paid to a third party by the lawyer or the lawyer’s firm on a client’s behalf in connection with the provision of legal services to the client by the lawyer or the lawyer’s firm which will be reimbursed by the client;
  3. “expenses”means costs incurred by a lawyer or law firm in connection with the provision of legal services to a client which will be reimbursed by the client, including such items as photocopying, travel, courier/postage, and paralegal costs;
  4. “financial institution” means
    1. a bank that ids regulated by the Bank Act,
    2. an authorized foreign bank within the meaning of Section 2 of the Bank Act in respect of its business in Canada,
    3. cooperative credit society, savings and credit union or caisse populaire that is regulated by a provincial or territorial act,
    4. an association that is regulated by the Cooperative Credit Associations Act (Canada),
    5. a financial services cooperative,
    6. a credit union central,
    7. a company that is regulated by the Trust and Loan Companies Act (Canada),
    8. a trust company or loan company that is regulated by a provincial or territorial act,
    9. a department or an entity that is an agent of Her Majesty in right of Canada or of a province or territory when it accepts deposit liabilities in the course of providing financial services to the public, or
    10. a subsidiary of the financial institution whose financial statements are consolidated with those of the financial institution.
  5. “financial services cooperative” means a financial services cooperative that is regulated by An Act respecting financial services cooperatives, CQLR, c. C-67.3, or An Act respecting the Mouvement Desjardins, S.Q. 2000, c.77, other than a caisse populaire;
  6. “funds” means cash, currency, securities and negotiable instruments or other financial instruments that indicate the person’s title or right to or interest in them;
  7. “professional fees” means amounts billed or to be billed to a client for legal services provided or to be provided to the client by the lawyer or the lawyer’s firm;
  8. “money” includes cash, cheques, drafts, credit card sales slips, post office orders and express and bank money orders;
  9. “public body” means
    1. a department or agent of Her Majesty in right of Canada or of a province or territory,
    2. an incorporated city, town, village, metropolitan authority, township, district, county, rural municipality or other incorporated municipality in Canada or an agent in Canada of any of them,
    3. a local board of a municipality incorporate by or under an Act of a province or territory of Canada including any local board as defined in the Municipal Government Act or similar body incorporated under the law of another province or territory,
    4. an organization that operates a public hospital authority and that is designated by the Minister of National Revenue as a hospital under the Excise Tax Act (Canada) or an agent of the organization,
    5. a body incorporated by or under an Act of a province or territory of Canada for a public purpose, or
    6. A subsidiary of a public body whose financial statements are consolidated with those of the public body.

Limitation on Cash

4.12.2  A lawyer must not receive or accept cash in an aggregate amount of greater than $7,500 Canadian in respect of any one client matter.

Foreign Currency

4.12.3  For the purposes of this Regulation, when a lawyer receives or accepts cash in a foreign currency the lawyer will be deemed to have received or accepted the cash converted into Canadian dollars at:

  • the official conversion rate of the Bank of Canada for the foreign currency as published in the Bank of Canada’s Daily Noon Rates that is in effect at the time the lawyer receives or accepts the cash; or
  • if the day on which the lawyer receives or accepts cash is a holiday, the official conversion rate of the Bank of Canada in effect on the most recent business day preceding the day on which the lawyer receives or accepts the cash.

Application

4.12.4  Subregulation 4.12.2 applies when a lawyer engages on behalf of a client or gives instructions on behalf of a client in respect of the following activities:

  • receiving or paying funds;
  • purchasing or selling securities, real properties or business assets or entities;
  • transferring funds by any means.

Exception

4.12.5  Despite subregulation 4.12.4, subregulation 4.12.2 does not apply when the lawyer receives cash in connection with the provision of legal services by the lawyer or the lawyer’s firm:

  • from a financial institution or a public body;
  • from a peace officer, law enforcement agency or other agent of the Crown acting in his or her official capacity;
  • to pay a fine, penalty or bail; or
  • for professional fees, disbursements, or expenses, provided that any refund out of such receipts is also made in cash.

4.12.6  Every lawyer, in addition to existing financial recordkeeping requirements to record all money and other property received and disbursed in connection with the lawyer’s practice, shall maintain:

  • a book of original entry identifying the method by which money is received in trust for a client; and
  • a book of original entry showing the method by which money, other than money received in trust for a client, is received.

4.12.7  Every lawyer who receives cash for a client shall maintain, in addition to existing financial recordkeeping requirements, a book of duplicate receipts, with each receipt identifying the date on which cash is received, the person from whom cash is received, the amount of cash received, the client for whom cash is received, any file number in respect of which cash is received and containing the signature authorized by the lawyer who receives cash and of the person from whom cash is received.

4.12.8  The financial records described in subregulations 4.12.6 and 4.12.7 may be entered and posted by hand or by mechanical or electronic means, but if the records are entered and posted by hand, they shall be entered and posted in ink.

4.12.9  The financial records described in subregulations 4.12.6 and 4.12.7 shall be entered and posted so as to be current at all times.

4.12.10  A lawyer shall keep the financial records described in subregulations 4.12.6 and 4.12.7 for at least the six (6) year period immediately preceding the lawyer’s most recent fiscal year end.

4.13 Client Identification

Definitions

4.13.1  In Regulation 4.13:

  1. “credit union central”means a central cooperative credit society, as defined in Section 2 of the Cooperative Credit Associations Act, or a credit union central or a federation of credit unions or caisses populaire that is regulated by a provincial or territorial Act other than one enacted by the legislature of Quebec;
  2. “disbursements”means amounts paid or required to be paid to a third party by the lawyer or the lawyer’s firm on a client’s behalf in connection with the provision of legal services to the client by the lawyer or the lawyer’s firm which will be reimbursed by the client;
  3. “electronic funds transfer”means an electronic transmission of funds conducted by and received at a financial institution or a financial entity headquartered in and operating in a country that is a member of the Financial Action Task Force, where neither the sending nor the receiving account holders handle or transfer the funds, and where the transmission record contains a reference number, the date, transfer amount, currency and the names of the sending and receiving account holders and the conducting and receiving entities;
  4. “expenses”means costs incurred by a lawyer or a law firm in connection with the provision of legal services to a client, which will be reimbursed by the client, including such items as photocopying, travel, courier/postage, and paralegal costs;
  5. “financial institution” means
    1. a bank that ids regulated by the Bank Act,
    2. an authorized foreign bank within the meaning of Section 2 of the Bank Act in respect of its business in Canada,
    3. cooperative credit society, savings and credit union or caisse populaire that is regulated by a provincial or territorial act,
    4. an association that is regulated by the Cooperative Credit Associations Act (Canada),
    5. a financial services cooperative,
    6. a credit union central,
    7. a company that is regulated by the Trust and Loan Companies Act (Canada),
    8. a trust company or loan company that is regulated by a provincial or territorial act,
    9. a department or an entity that is an agent of Her Majesty in right of Canada or of a province or territory when it accepts deposit liabilities in the course of providing financial services to the public, or
    10. a subsidiary of the financial institution whose financial statements are consolidated with those of the financial institution,
  6. “financial services cooperative”means a financial services cooperative that is regulated by An Act respecting financial services cooperatives, CQLR, c. C-67.3, or An Act respecting the Mouvement Desjardins, S.Q. 2000, c.77, other than a caisse populaire;
  7. “funds” means cash, currency, securities and negotiable instruments or other financial instruments that indicate the person’s title or right to or interest in them;
  8. “lawyer” means, in the Province of Quebec, and advocate or a notary and, in any other province or territory, a barrister or solicitor;
  9. “organization”means a body corporate, partnership, fund, trust, cooperative, or an unincorporated association;
  10. “professional fees” means amounts billed or to be billed to a client for legal services provided or to be provided to the client by the lawyer or the lawyer’s firm;
  11. “public body” means
    1. a department or agent of Her Majesty in right of Canada or of a province or territory,
    2. an incorporated city, town, village, metropolitan authority, township, district, county, rural municipality or other incorporated municipality in Canada or an agent in Canada of any of them,
    3. a local board of a municipality incorporate by or under an Act of a province or territory of Canada including any local board as defined in the Municipal Government Act or similar body incorporated under the law of another province or territory,
    4. an organization that operates a public hospital authority and that is designated by the Minister of National Revenue as a hospital under the Excise Tax Act (Canada) or an agent of the organization,
    5. a body incorporated by or under an Act of a province or territory of Canada for a public purpose, or
    6. A subsidiary of a public body whose financial statements are consolidated with those of the public body.
  12. “reporting issuer”means an organization that is a reporting issuer within the meaning of the securities laws of any province or territory of Canada, or a corporation whose shares are traded on a stock exchange that is designated under Section 262 of the Income Tax Act (Canada) and operates in a country that is a member of the Financial Action Task Force, and includes a subsidiary of that organization or corporation whose financial statements are consolidated with those of the organization or corporation;
  13. “securities dealer” means persons and entities authorized under provincial or territorial legislation to engage in the business of dealing in securities or any other financial instruments or to provide portfolio management or investment advising services, other than persons who act exclusively on behalf of such an authorized person or entity.

Requirement to Identify Client

4.13.2  Subject to subregulation 4.13.4, a lawyer who is retained by a client to provide legal services must comply with the requirements of this Regulation in keeping with the lawyer’s obligation to know their client, understand the client’s financial dealings in relation to the retainer with the client and manage any risks arising from the professional business relationship with the client.

4.13.3  A lawyer’s responsibilities under this Regulation may be fulfilled by any member, associate or employee of the lawyer’s firm, wherever located.

4.13.4  Subregulations 4.13.5 through 4.13.31 do not apply to:

  1. a lawyer when he or she provides legal services or engages in or gives instructions in respect of any of the activities described in subregulation 4.13.6 on behalf of his or her employer;
  2. a lawyer
    1. who is engaged as an agent by the lawyer for a client to provide legal services to the client, or
    2. to whom a matter for the provision of legal services is referred by the lawyer for a client, when the client’s lawyer has complied with subregulations 4.13.5 through 4.13.31, or
  3. a lawyer providing legal services as party of a duty counsel program sponsored by a non-profit organization, except where the lawyer engages in or gives instructions in respect of the receiving, paying or transferring of funds other than an electronic funds transfer.

4.13.5  A lawyer who is retained by a client as described in subregulation 4.13.2 must obtain and record, with the applicable date, the following information:

  1. for individuals
    1. the client’s full name,
    2. the client’s home address and home telephone number,
    3. the client’s occupation or occupations, and
    4. the address and telephone number of the client’s place of work or employment, where applicable;
  2. for organizations
    1. the client’s full name, business address and business telephone number,
    2. other than a financial institution, public body or reporting issuer, the organization’s incorporation or business identification number and the place of issue of its incorporation or business identification number, if applicable,
    3. other than a financial institution, public body or a reporting issuer, the general nature of the type of business or businesses or activity or activities engaged in by the client, where applicable, and
    4. the name and position of and contact information for the individual who is authorized to provide and give instructions to the lawyer with respect to the matter for which the lawyer is retained.
  3. if the client is acting for or representing a third party, information about the third party as set out in paragraphs (a) or (b), as applicable.

When Verification of Client Identity Required

4.13.6  Subject to subregulation 4.13.7, subregulation 4.13.8 applies where a lawyer who has been retained by a client to provide legal services engages in or gives instructions in respect of the receiving, paying or transferring of funds.

Exemptions re: Certain Funds

4.13.7  Subregulation 4.13.8 does not apply:

  1. where the client is a financial institution, public body or reporting issuer;
  2. in respect of funds
    1. paid by or to a financial institution, public body or a reporting issuer,
    2. received by a lawyer from the trust account of another lawyer,
    3. received from a peace officer, law enforcement agency or other public official acting in their official capacity,
    4. paid or received to pay a fine, penalty, or bail, or
    5. paid or received for professional fees, disbursements or expenses;
  3. to an electronic funds transfer.

Requirement to Verify Client Identity

4.13.8  When a lawyer is engaged in or gives instructions in respect of any of the activities described in subregulation 4.13.6, the lawyer must:

  • obtain from the client and record, with the applicable date, information about the source of funds described in subregulation 4.13.6; and
  • verify the identity of the client, including the individual(s) described in subregulation 4.13.5(b)(iv) and, where appropriate, the third party using the documents or information described in subregulation 4.13.13.

Use of Agent

4.13.9  A lawyer may rely on an agent to obtain the information described in 4.13.13 to verify the identity of an individual client, third party or individual described in 4.13.5(b)(iv) provided the lawyer and the agent have an agreement or arrangement in writing for this purpose as described in 4.13.11.

4.13.10  Notwithstanding subregulation 4.13.9, where an individual client, third party or individual described in 4.13.5(b)(iv) is not physically present in Canada, a lawyer must rely on an agent to obtain the information described in subregulation 4.13.11 to verify the person’s identity provided the lawyer and the agent have an agreement or arrangement in writing for this purpose as described in subregulation 4.13.11.

Agreement for Use of Agent

4.13.11  A lawyer who enters into an agreement or arrangement referred to in subregulations 4.13.9 or 4.13.10 must:

  • obtain from the agent the information obtained by the agent under that agreement or arrangement; and
  • satisfy themselves that the information is valid and current and that the agent verified identity in accordance with subregulation 4.13.13.

4.13.12  A lawyer may rely on the agent’s previous verification of an individual client, third party or an individual described in subregulation 4.13.5(b)(iv) if the agent was, at the time they verified the identity:

  • acting in their own capacity, whether or not they were required to verify identity under this Regulation; or
  • acting as an agent under an agreement or arrangement in writing, entered into with another lawyer who is required to verify identity under this Regulation, for the purpose of verifying identity under subregulation 4.13.13.

Documents and Information for Verification

4.13.13  For the purposes of subregulation 4.13.8(b), the client’s identity must be verified by referring to the following documents, which musts be valid, original and current, or the following information, which must be valid and current, and which must not include an electronic image of a document:

  1. if the client or third party is an individual,
    1. an identification document containing the individual’s name and photograph that is issued by the federal government, a provincial or territorial government or a foreign government, other than a municipal government, that is used in the presence of the individual to verify that the name and photograph are those of the individual,
    2. information that is in the individual’s credit file if that file is located in Canada and has been in existence for at least three (3) years, that is used to verify that the name, address and date of birth in the credit file are those of the individual,
    3. any two of the following with respect to the individual:
      1. information from a reliable source that contains the individual’s name and address that is used to verify that the name and address are those of the individual,
      2. information from a reliable source that contains the individual’s name and date of birth that is used to verify that the name and date of birth are those of the individual, or
      3. information that contains the individual’s name and confirms that they have a deposit account or a credit card or other loan amount with a financial institution that is used to verify that information;
  2. or the purposes of subregulation 4.13.13(a)(iii)(A) to (C), the information referred to must be from different sources, and the individual, lawyer and agent cannot be a source;
  3. to verify the identity of an individual who is under 12 years of age, the lawyer must verify the identity of one of their parents or their guardian;
  4. to verify the identity of an individual who is at least 12 years of age but not more than 15 years of age, the lawyer may refer to information under subregulation 4.13.13(a)(iii)(A) that contains the name and address of one of the individual’s parents or their guardian and verifying that the address is that of the individual;
  5. if the client or third party is an organization such as a corporation or society that is created or registered pursuant to legislative authority, a written confirmation from a government registry as to the existence, name and address of the organization, including the names of it directors, where applicable, such as
    1. a certificate of corporate status issued by a public body,
    2. a copy obtained from a public body of a record that the organization is required to file annually under applicable legislation, or
    3. a copy of a similar record obtained from a public body that confirms the organization’s existence; and
  6. if the client or third party is an organization, other than a corporation or society, that is not registered in any government registry, such as a trust or partnership, a copy of the organization’s constating documents, such as a trust or partnership agreement, articles of association, or any other similar record that confirms its existence as an organization.

Requirement to Identify Directors, Shareholders and Owners

4.13.14  When a lawyer is engaged in or gives instructions in respect of any of the activities in subregulation 4.13.6 for a client or third party that is an organization referred to in subregulation 4.13.13(e) or (f), the lawyer must:

  • obtain and record, with the applicable date, the names of all directors of the organization, other than an organization that is a securities dealer; and
  • make reasonable efforts to obtain, and if obtained, record with the applicable date,
  • the names and addresses of all persons who own, directly or indirectly, 25 per cent or more of the organization or of the shares of the organization,
  • the names and addresses of all trustees and all known beneficiaries and settlors of the trust, and
  • in all cases, the information establishing the ownership, control and structure of the organization.

4.13.15  A lawyer must take reasonable measures to confirm the accuracy of the information obtained under subregulation 4.13.14.

4.13.16  A lawyer must keep a record, with the applicable date(s), that sets out the information obtained and the measures taken to confirm the accuracy of that information.

4.13.17  If a lawyer is not able to obtain the information referred to in subregulation 4.13.14 or to confirm the accuracy of that information in accordance with subregulation 4.13.15, the lawyer must:

  1. take reasonable measures to ascertain the identity of the most senior managing officer of the organization;
  2. determine whether
    1. the client’s information in respect of their activities,
    2. the client’s information in respect of the source of the funds described in subregulation 4.13.16, and
    3. the client’s instructions in respect of the transaction are consistent with the purpose of the retainer and the information obtained about the client as required by this Regulation;
  3. assess whether there is a risk that the lawyer may be assisting in or encouraging fraud or other illegal conduct; and
  4. keep a record, with the applicable date, of the results of the determination and assessment under paragraphs (b) and (c).

Timing of Verification for Individuals

4.13.18  A lawyer must verify the identity of:

  • a client who is an individual; and
  • the individual(s) authorized to provide and giving instructions on behalf of an organization with respect to the matter for which the lawyer is retained,

upon engaging in or giving instructions in respect of any of the activities described in subregulation 4.13.16.

4.13.19  Where a lawyer has verified the identity of an individual, the lawyer is not required to subsequently verify that same identity unless the lawyer has reason to believe the information, or the accuracy of it, has changed.

Timing of Verification for Organizations

4.13.20  A lawyer must verify the identity of a client that is an organization upon engaging in or giving instructions in respect of any of the activities described in subregulation 4.13.16, but in any event no later than 30 days thereafter.

4.13.21  Where the lawyer has verified the identity of a client that is an organization and obtained information pursuant to subregulation 4.13.20, the lawyer is not required to subsequently verify that identity or obtain that information, unless the lawyer has reason to believe the information, or the accuracy of it, has changed.

Record Keeping and Retention

4.13.22  A lawyer must obtain and retain a copy of every document used to verify the identity of any individual or organization for the purpose of subregulation 4.13.8.

4.13.23  The documents referred to in subregulation 4.13.22 may be kept in a machine-readable or electronic form, if a paper copy can be readily produced from it.

4.13.24  A lawyer must retain a record of the information, with the applicable date, and any documents obtained for the purposes of subregulations 4.13.5, 4.13.14 and 4.13.29(b) and copies of all documents received for the purposes of subregulation 4.13.8 for the longer of:

  • the duration of the lawyer and client relationship and for as long as is necessary for the purpose of providing service to the client; and
  • a period of at least six (6) years following completion of the work for which the lawyer was retained.

Application

4.13.25  Subregulations 4.13.12 through 4.13.24 do not apply to matters in respect of which a lawyer was retained before this Regulation 4.13 comes into force but they do apply to all matters for which he or she is retained after that time regardless of whether the client is a new or existing client.

Criminal Activity, Duty to Withdraw at the Time of Taking Information

4.13.26  If in the course of obtaining the information and taking the steps required in subregulation 4.13.5 and subregulations 4.13.8, 4.13.14 and 4.13.17, a lawyer knows or ought to know that he or she is or would be assisting a client in fraud or other illegal conduct, the lawyer must withdraw from representation of the client.

4.13.27 Subregulation 4.13.24 applies to all matters, including new matters for existing clients, for which a lawyer is retained after this Regulation 4.13 comes into force.

Monitoring

4.13.28  During a retainer with a client in which the lawyer is engaged in or gives instructions in respect of any of the activities described in subregulation 4.13.16, the lawyer must monitor on a periodic basis the professional business relationship with the client for the purposes of determining whether:

  • the client’s information in respect of their activities;
  • the client information in respect of the source of the funds described in Section 4; and
  • transactions

are consistent with the purpose of the retainer and the information obtained about the client as required by this Regulation.

4.13.29  In addition to the requirements set out in subregulation 4.13.26, the lawyer must:

  • assess whether there is a risk that the lawyer may be assisting in or encouraging fraud or other illegal conduct; and
  • keep a record, with the applicable date, of the measures taken and the information obtained with respect to the requirements of subregulation 4.13.26.

Duty to Withdraw

4.13.30  If while retained by the client, including when taking the steps required in subregulations 4.13.26 and 4.13.29, a lawyer knows or ought to know that he or she is or would be assisting the client in fraud or other illegal conduct, the lawyer must withdraw from representation of the client.

Application

4.13.31  Subregulation 4.13.30 applies to all matters for which a lawyer was retained before this Regulation 4.13 comes into force and to all matters for which he or she is retained after that time.

4.14 Member Records

4.14.1  The Executive Director must maintain a record for each member of the Society that specifies:

  • current contact information;
  • the date the member became a member;
  • all changes in category of membership and the effective dates;
  • the dates during which a member was suspended and the effective date of reinstatement;
  • the date on which the member ceased to be a member of the Society;
  • the dates of all activities and actions regarding the member pursuant to Sections 35 – 54 of the Act, together with a summary of the activity;
  • if the member filed a Trust Account Report, the information provided in the Trust Account Report;
  • if the member did not file a Trust Account Report, confirmation that the member did not hold trust funds or property;
  • the information provided in the annual member report;
  • the nature of any claims made against the Fund, and the determination made on the claim; and
  • location of files and other property of the practice for members who have ceased to engage in the practice of law.

Law Firm Records

4.14.2  The Executive Director must maintain a record for each law firm that specifies:

  • the names of all members of the Society associated with the firm and the nature of their association;
  • the location and particulars of all trust accounts and firm bank accounts maintained by the firm;
  • information regarding the maintenance of the books, records and accounts of the firm, including the names, designations and responsibilities of employees of the firm;
  • information about the demographics of the members of the Society at the firm and other employees of the firm that will assist the Society in addressing equity issues in the legal profession; and
  • the name of the lawyer designated to fulfill certain responsibilities under Regulation 4.7.

Register of Law Corporations

4.14.3  The Executive Director must maintain a register of law corporations containing the following information with respect to each law corporation:

  • the name, registered office of the corporation and the number on the register attributed to the law corporation;
  • the date of issuance of the initial permit to the law corporation;
  • the dates of the renewal of the permit of the law corporation;
  • any other particulars specified by Council or these Regulations; and
  • any other records with respect to the law corporations as specified by Council.

Register of LLPs

4.14.4  The Executive Director must maintain a register of LLPs containing the following information with respect to each LLP:

  • the name of the LLP;
  • the registered office of the LLP;
  • the names of the members of the Society who are partners in the LLP;
  • the date of initial approval by the Society of the application of the LLP for registration under Part II of the Partnership Act (Nova Scotia);
  • the number on the register attributed to the LLP;
  • any other particulars specified by Council or these Regulations; and
  • any other records with respect to the LLP as specified by Council.

Public Information

4.14.5  The information maintained pursuant to subregulation 4.14.1(a)-(e) and (k) will be considered to be public information.

Release of Statistical Information

4.14.6  In addition to information otherwise authorized by the Act or the Regulations to be release, the Society may provide to the public statistical information about the membership of the Society.

Extent of Information

4.14.7  The records maintained under subregulation 4.14.1 will be maintained for former members to the extent that the information is available.

Register of Articled Clerks

4.14.8  By maintaining the information required in subregulation 4.14.1, the Executive Director fulfills the obligation to maintain a Register of Articled Clerks so long as, at any time, the Executive Director can produce a current list of articled clerks with particulars of each articled clerk.

Format of Records

4.14.9  The records required under this subregulation may be kept in paper or in electronic or digital medium so long as the records are preserved in a viable format that can be recovered and reproduced from time to time as required.

Sharing Information with Foreign Jurisdictions

4.14.10  The Society may share information on members with the law society of a foreign jurisdiction if:

  • the member consents; and
  • there is information which, in the opinion of the Executive Director, indicates that the member in that foreign jurisdiction acted in a manner which is contrary to the Regulations of the Society  or the law society of the foreign jurisdiction and the disclosure of the information is in the public interest.

Agreements Regarding Information

4.14.11  The Society may enter into agreements to provide information about members:

  • to the Province of Nova Scotia, pursuant to the requirements of the regulations passed under the Land Registration Act;
  • to the Federation of Law Societies of Canada for purposes of maintaining a national database of lawyers in Canada which reflects their status and eligibility to practice in another jurisdiction in Canada under the National Mobility Agreement of the Federation of Law Societies.

4.14.12  No one may use or disclose information obtained from the database established by the Federation of Law Societies of Canada except for a purpose related to enforcement of the Act and these Regulations.