Manitoba Hansard — 37 3 b048e.php

37-3 b048e.php

Manitoba — Debates (Hansard)

Search the Bills

Current Session:

43 - 3 (2025-

Past Sessions:

43rd Legislature

43 - 2 (2024-2025)

43 - 1 (2023-2024)

42nd Legislature

42 - 5 (2022-2023)

42 - 4 (2021-2022)

42 - 3 (2020-2021)

42 - 2 (2019-2020)

42 - 1 (2019)

41st Legislature

41 - 4 (2018-2019)

41 - 3 (2017-2018)

41 - 2 (2016-2017)

41 - 1 (2016)

40th Legislature

40 - 5 (2015-2016)

40 - 4 (2014-2015)

40 - 3 (2013-2014)

40 - 2 (2012-2013)

40 - 1 (2011-2012)

39th Legislature

39 - 5 (2010-2011)

39 - 4 (2009-2010)

39 - 3 (2008-2009)

39 - 2 (2007-2008)

39 - 1 (2007)

38th Legislature

38 - 5 (2006-2007)

38 - 4 (2005-2006)

38 - 3 (2004-2005)

38 - 2 (2003-2004)

38 - 1 (2003)

37th Legislature

37 - 4 (2002-2003)

37 - 3 (2001-2002)

37 - 2 (2000-2001)

37 - 1 (1999-2000)

Home → Legislative Business → Bills → 37-3

Status of bills in this Session.

Third Session, Thirty-Seventh Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.

It is not the official version. If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications .

Bill 48

THE LEGAL PROFESSION ACT

Table of Contents

Explanatory Note

(Assented to )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

DEFINITIONS

Definitions

The following

definitions apply in this Act.

"articling student" means a person enrolled in the society's bar admission program and registered in the student register as an articling student. (« stagiaire »)

"bencher" means a member of the governing body of the society, except when used in reference to a life bencher or honorary bencher. (« conseiller »)

"elected bencher" means a person, other than the student bencher, elected to serve as a bencher. (« conseiller élu »)

"foreign jurisdiction" means a jurisdiction outside of Manitoba in which the legal profession is regulated. (« autorité législative étrangère »)

"law corporation" means a corporation that holds a valid permit issued under

Part 4. (« cabinet d'avocats à responsabilité limitée »)

"law student" means a person enrolled in a law degree program and registered in the student register as a law student. (« étudiant en droit »)

"lawyer" includes a barrister, a solicitor and an attorney-at-law. (« avocat »)

"member" means a member of the society, unless the context requires a different meaning. (« membre »)

"practising lawyer" means a lawyer who holds a valid practising certificate issued by the society. (« avocat en exercice »)

"president" means the president of the society. (« président »)

"society" means The Law Society of Manitoba. (« Société »)

"student" means a law student or articling student. (« étudiant »)

PART 2

THE LAW SOCIETY

STATUS AND PURPOSE

Law Society continued

2(1)

"The Law Society of Manitoba" is continued as a body corporate.

Powers

2(2)

In pursuing its purpose and carrying out its duties, the society has all the powers and capacity of a natural person.

Corporations Act does not apply

2(3)

The Corporations Act does not apply to the society.

Purpose

3(1)

The purpose of the society is to uphold and protect the public interest in the delivery of legal services with competence, integrity and independence.

Duties

3(2)

In pursuing its purpose, the society must

(

a) establish standards for the education, professional responsibility and competence of persons practising or seeking the right to practise law in Manitoba; and

(

b) regulate the practice of law in Manitoba.

GOVERNING BODY

Governing body continued

4(1)

The governing body of the society is continued and may be referred to as the "benchers".

Benchers' mandate and powers

4(2)

The benchers shall govern the society and manage its affairs, and may take any action consistent with this Act that they consider necessary for the promotion, protection, interest or welfare of the society.

Benchers may act by resolution

4(3)

The benchers may take any action consistent with this Act by resolution.

Benchers may act despite vacancies

4(4)

If there is a quorum at a benchers' meeting, the benchers may exercise their powers under this Act despite any vacancies among the benchers.

General power to make rules

4(5)

In addition to any specific power or requirement to make rules under this Act, the benchers may make rules to manage the society's affairs, pursue its purpose and carry out its duties.

Rules are binding

4(6)

The rules are binding on the society, the benchers, the members and everyone who practises or seeks the right to practise law under the authority of this Act, other than

Part 5 (representation in highway traffic matters).

Membership of governing body

The governing body is to consist of

(a) 10 practising lawyers elected for the City of Winnipeg Electoral District;

(

b) two practising lawyers elected for the Western Electoral District;

(

c) one practising lawyer elected for each of the following districts:

(

i) the Northern Electoral District,

(ii) the Dauphin Electoral District,

(iii) the Central Electoral District,

(iv) the Eastern Electoral District;

(

d) one articling student;

(

e) the immediate past president of the society;

(

f) four persons appointed under

section 7;

(

g) the Minister of Justice and Attorney General of Canada and the Minister of Justice and Attorney General of Manitoba, by virtue of their offices;

(

h) the Dean of the Faculty of Law of the University of Manitoba, or, if the Dean ceases under the rules to be a bencher, another member of that faculty who is appointed by the faculty to fill the vacancy; and

(

i) a person appointed under the rules to fill a vacancy in the office of an elected bencher.

Rules re election of benchers

6(1)

The benchers must make rules governing the election of benchers.

What the rules must provide

6(2)

The rules must

(

a) establish the boundaries for the electoral districts mentioned in

section 5;

(

b) require voting by secret ballot;

(

c) provide for the election of the student bencher each year by the articling students from among their number; and

(

d) ensure that, with respect to the election of the elected benchers,

(

i) persons who are entitled to vote in the election of a bencher for an electoral district other than the City of Winnipeg Electoral District are also entitled to vote in the election of benchers for the City of Winnipeg Electoral District,

(ii) each member's right to vote within an electoral district carries the same weight as every other member's right to vote within that district,

(iii) an election is held at least every second year and applies to all elected bencher positions, and

(iv) only those who are practising lawyers on the first Monday in March of the election year are entitled to be elected or to vote.

What the rules may provide

6(3)

Without limiting subsection (1) but subject to subsection (2), the rules may

(

a) revise the boundaries for the electoral districts;

(

b) establish criteria for eligibility to be elected;

(

c) establish procedures for dealing with contested elections;

(

d) prescribe circumstances in which an elected bencher or student bencher ceases to be a bencher;

(

e) allow for reinstatement of persons as benchers;

(

f) provide for the filling of vacancies in the office of elected bencher or student bencher.

Appointed benchers

7(1)

Four persons who are resident in Manitoba but are not members or former members of the society shall be appointed as benchers by a committee consisting of

(

a) the Chief Justice of Manitoba or a judge of The Court of Appeal designated by him or her, who shall chair the committee;

(

b) the Minister of Justice and Attorney General of Manitoba; and

(

c) the president of the Association of Manitoba Municipalities.

Rules re appointed benchers

7(2)

The benchers may make rules respecting appointed benchers, including rules that

(

a) fix their term of office;

(

b) prescribe circumstances in which they cease to be benchers;

(

c) provide for the reinstatement of an appointed bencher;

(

d) provide for the filling of vacancies in the office of appointed bencher.

Term of office

Persons elected or appointed as benchers take office at the first meeting of the benchers following their appointment or election and, subject to the rules, hold office until their successors take office.

Life benchers

9(1)

The following persons are life benchers:

(

a) members who have completed a term as president;

(

b) members who have served as bencher for at least eight years.

Part year counts as a year

9(2)

The benchers may make rules to allow part of a year of service to count as a year of service for the purpose of clause (1)(b).

Honorary benchers

The benchers may appoint persons as honorary benchers.

OFFICERS

President and vice-president

11(1)

Each year, the benchers must elect a bencher as president and another bencher as vice-president.

Substitutes

11(2)

When the president is absent or unable to act, the vice-president may act for the president. When neither of them is present or able to act, the benchers must appoint another bencher to act for the president.

Chief executive officer

12(1)

The benchers must employ a person as chief executive officer of the society and fix his or her remuneration.

Powers and duties

12(2)

The chief executive officer has the powers and duties given to him or her by or under this Act and the rules, and those assigned or delegated to him or her by the benchers, the president or the vice-president.

Delegation

12(3)

The chief executive officer may delegate to one or more employees of the society any of his or her powers, duties or functions.

Other officers

The benchers may appoint other officers as they see fit.

MEETINGS

Meetings of benchers

The benchers may make rules governing meetings of the benchers, including rules governing practice and procedure for proceedings before the benchers.

Meetings of members

15(1)

The benchers must call a general meeting of members each year and may call special meetings of members from time to time in accordance with the rules.

Annual report

15(2)

At each annual general meeting,

(

a) the chief executive officer must present the society's annual report for the immediately preceding fiscal year, which must include the financial statements for the year and the auditor's report on those statements; and

(

b) the members must appoint an auditor for the current year.

Rules about membership meetings

15(3)

The benchers may make rules governing meetings of members.

COMMITTEES

Benchers may establish committees

16(1)

The benchers may establish committees and may authorize a committee to do any act or exercise any power or jurisdiction that, by this Act, the benchers are authorized to do or to exercise, except the power to make rules.

Rules re committees

16(2)

The benchers may make rules respecting committees, including rules to do any of the following:

(

a) define a committee's mandate and authority;

(

b) govern the membership of a committee;

(

c) govern meetings of a committee;

(

d) govern practice and procedure for proceedings before a committee.

MEMBERS OF THE SOCIETY

Who is a member

17(1)

The following persons are members of the society:

(

a) lawyers registered in the rolls of the society;

(

b) persons registered in the student register;

(

c) other persons who qualify as members under the rules.

Qualification for membership

17(2)

No person may become a member or be reinstated as a member unless the benchers are satisfied that the person meets the applicable membership requirements.

Ceasing to be a member

17(3)

A person ceases to be a member when

(

a) the person dies;

(

b) as a result of disciplinary proceedings,

(

i) the person is disbarred,

(ii) the person's name is ordered to be struck from the student register, or

(iii) the person is permitted to resign; or

(

c) the person ceases to be a student, unless he or she is then registered in the rolls of the society.

Members may not resign

17(4)

No person may resign as a member unless permitted to do so by the panel conducting the proceedings referred to in clause (3)(b).

Rules about membership and authority to practise

17(5)

The benchers may make rules that

(

a) establish categories of membership and prescribe the rights, privileges, restrictions and obligations that apply to them;

(

b) establish requirements, including educational and moral requirements, and procedures for admitting persons as members, which may be different for different categories of membership;

(

c) govern the admission program for articling students;

(

d) establish requirements and procedures for the reinstatement of former members;

(

e) govern practising certificates;

(

f) govern the resumption of practice by non-practising members.

Membership records

18(1)

The chief executive officer must keep membership records, including

(

a) the rolls of persons registered as barristers or solicitors in Manitoba;

(

b) the register of persons admitted as students; and

(

c) records of changes in membership.

Rules re membership records and other books

18(2)

The benchers may make rules respecting the manner and form in which the membership records and any other books of the society are to be kept.

MEMBERSHIP FEES AND ASSESSMENTS

Admission fees

19(1)

Applicants for membership must pay the following fees as set by the benchers:

(

a) if applying for admission as a student, a student admission fee;

(

b) if applying for membership as a lawyer, a fee for the call to the bar and admission as a solicitor;

(

c) if applying for reinstatement, a reinstatement fee.

Annual fees for practising lawyers

19(2)

To obtain a practising certificate, a member must pay to the society an annual fee consisting of

(

a) a practising fee;

(

b) an amount to be contributed to the professional liability claims fund referred to in

section 45, unless the member is exempt under subsection (3);

(

c) an amount to be contributed to the reimbursement fund referred to in

section 46; and

(

d) any other fee or levy imposed on practising lawyers under the rules.

Exemption re contribution to claims fund

19(3)

A member is not required to contribute to the professional liability claims fund if he or she

(

a) is employed exclusively by

(

i) the government,

(ii) an agency of the government, as defined in The Civil Service Act , except The Legal Aid Services Society of Manitoba, or

(iii) a municipality; and

(

b) does not practise law outside the scope of that employment.

The benchers may exempt other members or classes of members from the requirement to contribute to the professional liability claims fund.

Setting fees and assessments

19(4)

The benchers may by resolution

(

a) set the fees payable under subsection (1);

(

b) set each component of the annual fee payable under subsection (2);

(

c) set other fees to be paid by the members or one or more classes of members;

(

d) levy special assessments to be paid for the purposes of the society.

Rules re fees and assessments

19(5)

The benchers may make rules respecting fees and assessments, including rules that

(

a) set the date for the payment of the fees and assessments;

(

b) permit payment by instalments;

(

c) prorate the fees for practising certificates issued for less than a full year;

(

d) specify consequences for failing to pay a fee or assessment in accordance with this Act or the rules, which may include a penalty, a fine, costs or a suspension, or any combination of them.

PART 3

AUTHORITY TO PRACTISE LAW

GENERAL

Authority to practise law

20(1)

Subject to any restrictions imposed by or under this Act, a practising lawyer may practise law in Manitoba.

Unauthorized practice of law

20(2)

Except as permitted by or under this Act or another Act, no person shall

(

a) carry on the practice of law;

(

b) appear as a lawyer before any court or before a justice of the peace;

(

c) sue out any writ or process or solicit, commence, carry on or defend any action or proceeding before a court; or

(

d) attempt to do any of the things mentioned in clauses (

a) to (c).

Interpretation: carrying on the practice of law

20(3)

A person who does any of the following, directly or indirectly, for or in the expectation of a fee or reward is deemed to be carrying on the practice of law:

(

a) draws, revises or settles any of the following documents:

(

i) a document relating to real or personal property,

(ii) a document for use in a proceeding, whether judicial or extra-judicial,

(iii) a document relating to the incorporation, administration, organization, reorganization, dissolution or winding-up of a corporation,

(iv) a will, deed, settlement, trust deed or power of attorney, or any document relating to the guardianship or estate of a person,

(

v) a document relating to proceedings under any statute of Canada or of Manitoba;

(

b) negotiates or solicits the right to negotiate for the settlement of, or settles, a claim for loss or damage founded in tort;

(

c) agrees to provide the services of a practising lawyer to any person, unless the agreement is part of, or is made under

(

i) a prepaid legal services plan,

(ii) a liability insurance policy, or

(iii) a collective agreement or collective bargaining relationship;

(

d) gives legal advice.

Exceptions

20(4)

Subsection (2) does not apply to the following:

(

a) a public officer acting within the scope of his or her authority as a public officer;

(

b) a notary public exercising his or her powers as a notary public;

(

c) a person preparing a document for his or her own use or to which he or she is a party;

(

d) a person acting on his or her own behalf in an action or a proceeding;

(

e) an officer or employee of an incorporated or unincorporated organization preparing a document for the use of the organization or to which it is a party.

Practice by students

The benchers may make rules permitting and regulating the practice of law by students.

INTERJURISDICTIONAL PRACTICE

Interjurisdictional practice

The benchers may do one or more of the following:

(

a) allow lawyers or classes of lawyers who are authorized to practise law in a foreign jurisdiction to practise law in Manitoba;

(

b) impose conditions or restrictions on their practice of law in Manitoba;

(

c) make rules about their practice of law in Manitoba, including rules that

(

i) set a fee for the permission to practise law in Manitoba,

(ii) set conditions, restrictions, rights, privileges, standards or duties that apply to them and their practice of law in Manitoba,

(iii) extend or limit the application of provisions of this Act and the rules to them,

(iv) provide for the release of information about a lawyer or student to the governing body of any jurisdiction in which he or she has sought or is seeking the right to practise law.

Interjurisdictional law firms

The benchers may make rules to permit and regulate the practice of law in Manitoba by law firms or professional corporations that have an office in Manitoba and an office in one or more foreign jurisdictions.

Members practising outside Manitoba

A member who practises law in a foreign jurisdiction must

(

a) comply with the legislation, regulations, rules and code of professional conduct that apply to members of the legal profession of that jurisdiction; and

(

b) on request by the authority that governs the legal profession in that jurisdiction, provide the authority with the names of all jurisdictions in which he or she is a member of the legal profession.

LIMITED LIABILITY PARTNERSHIPS

Authority to practise in limited liability partnership

25(1)

A person who is authorized by this Part or

Part 4 (law corporations) to practise law in Manitoba may carry on the practice as a partner of a limited liability partnership to which

Part III of The Partnership Act applies.

Rules re limited liability partnerships

25(2)

The benchers may make rules that are not contrary to The Partnership Act respecting limited liability partnerships.

ENFORCEMENT

Employment or engagement of former or suspended member

No person shall employ or engage a former member or a member who is suspended from practice to perform, in any capacity whatsoever, services that constitute the practice of law, unless the employment or engagement is approved by the benchers.

False representation

No person shall falsely represent himself or herself, or another person, as being

(

a) a lawyer or student; or

(

b) authorized to practise law in Manitoba.

Offence

28(1)

A person who contravenes any of the following provisions is guilty of an offence:

(a) subsection 20(2) (unauthorized practice);

(

b) section 26 (employment or engagement of former or suspended member);

(

c) section 27 (false representation).

Offence by corporation

28(2)

If a corporation commits an offence under this section, a director, officer or employee of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence, whether or not the corporation has been prosecuted or convicted.

Penalty

28(3)

A person who is guilty of an offence under this

section is liable, on

summary conviction,

(

a) for a first offence, to a fine of not more than $6,000.; and

(

b) for a second or subsequent offence, to a fine of not more than $30,000.

Fine payable to minister

28(4)

Every fine imposed under this

section is payable to the Minister of Finance.

Prosecution by society or others

28(5)

Anyone may prosecute an offence under this section, and the government may pay to the prosecutor, out of any fine recovered, an amount that the government considers an appropriate contribution toward the prosecution costs.

Recovery of fine

28(6)

The society may recover a fine imposed under this

section in the manner provided by The

Summary Convictions Act or by application to the Court of Queen's Bench.

Society may apply for injunction

29(1)

The society may apply to the Court of Queen's Bench for an injunction restraining a person from contravening this Part.

Court may grant injunction

29(2)

The court may grant the injunction against the person if satisfied that there is reason to believe that the person has contravened or will contravene this Part.

PART 4

LAW CORPORATIONS

Definitions

The following

definitions apply in this Part.

"permit" means a certificate issued under

section 32 certifying that the corporation named in the certificate is authorized to practice law in the province for the period specified in the certificate. (« permis »)

"voting share" , in relation to a corporation, means a share of its capital stock that entitles the holder to vote in any election of directors of the corporation. (« action avec droit de vote »)

"voting shareholder" , in relation to a corporation, means a person who owns a voting share of the corporation or is a voting shareholder of another corporation that owns a voting share of the corporation. (« actionnaire avec droit de vote »)

Authority of law corporation to practise law

31(1)

A law corporation may practise law in Manitoba

(

a) under its own name; or

(

b) as a partner of a partnership, each partner of which is entitled to practise law in Manitoba.

How law corporation may practise

31(2)

A law corporation may practise law in Manitoba only through members who are authorized under this Act to practise law in Manitoba.

Corporate permit

32(1)

Subject to subsection (2), the chief executive officer must issue a permit or a renewal of a permit to a corporation on being satisfied that

(

a) the corporation is incorporated, formed by amalgamation or continued under The Corporations Act , and is in good standing under that Act;

(

b) the name of the corporation includes the words "law corporation";

(

c) each voting share of the corporation is legally and beneficially owned by a practising lawyer or a law corporation;

(

d) each other share in the capital stock of the corporation is legally and beneficially owned by

(

i) a person who is a voting shareholder of the corporation,

(ii) a spouse, common-law partner or child, within the meaning of the Income Tax Act (Canada), of a voting shareholder of the corporation, or

(iii) a corporation each share of the capital stock of which is legally and beneficially owned by a person referred to in subclause (

i) or (ii);

(

e) each director of the corporation is a practising lawyer;

(

f) the president of the corporation is a practising lawyer;

(

g) each member through whom the corporation will be carrying on the practice of law is authorized under this Act to practise law in Manitoba; and

(

h) the requirements in the rules for the issuance or renewal of the permit have been satisfied.

Refusal to issue permit

32(2)

The chief executive officer may refuse to issue a permit or a renewal of a permit to a corporation if

(

a) a permit of the corporation has been revoked; or

(

b) a director, officer or shareholder of the corporation is or has been a director, officer or shareholder of a corporation whose permit has been revoked.

Business without permit prohibited

33(1)

A corporation whose name includes the words "law corporation" shall not carry on any business unless it holds a valid permit.

Valid permit

33(2)

Unless it is revoked, surrendered or suspended, a permit is valid for the period stated in the permit.

Restriction on business of law corporation

33(3)

No law corporation shall carry on any business or activity other than the practice of law as authorized by its permit, and the provision of services directly associated with the practice. This subsection does not prohibit a law corporation from investing its own funds in real property, other than for development purposes, or in stocks, mutual funds, debt obligations, insurance, term deposits or similar investments.

Validity of corporate act

33(4)

No act of a corporation, including a transfer of property to or by the corporation, is invalid merely because it contravenes this section.

Voting agreements void

34(1)

An agreement or proxy that vests in a person who is not a member the authority to exercise any voting right attached to a share of a law corporation is void.

Unanimous shareholders' agreements void

34(2)

A unanimous shareholders' agreement within the meaning of subsection 140(2) of The Corporations Act in respect of a law corporation is void unless each shareholder of the corporation is a practising lawyer or a law corporation.

Application of Act and rules

35(1)

This Act and the rules apply to members despite any relationship they may have with a law corporation.

Obligations to clients not diminished

35(2)

The fiduciary and ethical obligations of members, and their obligations respecting confidentiality and solicitor-client privilege, to persons receiving legal services

(

a) are not diminished by the fact that the services are provided on behalf of a corporation; and

(

b) apply equally to the corporation on whose behalf the services are provided and to its directors, officers and shareholders.

Liability of members

36(1)

The liability of a member for a professional liability claim is not affected by the fact that the member is practising law on behalf of a corporation.

Liability of voting shareholders

36(2)

A person is jointly and severally liable with a law corporation, or a corporation practising law in contravention of

section 20, for all professional liability claims made against the corporation in respect of errors or omissions that were made or occurred while the person was a voting shareholder of the corporation.

Grounds for suspension or revocation of permit

37(1)

Subject to subsection (2), a law corporation's permit may be revoked or suspended, or have restrictions imposed on it, in accordance with the rules if

(

a) the corporation ceases to meet any of the conditions for obtaining a permit;

(

b) the corporation contravenes any provision of this Act or the rules;

(

c) a member through whom the corporation has carried on the practice of law has been suspended, or has had restrictions imposed on his or her practice under clause 68(c); or

(

d) a member, in the course of providing legal services on behalf of the corporation, does or fails to do anything as a result of which he or she is found to be incompetent or guilty of professional misconduct or conduct unbecoming a lawyer or student.

Limitation

37(2)

A law corporation's permit shall not be revoked or suspended by reason only of the fact that

(

a) one or more shares of the corporation have vested in

(

i) an executor or administrator of the estate of an individual as a consequence of the death of the individual, or

(ii) a trustee in bankruptcy on the bankruptcy of the owner of the shares,

unless the individual or owner was the only member through whom the corporation was practising law or the shares continue to be vested in the executor, administrator or trustee for more than 180 days or any longer period allowed by the chief executive officer;

(

b) the former spouse or common-law partner of a voting shareholder continues to own a share of the corporation after the end of their marriage or common-law relationship;

(

c) a member's right to practise has been temporarily suspended, unless

(

i) the member remains a director or officer of the corporation for more than 14 days after the suspension begins, or

(ii) the corporation does not practise law through any other practising lawyer; or

(

d) a lawyer has ceased, for any reason other than his or her death or bankruptcy, to be a member of the society, unless

(

i) the lawyer remains a director or officer of the corporation for more than 14 days after ceasing to be a member,

(ii) the lawyer remains a voting shareholder of the corporation for more than 90 days after ceasing to be a member, or for any longer period allowed by the chief executive officer, or

(iii) the corporation does not practise law through any other practising lawyer.

References in other Acts, regulations, etc.

Unless expressly provided otherwise, a reference in any other Act or in any regulation, rule, by-law or order made under any other Act to a person entitled to carry on the practice of law or the practice or profession of a barrister or solicitor, whether as a barrister, solicitor, lawyer, member or otherwise, is deemed to include a reference to a law corporation.

Rules re law corporations

The benchers may make rules respecting law corporations, including rules respecting

(

a) permits, including fees for issuance or renewal of permits;

(

b) names of law corporations and partnerships whose members include a law corporation;

(

c) the disposition of shares of law corporations owned by persons who are not eligible to own them.

PART 5

REPRESENTATION IN HIGHWAY TRAFFIC MATTERS

Authority to act as agent or provide advice

40(1)

A person who is not otherwise authorized to practise law in Manitoba may act as an agent on behalf of, or provide legal advice to, another person with respect to an offence under The Highway Traffic Act in the Provincial Court if

(

a) the penalty for the offence on

summary conviction does not include imprisonment, other than in default of payment of a fine;

(

b) no report of bodily injury is made under subsection 155(4) of The Highway Traffic Act in respect of the event giving rise to the offence; and

(

c) the person meets the requirements concerning insurance and bonding prescribed in the regulations.

Limitation

40(2)

A person may not act as an agent or legal adviser under this

section if he or she

(

a) as a result of disciplinary proceedings by the governing body of the legal profession in any Canadian jurisdiction, is not entitled to practise law in that jurisdiction; or

(

b) has been convicted of an indictable offence under the Criminal Code and has not been granted a pardon with respect to that offence.

Justice may bar agent

40(3)

A justice may bar a person from appearing as an agent under this

section if he or she finds that the person

(

a) is not competent to properly represent or to advise another person; or

(

b) does not understand or comply with the duties and responsibilities of an agent.

Privileged communication

A communication between

(

a) a person acting as an agent on behalf of another person and that other person; or

(

b) a person providing legal advice to another person and that other person;

with respect to an offence referred to in subsection 40(1) is privileged in the same manner and to the same extent as a communication between a lawyer and his or her client.

Regulations

The Lieutenant Governor in Council may make regulations for the purpose of this Part

(

a) establishing bonding and insurance requirements;

(

b) governing how money paid on account of fees and disbursements are to be held;

(

c) establishing procedures for the review of fees and disbursements.

PART 6

PROTECTION OF THE PUBLIC

DIVISION 1

PRACTICE STANDARDS AND LAWYER ASSISTANCE PROGRAMS

Practice standards

The benchers may

(

a) establish practice standards and issue practice directions;

(

b) establish or adopt a code of conduct for lawyers and students;

(

c) establish and maintain, or otherwise support, a system of legal education, including the following:

(

i) a bar admission program,

(ii) a continuing legal education program,

(iii) a remedial legal education program,

(iv) a loss prevention program,

(

v) courses for lawyers from foreign jurisdictions seeking the right to practise law in Manitoba; and

(

d) take any steps they consider advisable to promote and improve standards of practice, including the following:

(

i) granting scholarships, bursaries or loans to persons enrolled in a program of legal education,

(ii) establishing and maintaining, or providing support to, a law school or a law library,

(iii) participating with another institution, such as the University of Manitoba, in a system for the instruction and examination of students enrolled in a legal education program of the society or the other institution,

(iv) publishing or providing support for the publication of legal materials, including court and other legal decisions,

(

v) providing support to legal education and research or other purposes considered by the benchers to be in the interests of the legal profession or the public.

Programs to assist lawyers

The benchers may

(

a) establish and maintain programs to assist lawyers in handling or avoiding personal, emotional, medical or substance abuse problems; and

(

b) establish and maintain programs to assist lawyers on issues arising from the practice of law.

DIVISION 2

PROFESSIONAL LIABILITY CLAIMS FUND

"Professional liability claim" defined

45(1)

In this section, "professional liability claim" means a claim against a member for an amount of money that the member is legally obligated to pay as damages

(

a) arising out of the performance of professional services for another person in the member's capacity as a lawyer; and

(

b) caused by the member or any other person for whose acts the member is legally liable.

Professional liability claims fund continued

45(2)

The professional liability claims fund of the society is continued and may be referred to as the "claims fund".

Purpose of claims fund

45(3)

The purpose of the claims fund is to pay professional liability claims in accordance with this

section and the rules.

Property of claims fund

45(4)

The property of the claims fund

(

a) is the property of the society;

(

b) must be accounted for separately from other funds of the society;

(

c) is not subject to any process of seizure or attachment by a creditor of the society; and

(

d) is not subject to a trust in favour of a person who makes a professional liability claim.

Professional liability insurance

45(5)

The society may enter into a group insurance contract under which the insurer will be required to pay all or any part of a professional liability claim that would otherwise be payable out of the claims fund, and may be required to pay all or any part of the expenses of adjusting, settling and paying a professional liability claim, including legal fees and disbursements.

Payments out of claims fund

45(6)

Subject to the rules, the society may make the following payments out of the claims fund:

(

a) amounts payable under or in connection with an insurance contract mentioned in subsection (5), including

(

i) expenses of negotiating and entering into the contract,

(ii) premiums payable under the contract, and

(iii) reimbursement of the insurer for payments made in connection with professional liability claims;

(

b) to the extent that it is not paid or payable by an insurer under a contract referred to in subsection (5),

(

i) all or any part of a professional liability claim, and

(ii) any expense of adjusting, settling and paying a professional liability claim, including legal fees and disbursements;

(

c) expenses of administering the fund;

(

d) any other amounts the society requires to be paid for the purposes of this section.

Rules re claims fund

45(7)

The benchers may make rules respecting the claims fund, including rules respecting contributions to and payments out of the fund.

DIVISION 3

REIMBURSEMENT FUND

Reimbursement fund continued

46(1)

The reimbursement fund is continued.

Purpose of reimbursement fund

46(2)

The purpose of the reimbursement fund is to compensate claimants who have sustained pecuniary losses because of a member's or law corporation's misappropriation or wrongful conversion of the claimants' money or property.

Property of reimbursement fund

46(3)

The property of the reimbursement fund

(

a) is the property of the society;

(

b) must be accounted for separately from other funds of the society;

(

c) is not subject to any process of seizure or attachment by a creditor of the society; and

(

d) is not subject to a trust in favour of a person who claims to have sustained a loss.

When loss may be compensated

47(1)

The benchers may pay compensation out of the reimbursement fund to a claimant only if they are satisfied that

(

a) money or other property was entrusted to or received by

(

i) a law corporation, or

(ii) a member in his or her capacity as a lawyer;

(

b) the corporation or member misappropriated or wrongfully converted the money or other property; and

(

c) the claimant sustained a pecuniary loss as a result of that misappropriation or wrongful conversion.

Reimbursement is discretionary

47(2)

When the benchers receive a claim for compensation out of the reimbursement fund, they may

(

a) use the reimbursement fund to compensate the claimant for all or any part of his or her loss, on any terms they consider appropriate; or

(

b) refuse to compensate the claimant.

Recovery of compensation

47(3)

When a claimant is compensated out of the reimbursement fund, the society has all the rights of recovery of the claimant. The society may bring an action in its own name, alone or in a joint action with the claimant, to enforce those rights.

Application of money recovered

47(4)

If the society or the claimant recovers money or other property for the claimant's loss, the recovered money or property must be paid or applied as follows:

(

a) first, to cover the legal costs and fees incurred in recovering it; and

(

b) second, to compensate the reimbursement fund for the compensation paid to the claimant.

The balance, if any, belongs to the claimant.

Rules re reimbursement fund

47(5)

The benchers may make rules respecting the reimbursement fund, including rules respecting contributions to and payments out of the fund.

Interjurisdictional reimbursement program

48(1)

The benchers may participate with governing bodies of the legal profession in other Canadian jurisdictions in programs to compensate persons who sustain pecuniary losses by reason of misappropriation or wrongful conversion of property entrusted to or received by lawyers or their professional corporations in the course of practising law outside the jurisdiction in which they are members of the legal profession.

Funding interjurisdictional program or losses

48(2)

The benchers may use money from the reimbursement fund referred to in

section 46

(

a) to contribute to a program referred to in subsection (1); and

(

b) to reimburse, in whole or in part, persons who sustain pecuniary losses by reason of a misappropriation or wrongful conversion, by a member or law corporation, of property entrusted to or received by the member or law corporation in the course of practising law outside of Manitoba.

DIVISION 4

ACCOUNTABILITY FOR TRUST PROPERTY

Rules re financial responsibility

49(1)

The benchers may make rules that

(

a) require members to establish and maintain trust accounts;

(

b) regulate the investment of funds held in trust by members;

(

c) require members to keep accounts and records with respect to money and other property entrusted to or received by them for the benefit of clients or other persons in the course of practising law, and to produce those accounts and records, on demand, to the chief executive officer or any other person designated by the benchers;

(

d) provide for the audit, review or examination of files, books, records and accounts of a member;

(

e) require a member to provide the chief executive officer or any other person designated by the benchers with a report on the files, books, records and accounts;

(

f) require a member to answer questions about the files, books, records and accounts.

Trustee Act

49(2)

Rules made under clause (1)(

b) apply despite subsection 68(1) of The Trustee Act .

Interest on trust deposits

50(1)

A member who receives money in trust from or for a client must deposit it in an interest-bearing pooled trust account, unless the member

(

a) does not receive it as lawyer for the client; or

(

b) deposits or invests it in accordance with subsection (4).

Interest to foundation

50(2)

Interest earned on the pooled trust account belongs to The Manitoba Law Foundation. The member responsible for the account must direct the financial institution where the account is kept to remit the interest, less accrued service or other charges pertaining to the operation of the account, to the foundation.

Not required to account for interest

50(3)

No member is required to account to a client for interest remitted to the foundation under subsection (2).

Client-directed investment

50(4)

If directed by his or her client to do so, a member who receives money in trust from or for a client must deposit it in a separate interest-bearing trust account or investment on behalf of the client, and account to the client for the interest earned on it.

Unclaimed trust money

51(1)

A member who has held money in trust for more than three years may pay it to the society if

(

a) the money is not attributed to any person in the member's or corporation's records; or

(

b) where the money is attributed to one or more persons in those records, but all reasonable efforts to locate the persons have failed.

Liability for trust money extinguished

51(2)

When a member pays money to the society under this section, the member's liability to pay the money to any other person is extinguished.

Trust property

51(3)

Funds paid to the society under this

section

(

a) are not the property of the society;

(

b) must be held, together with the interest earned on them, for the benefit of the person or persons entitled to them;

(

c) must be accounted for separately from the funds of the society; and

(

d) are not subject to any process of seizure or attachment by a creditor of the society.

Payment to claimant

51(4)

Subject to subsection (6), the society must pay money held under this

section to a person who establishes to the satisfaction of the society that he or she is entitled to it.

Appeal to Court of Queen's Bench

51(5)

If the society is not satisfied that a person claiming money under this

section is entitled to it, the society must notify the person in writing of its decision. The person may appeal the decision to the Court of Queen's Bench within 30 days after receiving the notice. The court, after hearing the appeal, may make any order it thinks fit, including an order as to costs.

Property held for 10 years

51(6)

When money paid to the society under this

section has been held by it for 10 years, the money and the interest earned on it become the property of the society.

DIVISION 5

LAWYERS' FEES

Court's power to tax or revise costs

Nothing in this Act or the rules limits a court's power with respect to the taxation or revision of a bill of costs.

Client may apply for assessment

A client may, at any time within six months after receiving a bill from a member, apply to the Court of Queen's Bench for an assessment of the bill, or of a bill previously rendered in respect of the same matter.

Rules re interest

54(1)

The benchers may make rules respecting the charging of interest on fees, charges and disbursements.

Change of interest on taxation

54(2)

On the taxation of a bill of fees, charges and disbursements, the taxing officer may, if he or she considers it just to do so,

(

a) disallow interest; or

(

b) fix a rate of interest that is less than the maximum rate authorized under the rules;

in respect of the whole or any part of the amount allowed on the taxation.

Meaning of "contingency contract"

55(1)

In this section, "contingency contract" means a contract between a member and a person (referred to in this

section as "the client") under which the member is to receive or retain, as remuneration for services rendered or to be rendered to the client, in lieu of or in addition to other remuneration for those services,

(

a) a portion of the proceeds of the subject matter of the action or proceedings in which the member is or will be acting for the client;

(

b) a portion of the money or property in respect of which the member is or may be retained or employed; or

(

c) a commission or a percentage of

(

i) the amount recovered or defended, or

(ii) the value of the property that is the subject of a transaction, action, or proceeding.

No requirement for action

55(2)

A contingency contract may be made whether or not an action or proceeding has been commenced or is contemplated.

Requirements on making contingency contract

55(3)

At the time of making a contingency contract, the member must provide to the client

(

a) a copy of the contingency contract; and

(

b) a copy of subsections (5) and (7).

Failure to comply

55(4)

A member who has not complied with subsection (3) is not entitled to any remuneration exceeding that to which the member would have been entitled without the contingency contract.

Application for declaration that contract unfair

55(5)

The client may, at any time within six months after the remuneration provided for in the contingency contract is paid to or retained by the member, apply to the Court of Queen's Bench for a declaration that the contract is not fair and reasonable to the client.

Manner of giving evidence

55(6)

The judge hearing the application may take evidence orally or by affidavit.

Declaration voiding contract

55(7)

If the judge hearing the application is satisfied that the contingency contract is not fair and reasonable to the client, the judge must

(

a) declare the contract void;

(

b) order the costs, fees, charges, and disbursements of the member in respect of the business done to be taxed as if no contingency contract had been made; and

(

c) if the member has received or retained more than the amount so taxed, order repayment of the excess to the client.

DIVISION 6

CUSTODIANSHIP

Definitions

The following

definitions apply in this Division.

"court" means the Court of Queen's Bench. (« tribunal »)

"custodian" means a person appointed under this Division as custodian of a member's property. (« gardien »)

"member" includes a former member. (« membre »)

"property" , in relation to a member , means any negotiable instrument, financial account, cash, money on deposit, file, record or other document or chattel that

(

a) relates to the member's practice; or

(

b) is in the possession or control of the member or the member's estate and relates to the business or affairs of a client or former client of the member. (« biens »)

Court order appointing custodian

57(1)

A judge of the court may, upon application by the society, make an order appointing a person to

(

a) take custody of a member's property; and

(

b) manage the member's practice or wind it up.

Criteria for making the order

57(2)

The order may be made if the judge is satisfied there are reasonable grounds to believe that

(

a) the member is no longer authorized or able to practise law;

(

b) a corporation through which the member is or has been practising is no longer authorized to practise law;

(

c) the member has absconded or is otherwise improperly absent from a location at which he or she ordinarily practises;

(

d) the member's practice has been neglected for an undue period of time;

(

e) the member, or a corporation through which the member is or has been practising, has insufficient trust money to meet the member's or the corporation's trust liabilities; or

(

f) other sufficient grounds exist for making the order.

Authority to enter and seize

57(3)

The order may authorize a sheriff or bailiff

(

a) to enter any premises in which the judge is satisfied there are reasonable grounds to believe that any of the member's property is located;

(

b) to open any safety deposit box or other receptacle on the premises; and

(

c) to seize all or any of the member's property and place it in the custody of the custodian.

Additional orders

57(4)

After a custodian is appointed, a judge of the court may, upon application by the society or any interested person, do one or more of the following:

(

a) remove the custodian and appoint another custodian;

(

b) give directions to the custodian or any person in possession of the member's property on how to deal with the property;

(

c) determine the validity of a claim for a solicitor's lien;

(

d) limit or extend the time for doing anything required to be done under this

section or under the order.

Notice of application

57(5)

An application for an order under this

section may be made without notice, or with notice as required by the court.

Service of court order

57(6)

An order under this

section must be served on the member, or the member's estate, and as directed by the court.

Responsibility of person served

57(7)

A person who is served with a copy of the order may deal with the member's property only as directed by the sheriff or bailiff, the custodian or the court.

Custodian to give notice of property held

As soon as practicable after taking custody of a member's property, the custodian must identify everyone who the custodian thinks has an interest in the property, and must notify each of them that

(

a) anyone with an interest in the property may request the custodian, in writing, to release the property to them or deal with it in the manner they specify; and

(

b) in some circumstances, the member may claim a lien on the property.

Claiming a solicitor's lien

59(1)

To claim a solicitor's lien against any of his or her property, the member must give written notice of the claim, with particulars, to the custodian within 30 days after being served with the order. If the notice is not given on time, any lien that the member might have had against the property is extinguished.

Custodian to give notice of claim

59(2)

On receiving notice of a claim of a solicitor's lien, the custodian must give written notice of the claim to each person who the custodian thinks has an interest in the property. The notice must advise them of the right to apply to the court for a determination of their rights to the property.

Custodian may override lien

59(3)

Unless the court orders otherwise, the custodian may release the member's property to a person claiming an interest in it if failing to release the property would materially prejudice the person's position in an uncompleted matter, even though a solicitor's lien may have been or could be claimed against the property.

No liability

No action or proceeding may be commenced against the society, an officer of the society, a bencher or a custodian, or a person acting on behalf of any of them, for any thing done or not done in good faith under this Division.

Court costs

A judge of the court may award costs against a member, his or her estate or any other person in respect of proceedings under this Division, but no costs shall be awarded against a custodian, the society, its officers or the benchers, or a person acting on behalf of any of them, in respect of a proceeding taken in good faith under this Division.

Recovery of expenses by society

Unless the court orders otherwise, the society is entitled to recover from a member who is the subject of an order under this Division, or the member's estate, any expense incurred by the society in carrying out the order, including any fee or disbursement paid to the custodian.

DIVISION 7

COMPLAINTS AND DISCIPLINE GENERALLY

Definitions

The following

definitions apply in this Division and Divisions 8, 9 and 11.

"charge" means a charge of incompetence, professional misconduct, or conduct unbecoming a lawyer or student, as the case may be. (« accusation »)

"conduct" includes

an act or omission. (« conduite »)

Disciplinary jurisdiction

64(1)

The society has disciplinary jurisdiction over

(

a) members in respect of their conduct in Manitoba or in any other jurisdiction;

(

b) lawyers from foreign jurisdictions in respect of their conduct in the course of practising law in Manitoba;

(

c) the competence of members to practise law in Manitoba or in any other jurisdiction; and

(

d) the competence of lawyers from foreign jurisdictions to practise law in Manitoba.

Member disciplined in foreign jurisdiction

64(2)

A member may be disciplined under this Act even if he or she is or has been subject to a disciplinary proceeding in a foreign jurisdiction in respect of the same or related conduct.

Contravention of Act or rules

The benchers may make rules

(

a) to establish consequences for contravening this Act or the rules;

(

b) to prescribe which contraventions of this Act or the rules may constitute professional misconduct.

DIVISION 8

COMPLAINTS AND INVESTIGATIONS

Complaints investigations

The benchers must establish a complaints investigation committee and processes for

(

a) receiving and responding to complaints or other information concerning the conduct or competence of members; and

(

b) investigating a member's conduct, competence or practice.

Right to obtain information

For the purpose of conducting an investigation of a member under this Division, the chief executive officer, the complaints investigation committee or any person designated by either of them may request, and is entitled to obtain, any file or record regarding a client or former client of the member that is reasonably required to further the investigation, whether or not the file or record or any part of it is

(

a) subject to solicitor-client privilege; or

(

b) the subject of a charge or complaint.

Committee may suspend or impose conditions

The complaints investigation committee may do one or more of the following:

(

a) issue a formal caution to the member;

(

b) direct that a charge be laid against the member and referred to the discipline committee;

(

c) if the committee considers it necessary for the protection of the public, and after directing that a charge be laid,

(

i) impose restrictions on the member's practice of law or suspend him or her from practising law pending completion of the investigation and any disciplinary proceeding that may follow, and

(ii) direct the publication of the name of the member, the nature of the matter being investigated and the suspension or practice restrictions imposed on the member;

(

d) take any other action permitted by the rules.

Confidentiality of complaints and proceedings

69(1)

All complaints received or under investigation and all proceedings of the complaints investigation committee must be kept confidential.

Permitted disclosure

69(2)

Despite subsection (1),

(

a) details of the complaint, information obtained through the investigation of the complaint and records of the proceedings and decisions of the committee may be disclosed for the purpose of a hearing on a charge related to the complaint and any appeal from the decision made at that hearing;

(

b) the chief executive officer may disclose to the Minister of Justice of Manitoba and the Minister of Justice of Canada, or to persons designated by either or both of them, information that the chief executive officer considers necessary for the purpose of a judicial appointment;

(

c) the president or the chief executive officer, or a person designated by either of them, may disclose

(

i) that a complaint about the conduct or competence of a member has been received,

(ii) that a complaint is or will be under investigation, or

(iii) where clause 68(

c) applies, that restrictions have been imposed on a member's practice or that a member has been suspended from practising law, pending completion of the investigation and any disciplinary proceeding that may follow; and

(

d) the president, the vice-president, the chief executive officer or the chair or vice-chair of the complaints investigation committee have a duty to disclose to a law enforcement authority any information about possible criminal activity on the part of a member that is obtained during an investigation under this Division.

DIVISION 9

DISCIPLINE PROCEEDINGS

Discipline committee

The benchers must establish a discipline committee and make rules about its duties and powers that are consistent with this Act. The rules

(

a) must require disciplinary hearings to be conducted by a panel of committee members;

(

b) may permit preliminary disciplinary proceedings to be conducted by a panel or a single committee member; and

(

c) may permit any other duties and powers given to the discipline committee under the Act or the rules to be carried out by a panel or a single committee member.

Provisions applicable to hearings

The following provisions apply to a hearing on a charge under this Division.

Subpoena

1. The society may subpoena a witness to attend the hearing or to produce books, documents or other things at the hearing.

Witness allowance

2. A witness at the hearing is entitled to the same allowance as a witness at a trial before the Court of Queen's Bench.

Witness testimony

3. The testimony of a witness must be taken under oath. The chair of the panel is to administer the oath.

Examination of witnesses

4. Counsel for the society and counsel for the member charged may examine their own witnesses and cross-examine witnesses adverse in interest, including the deponent of an affidavit or statutory declaration submitted as evidence.

Rules of evidence

5. The rules of evidence that apply in a civil proceeding in the Court of Queen's Bench apply at the hearing. But an affidavit or statutory declaration is admissible and, in the absence of evidence to the contrary, is proof of the statements in it.

Failure to attend

6. If the member charged has been given notice of the hearing in accordance with the rules, the hearing may proceed in the member's absence, and the panel may, without further notice to the member, take any action it could have taken with the member present at the hearing.

Evidence of criminal or other conviction

7. A certified copy of a conviction or order under the seal of the court or signed by the convicting judge or the Clerk of the Provincial Court is conclusive evidence that the person identified in it as the offender committed the crime or offence stated, unless it is shown that the conviction or order has been quashed or set aside.

Evidence of conviction by other disciplinary authority

8. A certified copy of a decision of a disciplinary authority of another Canadian jurisdiction that finds a member guilty of incompetence, professional misconduct or conduct unbecoming a lawyer or student under the laws, rules or code of conduct applicable to the practice of law in that jurisdiction is, in the absence of evidence to the contrary, proof of that guilt.

Hearing to be public

9. The hearing must be open to the public unless the panel makes an order under

section 78.

List of scheduled hearings made available

10. A list of scheduled hearings must be made available to the public upon request.

Consequences of professional misconduct or conduct unbecoming

72(1)

If a panel finds a member guilty of professional misconduct or conduct unbecoming a lawyer or student, it may do one or more of the following:

(

a) if the member is a lawyer, disbar the member and order his or her name to be struck off the rolls;

(

b) if the member is a student,

(

i) expel the student and order his or her name to be struck off the student register,

(ii) deny the student the opportunity to write the required examinations,

(iii) defer the student's admission as a lawyer,

(iv) attach conditions to the student's admission as a lawyer;

(

c) for any period the panel considers appropriate,

(

i) confirm, vary or impose restrictions on the member's practice, or

(ii) suspend the member from practising law;

(

d) order the member to pay a fine;

(

e) order the member to pay all or any part of the costs incurred by the society in connection with any investigation or proceedings relating to the matter in respect of which the member was found guilty;

(

f) reprimand the member;

(

g) permit the member to resign his or her membership;

(

h) if the member is a director, officer or shareholder of a law corporation, revoke or suspend the corporation's permit, or impose conditions on the permit;

(

i) apply for a variation of any custodial order made under Division 6 (Custodianship);

(

j) rescind or vary any order made or action taken under this subsection;

(

k) make any other order or take any other action the panel thinks is appropriate in the circumstances.

Consequences of incompetence

72(2)

If a panel finds a member guilty of incompetence, it may do one or more of the following:

(

a) if the member is a lawyer, disbar the member and order his or her name to be struck off the rolls;

(

b) if the member is a student,

(

i) expel the student and order his or her name to be struck from the student register,

(ii) deny the student the opportunity to write the required examinations,

(iii) defer the student's admission as a lawyer until he or she satisfies the panel that he or she is competent to practise law,

(iv) attach conditions to the student's admission as a lawyer;

(

c) confirm, vary or impose restrictions on the member's practice or suspend the member from practising law, until the member satisfies the panel that he or she is competent to practise law;

(

d) order the member to pay a fine;

(

e) order the member to pay all or any part of the costs incurred by the society in connection with any investigation or proceedings relating to the matter in respect of which the member was found incompetent;

(

f) reprimand the member;

(

g) permit the member to resign his or her membership;

(

h) if the member is a director, officer or shareholder of a law corporation, revoke or suspend the corporation's permit, or impose conditions on the permit;

(

i) order the member to take instruction or submit to examinations, or both, as the panel considers appropriate;

(

j) rescind or vary any order made or action taken under this subsection;

(

k) make any other order or take any other action the panel thinks is appropriate in the circumstances.

Order of fine or costs may be filed as court order

72(3)

An order under this

section to pay a fine or costs may be certified by the chief executive officer and filed in the Court of Queen's Bench. Upon filing, the certified copy may be enforced as a judgment of the court.

Additional consequences: interjurisdictional law firm

73(1)

If a panel finds a member guilty of incompetence, professional misconduct or conduct unbecoming a lawyer or student in connection with his or her practice as a member, associate or employee of an interjurisdictional law firm, the panel may, in addition to anything it may do under

section 72, reprimand the firm or order it to pay a fine of not more than $100,000., or both.

Contravention of rules by interjurisdictional law firm

73(2)

If a panel finds an interjurisdictional law firm guilty of contravening this Act or the rules, the panel may reprimand the firm or order it to pay a fine of not more than $100,000., or both.

Failure to pay fine

73(3)

The benchers may prohibit a member from practising law in Manitoba as a member, employee or associate of an interjurisdictional law firm that has not paid a fine imposed on it under this section.

Extraprovincial misconduct

A member is guilty of professional misconduct under this Act if,

(

a) as a result of disciplinary proceedings in another Canadian jurisdiction,

(

i) the member is disbarred or permitted to resign his or her membership in the legal profession of that jurisdiction,

(ii) the member is suspended from practising law in that jurisdiction,

(iii) conditions are imposed on the member's practice of law in that jurisdiction, or

(iv) the disciplinary authority in that jurisdiction declares that the member would have been disbarred, permitted to resign, suspended from practising law or had conditions imposed on the member's practice of law if he or she had been a member of the legal profession in that jurisdiction; or

(

b) the member contravenes an order of a disciplinary authority of another Canadian jurisdiction having jurisdiction over the member.

DIVISION 10

APPEALS

Appeal of interim suspension

75(1)

A member whose right to practise law in Manitoba is suspended under

section 68 may appeal the suspension to a judge of the Court of Queen's Bench.

Time limit for appeal

75(2)

The appeal must be commenced within 30 days after the member or his or her counsel is given notice of the suspension in accordance with the rules.

Further appeal

75(3)

If the appeal is denied, the member may appeal the decision of the Court of Queen's Bench to The Court of Appeal within 30 days after being served with a copy of decision.

Appeal to Court of Appeal

76(1)

Subject to subsection (2), any of the following decisions may be appealed to The Court of Appeal:

(

a) a decision under

section 72 to do any of the following:

(

i) to disbar, expel or suspend the member,

(ii) to revoke or suspend the permit of a law corporation,

(iii) to reprimand the member,

(iv) to order the member to pay a fine,

(

v) to impose restrictions or conditions on the member's practice of law;

(

b) a decision to refuse to issue a practising certificate, or a practising certificate free of conditions;

(

c) a decision under subsection 73(1) or (2).

Appeal by society

76(2)

The society may appeal the decisions mentioned in clause (1)(a), and those only on a question of law.

Time limit for appeal

76(3)

An appeal under this

section must be commenced

(

a) in the case of an appeal under clause (1)(

a) or (c), within 30 days after being served with a copy of the decision or order being appealed;

(

b) in the case of an appeal under clause (1)(b), within 14 days after being notified of the refusal to issue the practising certificate.

DIVISION 11

CONFIDENTIALITY AND PRIVILEGE

Solicitor-client privilege applies

A person who, in exercising a power or performing a duty under this Act or the rules, obtains information that is subject to solicitor-client privilege claimed by a member has the same obligation respecting the information as the member. But the person obtaining the information may disclose it for the purpose of an investigation, hearing or appeal under this Part.

Exclusion of members of public

78(1)

A committee, panel or court considering a complaint, charge or appeal under this Part may make an order excluding members of the public from a hearing if it thinks that

(

a) exclusion is necessary to prevent the disclosure of information that is subject to solicitor-client privilege; or

(

b) the public interest in the disclosure of other information is outweighed by the interest of the public or any person in preventing the information from being disclosed.

How and when order can be made

78(2)

The committee, panel or court may make the order on its own motion, or on the application of any person having an interest in the information to be disclosed. The order or application may be made before the hearing begins or at any time during the hearing.

No publication before conviction

79(1)

A person who publishes or broadcasts the name of a member in connection with a complaint, investigation or charge before the member is found to be incompetent or guilty of professional misconduct or conduct unbecoming a lawyer or student is guilty of an offence and is liable, on

summary conviction,

(

a) in the case of an individual, to a fine of not more than $2000. or to imprisonment for not more than six months, or both; and

(

b) in the case of a corporation, to a fine of not more than $10,000.

Liability of directors, officers and employees

79(2)

If a corporation commits an offence under this section, an officer, director, employee or agent of the corporation who directed, authorized, assented to, participated in or acquiesced in the commission of the offence is also guilty of an offence and is liable on

summary conviction to a fine of not more than $2,000. or to imprisonment for not more than six months, or both, whether or not the corporation has been prosecuted or convicted.

Society may permit publication before conviction

79(3)

Subsection (1) does not apply to the following:

(

a) the disclosure, for the purpose of an appeal under this Part, of information required for the appeal;

(

b) the publication, at the direction of the benchers or a committee, of the following information to members, to the governing body of the legal profession in a foreign jurisdiction, to the public or to any combination of them:

(

i) the name of the member who is the subject of the complaint, investigation or charge, and the name of any law corporation of which the member is a director, officer or shareholder,

(ii) the charge or complaint against the member,

(iii) any order made or action taken under clause 37(1)(

c) or 68(c) (interim suspension), subsection 69(2) (permitted disclosure), or provision 10 of

section 71 (hearings list), and the reasons for the order or action, if applicable.

Publication after conviction

The society may publish any decision or order made under

section 72 or 73, or any part or

summary of such decision or order, and the reasons for it, despite the fact that members of the public may have been excluded from the disciplinary hearing or part of the hearing. Publication under this

section may be to members, to the governing body of the legal profession in a foreign jurisdiction, to the public or to any combination of them.

Exclusion of public to preserve privilege

81(1)

On any application made or appeal taken to the Court of Queen's Bench or The Court of Appeal under this Act, the court may exclude members of the public from the hearing of the application or appeal if information that is likely to be disclosed at the hearing could be subject to solicitor-client privilege.

Disclosure of information in judgment

81(2)

In giving reasons for judgment on an application made or an appeal taken under this Act, the court shall take all reasonable precautions to avoid disclosing any information that is subject to solicitor-client privilege and shall, if appropriate, order that the relevant court records be sealed.

Rules to preserve privilege

82(1)

The benchers may make rules that protect solicitor-client privileged records obtained or provided in the course of any investigation or proceeding under this Act from being disclosed except as permitted in this Act. The benchers may require that the rules apply to anyone who obtains or is given such records.

Privileged records not to be produced

82(2)

In any legal proceeding other than one commenced under this Act, a person in possession of solicitor-client privileged records that were obtained or provided to the person in the course of an investigation or proceeding under this Act cannot be compelled to produce those records or to answer any question about them.

DIVISION 12

EXTENSION OF APPLICATION

Application of Divisions extended

83(1)

Divisions 4 to 11 apply, with the necessary changes, to the following persons as if they were members:

(

a) law corporations;

(

b) lawyers from foreign jurisdictions who are practising law in Manitoba under the rules relating to interjurisdictional practice.

Application of rules extended

83(2)

Any rules made by the benchers under Divisions 4 to 11 may be made applicable to the following persons as if they were members:

(

a) law corporations;

(

b) lawyers from foreign jurisdictions who are practising law in Manitoba under the rules relating to interjurisdictional practice.

PART 7

GENERAL

Order of precedence

84(1)

Lawyers who are members are entitled to precedence before the courts and before other tribunals in the following order:

(

a) the Attorney General of Canada;

(

b) the Solicitor General of Canada;

(

c) the Attorney General of Manitoba;

(

d) lawyers who have held the office of the Attorney General of Canada or of Manitoba, according to seniority of appointment to the office;

(

e) lawyers who have held the office of Solicitor General of Canada, according to seniority of appointment to the office;

(

f) lawyers appointed by the Governor General or by the Lieutenant Governor in Council of any province as Her Majesty's counsel learned in the law, according to seniority of appointment to the office, but only if appointed before the coming into force of this Act;

(

g) other lawyers, according to seniority of their registration in the rolls.

Existing appointments

84(2)

Any appointment of a member as Her Majesty's counsel learned in the law made by the Lieutenant Governor in Council, or deemed to have been made under The Law Society Act , R.S.M. 1987, c. L100, before the coming into force of this Act continues during pleasure of the Lieutenant Governor in Council.

Service and receipt of documents

The benchers may make rules respecting the sending, service and receipt of documents under or for the purposes of this Act or the rules.

No liability

No action or proceeding may be commenced against a person for anything done or not done in good faith while acting or purporting to act on behalf of the society under this Act or the rules.

PART 8

THE MANITOBA LAW FOUNDATION

Manitoba Law Foundation continued

"The Manitoba Law Foundation" is continued as a body corporate.

Purpose of foundation

The purpose of the foundation is to encourage and promote

(

a) legal education;

(

b) legal research;

(

c) legal aid services;

(

d) law reform; and

(

e) the development and maintenance of law libraries.

Powers of foundation

89(1)

The foundation may

(

a) receive the interest earned on trust accounts and paid to it under this Act;

(

b) receive any gift, grant, devise or bequest made to it from any source; and

(

c) invest any portion of its funds not immediately required for its purposes.

Employment of staff

89(2)

The foundation may employ such persons as it deems necessary for the administration of its affairs, and may pay their salaries or other remuneration, and any reasonable expenses incurred by them in carrying out their employment, from and out of the funds of the foundation.

Legal Aid and Law Society grants

90(1)

The foundation shall pay in each fiscal year, from the total trust account interest received by the foundation under subsection 50(2) in the previous fiscal year, by such instalments as the foundation considers advisable and subject to subsection (2),

(

a) to The Legal Aid Services Society of Manitoba, a grant in the amount of 50% of the total trust account interest, or the amount of $1,007,629., whichever is greater; and

(

b) to The Law Society of Manitoba, a grant for educational purposes and for the expenses incurred in ensuring compliance by its members with subsection 50(2) in the amount of 16.67% of the total trust account interest, or the amount of $335,383., whichever is greater.

Pro rata amounts

90(2)

If in any fiscal year the total trust account interest received by the foundation under subsection 50(2) in the fiscal year, after paying or allowing for the expense of administering its affairs in the current fiscal year, is insufficient to make grants in the amounts required by subsection (1), the grants shall be made in pro rata amounts.

Reports from Legal Aid and Law Society

90(3)

Every year, The Legal Aid Services Society of Manitoba and The Law Society of Manitoba must report to the foundation on how the grant received by each of them in the previous fiscal year was used.

Discretionary grants

90(4)

"Fiscal year" defined

90(5)

In this section, "fiscal year" means the fiscal year of the foundation.

Board of directors

The affairs of the foundation shall be managed by a board of 10 directors,

(

a) five of whom shall be appointed by the Minister of Justice;

(

b) three of whom shall be appointed by the benchers;

(

c) one of whom shall be appointed by the president of the Manitoba branch of The Canadian Bar Association; and

(

d) one of whom shall be the Dean of the Faculty of Law at the University of Manitoba or a member of the Faculty appointed by the Dean.

Powers of board

The board may,

(

a) in the name and on behalf of the foundation, exercise all or any of the powers of the foundation; and

(

b) make by-laws for its own procedure.

Term of office

93(1)

A director shall be appointed for a term of not less than two years and not more than four years, and may be reappointed.

Appointment of successors

93(2)

A director whose term of office has expired continues to hold office until a successor is appointed.

Disqualification of director

A director is disqualified from holding office as a director, and the office held by that director is vacated, if he or she

(

a) fails to attend three consecutive regular meetings of the board, unless the board by resolution excuses one or more of the absences;

(

b) was a member of the society but ceases to be a member by virtue of the application of clause 17(3)(b) (disciplinary proceedings);

(

c) is found by a court to be of unsound mind; or

(

d) becomes a bankrupt within the meaning of the Bankruptcy Act (Canada).

Vacancies

Any vacancy among the directors resulting from resignation, disqualification or death before a term of office expires shall be filled by a new appointment made in accordance with

section 91.

Remuneration

The directors are entitled to receive, from the funds of the foundation, such remuneration for their services as the Minister of Justice approves, and reimbursement for reasonable expenses incurred in providing those services.

Chairperson

The Minister of Justice shall designate one of the directors as chairperson, to preside at meetings of the board, and another as vice-chairperson, to preside at meetings of the board in the absence of the chairperson.

Meetings

The board shall meet at least four times in each year.

Quorum

Six directors constitute a quorum for any meeting of the board.

Conflict of interest

A director who is associated with a recipient or proposed recipient of a grant from the foundation, and discloses that association to the board, may vote on any question relating to the grant, unless the director has a direct pecuniary interest in the grant.

Annual audit and report

101(1)

No later than 90 days after the end of each fiscal year of the foundation, the foundation shall cause to be prepared and to be submitted to the Minister of Justice

(

a) an audit of its books, records and accounts for the year; and

(

b) a report of its activities and financial affairs for the year.

Tabling in Legislative Assembly

101(2)

The Minister of Justice shall lay a copy of the audit and report before the Legislative Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the beginning of the next sitting.

No liability

No action or proceeding may be commenced against a person for anything done or not done in good faith while acting or purporting to act on behalf of the foundation under this Act.

Corporations Act does not apply

The Corporations Act does not apply to the foundation.

PART 9

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS AND COMING INTO FORCE

Transitional: holding office

104(1)

Every person who holds office as a bencher, an officer of the society, a member of a committee or a member of the board of The Manitoba Law Foundation immediately before this Act comes into force continues to hold that office on the coming into force of this Act.

Transitional: proceedings

104(2)

Any complaints, investigations or proceedings commenced under The Law Society Act with respect to the conduct or competence of a member or other person entitled to practise law or prohibited from practising law in Manitoba under that Act are continued under this Act. Subject to any rules made under subsection (3), this Act and the rules made under this Act apply with necessary changes to those complaints, investigations or proceedings as if they had been commenced under this Act.

Transitional rules

104(3)

The benchers may make rules clarifying, limiting or extending the application of

(

a) this Act and the rules made under this Act; or

(

b) The Law Society Act and the rules made under that Act;

to a complaint, investigation or proceeding referred to in subsection (2).

Consequential amendment, C.C.S.M. c. C180

Subsection 4(3) of The Constitutional Questions Act is amended by striking out " , notwithstanding The Law Society Act , ".

Consequential amendments, C.C.S.M. c. C330

106(1)

This

section amends The Crown Attorneys Act .

106(2)

Subsection 3(2) is amended by striking out " Notwithstanding subsection (1), a student, as defined in The Law Society Act , " and substituting " Despite subsection (1), an articling student, as defined in The Legal Profession Act , ".

106(3)

Subsection 3(3) is replaced with the following:

Non-lawyers acting as prosecutors

3(3)

Despite the other sections of this Act but subject to the Criminal Code (Canada), the Attorney General may appoint persons who are not lawyers or students, within the meaning of The Legal Profession Act , to act under the general direction and supervision of a Crown attorney as prosecutors, as defined in the Criminal Code (Canada), in the Provincial Court in any locations within the province prescribed by regulation under this Act.

Consequential amendments, C.C.S.M. c. L105

107(1)

This

section amends The Legal Aid Services Society of Manitoba Act .

107(2)

Section 1 is amended

(

a) by repealing the definition "graduate-at-law"; and

(

b) in the definition "solicitor", by striking out everything after " who " and substituting " holds a valid practising certificate under The Legal Profession Act".

107(3)

Subsection 15(3) is replaced with the following:

Articling students

15(3)

An articling student under The Legal Profession Act may perform, as permitted under that Act, under the supervision of a solicitor the duties assigned by the solicitor in respect of the legal aid being furnished by the solicitor.

107(4)

Subsection 15.1(1) is replaced with the following:

Use of non-lawyers

15.1(1)

Despite the other sections of this Act but subject to the Criminal Code (Canada), the society may employ persons who are not lawyers or students, within the meaning of The Legal Profession Act , to provide under the general direction and supervision of a solicitor services that would ordinarily be provided by lawyers or articling students.

107(5)

Subsections 23(1) and (2) are amended by striking out "The Law Society Act" and substituting "The Legal Profession Act".

Repeal

The Law Society Act , R.S.M. 1987, c. L100, is repealed.

C.C.S.M. reference

This Act may be referred to as

chapter L107 of the Continuing Consolidation of the Statutes of Manitoba .

Coming into force

110(1)

Subject to subsection (2), this Act comes into force on October 31, 2002.

110(2)

Section 25 comes into force only if

(

a) The Partnership Amendment and Business Names Registration Amendment Act , introduced as Bill 21 in the 3 rd Session of the 37 th Legislature, receives royal assent; and

(

b) Part III of The Partnership Act as enacted by

section 5 of Bill 21 comes into force.

Part III comes into force on a day after October 31, 2002,

section 25 comes into force on that later day.

Explanatory Note

This Bill replaces the existing Law Society Act regulating the practice of law in Manitoba. It updates the language and simplifies the statutory scheme. While the Bill does not carry forward provisions for appointing new Queen's Counsel, existing appointments are unaffected.

It includes provisions

continuing The Law Society of Manitoba and its governing body, the benchers;

defining who may practise law in Manitoba;

concerning protection of the public in the delivery of legal services;

continuing The Manitoba Law Foundation.

The Bill also makes consequential amendments to The Constitutional Questions Act , The Crown Attorneys Act and The Legal Aid Services Society of Manitoba Act .

Document details

Collection	Manitoba — Debates (Hansard)
Citation	37-3 b048e.php
Type	bill
Volume / chapter	37 3 b048e.php
Language	en
Format	html
Source	PROVINCIAL
Identifier	f4a37959e96734fb9a59a2883ec907141db6b002

Source file is stored in the law ingest library (html).