Rule 23.1 – Adjudicators
With the new pool of non-Bencher adjudicators available for hearing committees, there are consequential amendments that need to be considered. Rule 23.1 sets out restrictions on representation in proceedings adjudicated by the society. This rule requires amendments to set the same restrictions on non-Bencher adjudicators as set on non-Bencher committee members and Benchers. Additionally, the eight year restriction on Past Presidents has been revisited and all restrictions are now set at three years.
Bencher Elections & Boundary Changes
The 2017 Bencher Election is quickly approaching and the date has been set as Wednesday, November 15, 2017. In accordance with the Legal Profession Act and the Rules of the Law Society of Alberta, additional information will be sent out, as required, commencing in June. Rule amendments have been made to clean up the election provisions in the Rules. One important change to note is that the election boundaries have changed. This will reduce nominee and voter confusion about boundary areas.
Alberta has three districts, for election purposes. These are the North, Central and South Districts. The cities of Calgary and Edmonton are excluded from these Districts. Nominees in each of the Districts are eligible to be elected as the District representative for the area. Following voting, these representatives are determined. Nominees not elected as the District Representative are then included in the larger pool of general candidates, which includes Calgary and Edmonton.
Previously, the Calgary and Edmonton exclusion included the area lying within 35 km of the boundaries of each city. This is no longer the case. The exclusion now applies only to the cities, themselves. Individuals living and practicing in the small communities that were captured by the 35 km radius, will now be considered for District candidacy. Note that you must both live and practice outside Calgary and Edmonton to qualify as an eligible candidate in the District.
The changes being made to the Bencher Election Rules are intended as an attempt to increase diversity and improve the quality and transparency of the information available to members of the profession in making their important election decisions.
Rule 149.4 – Trust Safety Insurance – ALIA Investigations
Rule 149.4 is being amended to clarify the language in the Rules. The previous language was reflective of the previous Assurance Fund program and needed to be updated to reflect the new Trust Safety Insurance program. The Rule amendment recognizes and clarifies that ALIA’s claim files exist separate and apart from the LSA’s conduct files and that ALIA undertakes its own investigations into claims files under the Trust Safety Insurance provisions of the insurance policy.
Membership and Articling Application Improvements
As the Law Society continues to improve its practices and move many of its processes online, updates are required to the Rules to facilitate the transition. References to specific forms have been removed, as these applications will not appear in the traditional paper format online. In conjunction with this, improvements are being made to the information collected.
We are clarifying our name provisions to ensure that preferred and previous names are fully captured, whether a formal name change has been made or not. This will assist us with lawyer identification, as well as character evaluations. As part of the improvements in this area, we will require a Criminal Record Check and will no longer require character references. While we can all appreciate character references in a hiring context, the Law Society only receives positive references with application forms. This does not assist in the determination of character. We have a number of specific questions on our application forms that more appropriately assist us in the determination of character and we continue to evaluate the responses to those questions in our assessments.
We are also improving our practices related to personal identity and are making two changes in this area. We are asking individuals to identify their preferred honorific, or title, so that we are addressing lawyers appropriately in formal communications. We recognize that we currently assess gender based on the biological sex noted on the identification document we receive at the time of application. To more accurately and appropriately reflect individual identities, we will now allow individuals to self-identify their gender. This information is collected for statistical purposes and program delivery.
In time, all lawyers will see this information requested in the lawyer information section of the online Lawyer Portal. Honorifics include Mr., Mrs., Ms., Miss., Mx. and Dr. Individuals will be able to self-identify as man, woman, or trans*. There will also be an option for those who prefer not to disclose their gender identity. While we recognize that there are a significant number of gender identities, we have selected trans* as our starting point for those who do not identify within the binary cisgender categories.
The statistical information resulting from this change will enable the Law Society to more accurately and appropriately assess the diversity of the profession in the future, while respecting our lawyers’ personal identities and expressions and their choices relating to disclosure.
Code of Conduct Changes
At their February meeting, the Benchers approved changes to Rules 5.3-2, 5.4-1 and 5.4-2 of the Code of Conduct. These rules address ethical considerations when communicating with witnesses.
The amendments to Rule 5.3-2 are minor in nature, and intended to bring the Rule more in line with the wording in the Federation’s Model Code. The Alberta Code of Conduct continues to contain certain provisions which are essential to litigation practice in Alberta. For example, the commentary continues to provide guidance with regard to communicating with experts.
New Rules 5.4-1 and 5.4-2 replace the old rules which governed communication with witnesses under oath. The amendments mirror recent amendments to the Federation’s Model Code, effective March 2016.
Rule 5.4-2 continues to prohibit the obstruction of an examination or cross-examination of a witness under oath. New Rule 5.4-1 prohibits witness coaching. It states:
A lawyer must not influence a witness or potential witness to give evidence that is false, misleading or evasive.
The old rules governing communication with witnesses under oath were removed from the Federation’s Model Code, in recognition of the wide range of practices which have developed across the country. The key underlying principle of the established practices and of all relevant Canadian ethical and procedural rules is the prohibition of coaching and witness tampering. The new rule is intended to be consistent with litigation practice across the country and will facilitate mobility of Canadian lawyers.
New commentary provides guidance for witness communication and preparation, and clarifies that the principles apply to oral and written evidence and statements.
Please contact the Practice Advisors if you have any questions.