December 2018, Issue No. 88 highlights:
- Breathalyser Maintenance Records Subject to Third Party Disclosure Rules: SCC (R. v. Gubbins, 2018 SCC 44 and R. v. Awashish, 2018 SCC 45)
- Mandatory Minimum Sentence under s. 151(a) of the Criminal Code Unconstitional: MBCA (R. v. J.E.D., 2018 MBCA 123)
- Overemphasising Collatoral Immigration Consequences an Error: MBCA (R. v. Yare, 2018 MBCA 114)
- “A Court of Appeal Hearing is Not a Tea Party”: MBCA (R. v. Van Wissen, 2018 MBCA 100)
- Legislative Update
- Criminal Justice Conference: CBA
The full edition is available here.
November 2018 Issue No. 92 highlights:
The full edition of this update is available here.
[Reprinted with permission from the October 2018 edition of Communiqué, by Karen Dyck, Executive Director, The Manitoba Law Foundation.]
The Manitoba Law Foundation’s Board of Directors recently met to allocate and approve the Foundation’s statutory and discretionary grants for the 2018/2019 fiscal year. The Legal Profession Act provides in s.90(1) that the Foundation allocate specific portions of interest on lawyers’ trust accounts received in the previous fiscal year to The Legal Aid Society of Manitoba (50% or a minimum of $1,007,629) and The Law Society of Manitoba (16.67% or a minimum of $335,383) for its educational purposes and to offset the cost of monitoring trust accounts.
Due in large part to increases in the prime rate in 2017, Foundation revenues for the year ending March 31, 2018 were significantly higher than has been the case in recent years. Based upon that income, the Foundation was able to allocate statutory grants for 2018/2019 as follows:
The Legal Aid Services Society $1,607,151
The Law Society of Manitoba $ 535,824
In addition to the required grants paid under the provisions of the Act, the Foundation also makes discretionary grants under s.90(4) and in accordance with the objects of the Foundation. These grants are allocated from the surplus at the end of the previous fiscal year after the deduction of operating expenses, mandatory grants, and, in years when revenues are sufficient and where the Reserve requires it, a contribution to the Foundation’s Reserve for Future Grants.
For 2018/2019, the Foundation’s board approved 12 discretionary grants totaling $851,666 to:
Community Legal Education Association (General)
CLEA (Law Phone-In and Lawyer Referral Service)
Community Unemployed Help Centre
E.K. Williams Library (Faculty of Law)
Faculty of Law Sessional Program
Legal Help Centre
Legal Research Institute (Faculty of Law)
Manitoba Law Reform Commission
Native Law Centre (University of Saskatchewan)
Pro Bono Students Canada (Manitoba Chapter)
Public Interest Law Centre (Legal Aid Manitoba)
University Law Centre (Legal Aid Manitoba)
In addition, the Foundation has approved two Small Grant Applications. Dr. Michael Weinrath of University of Winnipeg’s Criminal Justice Department was awarded a grant of $4,986 for the Winnipeg Police Diversion Research Project. Level was awarded a grant of $7,100 for delivery of their Indigenous Youth Outreach Program in Manitoba.
Through these direct grants into the community, The Manitoba Law Foundation is able to fulfill its mission of advancing legal knowledge, fostering excellence within the legal profession and facilitating community understanding of the justice system.
For more information on the Foundation’s granting or any of the organizations funded by The Manitoba Law Foundation, please visit our website or contact us directly at: email@example.com.
The October 2018 edition, No. 33, has just been released.
In this Issue
[Reprinted with permission from the October 2018 edition of Communiqué, by Darcia Senft, General Counsel , Director of Policy and Ethics at the Law Society of Manitoba.]
- Letters of Guidance Not Disciplinary: MBQB
- No Reason Needed for Termination of Independent Contractor: MBQB
- Injunctions Rarely Granted in Constitutional Challenges: MBQB
- Other Court Decisions
- Inappropriate Social Media Use and the Workplace: MBLA
- Legislative Update
- New Parental Sharing Benefit to be Implemented Early
- Report of Modernizing Federal Labour Standards
- Reports on Sexual Harassment in the Workplace
- Recommended Reading
- 2018 Isaac Pitblado Lectures
- Annual Manitoba Labour Law Review
- CBA Conference
From time to time, we receive questions about fee referral “pitches” and whether such fees can be paid and received without causing a lawyer to act in breach of the rules set out in the Code of Professional Conduct.
The Code has rules and commentaries that relate to the division of fees and referral fees. Rule 3.6-7 specifically prohibits a lawyer from directly or indirectly sharing, splitting, or dividing his or her fees with any person who is not a lawyer and from giving any financial or other reward for the referral of clients or client matters to any person who is not a lawyer.
From time to time lawyers receive telephone calls or emails from individuals who indicate that they want to help increase the number of new cases that the lawyer takes on. For example, a caller explains that his company will provide contact information to potential clients in whatever practice area or geographic area that the lawyer selects. It is not a directory service but some form of customized referral process that relies upon the company’s technology. When asked how the company makes money from the proposed referral process, the lawyer is told that he will be required to pay a flat fee each month to the company although they will not charge a fee for each referral. The caller is from another jurisdiction and is not a Manitoba lawyer. Under the circumstances, the proposed payment system would amount to a referral scheme that no Manitoba lawyer could participate in without breaching the referenced Code referral fee rules. If you have become involved in this kind of an arrangement, you should revisit it in light of the Code restrictions.
Certain types of referral fee payments are allowed. With the exception of referrals as a result of conflicts, Rule 3.6-6 allows a lawyer who refers a matter to another lawyer because of the expertise and ability of the other lawyer to handle the matter to receive a referral fee but there are a couple of conditions that must be met. First, the fee itself must be reasonable. Second, the client must be informed about it and must consent to its payment. You might wonder what a “reasonable” fee might look like. You might also wonder why the Law Society would even care about a referral fee arrangement where the client consents.
Consider the following situation. A lawyer who does not practise in the area of family law at all meets with one of his long-standing clients who now needs a divorce. The lawyer says he doesn’t practise in that area but can make a referral to a lawyer in another firm who does this work. The lawyer who accepts the domestic retainer agrees to pay 15% of all fees generated back to the lawyer who made the referral. The domestic case may take several years to complete and the client may end up paying in excess of $40,000 to the family law lawyer. Would it be reasonable for the referring lawyer to receive $6,000 in fees simply for making the initial referral? Even if the client purportedly “consents” to the referral fee, at the beginning of a retainer the client would have no idea how much the referring lawyer ultimately will be paid. How could consent, under those circumstances, be described as “informed?” What would the client say if he knew that in order for the domestic lawyer to keep up those anticipated long-term referral payments, she had to charge a higher hourly rate?
Where the Code allows payment of a referral fee from one counsel to another, it stands to reason that the fee must be fully known (i.e. quantifiable) in order for the client to provide informed consent. Before considering any kind of division of fees or fee referral payments, consult the Code and please call us if you have any questions about whether the contemplated arrangement is appropriate having regard to your ethical obligations.
The October 2018 edition of the Business Law Update has been published. Selected contents include:
- Application of Common Interest Privilege in Commercial Transactions Restored: FCA
- Private Disputes Not Enforceable Via the Oppression Remedy: MBCA
- Exclusion Clause a Bar to Negligent Misrepresentation Claim: MBCA
- Legislative Updates, including several regarding the upcoming legalization of marijuana
- and more.