At some point in their careers, virtually all family lawyers will struggle to keep the stress and hardship of a challenging client file from invading their personal life and sense of well being. Regardless of whether you are the more hands-on, helping lawyer, who finds reward in coaching clients through difficulty (hopefully preserving some sembelance of the client's dignity), or the pragmatic, results-driven problem solver, who dismantles collapsing marriages with more concern for potential economic, rather than emotional, breakage... at some point trouble may simply find you. 

A violence prone ex-spouse will not always respect a stern letter, nor even the terms of a protection order, and such files can quickly overwhelm lawyers who are otherwise careful with setting boundaries. When this is the case, clients, lawyers and staff could face serious safety risks.

In a recently published set of Legal Services Society fact sheets entitled "Is Your Client Safe?", the LSS, along with co-publisher Ending Violence Association of BC, has tackled issues of both client and lawyer and staff safety in the context of relationship violence.

Safety Planning for You and Your Staff

While Clicklaw, our public legal education website, has posted the brochures that deal with client safety, not all lawyers will know that there is also a particular brochure written for staff and lawyer safety, which is available here from the website of the LSS.  It contains sixteen tips or ideas for safety protocols.

One suggestion that leaps out is, "Do not reveal your or your staff’s personal contact information, including last names, to the abusive partner." While as a lawyer it is surely impossible to hide ones last name merely out of fear that some disgruntled future party in a family proceeding may eventually direct harm to you or those who share your last name, it could raise the question as to whether legal assistants to family lawyers should use their full names in letters, or be listed on the website. Because those with bad intentions are also often equipped with some degree of determination, I have doubts as to whether such measures would really put off any but the most feckless stalker.

A good number of the tips are good sense, however, and include protocols such as never leaving voicemails unless you can be sure only the client will hear them, never leaving messages identifying you as a lawyer with others who answer, and other protocols such as establishing code words she can use when it's not safe to talk by phone.

The safety fact sheets (which are available as part of a broader "Abuse & Family Violence" series of fact sheets) are for family law lawyers and advocates and describes relationship violence, the indicators of abuse, the risk factors, and what to do if your client has been victimized. They include safety planning information, and links to resources for further information.

One Profession, one Public and oneself

Among the Canons of Legal Ethics—that earnest list of 'shalls' and 'shall nots' comprising the first chapter of the Professional Conduct Handbook—you'll find time-honoured practical criteria mixed with aspirational principles to which each BC lawyer is beholden, stated to the benefit of five key groups: the state; the courts and tribunals; the client; other individual lawyers; and oneself.

Oddly absent, at least from explicit mention, are the public and the legal profession. Strange, since these are the groups that many, many BC lawyers dedicate countless hours in service to, whether in pro bono clinics, serving CBA committees and sections, teaching CLE conferences, or any number of pursuits that underscore the inherent collegiality and service-mindedness of the profession. Strange, at least until one realizes that, in fact, accountability to the profession and the public lay at the heart of canons otherwise embedded awkwardly in the class of duties owed to oneself.

You'd be forgiven for assuming that self-owed duties would involve more self-interested ones, such as collecting ample retainers, billing clients regularly, and not letting the pressures of practice drive you into the office on Sundays. For better or for worse, a lawyer's self-owed duties are not of self-interest. Rather, they are to protect the profession, and, yes, serve the public.

Specifically the legal ethical canons pertaining to guarding the profession speak to the lawyer's obligations to root out dishonest and incapable characters from the profession, respect oneself and one's oath, and espouse the "time-honoured virtues of probity, integrity, honesty and dignity". OK, some of the language directed at purifying the profession is a shade McCarthyesque in tone. You are to "expose without fear or favour", "accept without hesitation a retainer against any lawyer who is alleged to have wronged the client" (really? not even hesitation for a conflicts check?), but you can also tease out of this fervent language and rectitude a keen desire to ensure the profession thrives. And it is nice to see that for the most part the bar proactively pursues this through mentorship, peer-to-peer education and leadership by example. A glance at the list of contributors in any CLE publication, or the long list of names serving as executives for CBA sections, is proof of that.

As for the public, ethical canon 5(3) demands that lawyers "make legal services available to the public in an efficient and convenient manner that will command respect and confidence." Rarely has as much focus been placed on this issue, and the underlying issue of access to justice, than as of late. There is a hardly a chief judge who has yet to speak on the failure of access to legal services in the past year, nor a report that has failed to opine on the gap between the need for legal assistance and its supply, nor a lawyers' organization in this province who has not made it a priority to improve awareness on the decrepit state of access to justice in BC.

Volunteerism, helping others alongside Courthouse Libraries BC

It's encouraging to see commitment to public service renewed by a large group of volunteer contributors in new initiatives, such as with last week's launch and announcement of the third edition of the public legal information guide Legal Help for British Columbians, which now takes the form of a Clicklaw wikibook. Over a dozen lawyers and key staff with legal organizations have joined to make a new edition of this popular guide that promises to remain up-to-date even after the first copy is printed off.

You can check out the wikibook here, which combines a familiar online experience (as it is powered by an instance of the same wiki software platform that powers Wikipedia) with the promise of accessibility that is only possible when you can print a resource to hand out in person at clinics, doctor's offices, community centres, libraries, and other places people with limited income and all-too-common legal troubles often go for support. The wiki platform also makes the Guide easier to update, enabling multiple contributors to update content as soon as the law changes, giving it an advantage over print-only publications that risk being outdated from the date of printing.

While you may have caught the news release, or maybe have already learned about the wikibook through the Clicklaw blog or through Access ProBono or Povnet (or on Twitter, where a number of folks, including CanLII's Colin Lachance, Steve Matthews, Legal Aid BC and others tweeted the release), we wanted to pass along direct thanks to the editors, writers and reviewers of the Guide (see here for a complete list of contributors) for exemplifying the principle of public-service—at a time when it's needed most.

Courthouse Libraries BC and Clicklaw will be developing more collaborative resources of this type in the near future, using platforms like the Mediawiki platform behind this Clicklaw wikibook, to bring legal information forward in efficient and convenient ways. Doing so in conjunction with practitioners is part of our vision of partnering with the legal profession to accomplish more in the realm of legal information and shared knowledge, for the good of the public and the profession.

If you are a lawyer interested in knowing more about ways you can contribute through upcoming initiatives, please let us know!

Enduring Powers of Attorney, Representation Agreements v. Advance Directives, Statutory Capacity, Certificates of Incapacity, the Health Care (Consent) And Care Facility (Admission) Act…

Yes, you'd better believe you're the intended market for the February 2012 edition of BarTalk (volume 24, issue 1)—assuming you have a wills, estates and trusts practice of course.

Elder and Guardianship Mediation, In its first issue of the year, the bi-monthly publication deals fastidiously with all (OK some) of the juicy wills and estates reforms accumulated over recent years.

In fact, save an unexpected tip of the hat to 2012 doomsday prophecies in a satirical partner's memo clarifying how billable targets will ease (very slightly) should Nibiru initiate planet-on-planet violence with Earth or a Zombiepocalypse ruin Christmas, nearly the whole of the issue is reserved for elder law, incapacity planning and general wills & estates updates.

"And here’s a news flash: if you are reading this column, you too are facing potential incapacity and certain death." — Sharon Matthews

Yes, this issue leans to the macabre. And yes, that is a direct quote from CBA BC President, Sharon Matthews, in her opening column pointing out the importance of incapacity planning, not only for clients, but lawyers too. 

This BarTalk issue is timely as a reminder to lawyers that a whole area of law is changing dramatically. September 1, 2011 brought into force a number of estates law reforms from recent years and this BarTalk issue canvasses some of the changes in the law.

Here is a bit of a rundown (which may convince you to read the whole issue, available in PDF online):

CBA BC Section Meetings Dealing with Estates Issues

BarTalk runs a regular update on notable section meetings. This issue drew heavily on section meetings with estates law themes:

• November 29, 2011, Pensions and Benefits Law discussed how WESA will impact designation of beneficiaries in benefit plans (i.e. RRSPs, tax-free savings accounts, and many pension plans), but not life insurance policies.
• September 27, 2011, Wills and Trusts (Vancouver) met regarding new Health Care (Consent) and Care Facility (Admission) Act "advance directives", review of substitute decision makers' decisions, and other legislative updates.
• November 8, 2011 Elder Law also met to discuss the interplay between advance directives and substitute decision makers. An advance directive when written in accordance with the HCCFA, allows a person to give instructions respecting health interventions that they either want or don't want, in advance of their health failing them.

Feature: The Power of Attorney Act Has Changed

Lawyer Geoff White discusses the repeal of s.8 of the Power of Attorney Act, RSBC 1996, c. 370 which for many years was a very short act providing little guidance on what was involved when a power of attorney was made to endure incapacity of the donor. Now, 32 new sections exist in the act (compare old and new versions of the Power of Attorney Act). These new sections set out default and mandatory rules (mainly as adopted from common law) on what an attorney must, may and may not do, and also sets out a very useful stautory test for incapacity. General highlights include:

• Statuory capacity test [I think this is found at s.12(2)(a)]
• Restrictions on who can be an Attorney (e.g. not a paid caregiver).
• New signature requirements for a power of attorney (more like what is needed in a will).
• Attorneys must be prepared to act once they sign the acceptance of the power of attorney.
• Attorney's obligation to keep records.
• Gift limits of $5,000 per year by default.
• Limits on beneficiary designations, and delegation and compensation of Attorneys unless stated in the document.
• Rules for revoking, pausing or resigning power of attorney.

Wolfman-Stotland v. Stotland, 2011 BCCA 175

Trevor Todd and Judy Milliken, QC comment on this case accentuating the different degrees of capacity required for entering into or dissolving a marriage, on the low end of the capacity range, versus directing legal and financial affairs, on the upper end. Such a low threshold for capacity to end spousal unions, the authors argue, calls for the need for a statutory capacity test in family law matters, just as there is now for powers of attorney under s.12 of the Power of Attorney Act.

Leaving aside BarTalk and picking up the January 2012 Advocate for a moment—but on the same general point—the Hon. Madam Justice Marion Allan, in her review of a new book on estate litigation, called these discrepant distinctions between marital versus testamentary capacity anomalous. "While the marriage automatically revokes the testator's will, it may be impossible for him or her to make a new will."

Elder and Guardianship Mediation: A BCLI Report

The BCLI released a 200 page report in January this year on mediation in elder law situations. One of its authors, Emma Butt, gives a short description of the report and the quick emergence elder and guardianship mediation will have once the relevant provisions of the Adult Guardianship Act come into force. The report provides a summary of best practices for mediation, and includes a background of elder mediation in US and Canada.

The Public Guardian and Trustee of BC: Responding to elder abuse

This review by The Public Guardian and Trustee of BC of various sources of authority for investigating reports of elder abuse or neglect, includes reference to the fact people who make reports now have their identities protected... including against Freedom of Information Act and Personal Information Protection Act requests. Both s. 46 (2) of the Adult Guardianship Act and s. 17 (3) of the Public Guardian and Trustee Act now foreclose freedom of information requests from revealing the identity of who filed a report.

Again leaving aside BarTalk for a moment, but while on the topic of the PGT, this is a good time to give a plug for PGT publication "It's Your Choice: Personal Planning Tools", which is intended for the public, but is also an excellent plain summary of personal planning options.

Advance Directives and Representation Agreements: How do they differ?

Stan Rule serves a practical rundown of how advance directives, pursuant to Part 2.1 of the Health Care (Consent) and Care Facility (Admission) Act, and personal representatives appointed pursuant to the Representation Agreement Act can be reconciled when both purport to govern a particular medical need or procedure. Simply put, an advance directive can expressly exclude the representative from being consulted by the health care provider, but unless this exclusion is expressly contained in the advance directive, the representative must be consulted and the advance directive shall be treated as an expression of the adult's wishes before she was incapable.

Assuming the next BarTalk to be dedicated exclusively to estate and elder law issues is some ways off, consider subscribing to our RSS or email alerts for new and notable developments in this area. If you're on Twitter, use hashtag #clbcWE to discuss and see posts about wills and estates law in BC.