A time for change - Nova Scotia Barristers' Society

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the SOCIETY RECORD VOLUME 30 | NO.1 | April 2012

NOVA SCOTIA BARRISTERS’ SOCIETY

www. nsbs .org

Organizational Review New CPD requirement Cultural Competence Employment Equity Strategy New Code of Professional Conduct

A time for change April 2012SCOTIA 1 VISION, LEADERSHIP, EXCELLENCE – THE LEGAL PROFESSION IN NOVA

Forensic Engineering Services for Civil Litigation Lawyers Geotechnology Ltd. is a consulting engineering firm that provides forensic civil engineering, geotechnical, foundation and environmental engineering services to civil litigation lawyers and insurance personnel.

Forensic Engineering Experience Geotechnology has 36 years engineering investigative experience in Atlantic Canada, western and northern Canada, offshore, and overseas in the UK, Australia and the Caribbean. We have investigated and determined the cause, and assisted in establishing fault, for the six main types of problems and damage experienced by buildings, civil engineering structures, and property: 1. Structural Collapse and Failure; 2. Architectural Finish; 3. Functional and Serviceability; 4. Hidden Damage; 5. Monetary Losses, Construction Delays and Cost Overruns; and, 6. Environmental Contamination. Engineering and environmental investigations have been completed for most types of civil engineering structures: Buildings; Bridges; Wharves and Harbour Works; Towers, Storage Tanks; Dams; Pipelines; Drainage Works; Embankments and Earthworks; Tunnels; Highways; and Motor Vehicle and Industrial Accidents.

Professional Qualifications Eric Jorden, M.Sc., P.Eng., president of Geotechnology Ltd., has a Master’s degree in geotechnical and foundation engineering from the University of Birmingham, England. He has a first degree in civil engineering from the University of New Brunswick, and a diploma in land surveying from the College of Geographic Sciences, NS. Mr. Jorden writes impartial, unbiased reports and opinions based on the facts. His reports are clear, concise and easily understood by non-technical readers. He has published a number of engineering papers and co-authored a book on soils, groundwater and foundation investigation. Mr. Jorden has been qualified by the courts as an expert witness. He is credible and composed when giving expert testimony, and under cross-examination.

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1. Preliminary Forensic Engineering Services • Assess the technical strengths, weaknesses and merits of a claim for damages based on existing data and information. Outline the scope of a thorough investigation of the problem, if justified by the initial assessment.

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3. Additional Forensic Engineering Services • Assist counsel finalize evaluation of the strengths and weaknesses of the damage claim based on the findings of the forensic engineering investigation. • Help develop litigation strategy for discovery and trial; litigation support. • Develop lines of questioning for testimony and cross-examination, including questions not to ask. • Attend discovery and trial, assist counsel by listening to opposing witnesses and experts, identify flaws and errors, and the strengths and weaknesses of opposing testimony, develop additional lines of questioning. • Testify as an expert witness at discovery and trial • Review and audit engineering investigations and environmental assessments and reports by others; dispute resolution.

More Information Contact Eric Jorden, M.Sc., P.Eng. at Geotechnology Ltd. for more information: Curriculum vitae; fees; publications and major reports; list of forensic engineering and major investigations; typical engineering investigations for design and construction, and environmental assessments for site remediation; professional activities; technical associations.

Geotechnology Ltd. Forensic Engineers Civil, Geotechnical, Foundation and Environmental Engineers 23 Roslyn Dr., Dartmouth, Nova Scotia, Canada B2W 2M2 Tel: (902) 435-4939 Fax: (902) 435-5840 E-mail: [email protected]

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Eric Jorden, M.Sc., P.Eng. Forensic Engineer Consulting Professional Engineer

C ontents VOLUME 30 | NO.1 | April 2012

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The President’s View

6 Briefs 10

Society News

13 Accolades – a new column from the Gender Equity Committee

the Society Record is published by the Nova Scotia Barristers’ Society Cogswell Tower 800–2000 Barrington St. Halifax, NS B3J 3K1 (902) 422 1491 Copyright ©2012 Mailed under Canada Post publications agreement number 40069255 Return undeliverable Canadian addresses to: Publications Administrator, Nova Scotia Barristers’ Society Cogswell Tower 800–2000 Barrington St. Halifax, NS B3J 3K1 [email protected]

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Volunteer profile: Weldon Literary Moot Society – Michael Murphy

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Mortgage Fraud Symposium a success – Victoria Rees

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Update on the NSBS Organizational Review – Darrel Pink

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21st Wickwire Lecture examines access to justice – Ryan Van Horne



Pullout section – VOL. 37, No. 2 NOVA SCOTIA LAW NEWS

SPECIAL SECTION ON CONTINUING PROFESSIONAL DEVELOPMENT 22

CPD: The new requirement for lawyers in Nova Scotia – Shawna Denney

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A primer on the new CPD requirement: FAQs to get you started – Jennifer Pink

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RPM: At least two hours per year – Stacey Gerrard

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Cultural competence for lawyers in Nova Scotia

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Spotlight on two key CPD providers – Tina Tucker, Laura Vaughan

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Leadership Symposium on Employment Equity in Legal Workplaces – Marla Cranston

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Late-Victorian Africadia: A role model for the first African Nova Scotian lawyer – Barry Cahill

37 LIANS – Tips from the Risk & Practice Management Program 38

Summation: A new chapter – Barbara Campbell

inside

Editor Marla Cranston [email protected] Graphic Design Lisa Neily [email protected]

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NOVA SCOTIA BARRISTERS’ SOCIETY nsbs.org April 2012

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For a law society dating back nearly 190 years, tradition can run deep. In a comprehensive organizational review process, the Nova Scotia Barristers’ Society is taking a hard look at all of its traditional activities and processes. Council has mandated the Society to remain focused on its core regulatory role under the Legal Profession Act and, in so doing, to ensure the most efficient and effective use of its resources. Other timely changes are taking root this year in the public interest: the new Code of Professional Conduct speaks to a larger shift toward national regulatory standards; the new mandatory CPD regime will require all practising lawyers to undertake ongoing legal education; and Council is clarifying the legal profession’s growing responsibilities in improving the administration of justice. That’s just for starters …

Marla Cranston Editor, Society Record, Communications Officer

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the president’s

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ccess to justice is now a central issue of discussion in legal circles. Justice Tom Cromwell, Chair of the Action Committee on Access to Justice, reminded us in the recent Wickwire Lectures that while stakeholders are ready to point out how others must improve access to justice, what is needed is for each group to identify what it can do. That is a challenge the Bar must accept. What are the barriers to access to justice that are within the reach of the Bar? One of the major ones is the inaccessibility of legal services. Legal services provided under our present model are beyond the reach of a large part of the public. Because of this, many legal rights go unclaimed; many parties represent themselves in courts; many people who should have one do not have a will; and many business transactions are done badly. The cost of our “bespoke” services is beyond the resources of most individual clients. The image of the luxurious law office, intended to inspire confidence in some potential clients, is thoroughly intimidating to others. We have to be prepared to rethink the way legal services are offered. First, is it necessary that all legal services and all legal advice must be given only by lawyers? Many legal functions are performed very well by trained and experienced non-lawyers. In Ontario, the Law Society of Upper Canada regulates paralegals who provide services to the public without the supervision of a lawyer. For instance, they represent clients in traffic court – something most lawyers cannot do in a cost-efficient way – and many of them do it very well indeed. They fulfil a need for legal services that would otherwise not be filled. And if paralegals can adequately represent clients in traffic court, might they also do so in the Small Claims Court? In Family Court? Might insurance adjusters represent clients in personal injury matters? Does it require a lawyer to incorporate a company? Today, legal services can be provided only by individual lawyers or by law firms owned by lawyers. Does it have to be so? Could large organizations – corporations – offer legal services as a commodity, more cost effectively? In England, it has become

popular to refer to “Tesco Law” (after the supermarket giant). Thanks to the reforms now being implemented in England and Wales, an organization like the hypothetical Tesco Law will be able to offer legal services in in-store clinics, in competition with the traditional High Street solicitors. In Canada, could there be a “Sobeys Law” or “PC Law” (or “Loblaw Law”)? Could legal and related professional services be offered more effectively by multi-discipline firms, in which a team of lawyers, real estate agents, accountants, insurance agents and investment counsellors might offer a suite of services to the client? Is it in the interest of the client-consumer for law societies to prevent this through regulation? Do our ethical rules prevent lawyers from serving needs that now go unmet? Would legal services be more accessible if lawyers could unbundle their services, and accept limited retainers to assist and advise parties who are representing themselves? Can legal services be provided effectively and efficiently through a website? A number of internet-based services are already offering assistance in legal matters (although they would deny that they are offering legal services). Should Canada’s law societies be open to these new ventures? Although the answer to these questions is not necessarily “yes”, the questions are uncomfortable for lawyers. But the role of the Society is to protect the public interest in the practice of law, and we must be prepared to consider carefully whether our restrictive rules are indeed designed to protect the public interest or the interest of the profession. Fundamental change is already happening in England, and cannot be avoided here.

Daniel M. Campbell QC President

April 2012

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BRIEFS Swearing-in ceremony for the Hon. Justice Michael J. Wood

Photos by John Piccolo, Executive Office of the Judiciary

The Honourable Justice Michael J. Wood was appointed to the Nova Scotia Supreme Court on September 29. Prior to his elevation, his experience as a litigator spanned nearly 30 years with the Halifax firm Burchells LLP. He was counsel to the Society at many professional responsibility hearings, and served as a member of Council

for Halifax District as well as a number of Society committees. He is seen here at his October 17 swearing-in ceremony at the Halifax Law Courts with Her Honour Mayann E. Francis, Lieutenant Governor of Nova Scotia (left) and Associate Chief Justices, the Honourable ACJ Lawrence I. O’Neil and the Honourable ACJ Deborah K. Smith (right).

Lawyers onstage in Star Truck: A Space Oddity – Revenge of the Clowns

Photos submitted by Gwen Atkinson , LISNS

With only 24 hours to prepare, volunteers for Play in a Day 2011 (left: cast; right: wardrobe department) staged another hilarious evening of theatre on Oct. 15 in support of the Legal Information Society of Nova Scotia. Registration is

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now open for the 2012 version this October at Bella Rose Arts Centre – The Godmother Part 7: Gangstas Gone Wild. See legalinfo.org for details.

BRIEFS Movember: Legal community supports prostate cancer research

Nova Scotia’s courtrooms got unusually hairy throughout November, as the legal community raised more than $90,000 for prostate cancer research and awareness. Margo Beveridge (at left) shaved her husband, the Hon. Justice Duncan Beveridge, at the Oct. 31 launch at the Halifax Law Courts. The Hon. Justice Jamie Saunders (above) accepted a trophy on November 30 from Andrew Nahas (articled clerk, BOYNECLARK LLP), on behalf of the judicial team of 33 who raised nearly $20,000 for the cause. See movember.ca.

April 2012

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BRIEFS

Photos by Dave Brosha Photography/ Federation of Law Societies of Canada

National Mobility Agreement now includes Quebec notaries

With the formal March 15 signing of an Addendum to the Quebec Mobility Agreement, Canada’s law societies extended Canada’s national mobility regime to Quebec notaries. On behalf of the Nova Scotia Barristers’ Society, First Vice-President Tim Daley QC (at left) signed the document in Yellowknife, during the semiannual conference of the Federation of Law Societies of Canada. The Addendum means Canada now has a system of mobility that permits every Canadian lawyer and Quebec notary to move between jurisdictions. “This is a tremendous accomplishment,” said Federation President John J.L. Hunter QC. “In crafting a mobility regime that covers lawyers and notaries from common law and civil law jurisdictions we have perhaps demonstrated that despite our different legal traditions we are more alike than we are different. And this is something of which we should be very proud.” Find out more at flsc.ca.

A Different Stage of Mind – and music! Geoff Machum QC channeled the late Freddie Mercury in a memorable medley of hits by the rock band Queen, in the 9th annual A Different Stage of Mind variety show. A signature fundraising event for the Mental Health Foundation of Nova Scotia, the show – which transforms community leaders into famous celebrities – took place February 17 at the World Trade and Convention Centre in Halifax.

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Photo by Paul Darrow

Along with his eldest sons Andrew (beside him) and Matthew (below), Machum – a Partner at Stewart McKelvey – won the evening’s coveted “Primetime Star” award after raising nearly $90,000 of the event total of $200,000. Find out more at mentalhealthns.ca.

BRIEFS Leaders in crime prevention honoured for making communities safer

Photos by Michael Creagen, Communications Nova Scotia

Justice Minister Ross Landry presented 14 Minister’s Awards for Leadership in Crime Prevention at a March 28 symposium in Halifax. Community Category awards went to Dartmouth’s Our Thyme Café (Minister Landry at left with café managers Mary Young and Lynn Yetman), Leave Out

Violence ‘LOVE’ of Halifax (at right, Executive Director Sarah MacLaren and Minister Landry), and Wolfville’s Seniors Safety Program. For details on all 14 awards, see www.gov. ns.ca/just.

LISNS hosts annual Legal Information Fair

The Legal Information Society of Nova Scotia organized a new public event to address a wide range of questions about the law, from birth to death and everything in between. “Let’s Talk: The Law and Your Life” expanded upon last year’s successful Divorce Fair, featuring exhibits and speakers including Wayne MacKay QC, Chair of the province’s Cyberbullying Task Force. Among the exhibitors on March 21 at the World Trade and Convention Centre were Service Canada (left) and Dr.Debt.ca (right). April 2012

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society

news Admissions & Professional Development

Finance & Administration

The Society is moving ahead with the recommendations approved by Council regarding membership categories. Specifically, lawyers switching to Non-practising Member status will be asked to sign an undertaking not to engage in the practice of law while holding a Non-practising certificate. This came about because some lawyers change to Non-practising status and then, when returning to practice, claim that the work they have been doing is equivalent to the practice of law. In an effort to protect the public interest, the Society wants lawyers to be clear whether they are, in fact, engaging in the practice of law.

Following Council’s acceptance of a refocusing of Library Services to support the Society’s regulatory role, there will be a significant reduction in cost, which will be passed on to practising lawyers by way of a reduction in practising fees. The 2012/13 Budget, which is currently making its way through the approval process, reflects the lower fee.

The Society now has a new category of membership. Members of the Barreau du Quebec are now permitted to be called to the Bar in Nova Scotia and are able to practise both federal law and the law of Quebec. They are to be called Canadian Legal Advisors. Likewise, lawyers from Nova Scotia may move to Quebec and practise there as Canadian Legal Advisors. Two new law school programs were recently approved by the Federation of Law Societies, at Lakehead University in Ontario and Thompson Rivers University in British Columbia. The Federation is working to harmonize the requirements for admission across the country and to include the approval of new law schools, as part of the mandate of its Committee on Approval of New Canadian Law Degree Programs. The online portion of the Skills Course runs until mid-April. All articled clerks are required to complete readings and assignments on a weekly basis. Firms are reminded that clerks need to be given some time each week to work on their assignments. The Society has begun making midterm and final reports for articling electronic. Before long, education plans and articling applications will also be filed electronically, to further expedite the process for applicants and their firms. As always, there is a learning curve as we create new forms and procedures so we ask for your patience as we learn. Articling applications for a June 1 start date are now due. Please remember that your clerks cannot begin work until their applications have been approved. Any work done before approval is given will not be counted toward the articling period. If you have any questions about articling, please contact Jennifer Pink at [email protected].

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Following the work of the Trust Account Regulation Review Working Group, which was made up of practitioners, law office administrators and accountants, a series of proposed regulatory changes were introduced to Council in January. As this is being written, the proposed changes are out for consultation from practising lawyers. The general thrust of the regulatory changes (if they are approved) is to move to a series of principles governing the use of a lawyer’s trust account rather than the current set of detailed rules. The working group identified that the world of banking and its practices will continue to evolve and unless the regulations establish principles, they will always lag behind practices. The Society’s organizational review process is continuing. This work reviews existing programs and compares them to the Society’s legislated mandate. If a program is identified as not being part of the Society’s core mandate, it is put through a series of questions to determine if the Society has a role to play and what that role is. All programs, whether part of the core mandate or not, are also subject to an operational review to ensure the program is operating effectively and efficiently. Since this process begin in late 2010, a number of programs have been reviewed, including Professional Responsibility, the Society’s role in providing continuing professional development (CPD), the Society’s role in organizing social events and, most recently, Library & Information Services.

society

news Library & Information Services

Professional Responsibility

As part of the Society-wide organizational review process, Library & Information Services was analyzed in November 2011. Members were surveyed in December and recommendations that refocus the purpose and direction of L&IS were presented and approved at the January meeting of Council.

The Professional Responsibility department is always trying to remain aware of the ever-changing legal and practice landscape so that the Society can remain current with the realities of lawyers’ practices. For example, alternative legal practice structures are evolving and becoming increasingly digitized as consumers become more sophisticated. People now expect to be able to access legal services online in a manner similar to the way in which they conduct other business.

L&IS will continue to support the regulatory role of the Society, providing information and research services to Society staff and committees, in addition to developing policies and managing the files and records of the Society. The Library’s print collection in Halifax will continue as is, along with the two satellite collections housed in the Simon J. Khattar Q.C. Library in Sydney and the Kings County Library in Kentville. The print collection in Halifax consists of texts, looseleaf material and reference material. Reports and most journal subscriptions were cancelled several years ago. The Society will cease publication of most electronic products produced by L&IS. This includes Nova Scotia Law News, Law News Online, Sentencing and Personal Injuries Quantum Services, Wrongful Dismissal: Notice Periods Service, and the Nova Scotia Annotated Civil Procedure Rules. Plans are underway to transition some of these services to other information providers. The Society will continue to support the expansion of access to reliable free legal information through CanLII. As of April 30, 2012, Library & Information Services will no longer be a separate department with a Director. Staff will consist of one librarian and two library technicians. L&IS staff will provide basic reference services to lawyers, but will not be providing research. Barbara Campbell, Director of Library & Information Services, will retire at the end of April 2012. (See her comments in the Summation section of this issue.) Lawyers will be kept informed of the status of changes through InForum. Also check future editions of InForum for hints and tips that will help transition members to new information providers. Also ahead, the Halifax Barristers’ Library will be temporarily relocated for 12 months during renovations to the seventh floor of the Law Courts at 1815 Upper Water Street. See InForum and the news area of the Society’s website for further updates as the timing and location are set.

One important emerging alternative legal practice structure is the virtual law practice. Some lawyers have decided to forego the brick and mortar vision of a law firm and are instead operating their entire practice “in the cloud”. This means that client meetings are via Skype or a similar system, draft documents are exchanged on a secure client portal and account payments are made electronically. In the United States, insurers are generally viewing such practices as less of a risk than the traditional law practice and are offering “virtual” lawyers discounted premiums for coverage. A virtual law practice adapts well to the increasing demand for unbundled legal services. Such practices also lend themselves to a much less paper-intensive practice, where the creation of legal documents can be achieved through programs that provide automated document assembly. Lawyers who have established such practices report better work-life balance, drastically reduced overhead and greater client satisfaction. However, there are also pitfalls to moving into the electronic world. Cloud computing requires lawyers to be diligent about their service providers and contacts. For example, some service providers will remove your documents from their “cloud” if your account goes into arrears. What does this mean for your clients and your obligations to protect their property? There are also issues related to where the service provider’s servers are physically located and/or whether subcontractors are involved. Who will have access to your clients’ confidential information? Lawyers will need to carefully evaluate any service providers’ infrastructure, as well as the details of their service contract, to determine if the provider meets lawyers’ ethical obligations and responsibilities. As our members rush to keep pace with the technological advances, so do the regulators. We recognize that there is room for a number of business models and that lawyers need to try and keep pace with an increasingly competitive marketplace. We hope to support lawyers in these efforts while ensuring that the public is protected. April 2012

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Boutique?

Or Mass Market?

Decisions matter. Like when you decide to move from one-of-a-kind designs to having designs on global success. As you expand into new and uncharted markets, will your creativity be compromised? Or will it be unleashed? Making decisions like these is how you’ll determine the future of your business. Chartered Accountants can help you make every decision a better one.

Decisions matter.

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CA of Nova Scotia - (Boutique Ad)

ACCOLADES

Theresa Emberly, Legal Support Advocate, Avalon Sexual Assault Centre

T

he prosecution of sexual assault offences is a particularly challenging process in many ways. Substantively and procedurally, these cases can be complex and can encompass many evidentiary layers. On an emotional level the cases are by their very nature painful, traumatizing and at times horrific. We, as participants in the criminal justice system, are asking victims to enter into a public meeting room to share their most painful memories in front of strangers.

survivors of historical Catherine Cogswell abuse and adults Nova Scotia Public Prosecution Service involved with the Sexual Assault Nurse Examiner program. She also has many other roles at the Avalon Centre. The most significant aspect of her day-to-day work as a participant in the criminal trial process is her focus on supporting women who are required to testify in criminal proceedings.

As a prosecutor, I understand the process, the need for the process and the balancing of the rights that occurs within the process. To state the obvious and for the obvious reasons, the vast majority of sexual assault complainants are not as objectively enlightened or educated as the prosecutor who has been assigned to their case.

Theresa provides much-needed court preparation services to complainants as they are getting ready to testify. This includes explaining the court process, conducting courtroom tours and teaching relaxation techniques as complainants approach the unnerving process of testifying in court. Theresa also accompanies women to their appointments with the Crown and offers support throughout the process.

In the adversarial, legalistic—and I am sure, at times, seemingly heartless—criminal trial process, in Halifax there is a voice of compassion, reassurance and quiet confidence. Theresa Emberly is the Legal Support Advocate at the Avalon Sexual Assault Centre. The Avalon Sexual Assault Centre is a non-profit, community-based organization that, along with the Legal Support Advocate, offers a number of other services such as the following: • counselling services are offered to women who have survived sexual assault and abuse; • a Sexual Assault Nurse Examiner (SANE) program offers medical care and forensic evidence collection following immediate sexual assault to males and females of all ages; and • the Community Education Program provides education and professional training to various groups and individuals. In her role as a Legal Support Advocate, Theresa provides information and support to sexually assaulted women, non-offending parents,

Most significantly, on the day (or even weeks) of trial, Theresa accompanies the women to court and offers her quiet and unfailing support. From the perspective of a prosecutor, this contribution is immense. On the day of trial, counsel are focused on legal and evidentiary issues, thinking and rethinking strategies and looking at the big picture, all the while being mindful of the rights of the accused and the role of the Crown in the process. There isn’t time to hold the complainants’ hands and help them keep it together. Thankfully, Theresa is there. Providing a job description is not the reason I undertook to write this article. As a woman prosecutor who has specialized in this area for many years, I am always so impressed and touched by the humanity Theresa brings to the process for complainants. Any attempt to describe her contribution falls far short of capturing the compassion and, at times, even the sense of humour she brings to complainants April 2012

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caught in the crossfire of a seemingly harsh adversarial process. Her quiet and calming presence, her eye contact and her gentle touch have no doubt allowed many women to move forward in a most difficult situation. Not surprisingly, Theresa‘s background is a very interesting one. She has a Bachelor of Fine Arts from the Nova Scotia College of Art and Design, a Bachelor of Arts with a major in psychology from Saint Mary’s University and a Master of Education (Counselling) from Acadia University. After working in the area of personal counselling for 10 years, she decided to “help in another capacity,” she explains. Theresa, who has been working at the “Avalon Centre” for four years, is motivated to offer some strategies and other supports in an attempt to alleviate the stress and anxiety of testifying that women experience while proceeding through the criminal trial process. In her own truly humble manner, Theresa explains that her ultimate goal is to make the process “go as smoothly as possible” for each woman with whom she works. She strives to empower each woman to become more familiar with the criminal justice system, and to support each woman’s process and her ability to make informed decisions during the legal process. More than anything else, as an observation from someone who has often watched Theresa in action, she gives each woman she works with a sense of personal dignity. In her own words: “I like to do something personal and meaningful for my clients. So on or before the day before court, I give her something that is unique to her and gives her strength, something that she can hold in her hand while she is testifying. For example, one client found strength from her pet, so I supplied her with a palmsized version of her cat to help her feel grounded. “This client said, ‘I finally feel like someone is in my corner. You’re a wonderful person and I really appreciate you meeting with me so quickly and being so supportive.’ Above all, I am humbled by clients’ strength and bravery.” In a world where people strive to be more compassionate and must work so very hard to achieve their goals, Theresa walks that path with all of her gifts and talents so naturally. Another issue for another day is to develop a better process of trauma debriefing for lawyers and other service providers who work in the area of sexual assault prosecutions. But for now, Theresa is even known to offer her kindness and compassion to tired and frustrated employees within the criminal justice system who are also in need of reassurance on occasion.

Please note: It has recently come to our attention that due to a reduction in funding, the Avalon Centre has been forced to eliminate the Legal Support and Advocacy position. We welcome your submission to Accolades! In each column we showcase a different lawyer, firm, group or association to recognize how they are effecting change in the profession. Feel free to contact a member of the Gender Equity Committee or Equity Officer Emma Halpern at equity@ nsbs.org to discuss your submission.

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Sexual assault: Dispelling the myths In 2011, the Avalon Sexual Assault Centre collaborated with the Equity Office and Gender Equity Committee of the Nova Scotia Barristers’ Society to publish Sexual Assault: Dispelling the Myths. A resource for victims of sexual assault, the booklet also aims to assist participants in the criminal justice system in becoming more sensitive to victims’ rights and needs. It’s available in print format at the Avalon Sexual Assault Centre. To download an electronic PDF version, visit the “Improving Justice” section of the Society’s website and find it under The Equity Office > Education and Resources. nsbs.org

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Volunteer profile

Weldon Literary Moot Society

Photos by Lindsay Loomer, Schulich School of Law, Dalhousie University

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he Weldon Literary Moot Society recently Student, Schulich School of Law presented its second annual mock trial in Halifax. Frankenstein’s monster sued his creator, Victor Frankenstein, for negligent design, before an audience of about 250 people in Alumni Hall at the University of King’s College.

Michael Murphy

Judging by the laughter and applause at the February 2 event, a good time was had by all. The annual trial is also a fundraiser, this year generating more than $7,000 for the local non-profit organization, Halifax Humanities 101. Laurie Jones (an Associate at McInnes Cooper) and I represented the plaintiff. Meghan Smith (another third-year law student) and Tony Amoud (an Associate at BoyneClarke LLP) represented the defendant. The Honourable Justice Peter Bryson of the Nova Scotia Court of Appeal presided. The jury was comprised of students in the Halifax Humanities 101 program. Plaintiff ’s counsel presented a case that the real monster wasn’t the nameless Creature, but the creator. Jones and I argued that Victor Frankenstein breached his duty of care as a doctor, father and manufacturer by creating the Creature without giving any thought to the consequences. Not only was the hideous Creature abandoned at birth, but he was also left unnamed, to live a lonely, friendless life. Our chief witnesses were the horribly depressed Creature (played by Prof. Laura Penny, University of King’s College) and Dr. Waldman, a specialist in “Cadaver Related Sciences” (Prof. Geoffrey Loomer, Schulich School of Law). For the defence, Amoud and Smith argued that the Creature really had no one to blame for his misery but himself. The defence called Robert

Walton (Alexander MacLeod, Giller-nominated author and Saint Mary’s University professor), as well as Frankenstein (the hilarious Bill Wood from Picnicface). As the slightly affected Frankenstein, Wood had the audience howling from start to finish with his pitchperfect performance of the vain and completely unremorseful creator. In his instructions, Justice Bryson noted the claim was quite unique, given that no one other than Frankenstein had artificially created a life form, making it difficult to say whether the standard of care had been violated. Nevertheless, without much deliberation, the jury announced at the reception afterwards that Frankenstein was liable, bringing about a round of applause.

The Hon. Justice Peter Bryson (above right) considers evidence from Dr. Waldman (Prof. Geoffrey Loomer, in wig) Picnicface comedian Bill Wood (at right) as Victor Frankenstein April 2012

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Halifax Humanities 101 With its focus on great books taught by volunteer professors, Halifax Humanities 101 follows the premise that the study of traditional humanities disciplines can provide people with crucial tools for gaining control over their lives.

Regardless of who won the suit, the trial was a wonderful success. Founded in 2011 by third-year law students Ben Frenken, Keith Guinn, Seamus Murphy and myself, the Weldon Literary Moot Society will continue with the Weldon tradition of unselfish public service next year, and hopefully for many years to come. The group is already tossing around the idea of using Jane Austen’s Pride and Prejudice for the third annual literary moot in 2013.

Launched with a pilot in 2005, the registered charitable group was initially based on a successful model called the Clemente Course in the Humanities, first delivered on the lower east side of Manhattan by writer and educator Earl Shorris to enrich the lives of those in poverty with education. “The humanities provide the most practical education,” according to Shorris. “The humanities teach us to think reflectively, to begin to deal with the new as it occurs to us, to dare.” Halifax Humanities 101 was inspired by this vision of making humanities education possible for those who can’t afford university. Several afternoons each week, students gather at a local library to participate in lectures and discussions, and exercise their reflection and critical thinking skills in a safe, supportive and encouraging environment. For no cost, students are able to study with university professors and read classic texts in philosophy, literature, history and art. All books and reading materials are provided free, as well as bus tickets, refreshments and child care if needed. Since its launch, more than 60 students have successfully completed the eight-month course of study. Find out more at HalifaxHumanities101.ca.

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Prof. Laura Penny as the Creature, testifying against her creator in the mock lawsuit.

Mortgage Fraud Symposium a success Builds foundation for better collaboration

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ortgage fraud has resulted in hundreds of millions of dollars in losses to lenders and clients across Canada over the past 10 years – some say starting with the notorious Wirick case in British Columbia. What cannot be measured is the significant loss of trust and respect for the integrity of the legal profession as a result of the role some lawyers have played in these fraud schemes. Not surprisingly, mortgage fraud has ‘found a home’ in Nova Scotia as well.

Participants included nearly Victoria Rees 50 representatives from Director, Professional Responsibility the Society, LIANS, the RCMP Commercial Crime Division, the Nova Scotia Public Prosecution Service, financial institutions and lenders, realtors, associations of accredited mortgage professionals and mortgage brokers, CMHC, the Nova Scotia Real Estate Commission, title insurers, RELANS, LRA auditors, counsel involved in investigation and prosecution of mortgage fraud matters, Grant Thornton, and a member of the Law Society of Upper Canada’s mortgage fraud prosecution team. Participants came from across the Maritimes, as well as Quebec and Ontario. The full-day symposium was offered at no cost to registrants, thanks to the financial support of SNSMR and others. The panel presentations were designed to engage the audience in informative and interactive discussions relating to mortgage fraud from different experienced perspectives: from the ‘top down’ by the RCMP; from the ‘ground up’ by experienced regulators and lenders; identifying the ‘ideal’ real estate and lending transaction, and examining key red flags and risk factors for all those who handle parts of transactions that ultimately lead to fraud; and finally, identification of tools for dealing with indicia of fraud, and the role each representative’s organization can play in identifying and preventing future fraud.

A mortgage fraud scheme requires the involvement of a number of professionals to make it work, including lawyers, real estate agents, mortgage brokers, lenders, appraisers and clients. Sometimes this help is inadvertent due to lack of knowledge, due diligence and application of the caveat emptor principle. Sometimes, it is provided by individuals acting as willing participants in criminal acts in the interests of financial or other gain. Mortgage fraud presents a significant risk to the public in Nova Scotia. The Nova Scotia Barristers’ Society, in collaboration with Service Nova Scotia and Municipal Relations, co-hosted a Mortgage Fraud Symposium on February 3, 2012. The purpose of this unique symposium was to bring together representatives and stakeholders from business, industry, regulators and law enforcement – which each have a role to play in identifying, investigating and preventing mortgage fraud in Nova Scotia – to engage in education and begin collaborating in the public and consumer interest.

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Of critical importance were the many ideas that came forward for future information-sharing and collaboration, and a greater understanding of each organization’s responsibility and ability to take steps to prevent mortgage fraud from taking further hold in Nova Scotia. Excellent materials were produced on thumb drives for participants to use as training tools within their organizations. Coordinating the event on behalf of the Society were myself and Donna Edmunds, Executive Assistant to Director of Professional Responsibility. Many thanks to the other Symposium organizers:

• SNSMR – Mark Coffin, Deputy Registrar of Credit; •

Catherine Smith, Senior Policy Analyst; and Elaine Smith, Senior Consumer Protection Officer LIANS – Melanie McGrath, Director

Response to the symposium was extremely positive. A few examples of the feedback: “It was very informative and better yet, managed to assemble many of the stakeholders together in one room …! I look forward that we can continue to find common ground and dialogue with you folks and other industry participants.” “Thank you and great symposium. It was very well organized with a great variety of speakers and invited guests. It was fantastic to hear the various perspectives, and especially useful.”

“A mortgage fraud scheme requires the involvement of a number of professionals to make it work, including lawyers, real estate agents, mortgage brokers, lenders, appraisers and clients.” Our hope is that the symposium will serve as a springboard for ongoing dialogue amongst these and other stakeholders and regulators in the future. Continuing these discussions is in the interests of protection of the public and consumers, and also of the reputations of the professionals who, wittingly or unwittingly, become involved in enabling mortgage fraud to take place in this province.

Letters: Congratulations and Thank You

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y the time this letter is published I will be fully retired, after nearly 42 years of practice. As I read the last issue of the Society Record (the one with Trinda Ernst QC and Ron MacDonald QC on the cover), I was doubly prompted to put some thoughts on paper and share them with the membership of our profession. Firstly, I offer sincere and heartfelt congratulations. Not just to Ron and Trinda and Dan, our current President. Or the editor for an excellent publication, which I enjoyed reading from cover to cover. No, my congratulations extend to our profession as a whole. As I turned the pages and read about our ongoing effort in terms of competence, about the importance of mentoring, the value of pro bono work and community volunteering, our 200-year history, and the new Code of Professional Conduct, I felt pride and gratitude to have been a member of the legal profession. The emphasis on mentoring is not new, by the way. I distinctly remember the advice of the late Lloyd Caldwell, Q.C., as part of my admission process: “Don’t ever be afraid to ask another lawyer, any lawyer, for advice – on anything.” When I realized that I knew Ron and Trinda personally, when I saw a classmate honoured (Robbie MacKeigan) as well as the son of another classmate (Daniel Pink), a friend as a new Justice of the Supreme Court (Carole Beaton) and so on, that is when it struck me that our profession is not just an organization. It is also a family, in the broadest sense of that word. We have every right to be proud of our profession and what we do and accomplish. We are indeed a helping profession, be that at a bedside in a nursing home to take instructions for a Will or in the Supreme Court arguing a Charter right. We must never worry about the few proverbial “bad apples” or the many nasty and totally unfair “lawyer jokes”. I have always been proud to be a lawyer. My three years on the Federal Judicial Appointments Advisory Committee deepened my awareness of the extremely high quality of so many of our members in terms of brain power, hard work, excellent character, integrity and commitment to the community. My second prompting: To use this means to say “thank you” to our Society, its various leaders over the years and its staff, as well to my colleagues and friends in the practice of law and on the Bench. When I first came to Canada, I worked as a farm labourer at $80.00 a month. My retirement is a good time to publicly express my gratitude to this country and the legal profession for making it possible for me to become and be a lawyer. Sincerely, Morris J. Haugg

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The Society Record

Update on the NSBS Organizational Review

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s the work of law societies and legal regulators across the globe Executive Director is being scrutinized more closely, it is incumbent upon the Nova Scotia Barristers’ Society to ensure it is fulfilling its proper role. As we witness changes in the legal profession of Nova Scotia, with membership growth at a near standstill, the aging of the profession, and the higher concentration of lawyers in urban centres, it is incumbent upon the Society to ensure it uses its resources most effectively. And as costs for operations grow, especially costs associated with regulation, it is essential that the Society operate in ways that will manage costs. These are the main factors that led Council, in 2010, to mandate an organizational review of the Society.

Darrel Pink

Led by the Executive Committee and reported to Council, the process allowed the Society’s leadership to look at our statutory obligations under the Legal Profession Act and activities being undertaken. By looking at both its required and actual activities, Council decided, and then mandated, that the Society must focus its work on its core regulatory requirements as prescribed by the Act. Though it was acknowledged that there was some membership support for other activities and programs, in the end, Council determined that the appropriate role for the Society was to be more focused on its core regulatory responsibilities and to leave most other discretionary activities to others. This conclusion was supported by financial analyses that demonstrated the costs associated with the various work, the revenue generated by these activities and the real costs of undertaking them. It was from this perspective that the organizational review was continued in this fiscal year.1 As noted elsewhere in this issue of the Society Record, the review of Library & Information Services led to a conclusion that the work currently undertaken by the Library needed to change. By focusing 1 In 2010-2011, Council determined that the Society’s role in social events would change with the elimination of the social aspect of the Annual Meeting and regular dinners and receptions, and that its role in continuing professional development would change, with the Society ceasing to be a frontline provider of conferences and seminars. This latter decision will be reviewed in 2012-2013.

on the Society’s role in governing in the public interest, and the costs associated with delivering a wide range of library and information services, Council endorsed a recommendation to eliminate a number of current library programs, with the resulting reduction in budget and practising fees. Given the proliferation of legal information services generally available, though it was recognized that there is value in the work being done and good products being produced, it was determined that the Society could not attempt to be the main, or even a major, source of information lawyers need for their practices. That is not our purpose and hard decisions had to be made in order to focus work on what is absolutely essential. The Society’s investment in ongoing support for CanLII continues to provide lawyers with a ready source of free information which they can manage easily themselves without the Society playing an intermediary role. As a result of these conclusions, there have been changes in the library staffing and program model with further evaluation to be ongoing. The Society’s Equity Office is also under review and recommendations have been made to Council to ensure that this work is more focused and more connected to Society’s role in the justice sector. As of writing this, no decisions have yet been made. The other area that will be addressed in the organizational review this year is the Society’s communication activities. There are significant expectations in what the Society communicates to lawyers, to others in the justice community, and to the public. The goal, as with all aspects of the Organizational Review, is to ensure maximum efficiency with minimum costs. The recently redesigned Society website is an example of the type of change expected, where there is a good understanding of our audiences and communication of appropriate information in a timely manner. Overall, the Organizational Review will result in a more efficient and cost-effective Society. Council realizes that the work of the regulator, while focusing on the public interest, must always be done in ways that are mindful of costs, with an assurance that lawyers’ fees – the main source of revenue – are used as effectively as possible. That commitment is a key aspect to ensure that all lawyers can respect their self regulator and appreciate the importance of self-governance to the profession. April 2012

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Ryan Van Horne Freelancer

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here are many concepts of justice and how it can be achieved.

It should come as no surprise, then, that a panel discussion titled “Access to Justice: Reality, Rhetoric and Recommitment” covered many problems and barriers while offering an array of suggestions on how to improve access. The Hon. Mr. Justice Thomas A. Cromwell of the Supreme Court of Canada was among the panellists at the 21st Annual F.B. Wickwire Memorial Lecture in Professional Responsibility and Legal Ethics, held February 29 at the Schulich School of Law at Dalhousie University. Rounding out the panel were Emma Halpern, the Society’s Equity Officer, and Professor Trevor Farrow of Osgood Hall Law School at York University. In her introduction, Dean Kim Brooks said she “would go to see any of them speak alone, but to put them together – what a lineup!” Each speaker delivered a thought-provoking 15-minute presentation, then fielded several questions from a packed lecture hall at the Weldon Law Building. For Justice Cromwell, it was his second trip to Halifax in less than a year; on both occasions, his purpose was to discuss access to justice. (Last June, it was the topic of his keynote address at the Society’s Annual Meeting.) 20

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That the issue is attracting the attention of Canada’s highest court judges and top legal academics underscores the severity of the problem. “Legal services have become increasingly more difficult to access,” said Ms. Halpern, adding affordability is the biggest obstacle. The Society is closely examining the issue and takes the view, Ms. Halpern says, that “effective access to justice is a crucial outcome of a justice system that is well administered.” Justice Cromwell cautioned against taking a court-centric or litigation-centric vision. “Sometimes, what’s needed for access to justice is a babysitter or a bus pass.” There are three key components to improving access, he added: engagement, strategy and collaboration. “It’s important to go beyond wringing our hands collectively about it,” he said, explaining that true engagement requires ideas to solve the problem – not just recognize it. Justice Cromwell also spoke about the National Action Committee on Access to Justice, which he’s been chairing since joining the country’s top court. Along with initiatives such as creating an online inventory of civil and family justice reforms, much energy has also gone toward breaking down the silos in the justice system, to ensure that various organizations and stakeholders are communicating and collaborating more effectively.

Photo by Daniel Abriel/Dalhousie University

21st Wickwire Lecture examines access to justice as a professional responsibility

With some family court judges reporting that up to 70 per cent of the people appearing before them are self-represented, the problem is acute, he acknowledged.

The World Justice Project’s 2011 Rule of Law Index ranked Canada 16th out of 23 of the high-income countries in terms of access to justice.

One area of investigation for the action committee dovetails nicely with some of the ideas put forth by Ms. Halpern, who suggested that legal services should be interpreted broadly, to encompass more than simply access to lawyers.

“Law is becoming increasingly inaccessible and alienating of those it was meant to serve,” said Prof. Farrow. “It’s, quite frankly, an unsustainable situation. People don’t understand law, they don’t want it, they can’t afford it, and are starting to look for answers elsewhere.”

The new Family Law Information website scheduled to be launched in the coming months in Nova Scotia will provide basic legal information to the public while reducing unnecessary duplication and offering alternatives to court.

Responding to a question from Justice Cromwell, Prof. Farrow said one challenge he’d like to take up is changing the “culture of nonaccountability within the profession.”

Ms. Halpern also lauded Health Link 811, a telephone triage system that puts patients in touch with registered nurses – a similar legal model would be a huge help to many, she said. “We still have a very long way to go. Access to justice will remain a growing problem unless we’re willing to start thinking outside the narrow box that seems to include only lawyers and courts,” Ms. Halpern concluded. Prof. Farrow connected access to justice to the growing public discontent, personified by the global Occupy movement, but said it’s not up to lawyers to fix every problem.

Photo by Daniel Abriel/Dalhousie University

Still, he said, “We need not to lose sight of the fact that there is a connection between the discontent in society, generally, and the growing discontent that people are feeling with an increasingly inaccessible justice system.”

“Most lawyers work hard, they’re good people, they want to do good things, but at the end of the day, lawyers are of the view that ours is not the bidding of society, but it’s the bidding of our fee-paying clients.” This ethos sounds well and good but could be the source of the problem, rather than a solution, said Prof. Farrow. “Clients with money and power are driving the public agenda and collectively, the system is becoming increasingly inaccessible, unfair, and it’s imploding,” he said. “I think it’s time to stop saying we don’t have the power in the room, because increasingly, I think the folks that are wielding the power in the room are not so much the clients, but the people who they’re retaining.” Follow these issues at cfcj-fcjc.org and nsbs.org/improving-justice.

Opposite page: The Hon. Mr. Justice Thomas A. Cromwell Above, left to right: Dean Kim Brooks, Prof. Richard Devlin, Prof . Trevor Farrow, Justice Cromwell, Society President Dan Campbell QC and Emma Halpern, NSBS Equity Officer April 2012

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Continuing Professional Development The new requirement for lawyers in Nova Scotia

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ast week, two things were causing me stress. One was Non-Practising Member the idea of starting this article, and the other was an upcoming dental appointment. In fact, I was so anxious about going to the dentist that I couldn’t bring myself to write anything. I have never had a bad dental experience, nor have I ever met a dentist I don’t like. Still, for some reason, the thought of going to get a hole in my tooth checked sent my parasympathetic nervous system into ‘panic mode’.

Shawna Denney

What does this have to do with continuing professional development (CPD), you ask? Well, nothing really, except for the fact that I had this article on my mind when I went to my appointment. After sweating my way through a short, 10-minute, pain-free session, I broached the subject of continuing education with my dentist. To my great relief, he assured me that yes, dentists do have mandatory continuing education requirements. He was surprised, however, to learn that the same is only now being implemented for lawyers in Nova Scotia. Turns out, my dentist is just as scared of us as I am of him, and I’m sure he’s not alone.

they are faced with some sort of conflict or crisis. Clients come to us for help sorting out some of the more messy aspects of their lives (or, for help avoiding those messes in the first place). They not only assume we are competent, but also that we’re doing everything we can to maintain our competence. Lawyers have, for the most part, always engaged in learning activities – whether by teaching and mentoring, or by attending seminars. Even so, when the Society asked members to report on their CPD activities in 2009, 15 per cent reported they did no CPD whatsoever – despite the fact that the new Civil Procedure Rules (2008) had just been introduced, along with a mandatory training session on those rules. Mandatory CPD will ensure that those 15 per cent are able to do what they should be doing, and will also assure the public there are mechanisms in place to track the 85 per cent of us who already are.

“...when the Society asked members to report on their CPD activities in 2009, 15 per cent reported they did no CPD whatsoever”

No more lawyer jokes, please. Since the dawn of time, or at least since Shakespeare wrote “… kill all the lawyers,” lawyers have been feared and mocked; however, we’ve also been afforded respect. People need our expertise – usually when 22

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Everyone else is doing it. The Society’s decision to adopt a minimum of 12 hours per year results in a pretty modest mandatory requirement for lawyers. According to my research, dentists have to do 90 hours, and dental hygienists 45 hours – all per three-year term, while dental assistants match lawyers at an average of 12 required hours per year. It isn’t only medical professions that impose mandatory CPD requirements; looking at some of the other self-regulated professions in Nova Scotia: foresters

do 150 hours per three-year term, Chartered Accountants do 20 hours per year plus another 120 hours per threeyear term, and teachers do 100 hours every five years.

Counterbalancing the increase in available learning resources is the reality that the practice of law has become increasingly complex, challenging and competitive. In 1996, I went to law school planning to graduate and just start helping people, without recognizing that law is as much about business and managing client (or employer) expectations as it is about applying and arguing ‘the Law’. New members have complained law school doesn’t adequately prepare them for this reality, and – really – how could it? Technology, market needs and the world we live in are all constantly changing. This is a gap I think the mandatory CPD requirements can and will fill.

“Learning tools are available to lawyers everywhere – from Arichat to Halifax and beyond – by virtue of an internet connection.”

Looking at lawyers across the country, we’re the tenth law society to put in place some form of mandatory continuing education. Alberta is a lone rider in the sense that it has no mandatory minimum hours, just a requirement that members file and follow through with a continuing education plan; however, the Law Society of Alberta is considering tightening its requirements in 2012. Only Newfoundland and Labrador, Nunavut and the Yukon don’t have any form of mandatory CPD, and the Yukon is looking at changing that soon.

While there are no national standards for CPD as of yet, it seems that Nova Scotia lawyers are pretty much on par with the rest of Canadian lawyers. In fact, we’re going to be allowed significantly more leeway in terms of deciding how to meet our mandatory CPD hours than many of the other provinces permit. Not requiring our CPD programs to be accredited or pre-approved (which British Columbia, Ontario, New Brunswick and Prince Edward Island all do, to some extent) shows that the Society continues to believe that we – as individual lawyers – have the professional integrity and knowledge necessary to choose what kind of learning is best for us in light of the clients we serve.

The road ahead … Mandatory CPD in 2012 looks quite different than it would have looked in, say, 1980. Learning tools are available to lawyers everywhere – from Arichat to Halifax and beyond – by virtue of an internet connection. Gone are the days where, to keep current, you had to pay for an expensive loose-leaf subscription service or log in excessive hours at the library. The Internet provides us access to a plethora of podcasts, webinars and resource materials that allow us to learn how and when it’s convenient.

Dentists &

Foresters

90 hours/3-year term

150 hours/3-year term

… where does it take us? Many of the provinces that have already implemented mandatory CPD have seen an increase in programs developed at the county bar level and targeted at CPD requirements like ethics, practice management and professionalism. The fact that study groups count towards mandatory CPD hours has encouraged lawyers to band together and share information. Local CBA branches have actively promoted learning that meets lawyers’ CPD needs in a relatively inexpensive fashion. The result is a coming together of the profession in new and positive ways. So, really, while there may be some growing pains as it’s being implemented, the Society’s new CPD requirement can turn out to be a win-win all around. As I see it, we benefit because our learning is being actively encouraged and facilitated in new ways. Service providers (like the CBA) benefit because they’re gaining new opportunities to develop programs that suit our needs. And the clients/dentists of the world benefit too, because they can now rest easy knowing we are doing everything we can to remain competent in a way that serves their needs.

Chartered Accountants 20 hours/year + 120 hours/3-year term

Teachers

LawyerS

100 hours/5-year term

12 hours/year

dental Hygienists 45 hours/3-year term April 2012

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A primer on the new CPD requirement: FAQs to get you started Visit the website For more detailed answers to these questions and more, see the Professional Development section of the Society’s website: nsbs.org/for_lawyers/professional_development.

What is mandatory Continuing Professional Development (CPD), and what does it mean to me? Mandatory CPD is the requirement that all practising lawyers participate in a minimum of 12 hours of eligible CPD per year as a condition of maintaining their practising status. CPD is intended to preserve and enhance a lawyer’s knowledge, skills and professionalism and is a natural extension of our commitment to the public to ensure the highest standards in our profession.

What qualifies as eligible CPD? There are two components of eligible CPD: relevant content, delivered through an acceptable form of learning. There are many means of learning available to enhance your professional development. To qualify toward your mandatory requirement, an activity must be for a primarily educational purpose. The Society’s CPD Requirement Chart (on the website) provides a guide to the types of courses and other forms of learning that can count toward your mandatory CPD. The range of eligible activities is intentionally broad and includes both traditional (e.g., formal education courses) and non-traditional (e.g., webinars, blogging) means of learning.

Practising lawyers will be required to report their mandatory CPD activities on their Annual Lawyer Report, filed in June each year.

As for whether the program / activity ‘content’ qualifies as eligible CPD, each lawyer must assess whether the content is relevant to that lawyer’s practice of law. In addition, the content must fit within one of three defined areas of CPD: substantive legal education and skills development; risk and practice management; or, professionalism. The Chart expands on these three areas.

The failure to fulfil this, or any, requirement set by the Society may result in administrative and/or disciplinary action.

To find the Chart, visit nsbs.org and follow these headings: For lawyers > Professional development > CPD Requirement Chart.

When does CPD become mandatory? CPD will become mandatory on June 1, 2012. Lawyers have until May 31, 2013 to complete their CPD hours for the first reporting period. For the first year only, 15 months of CPD may be applied to the 12hour requirement. Any eligible CPD activity from March 1, 2012 onward can be counted in the June 2013 report.

The Rule says my CPD must be relevant to my practice. Will learning about new areas of practice count as eligible CPD? Law is in constant flux and mandatory CPD aims to expose lawyers to new developments – as well as renewing basic knowledge and skills. Lawyers are in the best position to identify which content is relevant to their practice and its development. Do I have to get my CPD activities accredited or preapproved by the Society for them to count?

What are the key requirements of mandatory CPD? To be eligible toward your 12-hour mandatory requirement, the CPD must be delivered through an acceptable form of learning, be relevant to your practice of law, and include a minimum of two hours in each of three areas: • Substantive education and skills development; • Risk and practice management; and • Professionalism. However, during the first year of the program (from June 1, 2012 – May 31, 2013), lawyers are permitted to achieve their mandatory CPD hours in any (combination) of the three areas. 24

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The Society is not accrediting CPD programs or formally preapproving CPD activities. It will, however, provide guidance as to what type of programs or activities fall into one of the three required categories (substantive education and skills development, risk and practice management and/or professionalism). See the CPD Requirement Chart. If you have questions about whether a particular activity or program content counts as eligible CPD, please contact the Society at 902 422 1491.

I am a non-practising lawyer, but I intend to change my status to practising within the year. Do I have to meet the full CPD requirements for the year? You will be required to complete one hour of eligible CPD for each month of practising status during the year. So, if you change your status to practising in January, you will be required to fulfil five eligible CPD hours before the end of May. Note that CPD activities are among the factors considered in assessing your application to change to practising status. It is recommended that even non-practising members undertake CPD activity, especially if they intend to return to practice. Are there any circumstances in which I don’t have to fulfil the mandatory CPD requirement? The Executive Director has discretion to waive the requirement in exceptional circumstances. Please consult the Society if such circumstances arise. How should I keep track of my CPD hours? We recommend you open a file called “Mandatory Continuing Professional Development” or something similar. After you attend a session or participate in an eligible CPD activity, you should note it in the file. Relevant information you should track includes the name or nature of the seminar or activity you participated in and the date you did so. Where relevant, you should keep receipts or electronic confirmation of activity. If you’re a CBA member, you can track all of your CPD activities (including CBA and non-CBA sessions) on the CBA website with just your member number. Login here: www.cba.org. Click “Professional Development” and then “Tracking Tool”. How will the Society monitor my compliance? Through reviewing Annual Lawyer Reports and conducting random audits. You should expect that if the Society is visiting your offices for other purposes (e.g., auditing trust accounts), your CPD activity will be audited at that time. What will happen if I don’t report my CPD hours, or I report fewer than the 12 required hours? Once your incomplete Annual Lawyer Report is filed, we will contact you and request you to complete (and report) any outstanding hours by no later than June 30. If you are required to complete outstanding hours, they will be counted toward the previous reporting period only. You will not be able to ‘double’ count them, or claim them toward both reporting periods (which run from June 1 – May 31 each year). Failure to complete any outstanding hours by the end of June will be treated the same as a failure to file your Annual Lawyer Report – and may result in administrative suspension.

Where can I find CPD resources? There are a number of places to find available CPD resources. Here are a few to get you started: • CPD File (www.cpdfile.com/), a free online service that enables you to search Canada’s largest nationwide directory of CPD activities, create a personal CPD plan, print an annual activity report and more; • the Society’s website: - Upcoming events page (nsbs.org/events), where you’ll find details of upcoming CPD offerings, listed by date; - Events calendar (nsbs.org/calendar/month); and • the CBA website (www.cba.org), which provides a list of all upcoming events and online CBA programs available to its members. Lawyers can also find details of upcoming events in the Society’s biweekly electronic newsletter, InForum.

RPM: At least two hours per year Stacey Gerrard, LIANS Counsel

As of June 1, 2012, the Society will require all practising lawyers to complete a mandatory 12 hours of professional development annually. From year two of the program onward (i.e., from June 2013), a minimum of two of those hours must be dedicated to Risk and Practice Management. Why require specific education in Risk and Practice Management? Studies show that most discipline complaints and professional liability claims can be avoided through better management of practice issues such as file documentation and effective communication. Both “A Report to the Lawyers’ Professional Indemnity Company On Identifying and Treating the Underlying Causes of Claims Against Lawyers,” by Neil Gold, and “Managing Client Expectations and Professional Risk,” by Ronwyn North – as well as statistics gathered by LIANS, LawPro and the ABA – indicate that these issues, rather than lack of knowledge of the law, lead to errors. The LIANS Risk and Practice Management Program has been working with, and educating, lawyers in Nova Scotia for the last several years to try to assist them in this regard. The program goal is to provide information and education that will result in changes to lawyer practice, resulting in fewer claims. How can you get your hours in RPM? Information on the Society’s website outlines how lawyers can obtain their requisite two hours of Risk and Practice Management professional development. In order to assist members, LIANS will present a number of RPM sessions at its annual Solo and Small Firm Conference on Friday, November 23, 2012 at the Westin Nova Scotian. LIANS also offers free webinars and in-person presentations to law firms, County Bar Association meetings and through the CBA. We also welcome written submissions on Risk and Practice Management topics for our bimonthly newsletter, LIANSwers! All of these activities will count toward the required hours. Contact Stacey Gerrard, LIANS Counsel, at [email protected] or 902 423 1300 for more information.

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Cultural competence f o r

l aw y e r s

i n

N o va

S c o t i a

The Social Context of Lawyering

Rose Voyvodic*

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n order to effectively discern the goals and needs of clients and advise them of their options, lawyers of today must be go beyond what may be stated by the client in the initial interview and be capable of communicating with the client effectively, in order to understand what may be motivating the client, and appreciating the social contexts in which clients live, and in which they are seeking legal services. Social or cultural contexts are not capable of being reduced to checklists of sets of practices, beliefs or meanings. Instead, they may be seen as a combination of these things, together with cultural identifications, life experiences and histories. This multiplicity of influences on thinking, communicating and interacting also informs how clients approach legal problems, make decisions and how they relate to the legal system and lawyers. Current Canadian society includes aboriginal peoples, recent immigrants from all over the world, as well as long-standing communities of people from many racialized groups and cultures. “Culture” is now understood to refer not only to religious, racial, or ethnic customs, beliefs, values and institutions, but also to social groups created by disability, class, nationality, age, “sexual orientation, physical characteristics, marital status, role in family, birth order, immigration status, religion, accent, skin colour or a variety of other characteristics.” Through these cultural perspectives, individuals “may perceive events and ideas in different ways.” In turn, the legal system and the legal profession must also be recognized as the cultural institutions they are, informed by dominant thoughts, communications, actions, beliefs, and values. While the legal profession itself is much more diverse in 2006 than it has been in the past, it continues to be predominantly comprised of individuals who are privileged in Canadian society, namely: white, male, able-bodied and from middle-class family backgrounds. 26

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As this demographic reality suggests, lawyers are not representative of the larger Canadian society, and, depending on the type of practice they have, may not share the life experiences of many of their clients. Furthermore, although it is true that many lawyers who are women, members of racialized and ethnic communities, and/or persons with disabilities report having experienced or witnessed harassment or discrimination, it is true that most lawyers, on the whole, are unlikely to have recognized these events, and therefore have not had direct experience of inequality. Because most lawyers lack this subjective knowledge of the reality of discrimination, they are more likely to believe it is less serious of a problem, or less pervasive, than do their potential clients who are women, members of racialized and ethnic communities, gay, lesbian, poor, unemployed and/or persons with disabilities. When lawyers and clients come from different cultures, they “face special challenges in developing trusting relationships in which genuine and accurate communication can occur”. These challenges can be overcome through the acquisition of skills, such as relaxing the judgmental stance, remaining present with the client through listening and attending, rapport building, working effectively through interpreters, and self monitoring (to learn from mistakes through reflection), all of which facilitate lawyers’ capacities to communicate accurately. However, such skills are not yet specifically enumerated in taxonomies set out in Canadian rules of professional conduct … (though) it is possible to “read cultural competence in” to these rules as a reflection of the core values of the profession, and as a necessary ingredient of the “skills, attributes and value” of lawyer competence. *The above is excerpted from the essay, “Lawyers Meet the Social Context: Understanding Cultural Competence” (2006) 84:3 Can Bar Rev 563. It was written by the late Rose Voyvodic, Faculty of Law, University of Windsor. Footnotes have been removed but a complete version is available at www.cba.org/cba_barreview/Search.aspx?VolDate=10/01/2006 .

Cultural competence education: how… and why?

Compiled by Laura McCarthy and Emma Halpern

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ecently, the Society’s Racial Equity Committee conducted a number of interviews and focus groups with lawyers and cultural competency trainers in Nova Scotia. The goal of this qualitative research was to develop a comprehensive understanding of what cultural competence education for lawyers in Nova Scotia should look like. The following is a summary of some of the responses we received. What is cultural competence? Cultural competence is a commitment to lifelong learning and individual growth through awareness, attitude, knowledge and skill development. Cultural competence education has five central tenets: • Knowledge of one’s own worldview; • Knowledge of different cultural practices and worldview; • Awareness of the difference in worldviews; • A willingness to understand differing worldviews, • An ability to communicate and effectively interact with diverse peoples. What substantive information should be provided in cultural competence training for lawyers in Nova Scotia?

3. Develop an attitude that supports client relationships built on trust, dignity and concern. This requires not only an understanding of a client’s culture and background, but also recognition of the power dynamics that exist if a client is uncomfortable with lawyers and the legal system. It is essential to hold a belief that cultural competence is important and part of the skill set of a competent lawyer. 4. Awareness of one’s own culture, biases and stereotypes and those that exist within legal workplaces and the legal profession more generally. This requires knowledge and understanding of power and privilege and an ability to speak comfortably with clients and others about racism, sexism and other forms of discrimination. This will also require the skills and knowledge necessary to make difficult racial and cultural arguments that may be required in order to adequately represent racialized and Aboriginal clients in certain contexts. Lawyers will need the knowledge and skills required to have difficult conversations about race and racism and will need to learn how to frame their questions to get the answers needed without being rude or disrespectful. 5. Knowledge and skills required to communicate with diverse communities despite differences in cultural norms regarding body language, eye contact, personal space and customs. When in doubt, ask polite, respectful questions and ask for feedback from clients following a meeting. What would good cultural competence training look like?

1. Knowledge of the history, background and lived realities of the diverse communities represented in Nova Scotia, with a particular focus on Nova Scotia’s historic communities. It is equally important to recognize that any community or group is not homogeneous and the histories and experiences of individuals will be unique. Do not make assumptions. Ask questions and develop a genuine interest in your clients and colleagues. 2. Awareness by lawyers of the access to justice gaps in the legal system and how these gaps impact racialized and Aboriginal communities. This should include education regarding the specific access to justice challenges faced by particular communities as a result of systemic racism and discrimination.

1. Provide opportunities for experiential learning where possible in the province’s diverse communities or through trainers who can, through their life experiences, speak to the lived experience. 2. Provide an opportunity to ask many questions and encourage respectful dialogue. 3. Create opportunities to role play and try out a variety of scenarios and examples. 4. Include content connected to the legal profession and substantive law. 5. Provide the business case and include information that indicates how cultural competence is profitable.

Client Communication: Measuring Your Cross-Cultural Competence

Jatrine Bentsi-Enchill, J.D., CPCC A CBA Practice Link, reprinted with permission from CBA.org

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n today’s age of globalization, cross-cultural communication has become a vital skill for lawyers to master. When we interact with clients and colleagues on a daily basis, we are interacting with issues related to culture. Behavior, communication, relationships, parenting, decision-making, expectations and so on, all have cultural significance.

Effective cross-cultural communication is the ability to communicate with individuals from other cultures in a way that minimizes conflict, promotes greater understanding and maximizes your ability to establish trust and rapport. It requires lawyers to learn how to properly interpret non-verbal and verbal cues. ...over > April 2012

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For lawyers, gaining an awareness of cultural differences can improve business development, staff retention, client service and most importantly, lawyer-client relationships. Tips for improving cross-cultural communication Although training and coaching interventions are the most effective methods of improving cross-cultural communication skills and cultural competence, the following are some things that lawyers can begin doing to improve cross-cultural communication skills:

from other cultures in a judgmental manner will hinder your ability to gain a clear understanding of the situation. 6. Be flexible. Flexibility, adaptability and open-mindedness are critical to effective cross-cultural communication. Understanding, embracing and addressing cultural differences will lead to better lines of communication, clientservice and lawyering.

“For lawyers, gaining an awareness of cultural differences can improve business development, staff retention, client service and most importantly, lawyer-client relationships.”

1. Gain awareness. Become aware that although a gesture, word or response may mean something in your culture; it may mean something totally different to someone from another culture. 2. Take a look at your own culture. Understanding how your worldview and culture impacts your perception of others will help you identify instances where you may tend to use biases or stereotypes when interacting with those whom you may perceive as different. 3. Try a little understanding. In trying to better understand your clients and their motivations, understand the impact that culture plays on their values, perspectives and behavior. 4. Listen closely and pay attention. Try to focus on verbal as well as non-verbal cues and the behavior of your client. If the client seems distracted, confused, or ill at ease, ask questions. 5. Suspend judgment as much as possible. Approaching people

Lawyers who are willing to address cultural issues when dealing with clients and colleagues will enhance client relationships and improve their ability to solve problems and negotiate. Keep in mind that improving cross-cultural communication and cultural competence is a process and a journey, so be patient with yourself. Your commitment and desire to improve will go a long way towards enhancing the service you provide your clients as well as the overall quality of your lawyering skills. Jatrine Bentsi-Enchill is an attorney, a Certified Professional Coach, speaker and the founder and director of the Esq. Development Institute (EDI). The Esq. Development Institute specializes in providing Executive and Personal Coaching for lawyers and training processes for law firms in the areas of leadership, communication, cultural competence, management development and work-life balance. Ms. Bentsi-Enchill can be contacted by email [email protected] or by phone at 704 814 6135.

We’ve movEd! Effective April 1, 2012, our address is: Nova Scotia Barristers’ Society Cogswell Tower Suite 800 – 2000 Barrington Street Halifax NS B3J 3K1 Visit us on the web at nsbs.org.

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Spotlight on two key CPD providers Canadian Bar Association–Nova Scotia

T

he CBA–NS is committed to providing relevant professional development programming accessible to lawyers across Nova Scotia. From in-person conferences to online webinars, we have the programs you need, delivered exactly when and how you need them. With the arrival of the Society’s CPD Requirement, it is more important than ever to have easy access to convenient, cost-effective options that address topics relevant to your areas of practice and interest. Here is a brief overview of the many professional development opportunities available from the CBA–NS Branch, National CBA and other branches across the country. Perhaps the most significant new opportunity is our decision to expand our annual professional development conference from one day to two days. This new Mid-Winter Meeting and Conference format will allow attendees to pick up the required 12 hours of CPD all during one conference. In keeping with one of our key strategic directions – equal access to professional development for all lawyers regardless of location in the province – we will continue to offer travel incentives based on distance from the conference venue. In addition, we regularly run special rate offers. Equally important in terms of accessibility is the increase in the number of 90-minute online CLE sessions offered by the Branch, largely driven by our commitment to support the rollout of mandatory CPD. A minimum of 10 will be offered in fiscal year 2012/13 (September 1 to August 31).

Tina Tucker For CBA members, our Executive Director 31 Sections are another Canadian Bar Association–Nova Scotia source of professional development. To facilitate a thoughtful, planned approach to acquiring PD hours in a member’s practice area, our new “Sections Schedule of Meetings Bulletin” will be produced twice per year. By far, the majority of CBA–NS section meetings provide substantive legal education, and access via teleconference is now available on a regular basis. In addition to PD offerings from the CBA–NS Branch, CBA National offers a wide variety of online sessions that can be accessed anywhere in the country. The “CBA Skilled Lawyer Series II: Bridging the Gap Between Theory and Practice” is designed to help you fulfil your CPD requirements while sharpening essential corporate and litigation skills. These accredited and affordable online sessions will help ensure you’re at your best in the boardroom or the courtroom. Be sure to take advantage of flexible programming: select the full package of litigation or corporate courses, or pick and choose those most relevant to your practice; watch the online sessions at your desk or purchase boardroom access to watch with colleagues; choose the interactivity of a live presentation, or the flexible timing of a recorded session. For more information on these sessions, visit www.cba.org and select Professional Development. The new CBA PD website combines listings for all CBA Branch, National and CCCA events in one convenient location, eliminating the need to search through multiple sites. CBA members may also choose to receive tailored information and updates through the creation of a customized profile.

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Finally, we realize and appreciate how different people like to learn in different ways. Staff members at the CBA–NS office are available to offer orientations to the online delivery system for individuals or firms who simply want to know more about how it works. For more details on professional development opportunities or to learn more about the benefits of CBA membership, please contact Tina Tucker via email: [email protected]. CBA–NS 2012/2013 Professional Development opportunities Mid-Winter Meeting and Conference (12 CPD credits), January 31 and February 1, 2013 One-day Conferences: • Tax for Non-Tax Lawyers” (6 CPD credits), October 26, 2012 (Casino Nova Scotia) • Real Property/Estate for Legal Assistants, December 7, 2012 (Marriott Harbourfront Hotel) • Serious Personal Injury (6 CPD credits), May 10, 2013 (Casino Nova Scotia)

Seminar Partners

S

eminar Partners has been a trusted provider of continuing professional development to the Nova Scotia Bar since 2010, training more than 325 Nova Scotia lawyers in core advocacy skills such as legal writing, cross-examination and negotiation. Delivering up to 20 open enrolment programs Laura Vaughan Program Manager, Seminar Partners nationally every year in conjunction with the Law Society of Newfoundland and Labrador, the Canadian Bar Association New Brunswick, the Law Society of Manitoba, the Law Society of Saskatchewan and The Advocates’ Society, Seminar Partners is fast becoming a leading provider of CPD. With an average presenter rating of 4.5 out of 5, and an impressive 90 per cent of attendees saying they would recommend their programs to colleagues, Nova Scotia lawyers can look forward to seeing more Seminar Partners CPD programs in Halifax.

10 Online PD Sessions (1.5 CPD credits per 90-minute session) For topics and dates, see www.cba.org (select Professional Development, then Nova Scotia)

Seminar Partners’ next Nova Scotia presentations are Gain the Edge: Negotiation Strategies for Lawyers, and Negotiation Ethics: Winning without Selling Your Soul at the Delta Halifax on May 11, 2012. Preliminary 2012/2013 programs include Presenting and Challenging Expert Witnesses at Trial, Practical Ethics for Lawyers and Writing to Persuade.

Sections (1 CPD credit per hour of attendance) Watch for Section Meeting Bulletins in October and January

For more information, visit www.seminarpartners.ca or contact Program Manager, Laura Vaughan, at 647 352 8633.

2012 NSBS Annual Meeting Saturday, June 16, 2012 | 8:30 am to 12 noon Schulich School of Law at Dalhousie University 6061 University Avenue, Halifax All lawyers are welcome to attend the 2012 NSBS Annual Meeting. It begins at 8:30 am with the Annual General Meeting, followed by a two-hour educational component that can be used toward the Society’s new CPD requirement. Watch InForum and nsbs.org for further details, to be announced shortly.

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Leadership Symposium launches strategy to improve employment equity in legal workplaces

Left to right: Justice Minister Ross Landry, keynote speaker Vanita Banks, panellist Andrew Alleyne

A

three-year strategy aims to spark a renewed commitment to employment equity in legal

address the historic under-representation of African Nova Scotian and Mi’kmaq lawyers in Nova Scotia.

“The value of a diverse workforce and justice system cannot be measured,” Justice Minister Ross Landry said in his welcoming remarks at a recent Leadership Symposium where the Employment Equity Steering Committee launched the new strategy.

“The business case is undisputed” for developing a legal profession that reflects the communities it serves, said the Symposium’s keynote speaker Vanita Banks, Counsel for Allstate Insurance, noting that at least 16 per cent of Canadian citizens self-identify as members of equity-seeking groups.

Marla Cranston

NSBS Communications Officer

The business case for employment equity

workplaces across Nova Scotia.

“It’s time for government, business and academia to come together on the issue of employment equity. And let’s not kid ourselves, we have a lot of work to do ... progress has been slow,” Mr. Landry said at the January 18 event in Halifax. The Department of Justice, the Nova Scotia Barristers’ Society and the Schulich School of Law – participants in the Steering Committee – encouraged legal employers and other leaders in the sector to deepen and broaden their equity efforts over the next several years. The strategy also entails better ongoing data collection methods and creation of an employment equity policy to be adopted by legal workplaces throughout the province, among other initiatives. The Steering Committee was initially established in 2001, in order to monitor and improve employment equity in legal workplaces and

Fostering diversity in the legal workforce is an effective strategy to service the needs of these prospective clients, she said, and many corporate clients also prefer to do business with law firms that share their values and best practices when it comes to employment equity. “Companies that want to work in a highly competitive global marketplace will have to attract diverse talent,” said Ms. Banks, a former President of the National Bar Association in the U.S. Arabic is now the second most frequently spoken language in Nova Scotia; the Muslim population is the second-largest growing group in Canada, expected to increase by 160 per cent within the next five years. Canada’s Aboriginal population is also seeing significant increases – up by 20 per cent from 2001 to 2006. April 2012

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“There is a fair market out there,” Halifax lawyer Naiomi Metallic, a member of the Society’s Council, said during a panel discussion. More than 25,000 Nova Scotians self-identify as racialized, including an estimated 5,000 Aboriginal people in Halifax Regional Municipality alone. And with 13 Mi’kmaq communities across the province, there are a number of Aboriginal governments with particular legal needs and challenges, not to mention many Mi’kmaq citizens who just want to do a property transaction or set up a will. While their overall numbers have grown in recent years, many Aboriginal lawyers in the province are either non-practising or they practise in-house for Aboriginal organizations. Very few are in private practice. It’s helpful when firms deliberately create environments that are welcoming, said Ms. Metallic, recalling her own experience starting out with Burchells LLP. In just four years there, she has established a busy litigation practice as well as a “niche practice” in areas relating to how law impacts Aboriginal communities. In her first year of law school, the Society’s Legal Legacies & Bridges Mentorship Program paired her up with Michael Wood QC, now a Justice of the Nova Scotia Supreme Court. “At the time, I told (the firm) I didn’t think private practice was for me. I thought I’d go to legal aid.” But she ended up articling at Burchells too, and felt the firm “did take a chance on me at the time,” said Ms. Metallic, who is just the second lawyer from her hometown of Listuguj, near the Quebec-New Brunswick border. “The senior lawyers have been so supportive and encouraging, and taught me to aim high. Someone who on paper might seem very average can turn out to be a very promising lawyer.” A number of communities are underserviced by the legal profession and want to work with lawyers they can relate to, said panellist Rustum Southwell, CEO of the Black Business Initiative, which works to strengthen growth in businesses owned by African Nova Scotian entrepreneurs. It’s still somewhat of a pipeline issue, partly due to the cost of university and because “people are not encouraged to think that the law is a profession for them,” said Andrew Alleyne, a Partner with Fasken Martineau. Toronto’s Bay Street firms have fewer than 20 Black lawyers in total, he said: “My firm has five Black lawyers, and we’re considered the most diverse.” He appreciates his firm’s inclusive environment, its diversity committee chaired by a managing partner, and a mentorship culture where teaching leadership skills is valued. Building cultural competence education into workplaces for nonracialized lawyers is an equally important component of employment equity – one the Society aims to foster with its new CPD requirement, as well as cultural competence guidelines now in development.

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Halifax lawyer Richard Melanson facilitated a table discussion on how to promote employment equity. Employment equity: the ethical case The legal profession’s ethical obligations also come into play. In the Society’s new Code of Professional Conduct, Chapter 2 outlines the duties lawyers owe to their clients, including duties to be competent and to provide quality of service. Both stress that lawyers must take care in communicating with their clients and possess the necessary knowledge, skills and capacities to carry out the work requested. Failure to competently represent someone because of a lack of knowledge about their background, culture, religion or other factors can result in inaccurate or even negligent advice. Failure to understand which laws apply in which situations, such as specific provisions in the Indian Act respecting taxation or ownership of lands on reserve, can also result in negligent legal advice. Rule 5.03 (5) is also important for employment equity; it indicates lawyers must not discriminate against any person or engage in any form of harassment of any person, and requires the removal of any recruitment or promotion practices that cause discriminatory barriers. The Marshall Commission found that in order for the justice system to best serve racialized and Aboriginal people, racialized and Aboriginal people must be a part of that justice system in every respect. Though the inquiry’s final report was released over 20 years ago, the goal of creating an equitable justice system and legal profession remains elusive. Mr. Southwell perhaps summed up the symposium’s overall message best: “We must do better in the long run. Failure is not an option … We believe diversity is not a goal, it’s a strength.” For further reading and resources, including a detailed history on employment equity efforts in Nova Scotia’s legal profession, visit the Society’s website at nsbs.org, and see the Employment equity page under Improving Justice > The Equity Program. In particular, see the new brochure titled Employment Equity in the Legal Profession in Nova Scotia.

LateVictorian Africadia: A role model for the first African Nova Scotian lawyer The Odyssey of James Robinson Johnston These are excerpts from “Paths to the Law in Late-Victorian Africadia: The Odyssey of James Robinson Johnston,” by Barry Cahill, who is in the process of writing the official history of the Nova Scotia Barristers’ Society. He presented this paper to the Department of Justice Canada’s Atlantic Regional Office (Halifax) at a Black History Month event on February 28.

For the full text of the article, visit the History section of the Society’s new website at nsbs.org/about_us/history. Also see a historical timeline of the Society and regulation of the legal profession in Nova Scotia, which dates back to 1749 and was also researched and prepared by Mr. Cahill.

I

n September 1893, a Barry Cahill young schoolteacher from Certified Information Access Trinidad, Henry Sylvester and Privacy Officer Williams – afterwards known to the African Diaspora as the founding father of Pan-Africanism – arrived at Dalhousie Law School. His time there as a student was brief and unsuccessful; within a year or two he had departed for London where in 1902 he was called to the English Bar. During his sojourn at Dalhousie, Williams could hardly have been unaware of the only other person of African descent studying there. James R. Johnston, nine years younger than Williams and only the second native-born Black person to attend a provincial university, was entering the second year of his Bachelor of Letters course. (That was the BA equivalent, modern European languages taking the place of classical Greek and Latin.) It seems probable that Williams and Johnston, despite the difference in their ages, would have met and discussed their hopes and plans for the future. Johnston, the son of an old and distinguished African Nova Scotian family from the North suburbs of Halifax, was Dalhousie’s first Black graduate; yet it seems unlikely that he went to university at age 16 consciously intending to become a lawyer. It is far more likely that Williams’s example and experience planted the idea in Johnston’s mind. April 2012

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***** It was in March 1897 that Johnston commenced articled clerkship with Frank Weldon Russell, junior partner in Benjamin Russell’s father-and-son law firm. (Frank Russell, holding the LLB from Dalhousie and LLM from Cornell, was the best-educated, most scholarly young lawyer in Halifax; Johnston was indeed fortunate to have been articled to him.) Towards the end of his clerkship Johnston appears transferred from Frank Russell to John Thomas Bulmer, a sole practitioner in Halifax whose firm he joined after he was called to the Bar and whose criminal law practice he took over when Bulmer died suddenly in February 1901. Bulmer was a Christian Socialist radical and freethinker and an outstanding champion of civil rights for Black people in Halifax. He had played a part in desegregating

“ ... it seems unlikely that he went to university at age 16 consciously intending to become a lawyer. It is far more likely that Williams’s example and experience planted the idea in Johnston’s mind.” city of Halifax schools in the mid-1880s, an achievement from which Johnston benefited personally, and he was probably the only lawyer in Halifax who accepted Black people as clients. Johnston acted as solicitor for the estate of Bulmer, who died intestate. One wonders whether he also came by default into possession of Bulmer’s law library, said to be among the best in the country and worth $20,000. ***** My story ends on Wednesday, July 18, 1900 – the date on which James R. Johnston was called to the Bar: “a red-letter day in my life” as he described it in a letter to his closest friend. Johnston was now a fully-fledged practising barrister. One local newspaper proudly proclaimed him Canada’s first Black lawyer; in fact he was the third, the first having been called in New Brunswick in 1882 and the second in Ontario in 1886. Their paths to the law had been far more tortuous than Johnston’s. Five other lawyers were also called that day, including William Lorimer Hall, a future leader of the provincial Conservative Party, attorney general and justice of the Supreme Court of Nova Scotia. A second, Cecil Killam, practised law in Vancouver for sixty years and was among the founders of the University of British Columbia. A third, James William Maddin, was afterwards a prominent criminal defence counsel in Sydney whose daughter would grow up to be one of Nova Scotia’s early woman lawyers. July 18, 1900 was a red-letter day in another respect as well, for that afternoon the Nova Scotia Barristers’ Society unveiled in the Halifax County courthouse a life-sized, full-colour bronze bust of the late Prime Minister Sir John S.D. Thompson, who had died in 1894. It was a memorable event at which Johnston would certainly have been present. 34

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Parental Leave Support Program Are you pregnant, adopting or thinking of starting a family? Be sure to access the resources available through the Parental Leave Support Program, designed to assist lawyers in Nova Scotia: •

up to 6 parental leave coaching sessions;



one-on-one meetings with other lawyers who can share their parental leave experience and advice;



a Model Policy on Maternity and Parental Leave;



informative online tips and other web resources for all stages of this unique time in your life.

Issues covered include transitioning to parenthood, parenting resources while on leave, childcare, managing your practice before and during your leave, and reintegration upon returning to work. Launched in November 2010, this program was developed by the Equity Office and Gender Equity Committee of the Nova Scotia Barristers’ Society. It’s offered in conjunction with the Nova Scotia Lawyers’ Assistance Program (NSLAP). Visit www.nslap.ca for all the details. To inquire about coaching sessions, contact Emma Halpern, Equity Officer: 422 1491, [email protected].

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We ’ ve moved! Effective April 1, 2012, our address is: Lawyers’ Insurance Association of Nova Scotia Cogswell Tower Suite 801 – 2000 Barrington Street Halifax NS B3J 3K1 Visit us on the web at lians.ca.

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The Society Record

LIANS TIPS FROM THE RISK AND PRACTICE MANAGEMENT PROGRAM BY STACEY GERRARD LIANS Counsel Social networking policies in the legal workplace

W

hat do you think of when you hear the term “social networking”? It used to mean people physically getting together to chat and update each other about their lives.

Facebook allows you to connect online personally or professionally without limiting the amount of online interaction with its users. Similar to LinkedIn, on Facebook you can establish and maintain a list of “friends” and interact with them. Your law firm can create a business page that will automatically notify people who “like” them about any important updates, new publications or blogs.

These days, social networking has become electronic. The social interaction takes place online through websites such as Facebook or Twitter, where users chat with friends, share photos and post thoughts or comments (or “tweets”, as they are referred to on Twitter) about recent news or events.

Twitter is slightly different in that it is designed to distribute to your “followers” (those who have subscribed to your account) real-time information in the form of “Tweets” limited to 140 characters. These micro-blogs can link out to other websites, including that of your law firm.

Social networking can be used for both social and professional purposes. It can include posting commentary on online newspaper and magazine articles or videos and television shows; participation on listservs (a program that distributes emails to those who subscribe); and writing web logs (“blogs”). Social media itself is simply the technology and the platforms that turn communication or commentary into online dialogue. As of February 2012, Facebook has over 845 million active users. Twitter has 300 million users, generating over 300 million tweets and handling over 1.6 billion search inquiries per day. LinkedIn, the world’s largest professional network, has more than 150 million members in over 200 countries. So what’s the draw? Social media allows the user to add brand value and is an inexpensive way to promote you and your law firm and generate new clients. Sharing news online about firm accomplishments and volunteer involvement helps build a sense of community — people want to hire firms they know and trust. Online media establishes your area of knowledge or skill through posting blogs, tweets, articles of interest and legislative updates or court decisions. How do you ensure your online presence is visible and reaching your target audience? It’s all about building connections. LinkedIn is more about business networking and less about social interaction. It’s a multi-tiered concept of contacts (or “connections”), where you maintain a list of business contacts and have the option of interacting with the list of people with whom they are connected. They become your extended contacts and you build a chain of professional connections.

Before delving into the social media world, here are some things to consider: be mindful of your solicitor-client relationship, and your ethical duties surrounding confidentiality and conflicts of interest. Take steps to avoid the possibility of inadvertently creating a solicitor-client relationship that could give rise to possible professional liability concerns. Create a social networking policy to educate your employees on acceptable internet usage, and establish parameters that will guide their online activity. Your policy should include the following: • the scope of your policy; • a designated person to answer questions about the policy and be responsible for its application and compliance; • standards to ensure that client and firm confidences are maintained; • protection of contact information; and • guidance on permissible content including whether or not you wish to allow staff to provide legal advice in this forum. This list is non-exhaustive. For a link to sample policies, visit the LIANS website at: lians.ca/rpm/practice_management/social_ media_in_the_workplace/ Contact Stacey Gerrard directly at [email protected] or call 902 423 1300 if you would like more information on how to set up your LinkedIn, Facebook or Twitter account. If social media does not appeal to you quite yet, but you want to get your name out there (and maybe get some CPD credit hours), consider writing articles for publication in online newspapers or magazines, such as LIANSwers or the Society Record! If you have any questions on these, or any other risk- or practicerelated matters, do not hesitate to contact the Risk and Practice Management Program at [email protected] or call the Lawyers’ Insurance Association of Nova Scotia at 902 423 1300.

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SUMMATION

A new chapter Director of Library & Information Services, Barbara Campbell, retires after

I

still remember the telephone call from Director, Library & Information Services Gail Salsbury, then Secretary Treasurer for the Nova Scotia Barristers’ Society, asking me if I would like to come for an interview. She explained that there would not be a library in six months and my salary expectations were too high but if I was still interested, she would like to meet with me. I called my sister and she said, “Go for it, no one can work with lawyers for more than six months.”

Barbara Campbell

My first task was to reduce the size of the collection to the point where law stamp revenue could fully finance the Library. Each law stamp sold for $3.00. Obviously, I failed at this first task. Library Committee discussions revolved around closing the Library because computers were the future. That was in 1983. Public and university libraries were beginning to install computer software to manage the catalogues and circulation; the Society had monstrous word processing equipment and was far from moving to computer technology at that point. In 1985, in order to conduct legal research, the Library acquired the Society’s first computer. This was a topic on the agenda of several Library Committee and Council meetings. Armed with a tiny Mac provided by Quick Law, I began doing searches for lawyers (mostly at night to keep costs down, since the billable hour was both frightening and new to me). I travelled the province with the computer and dial-up internet, showing lawyers this new way of doing research. In 1988-89, the Library purchased the Society’s first fax machine. I reported that year that “the fax machine now allows us to fax … immediately to lawyers ….” Four important reports directed much of the change over the years. The 1993 report looked at the role of the Library and questioned whether “it was an activity … that is essential to the regulatory function or a service that practising lawyers require?” The 1996 Joint Committee on Libraries Report outlined the benefits of working cooperatively with publicly funded law libraries and the NSBS library system. The 2004 Report created a model of “Delivering to the Desktop” and established “that Library Services be fully integrated into the Society so as to support and enhance the Society’s regulation of the legal profession …” The Library & Information Services column in this issue of the Society Record outlines the results of the recent organizational review. Again, the response of lawyers reinforces the need for shared resources (especially texts and loose-leaf publications). 38

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29 years with the Society

The L&IS staff have also won several significant awards: the CBANS 2002 Law Day Award, in recognition of our efforts in promoting public legal education in this province, and the prestigious Hugh Lawford Award for Excellence in Legal Publishing in 2010, for the Nova Scotia Annotated Civil Procedure Rules. I do not have the space to outline the department’s many accomplishments during my 29 years. What matters is that none of it could have been done without the highly skilled library staff. At time of writing, these people are Susan Jones, Deborah Copeman, Jennifer Haimes, Lisa Woo Shue, Warren Murphy and Marion Singer. It has been my pleasure to lead this team over the last several years. Who could work with lawyers for more than six months? Apparently, me. When asked why I stayed for so many years, I’ve always given the same three reasons: opportunities for innovation, lawyers … and the view. I’ve had a great “gig” for 29 years with tremendous laughs, great fun, and some really interesting and innovative work. I’ve been so fortunate. Thanks to all of you who contributed to this. I will miss the lawyers – and the work, no doubt. As for missing that view when the sun dances over the water in the early morning? I guess I’ll spend more time at the cottage because I’m not heading into the sunset, I am heading towards those sunrises.

Barbara Campbell’s Courthouse ID in 1983 when she began her “six month” stint at the Society Library.

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]

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Keeping real estate transactions where they belong – in your office.

At Stewart Title, it’s how we work that sets us apart. We deal in title insurance and related products, undertaking no part of the transaction that has traditionally fallen to lawyers/notaries. Since our inception into the Canadian market, you will find that we have consistently combined comprehensive coverage with unparalleled support for lawyers/notaries. We are dedicated to streamlining your practice and increasing your revenue through our programs and innovative technology solutions. At Stewart Title, we know it’s our relationship with our customers that determines our success. That’s why service is the foundation of our business and integrity, the keystone in all our dealings.

Canadian Head Office (Toronto): Atlantic Canada: Western Canada: Québec:

(888) (888) (866) (866)

667-5151 757-0078 515-8401 235-9152

www.stewart.ca

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The Society Record