courts, law, lawyers

Law Society wimps out

The practice of law is a tightly controlled monopoly. Cynics will suggest that this is merely to protect the affluence of fat cat lawyers, by preserving lucrative commercial activities exclusively for them, while lawyers themselves argue that it is in the public interest to only permit highly trained, licenced, and insured individuals to undertake these tasks.

The “practice of  law” is an extensively defined term in the Legal Professions Act, and includes the obvious, such as giving legal advice or appearing in court as counsel or advocate for a fee, but also includes “drawing, revising or settling  an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in a registry or other public office.”

By this definition, charging someone a fee to draft and file incorporation documents constitutes the practice of law. Only lawyers can legally incorporate companies for a fee, and this fact has been a source of much tension  within the business community for years. On its face at least, the incorporation process has always been dead simple, and, since the Registrar of Companies went online a few years back, pretty well anyone with access to a computer and a VISA card can perform the rudiments of an incorporation within minutes.

In the result, recent years have seen a large uptick in “do-it- yourself” incorporations (its always legal for you to do it yourself, just as you have a right to represent yourself in court) Indeed the profit centre in the corporate area of my own practice has shifted away from initial incorporations to the repair of badly done DYI companies, since they pretty much all rneed repair at some point..

The truth of the matter is that the online “fill in the blanks” incorporation process misses a number of crucial steps, such as the issuance of actual share certificates,  the adoption of articles and the creation of a minute book with a proper record of shareholders. Most DYI incorporations are seriously flawed. That’s a risk amateurs are free to take, but there are good reasons to restrict  those who charge a fee for incorporating to the ranks of the legal profession. Its not as simple as it looks.

The guardians of the legal monopoly in BC is the Law Society of BC, who, for many years have relentlessly tracked down and prosecuted the accountants, bookkeepers, business consultants and others who  have had the temerity to advertise incorporation services for a fee (and there are a lot of them!) There is indeed an entire section of the Law Society dedicated to ferreting out unauthorized practice, employing  several private detectives to do their snooping. Their typical catch seems to be a small home-based bookkeeper who had no idea they were treading onto hallowed ground.

As lawyers we are encouraged, and in some cases required, to bring transgressions of the Legal Professions Act to the attention of the Society, so when I recently stumbled upon a slick Facebook ad from, boldly offering online incorporation for a fee, I was quick to email the unauthorized practice tip line at the Law Society.

Their response was a disappointment. It read as follows

“Thank you for your e-mail. Incorporating companies for or in the expectation of a fee is the practice of law. That said, the Law Society will only enforce the provisions of the Legal Profession Act if it is in the public interest to do so. The Law Society has determined that it will not pursue template or ‘fill in the blank’ incorporation services unless there is an indication that legal advice is offered or if there is evidence of harm to the public.”

So what then is the difference between the little ‘mom & Pop” incorporation shops that the Law Society prosecutes so zealously, and Ah, well, it seems that ownr is run by none other that the Royal Bank ! Our Law Society, it seems, is only brave when it is going after the little guys, but wimps out when it comes to calling out a major  bank for the unauthorized practice of law.


First Nations, law, politics, Truth & Reconcilitation

Getting reconciled with reconciliation

I blogged a while ago to protest the Law Society’s decision to bury the legacy of our first chief justice, Sir Matthew Bailie Begbie, and more  recently about the tide of  political correctness that was targeting  Sir John A. McDonald. Now that Victoria city council has also been swept up in the craze and toppled  Sir John A.’s statue from its perch outside City Hall, I thought it time to re-visit the issue.

I confess that my knee-jerk reaction remains the same. You cannot simply erase the past, and the actions of historical figures such as Sir Matthew and Sir John A. towards First Nations people is only a small part of their overall legacy. Devoid of context, the decisions to remove their statutes seems, quite frankly, just plain silly.

Although both the Law Society and Victoria City Council have ample capacity to make silly decisions, I have to remind myself that these are serious bodies populated by intelligent and thoughtful people, so one ought to take some time to understand the context of the decisions before ridiculing them. they are of course responding to the report of the truth and reconciliation commission, which urged to Canadians to begin a reset of relations with our indigenous people, by becoming aware of the truth of the past, acknowledging the harm that has been inflicted, atoning for the causes of the harm in taking action to change our behavior.

I suppose I can understand how figures such as Sir Matthew and Sir John A. may be viewed negatively by our First Nations and how glorifying them with public statutes could be viewed as hurtful; in much the same way that blacks in the US must react to statutes of Confederate war heroes.

I can even understand the needs for some powerful symbolic gestures, like the toppling of the odd statute to force us to take a fresh look at the past in the context of the harm done to our indigenous people. And, I suppose it will take a bit of discomfort on our part in order to signal that we are indeed starting to”get it” when it comes to the historic abuse of First Nations and ready to take some meaningful steps towards improving the situation.

The Truth and Reconciliation Commission process was an extraordinary undertaking, taking some six years to hear testimony and document the sordid history of our residential school system. One cannot read the Commission’s final report without feeling thoroughly ashamed of the treatment of our First Nations by our government for almost 100 years.

The problem I think, is that few have actually read it. Certainly I came late to the party, notwithstanding that while the Commission was active I was employed by a law firm that was making millions from settling residential school claims. The reporting on the work of the Commission was, for the most part, very earnest, very respectful, and and very dull. It was left to bodies like  the Law Society of BC and Victoria City Council, to actually read the full report, thoughtfully consider the 94 calls to action which resulted from the report, and contemplate what concrete action they could take towards implementing them. The process was simply too long and too somber to engage the attention of most Canadians, so little wonder that they are now reacting negatively to efforts to implement the report

I’m left with the uneasy feeling that possibly removal of the statutes was the right thing to do, but at the same time with the absolute certainty that the reasons for the removals have been badly communicated to the public. If you’re going to kick to the curb our first Chief Justice and our first Prime Minister you need to be able to explain your reasons why. It isn’t much of a symbolic gesture, if nobody understands the symbolism.

Our public institutions are going to have to get an awful lot better at explaining themselves if they are to have any hope of effectively educating their constituents about the need to take action towards implementing the Truth and Reconciliation Report’s calls to action, otherwise they will continue to be met with derision, when, without context, they topple a father of confederation.