The Law Society of BC and five other provincial law societies have passed rules, in effect July 1, 2003, that make it easier for lawyers to travel and work across provincial boundaries. The rules give most lawyers greater scope to practise law temporarily in another province without the need to obtain an inter-jurisdictional practice permit and also ease the call and admission requirements for lawyers who wish to move permanently from one province to another.
Temporary practice in another province – up to 100 days in a calendar year
Under the new national mobility regime, a BC lawyer will generally be entitled to practise temporarily in another reciprocating jurisdiction for a cumulative period of up to 100 days within a calendar year. As of July 1, the reciprocating provinces are BC, Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia. Law societies in each of these provinces have signed the national mobility agreement and adopted new rules to give effect to the agreement.
The Law Society of Newfoundland plans to participate in the mobility scheme but must await enabling legislative amendments. The Barreau du Québec may also join at some later date, but must first receive various approvals and will likely require separate rules, in recognition of differences between the legal systems of Quebec and the common law provinces.
While the mobility rules are essentially the same in all reciprocating provinces, a BC lawyer should read and be familiar with the specific rules in each province in which he or she intends to practise.
In BC, the new mobility provisions are set out in Part 2 of the Law Society Rules, which governs both inter-jurisdictional practice and call and admission. The rules are included in the Member's Manual amendment package in this mailing and online in the Resource Library/Rules section of the Law Society website at www.lawsociety.bc.ca.
Temporary practice in another province without a permit
Any lawyer wishing to practise temporarily in another reciprocating province under the new mobility rules may do so without applying for a permit, provided he or she:
- carries professional liability insurance that is reasonably comparable in coverage and limits to that required by the host law society and extends to the lawyer's practice in the host jurisdiction;
- has defalcation compensation coverage that extends to the lawyer's practice in the host jurisdiction;
- is not subject to conditions or restrictions imposed as a result of discipline or competency proceedings*;
- is not the subject of criminal or disciplinary proceedings* in any jurisdiction;
- has no disciplinary record* in any jurisdiction; and
- has not established an economic nexus with the host jurisdiction.
* Discipline or competency proceedings refer to formal Law Society hearings. "Disciplinary record" is a defined term within the rules and encompasses actions taken or restrictions imposed as a result of discipline proceedings.
If a lawyer from one reciprocating province wishes to practise temporarily in another reciprocating province, but cannot meet these criteria, the lawyer must apply to the law society in the jurisdiction the lawyer intends to visit for an inter-jurisdictional practice permit.
What counts towards the 100-day limit?
A lawyer who plans to offer services in another reciprocating province under the new mobility rules is required to record the number of business days in which he or she provides legal services in that province and be prepared to prove compliance with the rules. For this purpose, a business day includes a partial day, a statutory holiday and a weekend day.
It is important to note that, under these rules, a lawyer is practising law in a province if providing legal services that relate to the laws of that province, regardless of the lawyer's physical location. For example, if a lawyer gives legal advice with respect to the laws of BC, even by email or telephone from outside BC, that time must be included in the 100-day limit. Conversely, if a lawyer from another province is in BC, but provides services that relate entirely to the laws of his or her home province, the time spent on those services would not count toward time in practice for the purpose of calculating the 100-day limit in BC. Lawyers should maintain accurate activity and time records for the purpose of verifying compliance with the rules.
If a lawyer visits a province and provides legal services in relation to the laws of Canada (for example, advice or representation on criminal law), that time will count in the calculation of the 100-day limit in that province. However, there is an exception when it comes to appearances before federal tribunals. A lawyer need not count time spent appearing or preparing to appear before the Supreme Court of Canada, the Federal Court of Canada, the Tax Court of Canada, a federal administrative tribunal, service tribunals under the National Defence Act or the Court Martial Appeal Court of Canada. Time spent appearing before provincially constituted courts and tribunals (including the superior courts) does count toward the 100-day limit.
As a transitional provision, lawyers need only count days between July 1 and December 31, 2003 when tracking the "100-day" limit for the whole of 2003.
The law society in each reciprocal province will allow visiting lawyers to apply for an extension of time beyond 100 days, and an application may be granted if not contrary to the public interest. A lawyer who cannot obtain an extension must apply for an inter-jurisdictional practice permit.
As already noted, a lawyer is not entitled to take advantage of the temporary mobility rules by practising in another province if he or she has established an "economic nexus" in that province. At that point, it becomes necessary for the lawyer to apply for membership with the local law society. A lawyer establishes an "economic nexus" in another province by doing something that is inconsistent with practising in that province on only an occasional basis. This includes practising in the province for more than 100 days within a calendar year, opening an office or a trust account in the province, holding out as willing to accept new clients in that province or becoming resident in the province. The mere fact that a visiting lawyer practises from an office affiliated with the lawyer's law firm in the home jurisdiction is not, for that reason alone, enough to establish an economic nexus under the rules.
Other conditions of temporary practice
Lawyers who practise temporarily in another province are subject to the provisions of the governing legislation, law society rules and professional conduct handbook (or code of ethics) in that province in so far as applicable. The local law society can review complaints or take disciplinary action against a visiting lawyer, and it will be a matter for the home and host law societies to determine which will assume the responsibility.
A visiting lawyer may not open a trust account or handle trust funds in the host province and may not hold out as qualified or willing to practise in the province, other than on an occasional basis under the mobility rules. Any trust funds involved in the visiting lawyer's practice of law must accordingly be handled by another lawyer who is a member of the local law society or, alternatively, handled through the visiting lawyer's trust account in the home jurisdiction (Rule 2-16(1)(a)).
Practice of lawyers between reciprocating and non-reciprocating provinces
The law societies of the three territories (Northwest Territories, Yukon Territory and Nunavut) have opted not to sign the national mobility agreement because they are concerned it would have a negative economic impact on their local bar. The Barreau du Québec intends to join the scheme, but has not yet done so, and the Chambre des Notaries du Québec continues to work with participating provinces to make special provisions for temporary mobility that are consistent with the unique role of notaries within the civil law system of Quebec.
BC lawyers who plan to practise temporarily in these non-reciprocating jurisdictions should carefully review the rules that apply since most non-reciprocating law societies may still require inter-jurisdictional practice permits and fees for temporary practice.
BC lawyers travelling to Alberta, Saskatchewan and Manitoba to practise, and lawyers from those provinces coming to BC, have previously been able to do so without a permit for up to six months in any 12-month period under a "western mobility protocol" adopted in 2001. The new national mobility rules in each of these provinces will supercede the western mobility protocol and previous inter-jurisdictional practice rules.
Reciprocating provinces under the national mobility agreement are now cooperating on a national registry of practising lawyers (Rule 2-17.1). The purpose of the registry is to allow each law society to respond to basic information requests about visiting lawyers from other provinces. For example, if a BC lawyer or a member of the public were to enquire about a visiting lawyer from Alberta, the Law Society of BC will be able to consult the database in order to confirm the lawyer's name, practice address, call date and insurance status in Alberta. To obtain further information about the lawyer, the person making the enquiry would need to contact the Law Society of Alberta directly.
Call and admission in another jurisdiction
Lawyers who apply for call and admission in another reciprocating province no longer need write transfer examinations but must instead comply with a prescribed reading requirement. Lawyers coming to BC must accordingly certify that they have read and understood the Legal Profession Act, Law Society Rules, Professional Conduct Handbook and specified parts of the Professional Legal Training Course materials, including statutory provisions.
There are important restrictions on who may apply to transfer under the new provisions. For example, the applicant lawyer must currently be entitled to practise law in the home jurisdiction. For full requirements on call and admission by transfer, lawyers should review the law society rules in the jurisdiction in which they are applying (in BC, see Rules 2-49 to 2-49.2).
The national mobility agreement and the rules now adopted by six Canadian law societies have resulted from the work of the National Mobility Task Force of the Federation of Law Societies, which has supported a more liberal mobility regime for lawyers. For background, see the Task Force report at www.flsc.ca/en/pdf/mobility_reportMay2002.pdf.