Law Times

Law Times • augusT 6, 2018 Page 11 www.lawtimesnews.com Rules change could hamper access to justice: advocates BY MEAGAN GILLMORE For Law Times T he Ontario Bar Associa- tion is raising concerns about how amend- ments to the Federa- tion of Law Societies of Canada's model rules to prevent money laundering could negatively im- pact access to justice. Ontario's largest lawyer advocacy group, which advo- cates for more than 16,000 of the province's lawyers, judges, law professors and students, also says lawyers may not have all the resources they need to comply with the model rules to prevent money laundering. The proposed changes appear to be modelled after regulations for banks and financial institutions, the association says. The proposed changes could make it harder for marginalized groups, including people living in remote communities, people with disabilities, the elderly and children, to access legal services, says Quinn Ross, president of the OBA. "Our concern isn't about making the lawyer's life more difficult, but whether the pro- posed rules will impair our du- ties with respect to access to justice and ensuring we are not facilitating nefarious acts on be- half of bad actors," says Ross. The federation sent out pro- posed changes to its model client identification and verification rule and its model no-cash rule for consultation last October, the federation's consultation paper says. This was the first time the rules had been reviewed since the client identification and verification rule was adopted in 2008 and the no-cash rule was adopted in 2004, the paper says. The amendments to the no- cash rule mainly clarify that law- yers cannot receive more than $7,500 in cash. But the proposed amend- ments to the client identification and verification rule are causing concerns. The amendments re- quire lawyers to verify the iden- tity of clients face to face. The current rules don't require this. Not everyone can meet with lawyers in person, says Ross. "It becomes an access-to- justice problem," says Ross. The association would like to see ways to identify clients remotely through technology, such as vid- eoconferencing, electronic sig- natures or real-time transferring of documents, he says. "These are all tools that are available and should be used given the type of the retainer and the context," says Ross. Currently, if a client is in Can- ada but can't meet with a lawyer in person, they can confirm their identity by having a profes- sional, such as a doctor, lawyer, engineer, accountant or school principal, sign a document con- firming the client's identity. The proposed changes also say clients need to verify their identity with government-issued photo identification or a credit report. Not everyone who needs a lawyer has access to govern- ment-issued identification, says Omar Ha-Redeye, a lawyer with Fleet Street Law, a legal incuba- tor in Toronto that often deals with people who struggle to access the justice system. New- comers to Canada could have a particularly hard time obtaining it, he says. These requirements could also negatively impact people already involved in the criminal justice system, he says. "Some of these clients don't have a driver's licence and may not have official documenta- tion of any sort whatsoever," says Ha-Redeye, "especially if you're dealing with socially vulnerable individuals, especially people who are homeless or pushed to the margins of society." A lawyer may agree to repre- sent an individual they haven't met on an impaired driving charge, and then find out at the courthouse that they don't have the appropriate identification. Asking for an adjournment un- til the client produces the proper documents could be a burden on the legal system, says Ha-Redeye. "There's a little bit of spec- trum here, and I don't think the rules allow for enough of an in- dependent assessment of what the risk might be," he says. Requirements should be dif- ferent for someone who needs to show up for a court appearance and someone who is involved in complex transactions involving thousands of dollars, Ha-Redeye says. "The appropriate way to deal with this is to provide latitude for the lawyer," he says. "It's all about taking reasonable steps." The current rules say lawyers must take "reasonable" steps to verify a client's identity. The proposed amendments remove the word "reasonable." This is to make the federation's model rule consistent with federal legisla- tion, the federation's consulta- tion report says. The proposed amendments say a client cannot give their law- yer a credit report to verify their identity. Lawyers must obtain the report, but doing so is "costly and the result isn't necessarily robust," says Darcia Senft, chair- woman of the Canadian Bar As- sociation's ethics subcommittee, who provided a submission to the federation on the changes. "While banks may have infrastructures in place to get credit information, that's not the case for law firms." Much of the proposed chang- es in the model rules come from changes to federal legislation, the federation's report says. Lawyers are exempt from the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, but they still follow the regulations of the law societies, says Senft, who is also the director of policy and ethics of the Law Society of Manitoba. Law societies' regula- tions provide a "parallel regime" to federal law, she says. FOCUS Quinn Ross says proposed changes to the Federation of Law Societies of Canada's model rules could make it harder for mar- ginalized groups. 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Reflections on Canada's Past, Present and Future in International Law/Réflexions sur le passé, le présent et l 'avenir du Canada en matière de droit international — each essay written in the official language chosen by the authors — provides a critical perspective on Canada's past and present in international law, surveys the challenges that lie before us, and offers renewed focus for Canada's pursuit of global justice and the rule of law. Reflections on Canada's Past, Present and Future in International Law Réflexions sur le passé, le présent et l'avenir du Canada en matière de droit international Oonagh E. Fitzgerald, Valerie Hughes and Mark Jewett, Editors 978-1-928096-67-2 | cloth 978-1-928096-68-9| ebook Untitled-1 1 2018-08-01 9:08 AM

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