In brief, equity is the conscience of our common law system.

It is a series of rules and remedies developed by the English Courts of Chancery (aka  Courts of Equity) which historically grew up parallel to the English Courts of Law.

Even after the merger of the two court systems, both legal and equitable rules and remedies continue to exist.   Modern courts are said to have two jurisdictions, i.e. legal and equitable, and our courts are now responsible for administering both sets of rules and remedies.

                      Historical Perspective of Equity

Following the Norman Conquest in 1066, our common law was developed based on precedents established in the King’s courts (the Courts of Law) set up by William the Conquerer.  Nevertheless, access to justice remained limited.  An aspiring litigant had few options as only a few, narrowly framed legal actions could be brought .  For example, for centuries there was no action for tort.  Even for the successful litigant, legal remedies were basically limited to financial awards and judgments were difficult to enforce   With decisions based on past precedents, the  system was relatively fixed and inflexible.


As a result, many meritorious claims fell through the cracks and disappointed parties began to petition the monarch (usually a King) for relief.  As the numbers grew, the King began to refer these petitions to the Chancellor –the cleric who was historically the keeper of the King’s conscience.


In time the Chancellor delegated these petitions to his vice-Chancellors, Roman Catholic clergy who became  the first judges of equity.  By the fifteenth century this system had developed into an independent court system known as the Courts of Equity or the Courts of Chancery.


Canon law played an important role in the development of equity because of the influence of the clergy whose perspective was rooted in canon law and the ecclesiastical  courts. They were largely trained on the continent and thus they borrowed ideas from the continental civil law and transplanted them into the Courts of Equity.  Trusts are one example of this borrowing and another example is the remedy of an order for specific performance.


The chief focus of the Courts of Equity was not legal technicalities but rather matters of individual conscience.  Above all, its judges were concerned with the laudable task of saving souls from eternal perdition.  Equity was concerned with the person and would grant orders that would bind individuals.   If a defendant disobeyed the court’s direction, in an effort to save his soul, the court would likely imprison him for contempt of court — a particularly effective incentive to enforce judgments of the court.


The Courts of Equity were concerned to see that individuals kept their promises and that justice was done between the parties.   As a result, the equitable principles developed by the courts have a distinctive ethical quality. For example, defences such as unfair delay or sharp practice could be used to defeat an equitable claim (but not a legal claim).


The rules and remedies of equity were developed to alleviate the hardships wrought by decisions of the relative inflexibilty of the common law.   The Courts of Equity developed the maxim “equity follows the law”.  This meant that their decisions would not directly contradict the common law courts. Instead if they felt the legal result was unconscionable , they would exercise their discretion to circumvent   the law by granting equitable relief . Even today, if there is an adequate remedy at common law, the courts will refuse to grant a remedy in equity.


A key distinction between the legal remedies and equitable remedies remains the discretionary nature of equitable remedies.  In equity, the paramount consideration is seeking justice in the circumstances of the particular case.


Eventually the English courts of law and equity were merged into one joint system by the English Judicature Act of 1875.  Since then, law and equity courts have been merged by similar statutes in most common law jurisdictions.   Nonetheless modern day courts continue to consider and apply both different sets of rules and remedies.


The previous blog re the Merchant Law Group is an excellent example of how the common law approach is different from that of equity, and that under the rules of equity, the law firm was denied the equitable right of quantum meruit, a reasonable fee for services delivered, by reason of  it coming to court with “unclean hands”.

Law Firm Denied Fees For “Unclean Hands”


unclean handsChudy v. Merchant Law Group, 2008 BCCA 484 illustrates the interplay of legal and equitable principles, and the role of equity in the doctrine of “unclean hands”.

By way of background, Mr. Chudy was seriously injured, while a passenger, in a motor vehicle crash.  The Chudys signed a contingency fee agreement with Shaw PLC (Personal Law Corporation), a company through which Mr. Shaw practised law.    The agreement provided Shaw PLC  was entitled to 30% of any damage award made.

A short time later, Shaw  PLC stopped operation.  Nevertheless Mr. Shaw continued to practise as a sole practitioner until becoming an associate with the Merchant Law Firm.  Mr. Shaw took the Chudy file with him however, no new contract was signed with the Chudys.  Days later, Mr. Shaw filed for bankruptcy.  Mr. Shaw transferred his Shaw PLC  shares to his Trustee in Bankruptcy, declaring their value as nil.

Following his bankruptcy, the B.C. Law Society refused to renew Mr. Shaw’s license and directed him to work only under the supervision of a practising lawyer.

Some months later Mr. Shaw, acting upsupervised, negotiated a binding settlement for the Chudys.  Only later did the Merchant Group finally present a new contingency agreement to the Chudys i.e. once the Chudys were already entitled to their settlement monies.

In a dispute over legal fees, the trial judge ruled that at the time of the MVA action settlement, the only signed contract was the original Shaw LPC agreement.  The judge however refused to enforce that contract ruling that Mr. Shaw’s subsequent inability to practise law had been a fundamental breach of that contract.  In other words, the court found this was a breach of a condition which went to the very root of the contract and made the contract unenforceable.

The judge ruled the subsequent Merchant agreement was also unenforceable.   Because the court action had already been settled when this new contract was signed, the Merchant Group  gave nothing of value in return for the Chudys’ promise to gratuitously pay over  30% of their damage award.   There was no consideration passing from the Merchant group and thus no enforceable agreement.

The judge also found that Mr. Shaw had misrepresented to the Chudys that they were legally obligated to sign the Merchant Agreement when they were not.  He ruled that Mr. Shaw and the Merchant Group were in a conflict of interest with the Chudys and owed them a fiduciary duty (an equitable duty) to advise them  that they had no obligation to sign the later fee agreement.

The Merchant Group  and Mr. Shaw, having failed in their legal claims to enforce the fee contracts, sought to rely on the equitable doctrine of quantum meruit.

This doctrine is founded on the belief that no one should receive an unfair benefit.  Thus, where one person knowingly receives a valuable benefit from another, even in the absence of an enforceable contract, the court may imply a promise to pay a reasonable amount for the labor and materials provided.  Where the court recognizes that obligation, it makes a monetary award known as a quantum meruit award.

In this case the trial judge, in his discretion, refused to grant a quantum meruit award.  He founded his decision on the equitable of principle of “clean hands” following the equitable maxim “He who seeks equity, must do equity”.  The judge laid out several concerns with the lawyers’ conduct.

  1. The Chudys were not properly informed of the limitations on Mr. Shaw’s professional status—they said if they had known of the restrictions they would have sought another lawyer.
  2. Before the hearing, Mr. Shaw told the Chudys he had special permission from the Law Society to take them to mediation—that was untrue.
  3. Mr. Shaw, contravened his professional restrictions by taking the lead in negotiations without the required supervising lawyer attending the mediation.
  4. The court had found misrepresentation and breach of fiduciary duty as noted above.
  5. Permitting recovery by the Merchant Group would sanction the “duplicitous actions” of Mr. Shaw and the Merchant Group in obtaining the value of Shaw PLC free of the claims of the Shaw  bankruptcy creditors.

Notably this trial decision was upheld by the Court of Appeal in a split decision—one of the three appeal justices would have referred it back for a new trial.

Missing Persons Part 2 – Presumption of Death Orders

Missing person

Missing Persons and Presumption of Death- Part 2

The horrendous death tolls in  recent years from tsunamis, natural disasters, and murder unfortunately raise interesting legal questions.

The bodies of many of the victims remain missing and may never be recovered.

Public officials have simply presumed these people to be dead.

It is one thing, however, to estimate the numbers for the purposes of reporting to the public.

It is quite another to fulfil the legal steps required to obtain a declaration that a particular individual should be officially considered dead.


People sometimes go missing for many years, sometimes forever.  Such disappearances inevitably raise a variety of legal questions.

These can involve everything from the preservation of assets, the administration of the estate, the right to any insurance proceeds, the entitlement of the

missing person to share in estate of a third party, to many other such questions.


When faced with a situation involving a missing person, the estate lawyer must determine which remedies may be available.  Is there is sufficient evidence to

obtain, without further delay, a declaration of presumption of death order?  Alternatively, is it possible and necessary to have a curator appointed to administer

the missing person’s affairs, until a future date when a presumption of death may be obtained?


In British Columbia the relevant legal remedies are contained in two provincial statutes.


Firstly the Estates of Missing Persons Act  discussed yesteday,which provides, inter alia, for the appointment of an interim curator.

Secondly the Survivorship and Presumption of Death Act which authorizes applications for a declaration of presumption of death.  This statute also provides for

a presumption of survivorship where two or more person die in circumstances making the order of death uncertain.  Specifically it provides that for all purposes

affecting property, their deaths are presumed to have occurred in the order of their seniority, i.e. the younger person is deemed to have survived the older










The common law underlies all statutes.  Thus it is helpful to firstly consider the common law, as it applied prior to the enactment of these statutes.  At common

law, the courts would presume a missing person to be missing only if all the following circumstances were proven:


a)  the person had been absent for at least seven years;

b) during those seven years the person had not contacted the persons he or she would normally contact;

c)  all reasonable enquiries had been made as to the person’s whereabouts; and

d) all these reasonable enquiries were to no avail.


In the case of Re Phene’s Trusts (1869) L.R. 5 Ch. 139 the headnote succinctly summarizes the law as follows:


“If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption, but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.”


In order for the presumption of death to arise, there must be an unexplained absence.  The presumption will not arise if the circumstances are such as to

account for the absence.  However even in circumstances where the original absence was capable of explanation, that may change.  Thus an unexpectedly

prolonged absence together with no contact with family or friends may be sufficient to satisfy the absence requirement.


Where it is shown, however, that the lack of contact by the missing person was characteristic, then the presumption of death will not arise.


The degree of reasonable enquiries required to support an application will vary with the circumstances of the absence. Generally the court will require that

inquiries have been made to all the persons who might normally have heard from or of the missing persons.  In addition the court will usually require that

enquiries be made of police departments, phone records, bank records, and by advertising in the locale where the person was last known to be.


The presumption of death is limited.  It is not retrospective and there is no legal presumption as to any particular date, within the seven year period, that the

person died.  Any precise date of death must be established by the evidence.


Once the presumption is established, then the missing person will likely be declared dead unless there is evidence to rebut the presumption. Evidence likely to

rebut the presumption usually centers around possible motives for the missing person to deliberately disappear. This may involve explanations such as

criminal activity, financial or family problems. If there is an alternative explanation for the absence, this will generally prevent the presumption from arising.


To raise the presumption, the onus of proof rests with the person who will benefit from the declaration of death. (Re Lewe’s Trusts (1871) 6 Ch. App. 356.)


Proof of presumed death requires proof only on the balance of probabilities.


Re Johannisse and Gray(1985) 33 A.C.W.S. (2d) 231 determined brain death to constitute death, for legal purposes.






At common law, the presumption of death could only apply if a person were missing for at least seven years.


Apart from this presumption of death however, it has long been possible for the courts to infer death from reasonable evidence. In order to persuade a court to draw such an inference, it is necessary to provide evidence from which the court would reasonably conclude that:

a)  there could be no other reasonable explanation for the absence; and

b)  no apparent motive for the disappearance.


Such fact situations are usually linked to an act of peril at the time of the disappearance.  Examples could include disappearing while climbing Mount Everest or

disappearing during a natural disaster such as the tsunami.





At common law, it is sometimes important for succession purposes to determine whether the missing person survived to a particular relevant date.


The courts could declare that a person had died by a specified date, however the actual date of death had to be established by the evidence.  It was most often

inferred from circumstantial evidence.


If death is to be presumed, the court will determine the date to have occurred at some time during the seven year period after the disappearance. Courts have

stated that it is more likely that the missing persons died shortly after the disappearance than later, but there is no such presumption in law.  It is a matter of

satisfying the court based on the evidence adduced


It is likely, however, that when a person disappears in circumstances of peril, the court will conclude the death occurred shortly after the peril.


The onus of proving death generally remains on the person who claims a right for which proof of death is necessary.  Similarly the onus of proving the date of

death remains on the person who claims a right for which proof of the date death is necessary.


In order for a death is to be presumed, the person bearing the onus of proof must raise a prima facie case, whereupon the burden to rebut the presumption

shifts to the person or persons who would deny the death has occurred.







Importantly, The Survivorship and Presumption of Death Act, s. 3 replaces the common law requirement of a seven year absence.  In its place s. 3 provides that

any unexplained absence may be sufficient to justify an order of presumed death. The court may grant an order of presumed death where a review the evidence

satisfies the court on a number of grounds that the person should be presumed dead.


Section 3 reads, in part, as follows:

“3 (1) If, on the application of an interested person under the Rules of Court, the court is satisfied that

(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,

(b) the applicant has no reason to believe that the person is living, and

(c) reasonable grounds exist for supposing that the person is dead,

the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.

(2) An order made under subsection (1) must state the date on which the person is presumed to have died.

(3) Any interested person may, with leave of the court, apply to the court for an order to vary, amend, confirm or revoke an order made under subsection (1).

(4) An order, or a certified copy of an order, declaring that a person is presumed to be dead for all purposes or for the purposes specified in the order, is proof of death in all matters requiring proof of death for those purposes.

(5) The registrar of the court must forward to the chief executive officer under the Vital Statistics Act an order made under subsection (1) or (3) within 30 days of the entry of the order.”


Section 3 thus permits a court to make an order that a person shall be presumed dead for all purposes, or only for those purposes that are specified in the

order. This allows the court to satisfy immediate needs without prejudicing the interests of other parties.


The presumption may be rebutted by contrary evidence.


Further, Section 2 of the Act reads as follows:


“2 (1) Except as provided in subsections (2), (3) and (4), if 2 or more persons die at the same time or in circumstances that make it uncertain which of them survived the other or others, those deaths are, for all purposes affecting the title to property, presumed to have occurred in the order of seniority, and accordingly the younger is deemed to have survived the older.

(2) This section is subject to section 72 of the Insurance Act.

(3) Subject to a contrary intention appearing by the instrument, if

(a) an instrument contains a provision for the disposition of property operative in any one or more of the following cases, namely, if a person designated in the instrument

(i) dies before another person,

(ii) dies at the same time as another person, or

(iii) dies in circumstances that make it uncertain which of them survived the other, and

(b) the designated person dies at the same time as the other person or in circumstances that make it uncertain which of them survived the other,

then, for the purpose of that disposition, the case for which the instrument provides is deemed to have occurred.

(4) Subject to a contrary intention appearing by the will, if

(a) a will contains a provision for a substitute personal representative operative in any one or more of the following cases, namely, if an executor designated in the will

(i) dies before the testator,

(ii) dies at the same time as the testator, or

(iii) dies in circumstances that make it uncertain which of them survived the other, and

(b) the designated executor dies at the same time as the testator or in circumstances that make it uncertain which of them survived the other,

then, for the purpose of probate, the case for which the will provides is deemed to have occurred.

(5) If a contract of accident insurance or of sickness insurance, or both, provides for the payment of money on the death by accident of the person insured and the person insured and a beneficiary perish in the same disaster, it is presumed, in the absence of evidence to the contrary, that the beneficiary died first.

The exception stated in Section 72 of the Insurance Act reads as follows:

“Simultaneous deaths

72.Unless a contract or a declaration otherwise provides, if the person whose life is insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survive the other, the insurance money is payable in accordance with section 52 (1) as if the beneficiary had predeceased the person whose life is insured.”


If not rebutted, the effect of the presumption is that the younger person would inherit from the older under the latter’s will or on an intestacy.


An interesting illustration of the operation of these presumptions is found in the case of Leach v. Egar and Public Trustee 1990 38 E.T.R. 65.  In that case a

divorced mother and her children were lost at sea and presumed dead.  The trial judge ruled that the father and former husband was entitled to indirectly inherit

his estranged wife’s estate.


The court applied s.2 of the Survivorship and Presumption of Death Act and determined that the mother died first and then the children.  Because the mother

died intestate, her estate passed to the children who were deemed to have survived her.  Because the children also died intestate, their estates passed to their

surviving father.  In this decision the B.C Court of Appeal upheld the trial court’s decision saying that it was not contrary to public policy to permit this inheritance.

Missing Persons – The Curator

CuratorSometimes people go missing  in circumstances where there is insufficient evidence or insufficient time elapsed to apply for an order of presumption of death.

In such circumstances, counsel will wish to consider appointing a curator under the provisions of the Estates of Missing Persons Act.

Essentially, s. 1 of the Act defines a missing person is a person whose relatives or associates residing at the place where the person was last known to have resided, or with whom the person had been in the habit of communicating, have not heard from the person for at least three months and have been unable to ascertain the persons whereabouts.


s.1 of the Act also provides that where there is an urgent need to have a curator preserve the estate or support the dependants of that person, it is possible to

apply for a curator within three months of the person going missing.


s. 2 of the Act relates to jurisdiction and provides that to establish jurisdiction in the B.C. courts, the missing person must own or have an interest in property in

British Columbia.


From a practical point of view, the curator will most likely be the Official Administrator.  s. 2(3) of the Act specifies that the court must appoint the Official

Administrator unless it is satisfied that some other fit and proper person would be a more desirable curator by reason of business or personal relationship or

any other fact or circumstance.


If someone other than the Official Administrator is appointed curator, the court will likely order a bond be posted for the full value of the estate since the curator is

responsible for preserving the assets of the missing person.




s.3(1) stipulates that the curator has the same powers of dealing with property as the missing person would have if that person were present.  In spite of this

broad wording, however, in reality other sections impose many restrictions on that power.

For example, the following restrictions are included in the Act:


  1. s. 4 requires court approval to sell or mortgage anything property valued at more than $100;
  2. s. 5 requires court approval to dispose of any monies coming into the curator’s hands; and
  3. s. 6 requires court approval to sue or be sued in respect to property owned by the missing person.


Practitioners should be careful in preparing any order to ensure it includes the terms necessary to enable the curator to effectively deal with assets, pay debts

and manage any legal actions without the necessity of requiring further court approval. The Public Guardians Office may have a helpful standard precedent as in

most cases they act as curator in these cases.


s. 3(2) stipulates that any acts performed by the curator during the appointment shall be binding on the missing person and on his or her heirs, personal

representatives and assigns..


s.11 provides that any power of attorney granted by the missing person before the disappearance shall be immediately cancelled and be void.





s. 9 provides that where the missing person is either found, or declared to be dead and probate or letters of administration granted for the estate then, after the

passing of the curator’s accounts, the court may discharge the curator.


Where the person is neither found nor determined to be dead, the curator may still wind up the affairs of the missing person and seek an order for the payment

into court of the missing person’s estate.





Re Hoch(1977) 2 B.C.L.R. 398 dealt with an application by Canada Permanent Trust for its fees as curator for an elderly woman who could not be located for six

months following her husband’s death.  In that case the court held that a curator is a trustee and thus its fees are subject to section 89 of the Trustee Act, with a

maximum fee of  5% of  both capital and revenue.


The court then applied the criteria set out in Re McColl (1967), 65 W.W.R. 110 (B.C.) to determined a fair fee.  The criteria are as follows:


  • the magnitude of the trust.
  • the care and responsibility involved.
  • the time occupied in the administration.
  • the skill and ability displayed.
  • the success achieved in the final result.




The estate lawyer dealing with the affairs of  a missing person must make diligent and reasonable enquiries to try and locate him or her. Where the evidence,

including any inferences that may be drawn from the circumstances of the disappearance, is sufficient, counsel will likely wish to apply for an order of

presumption of death.


Where, however, there is insufficient evidence or time elapsed such as would justify a presumption of death, then a curatorship may be appropriate.  Where a

curator is appointed to deal with the affairs of the missing person, that curator will likely be the Official Administrator.

– See more at: http://www.disinherited.com/blog/missing-persons-curator-appointment-under-estates-missing-persons-act#sthash.4PCYm11L.dpuf

Mom Always Loved You Best

Mom Always Loved YOU Best is an expression that many boomers grew up with.


The Smothers Brothers said it every show.


Trevor Todd of disinherited.com has a sticker with the expression on the back of his Smart car, and frequently notices other driver’s snicker as they pull up behind and read it.


It was with great delight that I read in the Globe and Mail on or about March 22.12 a wonderful article entitled none other than ” MOM ALWAYS LOVED YOU BEST”

I was unable to reproduce the article in its entirety but here are some of the salient features:

1. Adult sibling rivalry remains one of the most harmful and least addressed issues in the family – we all know it when we see it but very few have an idea what to do about it let alone understand it;
2. Sibling rivalry is a normal aspect of childhood -our siblings are our very first rivals who compete with us for love and attention as well as food, toys and jsut about everything else;
3. Sibling relationships are often the longest in our lives– research shows that up to 45% of adults have a rivalrous or distant relationship with a sibling;

4. People questioned late in life often say one of their biggest regrets is being estranged from a sibling;

5. The rivalry often persists into adult hood because it is never dealt with in childhood, while issues with parents often have been;

6. Whereas many adults have been through years of therapy and worked out a lot of guilt and other issues with their parents, when it comes to their siblings, they often can’t even articulate what exactly the problem is


Sound familiar?


I might add that it is great for business.

– See more at: http://www.disinherited.com/blog/mom-always-loved-you-best#sthash.mqaqmUxH.dpuf

Lawyers Risk Much When Taking Contingency Fee Cases

Lawyers Risk Much When Taking Contingency Fee Cases

Contingency Fee Cases Are Risky for the Lawyer, with  very Little risk for the Client.

Contingency fee agreements with  a lawyer where the lawyer only earns a fee based on assets recovered, is commonly known as “the poor man’s key to the court room”.

The Ontario Court of Appeal in Indcondo Building v Sloan ( Feb.2012) held that law firms working under a contingency fee agreement do not have to post security for costs when representing cash strapped clients.

It is believed that the decision is also the first time the court has recognized the risk law firms face in being stuck with disbursement costs in contingency fee cases agreements and the significant barrier that could create for lawyers involved in them.

Mr. Justice Armstrong stated that as a matter of principle,” the lawyer who acts in a contingency fee basis is already carrying a significant risk of not being paid and, as in this case, being stuck with the cost of paying the disbursements”.

To force upon law firms the additional burden of posting security for costs would no doubt have a chilling effect on those lawyers who might otherwise make their services available on a contingency basis, thus creating another problem for the general public in its frustrated  access to justice.

The main defendant argued that  law firms in some circumstances should be required to post security for costs on behalf of the client.

They sought an order that the law firm pay into court $300,000 in security for costs of the action, and a further $75,000 in security for costs of the appeal.

In a sense, disinherited.com is of the view that the decision seems to say lawyers cannot be held responsible for their clients costs simply because they are representing clients in a contingency fee agreement.

The court appears to have made a policy decision of access to the courts, and therefore lawyer should not have to bear the financial burden of their clients cases, as if they had to do so, it would create a significant chilling effect upon the overall access to the courts by the public.

The decision seems to fall into line with the general rule that the courts rarely order lawyers to pay costs except in cases of misconduct.

disinherited.com strongly agrees with the reasoning of this decision and contingency fee agreements in principle as the “poor man’s key of the courtroom”.

The Top Five Reasons Why Families Fight Over Inheritances

Loveless familyWhy Families Fight Over Inheritances?

In “Blood and Money: Why Families Fight Over Inheritances and What to Do About It, “author Mark Accettura draws on his experience of 30 years of research in the fields of evolutionary psychology, gerontology, psychiatry, Gen. psychology and neuropsychology into his theories.

Not surprisingly to disinherited.com, but  perhaps surprising to others, is that he finds GREED is rarely the principal motive in fighting families.

He posits five basics reasons for family inheritance disputes:

1. One or more members of the family has a partial or full blown personality disorder that causes them to distort and escalate natural family rivalries into personal and legal battles;

2. Our psychological sense of self is intertwined with the approval then inheritance tends represents especially if the descendent is a parent.

At disinherited.com we have frequently commented and observed that money is often equated with love, and conversely lack of inheritance is equated with lack of love, particularly  from a parent;

3. Humans are genetically predisposed to competition and conflict;

4. We are genetically hardwired to be on the lookout for exclusion, sometimes finding it where it doesn’t exist;

5. Families fight because the death of a loved one activates the death anxieties of those left behind;

He mentioned and again is it is the experience of disinherited.com, that a significant number of inheritance disputes  involve testator’s or beneficiaries from dysfunctional families who are mentally ill or addicted, or so suffer from one or more various personality disorders such as antisocial, borderline histrionic, and particularly narcissistic.

A Beacon of Hope in the Practice of Law

A Beacon of Hope

Did you know that of all women called to the bar in 2003, only 66 percent retained practising status in 2008 in comparison with 80 percent of men called in the same year?

Did you know the trend in BC is that the number of lawyers in the older age ranges (50 to 65) has increased significantly whereas the number of lawyers in the younger age range (25 to 40) has remained the same or has declined?

In 1998, 77 percent of BC’s legal profession was under the age of 50 but by 2008, only 55 percent of the profession was under the age of 50. If those trends continue, the legal profession can expect to lose many lawyers to retiredment without a corresponding increase in the number of younger lawyers.

The reasons cited for these lawyers leaving the practice of law are the usual suspects: Too much work, lack of mentorship, inflexibility of work schedules, and generally very little time for family, friends, leisure, or a life outside work.

The hypotheseis examined in this article is that the above statistics can be changed with a revival of the mentorship concept, and with a lot of creativity and determination. In her story, Candace Cho shows how the disastrous statistic can be circumvented.

The Mentor Perspective

Early in my career, I had the great benefit of a wonderful mentor, Dennis Milne. Dennis was an excellent counsel with a wealth of experience. His guidance forever forged my legal career.

Even today, when in doubt, I inevitably ask, “what would Dennis have done?” and the solution magically appears. Dennis’s support and advice gave me much-needed confidence, especially when I was a novice. It continues to support me today.

Because mentoring relationships in the practice of law have generally fallen by the wayside, we are all losing out. Unquestionably, the benefits of mentoring are reciprocal!

When I shared my views with Candace over lunch, we reached a mentoring agreement in no time.

Each relationship will be unique but Candace and I discuss every topic under the sun and most days we share several emails. Our exchange of marketing ideas has been especially stimulating. When Candace faces challenges in dealing with opposing counsel, I help with effective strategies for stick-handling such files.

From a mentor’s perspective, it is flattering to think someone else believes our opinion is important. The enthusiasm of a young lawyer is contagious and re-invigorating. The fresh ideas and perspectives Candace brings help rejuvenate me.

It is especially rewarding to believe that in some way I help ensure this bright young lawyer will remain and strive in our profession, rather than give up in frustration and stress.

Trevor Todd restricts his practice to Wills, estates, and estate litigation. He has practised law for 34 years and is a past chair of the Wills and Trusts (Vancouver) Subsection, BC Branch of the Canadian Bar Association, and a past president of the Trial Lawyers Association of BC. Trevor frequently lectures to the Trial Lawyers, CLE, and the BC Notaries and also teaches estate law to new Notaries. His Website includes 30 articles on various topics of estate law.

The Mentee Persective by Candace Cho

In August 2009 I was called to the Bar, but found myself unemployed along with half my graduating class due to the worldwide financial crisis.

At first, I did what everyone else did — apply despreately to any job posting that came up. After a while though, I thought about the depressing statistics described above and realized that even if I found work as an associate, the odds were I was going to leave the practice of law in a few years anyway, out of sheer frustration. What was the alternative? The only apparent answer to me was to rebel against tradition and carve my own way to professional fulfillment.

Equipped with my undergraduate background in marketing and my entrepreneurial spirit, I decided to take the plunge to start my own law firm — all on my own terms. I decided my competencies and interest were in estate litigation; I would build a boutique practice in that area of law.

I had the fortune to meet my current mentor Trevor Todd during my articling year while working on a complex estate litigation; Trevor was acting as opposing counsel. When I made the decision to start my own practice in estate litigation, it seemed a good idea to get better acquainted with him to determine if a business association could be negotiated; he was clearly an experienced lawyer in the field.

To my pleasant surprise, he was keen and eager to meet with me, and he began referring work to me immediately after our first business lunch.

Trevor had, in fact, rejected the traditional firm model years ago, and had developed an alternative business model based on referral associations with independent lawyers he trusted and repsected. He told me he had been looking for a junior lawyer for some time to whom to refer work, but had had difficulty finding someone to form an association.

We hit it off right away at our lunch; the seeds of our mentorship relationship were already forming as we exchanged our different, yet complementary ideas about marketing, the practice of law, politics, and various social issues.

As Trevor started referring more and more files to me, I was quickly becoming overwhelmed with the sense that I was getting in way over my head. While I derived immense satisfaction from the freedom and creativity of managing my own files, and having direct client contact, something was not quite right. I was a young and inexperienced lawyer pretending to my clients that I had all the answers, when in reality I was insecure about my abilities and decisions. In short, I needed a mentor.

At that point, I proposed to Trevor that I pay him a mentorship fee in addition to the referral fee I was paying him for files he was referring to me. This novel proposal was accepted by him, which allowed us to forge a unique mentorship relationship. Trevor and I meet for dim sum lunch once a week to discuss litigation strategy, client management, politics, and any other topic that interests us on that particular day.

The net effect of this relationship is that I have all the benefits of having a boss, but none of the drawbacks. I get the wisdom and knowledge from an experienced lawyer to help me manage my practice, but I have the freedom to determine my own hours, run my own business, and have the final say on how to conduct my files.

Conversely, Trevor has all the benefits of having an associate, with none of the drawbacks. He receives monetary compensation for his mentorship and source of referral work, but does not have the risks of having to pay a set salary or overhead expenses associated with hiring an associate. It is a beautifully symbiotic relationship because it is mutually beneficial and satisfactory to both parties.

I just celebrated my first anniversary of lawnching my own business, Onyx Law Office, and I could not be happier. I have a burgeoning practice with meaningful work, manageable clients, great mentorship, and enough flexibility and profit to afford to take vacations, spend time with loved ones, and serve the community. What’s more, I can honestly say I look forward to going to work, and am passionate about what I do.


The Scrivener

Volume 20 Number 1 Spring 2011