the SOCIETY RECORD - Nova Scotia Barristers' Society

the
SOCIETY
RECORD
VOLUME 31 | NO.1 | spring 2013
NOVA SCOTIA
BARRISTERS’ SOCIETY
www.nsbs.org
The art of law
Volunteering legal talent helps support Nova Scotia’s arts sector and creative economy
VISION, LEADERSHIP, EXCELLENCE – THE LEGAL PROFESSION IN NOVA
Spring 2013
SCOTIA
1

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for Civil Litigation Lawyers
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Forensic Engineering Experience
Geotechnology has 36 years engineering investigative experience in Atlantic Canada, western and northern Canada,
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Engineering and environmental investigations have been completed for most types of civil engineering structures: Buildings;
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Professional Qualifications
Eric Jorden, M.Sc., P.Eng., president of Geotechnology Ltd., has a Master’s degree in geotechnical and foundation
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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,
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Forensic Engineering Services
(Case management follows project management principles to ensure thorough, cost effective forensic engineering
investigations).
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• 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.
2. Main Forensic Engineering Services
• Carry out field work and laboratory testing to investigate the cause of the problem, the damage to a building or
civil engineering structure, or the reason for the contaminated soil and groundwater. Review engineering
drawings, and applicable engineering and environmental regulations, codes and standards of good practice.
• Analyze, interpret and evaluate the data and investigation findings. Develop conclusions and formulate opinion.
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• Recommend and design repair and remedial work. Evaluate repair and remedial costs.
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• Assist counsel finalize evaluation of the strengths and weaknesses of the damage claim based on the findings of
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• 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: ejorden@eastlink.ca
Eric Jorden, M.Sc., P.Eng.
Forensic Engineer
Consulting
Professional Engineer
2
The Society Record

Contents
VOLUME 31 | NO 1 | Spring 2013
5 The President’s View
7 Briefs
11 Society News
14 Accolades – a new column from the Gender Equity Committee
16 Volunteer profile: Nova Scotia Artists Legal Information Society – Julie Sobowale
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 ©2013
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Return undeliverable
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Halifax, NS B3J 3K1
lneily@nsbs.org
18 From Society President to Prime Minister of Canada: Sir Robert Borden –
Barry Cahill
20 Ethics in context: 22nd Annual F.B Wickwire Memorial Lecture –
donalee Moulton
22 Working within small communities: Unique ethical challenges – Victoria Rees
and Darrel Pink
25 Q&A: ‘Community’ has many definitions – Emma Halpern
27 Legal talent supports thriving arts sector – Julie Sobowale
30 CIAJ Conference: Ambiguous Crossroads – Archie Kaiser
32 Women – Strength in Leadership: Remembering Dara Gordon QC –
Marla Cranston
34 Reflection on justice: Spryfield youth explore legal issues through art –
Marla Cranston
36 LIANS – Tips from the Risk & Practice Management Program
38 Summation: International legal regulation – Darrel Pink
inside
Editor
Marla Cranston
mcranston@nsbs.org
Graphic Design
Lisa Neily
lneily@nsbs.org
NOVA SCOTIA
BARRISTERS’
SOCIETY
nsbs.org
on the cover:
The Mona Lisa, by Leonard da Vinci, with
wardrobe updates by Lisa Neily.
page 9 page 20 page 34
Spring 2013 3

Letter to
the Editor
I
was most pleased to see the work of Team Possibles
recognised in the Fall 2012 issue. But hey, I’m sure the
students and young adults would have liked to have been
identified along with the judicial figures in the photo. And
perhaps the detail of the Nautilus Mural of Truth too deserves a
full-colour spread and an interpretation for those of us who may
not ever get to the fifth floor of the downtown Law Courts.
The juxtaposition of your frank interview with Kathryn Dumke
and Barry Cahill’s biography of Eileen MacLean Yates was a fine
example of the uneasy role women have played in the legal field
in Nova Scotia in the past 56 years and the changes that are now
upon the profession. When I came to Dalhousie as an M.Sc.
graduate student in 1964, I was impressed that I knew two-thirds
of the women in first year Law – there were only three. Now
women often represent over 50% of the annual cohort.
Yes, a large percentage, and they often are the class prize
winners, but in Nova Scotia the increased women’s numbers and
expertise are not yet reflected in legal firms’ highest echelons, in
the partnership, or in the QCs handed out. Plus ça change, plus
c’est la même chose?
Regards,
Alan Ruffman
President, Geomarine Associates Ltd.
Lecturer, Planning Law, Schulich School of Law
Honorary Research Associate, Department of Earth Sciences,
Dalhousie University
Many aspects of community come through in this
edition. Art and culture help define and enrich our
communities – lawyers are doing their part to support
the creative economy in Nova Scotia, volunteering for arts
organizations and assisting artists in navigating the legal issues
that affect them. Art is an active channel for young people in the
Spryfield community to express their perspectives on truth and
justice, in thought-provoking murals for courthouses and other
public venues.
Other voices explore strength in leadership, and why it can still be
elusive for the community of women in the legal profession. We
also examine the unique ethical challenges of working in small
or close-knit communities, and reflect upon the commonalities
and differences in regulation of the legal profession throughout
the global community.
Marla Cranston
Editor, Society Record, Communications Officer
Dear Mr. Ruffman,
Many thanks for your input. You make an excellent point about
identifying the young artists in the photo – they were Max Owen,
Jessica Hanko, Allison Murphy, William Brewer, Daniel Slade, Marie
Webb, Karla Graves-Smith and Andrew Bryant. See page 35 for
more details on the mural.
Regarding women in leadership in Nova Scotia’s legal profession,
please turn to page 32-33 for our coverage of a new annual event
designed to examine that very issue!
Regards, Marla
The Society Record welcomes your feedback!
Please send your Letters to the Editor to:
Marla Cranston, Communications Officer
Nova Scotia Barristers’ Society
Cogswell Tower, 800-2000 Barrington Street
Halifax, NS B3J 3K1
Or via email to communications@nsbs.org
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4
The Society Record

the
president’s
view
As I travel around the province to speak to lawyers about
the work of the Society, I have also discussed a serious
problem for lawyers by telling the story of my own struggle
with depression. I began with my speech at the Annual General
Meeting last June. I do this to highlight the challenges many of
us face in the practice of law and to offer a story of hope to those
who are struggling. Since I will not be able to speak to everyone
in my year as President, I thought it may be helpful if I put my
comments in this column.
Years ago, I fell into a deep depression that consumed my life
and practice. It lasted about three years and, like many in this
situation, I did not truly understand what was happening to
me. Unless you have experienced depression, it is impossible
to explain just how deep the well of despair is and the sense
of helplessness you feel. It can be paralyzing and yet invisible
others. I reached the point of planning suicide.
Finally my wife, along with my law partner, convinced me to see
my GP and I also contacted the Nova Scotia Lawyers Assistance
Program. After treatment consisting of medication and therapy
with a psychologist (who remains a dear friend), I was able to
recover and find what I had lost to this disease – happiness and
peace.
My story is not unique. Lawyers suffer depression 3.6 times
more frequently than any other profession. In one study, 25 per
cent of lawyers surveyed had symptoms of depression.
Lawyers commit suicide at a rate six times that of the general
population. It is the third leading cause of death among lawyers,
behind heart attack and cancer.
Lawyers between 48 and 65 are at greatest risk of depression and
suicide. Among those, sole practitioners are at the highest risk.
After all, they have few around them to help identify the problem
and to push them to seek help.
Not to be ignored is the fact that we have twice the rate of
alcoholism as compared to the general public, and ours is the
highest among all professions. Drug abuse rates are higher as
well.
But there is hope and a way out. The Lawyers Assistance Program
is a great way to start and was a key part of my recovery. It is free,
available 24 hours every day and is completely confidential. It will
provide help for the lawyer, his or her family and even staff, for
a whole range of problems. This help can include referrals and
payment for counselling. The LAP provides lifestyle coaching,
financial planning and many other services, all free. For those
suffering from depression, anxiety or any other form of mental
challenge, it can be a lifeline and a first step to a new life.
The program’s toll-free line is 1 866 299 1299; also see nslap.ca
for a number of online health and wellness resources.
Working with your GP and other care providers is also key.
Medication and therapy can work separately but are most
effective if used together. It can take awhile to get the balance
right. But don’t let pride, embarrassment or a perception of
stigma prevent you from seeking help. You can recover.
I encourage anyone who thinks they may be suffering from
depression, anxiety or any other issue to reach out for help. If
you know someone who may be facing such problems, say or
do something. Forget about any concern that the lawyer may not
receive the message well – the stakes are simply too high to do
nothing. I believe we owe each other that obligation as members
of this profession. I am proof that there is always a way forward
to recovery; you just need to ask.
Timothy G.J. Daley QC
President
Spring 2013 5

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The Society Record

BRIEFS
Nova Scotia lawyers honoured with Queen Elizabeth II Diamond Jubilee Medals
Photos by Michael Creagen
In celebration of International Volunteer Day,
the Province of Nova Scotia presented Darrel Pink, the Society’s
Executive Director, with a Queen Elizabeth II Diamond Jubilee
Medal. “When we give of ourselves to serve others in the
community, we engage in the act of repairing the world – we
help to make it a better place now and for the future,” he said
at the December 5 ceremony at Province House, upon receiving
the medal from the Hon. Marilyn More, then Minister of the
Voluntary Sector.
The medal commemorates the 60 th anniversary of Her Majesty
Queen Elizabeth II’s accession to the throne, and recognizes
significant contributions and achievements by Canadians. Other
Nova Scotia lawyers honoured include Glenn Anderson QC, Sir
Graham Day QC, Lena Diab, Gavin Giles QC, Edwin Harris QC,
Josh Judah, Kevin Kindred, Dan MacRury QC, Lieutenant-Colonel
Ray Mitchell, Major J. Jason Samson (above right with MP Geoff
Regan), Lieutenant-Colonel David Sinclair, W. Brian Smith and
John A. Young QC. If you’re aware of others, please let us know
at communications@nsbs.org.
Photo provided by the NS Department of Justice
Pups cared for behind bars:
Correctional centre host to canine
therapy pilot program
From December to March, the
Department of Justice ran a canine therapy pilot
program at the Central Nova Scotia Correctional
Facility. Offenders and corrections officers worked
together to help dogs with special needs become
ready for adoption, with additional training and
socialization. After just a few minutes with this
puppy Jingles, Correctional Officer Candace
Muise wanted to take him home!
Spring 2013 7

BRIEFS
Changing faces and changing places in the Nova Scotia judiciary
Photos provided by John Piccolo/ The Nova Scotia Judiciary
(Left) On December 7 at the Yarmouth Justice Centre, the Hon. Judge Timothy D. Landry (at right) was sworn in as a judge of the
Provincial and Family Courts of Nova Scotia. He is seen here with the Hon. Michael MacDonald (centre), Chief Justice of Nova Scotia
and of the Nova Scotia Court of Appeal, and the Hon. Patrick Curran (at left), former Chief Judge of the Provincial and Family Courts
of Nova Scotia. (Right) The Honourable Pamela S. Williams, new Chief Judge of the Nova Scotia Provincial and Family Courts.
The Honourable Pamela S. Williams recently
became the first woman to be appointed Chief Judge of the Nova
Scotia Provincial and Family Courts. In February, she replaced
the Hon. Judge Patrick Curran, who continues sitting as a fulltime
judge in both courts.
A chief judge can only serve two consecutive five-year terms. A
judge for more than 30 years, Judge Curran had been Chief of the
Provincial Court for the past decade and Chief of the Provincial
and Family Courts since 2011.
Called to the Nova Scotia Bar in 1985, Chief Judge Williams
spent 18 years as a lawyer with Nova Scotia Legal Aid and was
appointed as a provincial court judge in 2003. She served as
Associate Chief Judge of the Provincial Court since 2011, and
had also recently been presiding at the Mental Health Court in
Dartmouth.
“Judge Williams has the knowledge, the skills and the wisdom
to be an exceptional chief judge and I congratulate her on her
new role,” Justice Minister Ross Landry said on Feb. 27, while
announcing the appointment. “I’d like to thank Chief Judge
Curran for his passion and commitment to the administration
of justice. I am pleased that our justice system will continue to
benefit from his experience.”
In addition to hearing cases, the Chief Judge schedules court
sittings, assigns judicial duties and is responsible for the
administration of the judicial functions of the provincial and
family courts.
Retirements
On January 31, the Hon. Justice Charles E. Haliburton retired
from the Supreme Court of Nova Scotia. Prior to his appointment
to the bench in 1986, he maintained a general legal practice in
Digby, served as a Crown attorney and Federal Crown, and also
served as Mayor of Digby,
The Hon. Robert F. Ferguson, Justice of the Nova Scotia Supreme
Court Family Division, retired on his 75 th birthday on October
6, a month shy of 41 years after he was first appointed to the
bench, which made him the province’s longest-serving judge on
the current judiciary.
8
The Society Record

BRIEFS
Annual networking events for racialized students and members of the Nova Scotia Bar
On January 17 at Province House, Justice Minister
Ross Landry hosted his annual reception for Black and Aboriginal
students and alumni of the Schulich School of Law.
“The IB&M initiative has played an important role in making
the legal profession in Nova Scotia more diverse and more
representative of the Nova Scotian public,” Tim Daley QC, the
Society’s President, said in his remarks at the event.
The Society’s Racial Equity Committee held its annual fall get-toknow-you
event on November 14 at Pipa Restaurant in Halifax,
for lawyers, law students and articled clerks.
Top row (l-r): REC event at Pipa – Jalana Lewis; Andrew Kirk;
Marie Paturel, Equity Officer; Naiomi Metallic; Starla Sheppard;
Aleta Cromwell; Ryan Brothers Bottom row (l-r): Heather
McNeill QC, Lauren Grant, Jessica Upshaw
(l-r): Justice Minister Ross Landry, Alise Brown, Marian
Mancini, the Hon. Chief Justice Michael MacDonald, and Peter
Mancini.
(l-r): Michelle Williams-Lorde, Amanda Barnaby, Naiomi
Metallic, Angelina Amaral, and Robin Vernest.
(l-r): Aleta Cromwell, Duane Eddy, and Rocky Jones.
Spring 2013 9

BRIEFS
Gangsters take a vacation in fourth annual Play in a Day
Even gangsters need a break sometimes!
Volunteers put together this rollicking theatrical fundraiser in
support of the Legal Information Society of Nova Scotia: “The
Godmother Part 7: Gangstas Gone Wild”. They had just 24
hours to learn the script, create the sets and props, make the
costumes and rehearse for the play, staged October 20 at the
Bella Rose Arts Centre in Halifax. Watch legalinfo.org for details
of the next fundraiser.
LIANS Risk and Practice Management Conference
The Lawyers’ Insurance Association of Nova
Scotia presented its 4th annual LIANS Risk and Practice
Management Conference on November 23 at the Westin Nova
Scotian in Halifax.
Among the featured speakers were Andria Hill-Lehr (left), a
counsellor in private practice and program counsellor with the
Annapolis Valley Campus of the Nova Scotia Commmunity
College, and Paul Saunders (right), an associate at Stewart
McKelvey and part-time instructor at Dalhousie University and
Mount Saint Vincent University. Sessions covered everything
from wellness and workload management to the art of
negotiation, and using technology to avoid claims.
10
The Society Record

society news
Council updates
Society leadership and new Council for 2013-2014
On June 15, 2013 during the Annual Meeting, the Society will
welcome new leadership for the next Council year.
President for 2013-2014 will be René Gallant (centre) of Halifax,
who is Nova Scotia Power’s Vice President Regulatory Affairs.
Halifax lawyer Tilly Pillay QC (at left) will be First Vice-President;
she works with the provincial Department of Justice as its Director
of Litigation and Co-Executive Director of the Legal Services
Division. Jill Perry (at right), Managing Lawyer (Family) with
Nova Scotia Legal Aid in Sydney, will be the Society’s Second Vice-
President, as the successful candidate in the March election for the
position.
Newly elected members of Council for 2013-2015 include Diane
McGrath QC and Carolyn A. MacAulay for Cape Breton District,
and Robert Gregan and Robert Pineo for Central District. Acclaimed
members representing Halifax District are Christa M. Brothers, Gavin
Giles QC, William L. Mahody and Stephen McGrath. Acclaimed
members for Southwestern District are H. Heidi Foshay Kimball and
Darren MacLeod.
An election is set for April 15 to 22 to determine three At Large
members of Council.
Find candidate information and online voting instructions at nsbs.
org/council-elections. For Council updates throughout the year, visit
nsbs.org/council-materials.
National Admissions Standards
The Society is actively participating in the National Admissions
Standards project of the Federation of Law Societies of Canada. In
February, Council adopted the National Entry Level Competency
Profile. Though very similar to the Standards currently in force for
the Society’s Admissions program (articling and the Bar Admissions
course), the National Admission Standards will allow for fine tuning
of our current programs to meet the new requirements.
The Federation project is also looking at good character and fitness.
The goal is to create a uniform approach to assessing all components
of an applicant’s suitability for admission to the Bar. The challenge
is to develop and adopt modern approaches to assessing character
without stigmatizing certain health issues. As well, it will be essential
that national standards address matters that are demonstrative in
their impact.
Developing strategic directions
Developing Council’s strategic directions for the next three years
is one of the most important tasks for Council this year. Not only
does it afford Council the opportunity to reflect on current priorities
but it causes members to look into the future and, as best they can,
to identify trends and influences that will impact regulation of
the profession in the near term. Though the Society is well aware
of changes to legal regulation happening elsewhere, it has not yet
considered the underlying causes of those changes and whether any of
them need to be considered for Nova Scotia. Three or four years ago,
Spring 2013 11

society news
our assessment of the changes was focused by concerns about loss of
self regulation. Today, Council’s perspective is much more concerned
with what we might learn from the new regulatory models, and how
to apply and adapt those learnings to Nova Scotia to improve the
quality of legal regulation here.
Access to justice issues are very much on Council’s mind and are
a clear priority. The strategic issues are how does the Society play
an effective role, likely as a coordinator or convenor, and in what
areas should our priorities be. There are numerous projects both
provincially and nationally that will impact us in Nova Scotia, and
Council’s task is to determine where our finite resources ought to be
directed.
Developing standards
Under the Legal Profession Act, the development of standards for
the legal profession is a requirement for the Society. In addition to
the Code of Professional Conduct, our primary standard, the Society
first developed and promoted real estate practice standards. They
were followed by family practice standards. These two areas are
continuously monitored by committees that, in addition to adding
standards as required, promote the development of resources and
other materials that will allow lawyers to readily access information
to assist them in understanding and meeting their professional
requirements.
This year, Council endorsed the development of law office
management standards. A committee has been actively researching
and compiling information that will start to be released as draft
standards over the next few months. Unlike the real estate and family
law standards, each law office management standard can stand alone.
Therefore, the committee is recommending that they be promulgated
as they are developed, without waiting for a comprehensive package.
Council has yet to determine if this approach will be adopted but
notices in InForum will advise lawyers of the status, of requests for
consultation, and of ultimate adoption.
Initial discussions on a project to develop criminal law practice
standards have begun. Following consultation with the Nova Scotia
Criminal Lawyers’ Association, the Executive Committee has
endorsed this as an activity for the coming year. This proposal will
likely be submitted to Council for its consideration later in the spring.
Better public access to legal services
New clarity and direction in the Code of Professional Conduct will
improve public access to a broader range of limited scope legal services
in Nova Scotia. Updates in February introduced specific rules and
clear definitions on providing limited scope services, with additional
guidance on ethical and competence questions that might arise.
Similar rules now exist in British Columbia, Alberta, Manitoba and
Ontario. Nova Scotia is the first province in eastern Canada to adopt
the updated rules, which will provide more possibilities to people
who don’t qualify for legal aid or may be unable to afford legal services
throughout an entire matter.
With the support and guidance of the new ethics rules, lawyers
can now represent a client for part of a legal matter, without the
expectation that the lawyer will need to act for the client generally,
or become the solicitor of record for the client. This ‘unbundling’ of
legal services opens up the middle ground between full representation
and no representation.
The new rules specify that the same standard of competence for fullscope
retainers applies to limited scope services. They also emphasize
the importance of communicating effectively with clients – also in
writing – to avoid misunderstandings or unrealistic expectations. It is
also important for lawyers to take steps to ensure, where appropriate,
that opposing counsel and the judiciary also understand a retainer’s
limited scope as well.
The Society’s practice standards committees are examining limited
scope legal services in light of the recent Code updates, with a view to
developing related standards and providing further guidance.
May 31: First CPD reporting deadline
Practising lawyers in Nova Scotia are now required to complete
12 hours per year of eligible continuing professional development
activity. The deadline for reporting your 2012-13 activities toward
the Society’s new CPD requirement is May 31.
The Society has developed an easy-to-use tool for reporting: the NSBS
CPD Log is found in the Member Login area of the Society’s website,
at members.nsbs.org. The CPD Log is the portal through which all
practising lawyers will report their annual CPD Requirement by May
31 each year.
There are two alternatives:
• If you use CPD File, a national CPD database tool, the
information recorded there will be imported to the Society
prior to the deadline, so you don’t need to record it again in
the NSBS CPD Log.
• Firms capturing their lawyers’ CPD activities centrally have
the option to import that data into the NSBS CPD Log.
Check with your system administrator to confirm whether
you must also add your activities to the CPD Log.
Despite which option you use for recording your CPD activities, all
lawyers must check the data captured in the CPD Log to confirm its
accuracy prior to the reporting deadline.
12
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society news
For more details on the CPD Requirement and reporting process,
visit the Professional development section of the Society’s website,
under the tab “For lawyers”. If your questions aren’t answered by
the information on the website, please contact the CPD Line at 422
1491 ext 371 or email CPD@nsbs.org.
Society transitioning to electronic forms
Over the next several months, many of the forms used by lawyers to
communicate with or provide information to the Society will move
to an electronic-only format. The Society has purchased a product
called WebFormz, which integrates directly with the Society’s
membership database.
Currently, something as simple as a change of address requires a lawyer
to complete a form (by hand or by using a fillable PDF) and send it to
the Society (by mail, fax or email), where someone manually enters the
updated information into the Society’s database. This current system
is time consuming and includes a risk of error in the data entry step.
When WebFormz is functional, the lawyer will enter the data into an
online form, which will automatically update the Society’s database –
much more efficient and with much less risk of error.
While a change of address form is fairly simple, the Society has more
than 30 forms on its website – everything from Trust Account Reports
to applications for a change of category. Over time, all Society forms
will transition to WebFormz.
It is our plan that WebFormz will be used for the upcoming Annual
Lawyer Report, which will be made available to lawyers in May for
completion by the end of June 2013.
New Trust Account Regulations
New Trust Account Regulations came into effect in Nova Scotia on
January 1, 2013. Most of the revisions were designed to simplify the
regulations and provide further clarity and additional definitions. The
new regulations are based on principles that apply more broadly to the
variety of ways in which trust account transactions can now take place.
The fundamental principles remain the same: It is a privilege and
significant responsibility for lawyers to be permitted to hold client
funds and property, and lawyers are held strictly accountable by the
Society for properly dealing with all client funds and property held in
trust, as part of its mandate to protect the public.
New complaints review process coming soon
By June, a new Complaints Review Committee will be in place,
created to ensure an independent process for reviewing dismissed
complaints at the request of complainants. It will be chaired by a
public representative and comprised of volunteer lawyers who are not
associated with the Society’s professional responsibility process.
Currently, requests for review of dismissed complaints are directed
to the Executive Director, who forwards them to a subcommittee of
the Complaints Investigation Committee, which works closely with
Professional Responsibility staff. The past three years have seen an
average of 35 such review requests per year.
On January 25, Council voted to amend the Regulations to establish
the new review process, upon recommendation by the Professional
Responsibility Policies and Procedures Committee, which had
examined the issue.
The role of the new Committee will be to determine whether a
decision by staff to dismiss a complaint is correct, based upon
applicable regulatory thresholds. This will not involve conducting
a new investigation, but rather a review of the material on file
considered by staff, the applicable regulatory authority and threshold
under which the complaint was dismissed, the reasons provided by
staff, and the submission of the complainant when requesting review.
The requests for review will be sent directly by complainants to the
new Committee Chair. For more details, see nsbs.org/news.
Barristers’ Library expected to
return to the Law Courts this summer
The Barristers’ Library is expected to return to The Law Courts
building at 1815 Upper Water Street this summer as renovations to
the seventh floor are completed.
It has operated in temporary quarters on the fifth floor of Summit
Place, at 1601 Lower Water Street, since October 2012.
Contact information remains the same for Library &
Information Services: 425 2665, 1 866 219 1202 (toll-free) and
nsbslib@nsbs.org. Watch InForum and the Society website for further
updates.
Council approved the new Trust Account Regulations on November
23, following a substantial period of work by the Trust Account
Regulation Review Working Group and consultation with the legal
profession. For details, visit the Regulation area of the website, and
see Section 10 of the Society’s current Regulations under the Legal
Profession Act.

ACCOLADES
Madonna Doucette is a bit like Bartholomew Cubbins of
Dr. Seuss fame … she wears a lot of hats! Madonna’s
official title is LGBTQ Educator for Cape Breton and
she is employed through the AIDS Coalition of Cape Breton. Her
Candee McCarthy &
Ann Marie MacInnes
Sampson McDougall & Nova Scotia Legal Aid
job takes her all
over the island
with the goal of
promoting good
health within
the LGBTQ community as well as educating on homophobia and
transphobia within all Cape Breton schools, from elementary to
university. In her role as LGBTQ Educator, Madonna is also an
advocate and support person for LGBTQ youth.
Madonna calls herself “the gateway drug to other help”. She is a
front-line worker in what she terms the “not-for-profit posse” of Cape
Breton Island. She works very closely with the CBVRSB (school
board’s) Cross Culture Human Rights Diversity Officer, and provides
a network for her clients to addictions services, public health, social
workers, legal aid, victims’ services and private lawyers. She provides
extra support to most of these organizations in the area of LGBTQ
issues. The people Madonna helps every day are experiencing health
concerns, mental health issues, bullying and a variety of legal issues
(including sometimes being victims of assault or harassment).
A great deal of Madonna’s work lies in educating and supporting
LGBTQ students, and she has helped start GSAs (Gay Straight
Alliances) in many Cape Breton schools. Recently, she held a “train
the trainer” seminar with the Glace Bay High GSA students, with
a goal of “empowering the students with knowledge so they can
educate their peers, including their teachers.”
Madonna views education as integral to helping her clients advocate
for and understand their own human rights.
“There is an assumption that once a person self-identifies as gay or
transgender, there is an automatic download of information,” she
says. “It is dangerous for people to assume that the intricacies of gay
rights, appropriate language and transgender issues are all suddenly
known to someone because they identify themselves as something
other than straight. It’s often new to them too. It’s important to reach
out and educate our young people so they can educate those around
them. We need to empower them with history and knowledge.”
One of the challenges Madonna faces in her work is that she is
often reaching out to what she terms an “invisible population”. She
believes there is still a prominent “don’t ask, don’t tell” mentality
throughout Cape Breton and despite the great inroads made with
GSAs in schools, there remains a very apparent passive aggressiveness
Madonna Doucette, LGBTQ Educator for Cape Breton
toward queer students. So, Madonna has used social networking and
its anonymity to spread awareness.
The AIDS Coalition of Cape Breton created a profile on the
popular dating website Plenty of Fish, with positive results. In this
way, the organization is able to reach a population that is looking
for sexual partners anonymously because they do not feel they have
the freedom to be open about it. This allows a dialogue between the
“invisible population” and knowledgeable people who have a variety
of skills, information and experience, and who can provide healthy
information that may not otherwise be accessible.
Madonna is currently working on an awareness campaign with Junior
Achievement in the Sydney Academy and Riverview high schools; it
aims to combat bullying that arises from assumptions made about
various identifiable teen social groups (jocks, skaters, metalheads,
etc). The campaign allows the participants to identify themselves on
a T-shirt. The shirts say, “I’m ___________ and I’m against bullying”
with “No Assumptions” on the back.
“The goal is to show students that although they have differences and
may not be friends, they are not enemies,” Madonna explains.
A march is planned through downtown Sydney, and she’s working
hard to ensure a large turnout from a wide variety of social groups.
She hopes the initiative will also help to raise the self-esteem of
victims of bullying.
Photo by Jason Jardine
14
The Society Record

Madonna was an active participant in the Society’s “Uncommon Law
4” conference that took place in Sydney last June. She shared her
insights and experience, which contributed to the event’s success. She
also served as one of the official
photographers for the event and
her photos were featured in the
Fall 2012 edition of the Society
Record.
Madonna chairs an all-ages
transgender support group,
with a mandate of addressing
the needs of that community
and coming up with strategies
and action plans to solve them.
Examples of some issues that
arise: how to come out at work, how to deal with your medical
professionals, and advocating for more gender-neutral bathroom
facilities within the Cape Breton Regional Municipality.
“It’s important to reach out and
educate our young people so they
can educate those around them.
We need to empower them with
history and knowledge.”
“I believe in the healing powers of community storytelling. Hearing
other’s stories normalize our own isolating experiences,” she explains.
Madonna will always continue to advocate for human rights.
“I get really passionate about
it because I sometimes feel
like I’m shouting ‘There is still
a problem!’ when everyone’s
moved on,” she says. “Our
community has 30 to 40 per
cent higher rates of addictions
and suicides. That’s a problem.
They continue to be victims
of violent crimes. That’s a
problem.”
Madonna works very closely with Pride Cape Breton and enjoys
celebrating the gains made in the LGBTQ movement over the years,
but she will never be satisfied until true equal rights are achieved.
In addition to her work as LGBTQ Educator and being a single
parent to three teenage boys, Madonna is co-founder and Editor in
Chief of the online magazine, Coastal Braid (www.coastalbraid.com).
She and her partner Jason Jardine started the magazine last year.
They had 7,000 to 10,000 hits a month within the first three months
of launching the site, which she describes as a “work of passion”.
The not-for-profit online magazine is geared towards the LGBTQ
community of Cape Breton, though it has subscribers from all over
the world.
“Stop being so happy about what we have, and work for more!”
The Society’s Gender Equity Committee welcomes your submission to
Accolades. In each column we showcase a different lawyer, firm, group,
association or community advocate to recognize how they are effecting
change in Nova Scotia and the legal profession. Feel free to contact a
member of the GEC or Emma Halpern, the Society’s Equity Officer, at
equity@nsbs.org to discuss your submission.
Chartered Accountant (CA)
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Corporate Finance specialist (CF)
Dan Jennings
Raymond Yuill Chartered Accountants
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James (Jim) W. Cowie, P.Eng.
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Incorporated in Halifax in 1972
Spring 2013 15

Volunteer
profile
ALIS volunteers Daniel Pink, Kelsey McLaren and Noémi Westergard with artist Susan Tooke in her Halifax painting studio.
Nova Scotia Artists Legal Information Society
Julie Sobowale
Articled Clerk, McInnes Cooper
day, and Nova Scotia is no exception.
When artists need
legal help, where
do they go? It’s an
issue facing many artists every
The Nova Scotia Artists Legal Information Society (ALIS) is breaking
new ground in Atlantic Canada. The organization is the region’s
only non-profit society dedicated to providing free legal information
customized for visual artists, writers and musicians.
The journey for ALIS began nearly four years ago, when a group
of students at the Schulich School of Law decided they wanted to
help artists with legal issues. They modelled the society after similar
organizations in Canada, such as the Artists’ Legal Outreach in B.C.
and the Artists Legal Aid Services in Ontario. Kelsey McLaren, an associate
at Pink Larkin, Daniel Pink, an associate at Wickwire Holm,
and Noémi Westergard, an associate at Blois Nickerson, became the
first board members.
“We believe in people being aware of their rights,” says McLaren.
“Artists don’t go to lawyers for advice a lot because of cost. They’re not
sure what recourse they have when problems arise.”
The ALIS mission is simple: provide as much legal information as
possible to artists. The organization has a legal database and artists
have the opportunity for one-on-one consultations from a network
of volunteer lawyers.
The group is currently developing legal information guides
focused on musicians. “It’s a neat time to be a part of ALIS,” says
Westergard. “New board members are involved in helping to build
an organization.”
The major issues facing artists involve copyright and contract law.
Christene Hirschfeld QC, one of the province’s few intellectual
property lawyers, says many of her clients are dealing with copyright
infringement.
“The problem for artists is how to protect your work when it’s readily
available on the Internet,” says Hirschfeld, a partner at BOYNE-
CLARKE LLP in Dartmouth. “It’s acceptable in our culture to exploit
other people’s work. It’s hard to find out who is using your work
and stop it.”
16
The Society Record

Illegal downloading of music, film and television shows has artists
worried about how to protect their work. Even when artists can afford
legal advice, the costs associated with litigation can be too high.
“If you’re successful, you may have all your money but you’ll never
get your time or energy back,” says Hirschfeld. “We need a different
model where artists can be compensated for their work.”
Artists have unique legal needs. Many are self-employed with little
income. Susan Tooke, a long-established visual artist in Halifax, says
the life of an artist involves many legal issues.
“We are at a loss,” says Tooke. “We have very little income that fluctuates
widely. The average artist in Canada is earning $14,000 a year.
Women artists earn several thousand less. We have no pensions. We’re
self-employed and running a business. Many support themselves with
other jobs. Canada doesn’t value arts like other places.”
Recently, Nova Scotia took a step towards supporting artists through
the Status of the Artist Act, which recognizes professional artists and
allows arts associations to set levels of pay for artists. While Tooke
supports the legislation, she believes more legal reform is needed.
“Artists need special treatment in tax law,” she says. “Income can
change rapidly. You can sell one year and not the other. I’ve got huge
costs involved with travel, computer and materials. The ability to income
average could make a big difference.”
Access to legal information is difficult for many artists. Tooke serves
as a board member for Canadian Artists Representation/Le Front des
Artistes Canadiens (CARFAC), an organization working with artists
to create industry standards for contracts, fair compensation and
other related issues. Recently, she worked with CARFAC Maritimes
members to try and create a best practices guide similar to the Best
Practices for Saskatchewan but the project was stalled due to a $3,000
shortfall in funding.
Many artists are missing the basic knowledge to advocate for their
rights, says Tooke.
“We don’t have the occasion to talk to lawyers,” she says. “When you
start out as an artist, you’re discouraged to ask for a contract because
you’re anxious to have your work shown. We’re all in the dark on
what would be possible. It’s out of our reach for many of us.”
ALIS is hoping to step in for artists to help. After a successful recent
AGM, the board continues to look for volunteers to help with fundraising
efforts, communications and event planning. They hope to
host another workshop event in the spring.
“We’re the only organization in Atlantic Canada that’s doing this
groundbreaking work,” says Westergard. “It’s nice to know that
there’s a legal lifeline out there for artists.”
For more information on the Nova Scotia Artists Legal Information
Society, visit nsalis.com or email info@nsalis.com.
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.
Spring 2013 17

Detail from portrait by Dorothy E. Vicaji,
presented by Borden to the Society in 1925.
From Society President to Prime Minister of Canada:
Sir Robert Borden
Two former presidents of the Nova Scotia Barristers’ Society
went on to become prime minister of Canada. The first was
Sir John Sparrow David Thompson (President, 1880-82),
who served from 1892 until his sudden and premature death in
1894. The second was R. L. (Robert Laird) Borden, Prime Minister
from 1911 until his retirement in 1920.
It was during Borden’s decade as an officer of the Society (1894-1904)
that his distinguished legal career turned into a political one. In many
respects, Borden and Thompson were alike – cerebral lawyers and
reluctant politicians, no less successful and eminent in politics than
they had been in law.
Called to the Bar in 1878, Borden probably did not join the Society
until 1882. That year, Thompson was appointed to the Supreme Court
of Nova Scotia and Borden moved to Halifax to replace him in the
thriving firm at which Thompson had just ceased to be senior partner.
In 1887, Borden turned down an offer from Thompson (by then
Minister of Justice) to come to Ottawa as his deputy minister,
preferring instead to concentrate on growing his already successful
law practice. That same year, Borden was elected a member of
Council and was re-elected annually until 1894, when he became
Vice-President. In 1889, he became
head of his firm. Borden, Ritchie &
Chisholm was the premier law office
in the city and region.
Barry Cahill
CAPP
Borden’s years as a member of Council, Vice-President and President
encompassed a tense, difficult and uncertain time in the Society’s
existence – a period of fundamental transition from near powerlessness
to full empowerment. In those days, membership in the Society was
voluntary and before 1899, it appears that few lawyers from outside
Halifax belonged to it. Indeed the Society, perceived with good reason
at the time to be a quintessential Halifax ‘club’, was exceedingly
unpopular with lawyers from out of town.
Before 1885, the Society had no official relationship with the Bar.
That year, Council acquired limited powers to make rules and
regulations “for preserving and enforcing the honour and discipline
of the Bar,” but it could only enforce honour and discipline against
those barristers who were members of the Society. Any lawyer could
join the Society but none had to, nor did they automatically become
a member upon being called to the Bar.
While Vice-President, Borden was the driving force behind the
18
The Society Record

Society’s successful initiative to found the first, short-lived Canadian
Bar Association, which held the second of its three annual meetings
in Halifax in 1897.
“Borden’s years as a member
of Council, Vice-President and
President encompassed a tense,
difficult and uncertain time in
the Society’s existence...”
Four months after becoming President of the Society in February
1896 (in those days the annual meeting was always held in
February), Borden was elected Conservative MP for Halifax. This
was a watershed moment in his career, inaugurating a shift from
professional to political concerns, which the decade would complete.
In 1901, Borden succeeded Sir Charles Tupper as leader of the federal
Conservative Party. Thereafter, he had less and less time to devote to
practising law, whether as President of the Society or head of his law
firm.
Re-elected President of the Society continuously from 1897 to 1903,
Borden was again re-elected in 1904 but declined to serve. His letter of
resignation to the secretary was deemed to be of such significance that it
was rendered verbatim in the minutes of the annual meeting. By then,
Borden’s onerous political responsibilities had not only put an end to
his service to the Society, they were also putting an end to his lucrative
law practice, which he was obliged to abandon within the year.
The historic achievement of Borden’s eight-year presidency of the
Society was passage of the modern Barristers and Solicitors Act, 1899,
which stood for a century plus. A landmark in self-regulation of the
legal profession, the Act was in large measure a personal triumph for
Borden. By then, he was sufficiently well known to be the subject of
a feature article in the Canada Law Journal.
Aside from being an outstanding litigator and appellate counsel,
Borden’s chief contribution to the Nova Scotia Bar was the
revolution in professional governance. He found the Nova Scotia
Barristers’ Society a glorified bar association with little or no reach
beyond Halifax, and left it a true law society comprising the entire
jurisdiction.
Under Borden, the union of Bar and Barristers’ Society was finally
consummated. Though not the longest presidency, Borden’s was
undoubtedly the most important in the Society’s entire history.
Barry Cahill, CAPP is writing the official history of the Nova Scotia
Barristers’ Society.
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Spring 2013 19

Photo by Nick Pearce/Dalhousie University
Ethics in context
22nd F.B. Wickwire Memorial Lecture
Ethics are elusive. Ethics are evolving. The one thing ethics
are not: easy. That was the message six legal experts delivered
to a packed audience at the annual F.B. Wickwire Memorial
Lecture in Professional Responsibility and Legal Ethics.
Each panelist tackled a different – and contemporary – ethical
issue. The first speaker Philip Girard, professor of law, history and
Canadian studies at the Schulich School of Law, looked at ethics and
the profession today by looking back at the two traditions that have
shaped legal ethics in Canada – British and American.
Although the British had a code of etiquette, it was never formally
taught, said Mr. Girard. “It was simply absorbed. There was only one
rule: what would a gentleman do?”
In the U.S., on the other hand, where a much more individualistic
legal society existed, the profession began to enshrine in writing what
constituted ethical behaviour.
Canada took a hybrid approach, said Mr. Girard. The first code was
developed by the Canadian Bar Association in 1920, but it would be
another 50 years before discussions over what constitutes good ethics
began in earnest.
The issue is an important one – and still
frequently debated. Sarah Bradley, an
associate professor of law at Dalhousie,
pointed out in her presentation that
donalee Moulton
Freelancer
while corporate frauds of recent years have grabbed headlines,
lawyers’ associations with these scandals have gone relatively scot free.
“The reality is most of these crimes could not be carried out without
professional facilitators, particularly the accountants and the lawyers.
Yet we rarely see these people held to account,” she said.
When the net is cast wider, and professionals are drawn into the fray,
it is usually accountants who are more likely to go down with the
corporation. In the Enron scandal, for example, the accounting firm
of Arthur Andersen was destroyed, but the main law firm associated
with the company emerged virtually unscathed, Ms. Bradley noted.
Lawyers justify their behavior in these situations, she added. “We use
the excuse ‘it depends’.”
There are undoubtedly grey areas. Geoffrey Loomer, an assistant
professor at Schulich, discussed the ethical dividing line between
tax evasion and tax avoidance. “It’s obvious counselling tax evasion
is bad news, but tax avoidance is more difficult,” he noted. “Some
20
The Society Record

say the public policy reasons are not strong enough to overcome a
lawyer’s duty to act in the interests of clients. Others say lawyers are
gatekeepers and should not be complicit in abusive transactions.”
Brent Cotter, a professor in the College of Law at the University of
Saskatchewan, emphasized in his presentation that ethical obligations
are not uniform. “Government lawyers need to appreciate the way
they relate to the law is different and the way their client is approached
is different,” he said.
One distinct difference: government lawyers owe a duty of fair
treatment to adversaries, Mr. Cotter stated.
Ethical issues aren’t esoteric. They can hit at the heart of a lawyer’s
practice. Meinhard Doelle, director of the Marine and Environmental
Law Institute at Dalhousie, pointed out in on his talk that for students
studying environmental law there is often a moral and a practical
dilemma. A desire to protect and defend the environment is what
attracts many people to this area of law, but the reality is there are few
legal jobs that call for this outlook. Private practice is usually where
employment is secured – and the landscape is very different for new,
idealistic environment lawyers.
“They will quickly find [their] views are at odds with the clients they
represent. It’s not only clients with different perspectives, so will their
colleagues. In many cases, it’s a firm culture,” Mr. Doelle said.
“That can create an unhappy situation,” he added. “Some choose to
leave; some choose to do volunteer work.”
Schulich professor Rollie Thompson noted in his remarks that although
“context” is a word he threatens students not to use on tests, it is
nonetheless critical to understanding how ethical decisions are reached.
He left attendees with two critical – and unanswered – questions:
• To what extent do entrants into law have to take ethical
considerations into account – should students think about this?
• To what extent are legal ethics better taught and understood in a
contextual course rather than a survey course – does it provide a
truer picture in the real world?
It was left to Stephen Pitel, a professor in the Faculty of Law at
Western University, to coalesce the discussion. He noted that while
history helps us understand the ethical issues lawyers face today, there
are steps that practising professionals need to take to ensure they
understand their ethical obligations – and live by them.
“Can lawyers just be a mouthpiece for their clients where there is no
clear ethical violation?” he asked.
The times have clearly changed – and yet so much remains the
same. Mr. Girard noted that selective enforcement has been an issue.
Minority lawyers, for example, have historically been singled out
more often for discipline.
But the issue is very much alive today, said Mr. Pitel: “We have real
concerns about whether enforcement is skewed against lawyers in
smaller firms.”
The elusive issue of ethics continues to evolve, along with the overall
context.
Photo by Nick Pearce/Dalhousie University
(L to R): Tim Daley QC, Richard Devlin, Meinhard Doelle, Geoffrey Loomer, Stephen Pitel, Philip Gerard, Sarah Bradley,
Rollie Thompson, Dean Kim Brooks, and Brett Cotter.
Spring 2013 21

Working within
small communities:
Unique ethical challenges
COMPETENCE
COMMUNITY
INVOLVEMENT
CONFIDENTIALITY
WITHDRAWAL
QUALITY OF SERVICE
22
The Society Record

“These dwindling numbers [of lawyers in rural communities] mean
greater opportunities for young lawyers to work in small-town firms
that offer a unique work experience, work/life balance and chances
for long-term employment.”
[Generation Next – Encouraging new lawyers to consider small-town
practices, Sobowale, J., Society Record, Fall 2012, p. 30]
One of Council’s strategic priorities for the past several years
has focused on how the Society can ensure access to legal
services in all parts of the province. The goal is to do so
by supporting lawyers in rural communities and encouraging more
lawyers to practise outside of the main metropolitan centres.
Statistically, the profession’s demographics mirror those of the general
population. Lawyers are getting older. They are not being replaced by
newer members of the profession. There has been a consolidation of
services outside of smaller communities. Many small communities
that once had lawyers no longer do.
The Society recognizes the challenges faced by small-town practices;
however, the rewards and opportunities are substantial. Lower costs
for housing, an opportunity for more community involvement, and
with technology, ready access to resources can make practice in these
areas both enjoyable and profitable.
“Young lawyers in small, rural firms learn quickly to be comfortable
with different areas of law.” [ibid, p. 30]
“I network and participate in the community. There are lifestyle
benefits but we still work really hard. If you have a strong work ethic,
the opportunities here are great.” [ibid]
Some numbers serve to illustrate the current realities. At present,
just over 27 per cent of Nova Scotia’s lawyers practise outside of
the Halifax Regional Municipality (HRM). There are just over
1,300 lawyers in HRM, over 200 in the Southwest District, more
than 180 in the Central District and about 135 in Cape Breton.
These numbers are very flat and trending slightly downwards.
In terms of years at the Bar, just less than 30 per cent of the profession
has practised for more than 27 years. That percentage is even higher
outside of HRM. At the other end of the profession, fewer than 24
per cent have practised for less than seven years and that percentage is
lower in the rural communities.
This has prompted the Society, through its Rural Practice Working
Group, to explore ways it can play an appropriate role in supporting
these lawyers throughout their careers – recognizing that for senior
lawyers, the issues trend towards retirement matters, while for newer
ones the focus is on business development.
Consideration is being given to how technology can play a role in
supporting the public and the profession. Other initiatives include
encouraging articling clerks to seek positions in smaller communities,
and urging law firms to look at succession and the need to bring
along the next generation of lawyers.
“Only half of rural lawyers have enough work available to hire an
articling clerk … retention rates also vary within regions.” [ibid]
Research to support the development of any long-term initiatives is
crucial. The Society is working with senior students at the Schwartz
School of Business at St. Francis Xavier University in Antigonish, to
ensure there is a sound factual basis, based on research, for the work
that is undertaken.
A range of ethical issues
relate to practice in small
communities. And by
‘small’, we mean both
geographically small, as well
Victoria Rees & Darrel Pink
Director, Professional Responsibility
& Executive Director
as close communities based on culture, ethnicity or any other range
of possible combinations and permutations.
Below, we explore some of these, based on matters the Society has
addressed with members through its various programs. None of
the ethical issues presented should create a barrier to communitybased
practice. What they show is a need for all lawyers, regardless of
where they work or in what kind of practice, to be careful to avoid
circumstances that can foment certain types of behavior. In shedding
light on these situations, our goal is not to discourage lawyers but to
enlighten them about circumstances that can create ethical challenges.
Forewarned is forearmed, and awareness is one of the most important
forms of prevention.
Ethical challenges
Working in a small or close community offers many advantages. For
example, some lawyers grow up in the community in which they
end up practising. Clients can often be friends, family members,
neighbours or classmates with whom you have grown up. For
purposes of the client identification regulations, ‘knowing your
client’ and avoiding fraud becomes much easier! However, these same
benefits can also create challenges:
i) Crossing boundaries from personal to professional –
Lawyers’ close relationships with clients has at times resulted in
poor quality of service, an inability to say no or be honest and
candid where the client has an unsustainable case, or carrying
out the work informally and failing to properly document files.
Such conduct has led to public reprimands in a number of cases,
which does nothing to improve a lawyer’s reputation.
ii) Making assumptions based on personal knowledge and losing
sight of your job as counsel. This happens too often in cases
where lawyers take instructions relating to the creation of wills,
and allow other family members to become too involved or to
exercise undue influence.
iii) Having a less formal solicitor-client relationship – Engaging
in small talk, gossip or swearing during conversations can all
be examples of this problem, depending on the circumstances.
Some clients may expect you to do things on an informal basis,
to ‘help them out’ because of your friendship. Beware the friend
who approaches you in the street, hands you $200 and asks you
as a ‘buddy’ to register a document for him, with no need of
‘opening a file or anything that formal’.
Spring 2013 23

Competence
Working in a small community brings many opportunities to
have a broad practice and gain competence in many areas of law.
You also have an added advantage of being able to take control
of the areas in which you practise. But it’s not easy to reach
the necessary level of competence in each area of law if you are
working on own or without a senior lawyer to serve as a mentor.
The challenge is finding the right balance between taking on
new cases for which you have some but not full knowledge and
experience, and knowing when you don’t know enough and can’t
provide competent, good quality service. The primary concern
has to be the client’s best interests.
‘If you’re not familiar with an area of law, you learn it. You get a lot of
experience early on in your career.” [ibid]
When practising in a small or close community, always consider
your duties of competence in Rule 3.1, and the need to perform
all legal services undertaken on a client’s behalf to the standard
of a competent lawyer.
Also consider your duties of quality of service in Rule 3.2. Your
responsibility is to remain objective, exercise good professional
judgment, and be able to provide sound legal advice at all times.
Having longstanding and/or personal relationships with clients
can make this challenging. If you become involved in providing
pro bono services for a friend or neighbour, you are required to
provide the same quality of service as you would to a paying
client. Sometimes the lines between lawyer and friend become
too blurred.
The Commentary in Rule 3.1-2 provides: “A lawyer should
not undertake a matter without honestly feeling competent to
handle it, or being able to become competent without undue
delay, risk or expense to the client.”
If the lawyer would like to take on a new matter that will allow
him or her to gain new knowledge and experience, then be
honest with the client, don’t charge them for the time it takes
you to get up to speed. Collaborate with another lawyer who
does have the experience and can help train you, and get the
client’s consent to allow you the time to become competent.
Community involvement
Becoming an integral part of the community, whether you grew
up in a large city, Aboriginal community, or rural community,
gives you the opportunity for a readymade group of clients, and
less need to market your legal services. Your level of community
engagement will be high and this will appeal to your clients.
You will have opportunities to serve your communities in other
ways such as in leadership positions such as an MLA, board
chair, church leader, etc. However, this can also create situations
that give rise to conflicts of interest, clients with unreasonable
expectations, and who make assumptions about what you can
and will do for them. In situations involving large families, there
can also be a lack of clarity about exactly who your client is and
who can give instructions. If you become a lawyer holding a
public office, consider your unique ethical duties under Rule 7.4.
Confidentiality
Be vigilant about your duties of confidentiality (Rule 3.3), and the
need to avoid conflicts of interest (Rule 3.4). Always be clear when
you are acting in a solicitor-client relationship, or when you are
serving in some other capacity (even just as a friend!) but also happen
to be a lawyer. Protect yourself and others from assumptions that can
be made because you are a lawyer.
When you are a lawyer dealing with a client with whom you have
another relationship, such as friend or neighbour, remember your
duty of honesty and candour (Rule 3.2) – some lawyers find it much
easier to be truly honest and candid with a client about the strength
of their case (or lack thereof) where they have no other relationship.
Lawyers have frequently ended up in hot water when they have been
reluctant to be candid with a client because they are also a friend.
Withdrawal
Breakdowns in solicitor-client relationships become even more
difficult and painful when you are both living in a small or close
community. When considering your duties with regard to withdrawal
under Rule 3.7, it is important to remain as objective as possible,
and depersonalize the situation to the extent you can. Be very careful
about what information you disclose to successor counsel. Make no
assumptions about what the new lawyer knows because you both
work in a small or close community. Keep things professional and
remember your duties with respect to maintaining confidentiality
and protecting privilege.
Quality of service
Many lawyers who practise in small or close communities have an
abundance of clients and work, and the challenge becomes how to
provide good quality of service at all times. Such lawyers have to
watch out for having a practice that becomes unmanageable too
quickly. There is a challenge to find the right balance between keeping
overhead low while having appropriate and affordable resources to
allow you to properly serve your clients.
Remember that being competent also requires the ability to ”manage
one’s practice effectively” and to “pursue appropriate professional
development to maintain and enhance legal knowledge and
attributes” (Rule 3.1). In order to provide good quality of service, a
lawyer has to “maintain office staff, facilities and equipment adequate
to the lawyer’s practice.” (Rule 3.2)
Administration of justice
Working in a small or close community allows you to develop strong
working relationships with others involved in the administration
of justice within that community; e.g. Crown attorneys, judges,
community and social workers, community leaders. Again, lawyers
must be mindful of the duty to avoid conflicts of interest, loosing
objectivity and the need to maintain formal and well-documented
client files, regardless of how close you are to the client or the
community.
Unique issues in small community practice
The legal issues and considerations found in the small rural practice
will be different to what a lawyer was exposed to in law school and,
more than likely, during articling (especially if the articling was done
in a large downtown law firm).
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Small rural and close communities – whether based on geographical
boundaries or other societal boundaries such as race, language
or ethnicity – may face similar cultural norms. People in these
communities are more likely to know of and speculate on the affairs
of those living and operating in the community. In other words,
people are more likely to know each other’s business. Community
members expect and perhaps even demand involvement of lawyers
in local organizations or events. There is a greater expectation
that lawyers in a small community will take on leadership roles in
organizations or lead on local issues.
‘Community’ has many definitions
Because of the close-knit nature of small communities, this means
that lawyers living in those communities are more likely to know
different citizens involved in a legal issue.
All of these factors can lead to a blurring of the ethical lines
between client, lawyer and community. The lawyer in a small
community practice needs to be vigilant in understanding these
various cultural norms and pressures evident in a small community
practice. Understanding the legal needs and issues faced by people
living in a small community practice includes understanding the
cultural norms of the community. Additionally, working in a
small community practice means juggling various demands and
expectations from your clients, while adhering to the Society’s
Code of Professional Conduct and various practice standards.
Those starting a practice in a small community can best address
these extra pressures by being aware of the cultural norms and
pressures evident in the community, being clear about their
role as a lawyer and their role as a member of the community;
to understand that every engagement with community members
is a learning opportunity, not only to learn about the norms of
the community, but also potential issues and their own personal
expectations, strengths and weakness.
Resources
The Society can help with some of these issues, through practice
advice, support and other resources.
• Mentorship: One of the best ways of learning how to sort
through these issues is by having a mentor. For information
about the LIANS and NSBS Mentorship Program, see
www.lians.ca/rpm/mentorship_program/, in the Risk and
Practice Management section of the LIANS website.
• Ethics advice: Lawyers are encouraged to contact the Society
whenever they encounter an ethical issue they are unsure
about. The Society’s Professional Responsibility Counsel
is always available to discuss the situations that lawyers are
facing, and to provide lawyers with assistance in working their
way through the Code of Professional Conduct and interpreting
the rules of ethics that may apply. In some circumstances,
the PR Counsel will seek the views of the Ethics Advisory
Committee, which is comprised of five senior members of the
Bar with diverse legal practices and significant experience in
the area of legal ethics.
• Equity Office: Contact Emma Halpern, the Society’s Equity
Officer, for advice or support, at equity@nsbs.org or 902 422
1491.
The ethical challenges are varied, depending on the type of
community in which a lawyer practises. Shawna Hoyte QC, of
the Dalhousie Legal Aid Service on Gottingen Street in Halifax,
and Society President Timothy Daley QC, a sole practitioner
in New Glasgow, shared a few thoughts on the subject with
Emma Halpern, the Society’s Equity Officer.
Q: What did you think about this article?
SH: The article did a great job at highlighting the similarities,
challenges and benefits between practice in rural communities
and that of small communities and close communities. Many
of the comments were on point in terms of my work as a
lawyer from a small and close community. With respect to the
comments about practice in rural communities, I believe rural
practice presents many opportunities for African Nova Scotian
lawyers and, given that we are familiar with the challenges of
working with people we know or are directly connected to, we
would be capable of adjusting to such challenges with ease.
TD: I found the article to be a very helpful summary of many
of the challenges faced by rural practitioners. It provides the
statistics to confirm what we all know intuitively to be true,
based on our own experiences. Rural practice is rewarding but
increasingly challenging and we need to work together to find
solutions to these challenges in the public interest.
Q: Did any of the identified challenges resonate with you?
SH: The article speaks to the challenges I face on a daily
basis as a lawyer from the African Nova Scotian community:
dealing with the expectations, assumptions, challenges, and
commitments to family, clients and community, while adhering
to the the Code of Professional Conduct. It becomes a balancing
act between one’s personal life and professional life as a lawyer.
Coming from a close community, I am always in my role as a
lawyer whether I want to be or not. I am always cognizant of
what I say and who I say it to. When there are so few of us,
the demand from the community is at times overwhelming.
I believe I have a responsibility to my community to do what
I can to promote and provide access to justice, which is a
relatively new concept to the African Nova Scotian community.
TD: Many of the challenges indentified resonated with me. For
example, I see my local Bar is aging quickly. Even after practising
21 years, I am still not close to being among the most senior
members in my county. I see lawyers in my community working
(continued on next page)
Spring 2013 25

hard but with little in the way of a retirement or succession
plan. They serve their clients very well and have done so for
decades, only to find retirement a distant goal.
As well, the challenge of maintaining a professional distance
from clients is difficult. Many come to me because they
know me from other interactions in our community. Many
are friends. I have learned that I must assess whether I am
simply too close to them and their situation to be objective
and helpful, and must make the difficult decision to refer
them elsewhere. It can damage the relationship but is a
common problem in a small town.
Q: What have you done to balance your commitment and
responsibility to your community with a busy, complex and
challenging practice?
SH: I am aware that by virtue of the fact that I am from the
African Nova Scotian community, I will always be called upon
and relied on as the “go-to person” for legal information and
representation. This is especially true given there are so few
African Nova Scotian lawyers who are at the defence Bar and
in legal aid services. The fewer of us, the more responsibility
we have to provide access to justice for the African Nova
Scotian community. After 18 years of practice, I continue to face
the challenge of balancing my commitment to my family, the
community and my responsibility to my profession. I continue to
learn to the importance of self care and to realize my limitations.
Having individuals to rely on for mentorship has been key.
TD: I have not always managed to balance my practice,
personal and volunteer life. I suffered a depression years
ago. It was the end result of not finding balance and not
knowing when to reach out for help. If not for my wife and
some colleagues stepping in to get me help, things may have
turned out very differently.
Now my balance comes from looking after my health first and
my personal relationships second. I do the simple things like
eat properly, exercise and ensure my personal life is strong. I
have renewed friendships I thought were lost and made new
ones that strengthen me when I am struggling. I am better
able to handle the pressures and demands of work and my
volunteer commitments. There is no one best way to do
this but I believe what is key is the ability to have a frank
conversation with yourself about your limits and what makes
you truly happy. If you can do that, the path forward is really
not that difficult. The challenge is truly being introspective
and honest with yourself.
Selecting clients and work you want to do may appear to be a
luxury but it becomes a necessity of survival in rural practice.
Choosing what volunteer work you do based on your passions,
and not for networking or other calculations, is important.
Having a good assistant and relying on him or her to help
you manage it all is invaluable. And setting limits on all of it,
including putting away the BlackBerry when you are at home,
is all part of the solution. Finally, where you or someone you
trust thinks you are in trouble, you probably are. Reaching or
for or accepting help is difficult but essential. These are my
hard-won lessons and I continue everyday to apply them.
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phone: (902) 435-5315
cellular: (902) 471-3197
facsimile: (902) 435-7647
e-mail: crtynerassociate@eastlink.ca
web: www.crtynerassociates.ns.ca
26
The Society Record

Photo by Eliot Wright/Provided by NSCAD University
Legal talent supports
thriving arts sector
Have you ever been to a play? What about a concert? Perhaps
you’ve seen a movie at the Atlantic Film Festival or bought
a novel by a local author?
Lawyers, like the rest of Nova Scotians, are drawn to the world of
art and culture. They support the arts through volunteer efforts and
they’re making an impact on Nova Scotia’s creative economy.
Lawyers have the critical thinking and problem-solving skills to
support arts organizations. It’s no wonder NSCAD University turned
to an experienced lawyer to help through its worst crisis in the school’s
125-year history.
G. Grant Machum, a partner in labour and employment at Stewart
McKelvey, couldn’t resist joining the NSCAD Board of Governors,
where he is now the Chair. He had a good reason to say yes.
“My daughter is 14 years old and she wants to go NSCAD,” he said.
“I want to make sure the school is still around for her.”
Machum is well equipped to deal with difficult situations. Through
his practice, he knows how to navigate government regulation and
manage different stakeholders.
“As soon as I joined, we were in crisis mode,” says Machum. “I have
governance and problem solving/resolution skills. I know the process
with how government works. Eighty per cent of my job is dealing
with people.”
Arts organizations provide a
way for lawyers to interact with
new people in an unfamiliar
environment. While Machum
Julie Sobowale
Articled Clerk, McInnes Cooper
chairs the NSCAD board, he also volunteers for Telefilm Canada’s
board.
“What I do involves people who are so unlike the people I deal with
in my daily practice,” he says. “It’s so great. I don’t have artistic talent
so my contribution is supporting the arts in this way.”
The creative arts are a key component of Nova Scotia’s economy.
According to Film and Creative Nova Scotia, 28,000 Nova Scotians
work in the cultural industries, accounting for almost $1.2 billion in
the economy. Throughout Canada, the creative economy accounts
for $40 billion a year. Machum imagines bigger plans for Halifax to
build on the thriving arts economy.
“My dream for Halifax is to have a centre of art downtown by the
port near the Via Rail building,” he says. “We have the remaining
NSCAD buildings there. We could have Film Nova Scotia there,
Telefilm, the Sobey Art Collection and the Art Gallery of Nova
Scotia. It breeds upon itself and allows synergies to take place. We
could have companies like DHX Media there too. That would help
profile the arts.”
Arts and the law can make the perfect marriage. For Cheryl Hodder,
Spring 2013 27

important to her. While she’s busy practising commercial litigation and
practising her clarinet, she finds that both complement her lifestyle.
Photo provided by Neptune Theatre
her combination of expertise in corporate governance and her love
of art make her a valued board member for Symphony Nova Scotia,
where she works on the governance committee and Film Nova Scotia,
where she chairs the board.
“I love anything creative,” says Hodder, a partner at McInnes Cooper
in business and corporate governance. “Volunteering in the arts helps
expand how you see the world. You problem solve in a different way.
It makes this vibrant city the very best.”
Funding is a major issue for arts organizations. Hodder believes that
increased funding, coupled with increased accountability measures
for arts organizations, could help give a boost to artists.
“Litigation is the closest relative to performance,” says Hiltz. “When
standing in an auditorium with 10,000 people, you have to know
your material. You have to know it on the most fundamental level. In
litigation, you also have to know your material. You have to have an
understanding what you’re doing. It’s all part of the fabric that’s me.”
Perhaps the greatest impact made by lawyers is on new, emerging
organizations. Andrew Sowerby, a litigation associate at Cox &
Palmer, volunteers for the Nocturne: Art at Night Society board of
directors. Unlike established organizations, Nocturne has no paid
staff so all administrative work is left to the board. Andrew focuses on
governance, human resources and spotting legal issues.
“With Nocturne, that idea of enjoying art on a big scale is out of
the ordinary,” says Sowerby. “For one evening, you have all the
little experiences from the North End to downtown. Usually you’re
exposed to little things on a smaller scale. With this event, there’s a
whole bunch of that. Art brightens your day.”
For lawyers, volunteering in an organization can involve much more
than serving on a board. Patrick Lamey grew up in Fredericton, with
the oral tradition of Gaelic music. Surrounded by musicians within
his own family, Lamey’s passions for the guitar have followed him into
his legal career. He’s volunteered with the East Coast Music Awards,
worked as an emcee for the Highland Games and served as one of the
founding members of the Celtic Colours International Festival.
“Arts funding has decreased significantly and it’s unfortunate,” says
Hodder. “Because of the funding challenge, organizations have thin
budgets so they need to have greater collaboration, be accountable
and be transparent. They need the rigor and process of organization
and policy.”
One way to begin volunteering in the arts is through a single event
within an organization.
“Many organizations have volunteer groups that lead to people
participating, and then you get invited to the board,” says Hodder.
“I recommend that any acceptance should be about something that
you’re passionate about. Lawyers are extremely good at giving back to
communities, with the skills that they bring to these roles.”
Rebecca LeBlanc Hiltz started off as a volunteer for Neptune Theatre
before joining the board. She helped plan the Black and White
fundraiser and was asked to join.
“There’s something fundamental to our human nature about art,”
says Hiltz, a partner at BOYNECLARKE LLP, with a focus in
business litigation. “Whether we’re visually pleased or moved by
an incredible performance, it’s something we all experience. It’s
an integral part of our society. One way or another, art has been a
means of communication from prehistoric times to now. It shapes
our society. We go because we can and we always need to be able to.”
Photo courtesy of the Nocturne Board of Directors, 2012
Lawyers like Hiltz gravitate towards the arts because of their own
backgrounds. She’s an opera singer and a band member of the 36th
Canadian Brigade Group (Nova Scotia) Band, so the arts are very
“Capture” by artist Gerald Beaulieu from
Nocturne, Art at Night, 2012
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“Volunteering allows for a break in the day,” says Lamey, an associate
at Evans MacIssac MacMillan in Port Hawkesbury, Cape Breton.
“I’m a strong believer in communal music and what it does for a
person’s soul. My objective is that even the most timid person can get
involved with music.”
“Litigation is the closest relative
to performance”
After being admitted to the Bar in 1993, Lamey quickly incorporated
entertainment law into his commercial and real estate practice, after
receiving phone calls from fellow artists seeking legal advice.
“I have a passion for grassroots efforts by musicians,” says Lamey. “I
want new artists to be educated about their rights and know about
different issues like cross-border permits.”
Peter J. MacKeigan, Q.C.
Chartered Mediator
Chartered Arbitrator
Barrister & Solicitor
Peter is a full time commercial and
labour mediator and arbitrator serving
Atlantic Canada. He is a Chartered
Mediator and Chartered Arbitrator as
designated by the ADR Institute of
Canada, a Distinguished Fellow of the
International Academy of Mediators
and has received an AV Peer Review
Rating from Martindale-Hubbel.
Culture will continue to thrive in Nova Scotia, based on the
commitment and drive of volunteers. Lamey believes that lawyers
should take the opportunity to volunteer as a way to find work/life
balance. He recently recorded an album with his family band, The
Lamey Brothers.
“Don’t be disappointed if you don’t figure out the balance right
away,” he says. “Step back and ask yourself what do you like and take
a risk to pursue it. Being a lawyer can be all-consuming. Balance is
good.”
2013 NSBS
ANNUAL MEETING
Saturday, June 15, 2013 | 8:30 am to 12 noon
Schulich School of Law at Dalhousie University
6061 University Avenue, Halifax
ALL LAWYERS AND NON-PRACTISING MEMBERS
ARE WELCOME TO ATTEND THE 2013 NSBS ANNUAL MEETING.
It begins at 8:30 am with the Annual General Meeting,
followed by a two-hour educational component.
Watch InForum and nsbs.org for further details, to be announced shortly.
Spring 2013 29

CIAJ CONFERENCE
Ambiguous Crossroads
Persons with Mental Health Problems and the Criminal Justice System
Writing for the majority in R. v. Knoblauch (SCC, 2000),
Justice Louise Arbour started her judgment by stating,
“This appeal lies at the often ambiguous crossroads
between the criminal justice and the mental health care systems.”
CIAJ President Beth
Symes and staff from
both the CIAJ and the
law school.
Archie Kaiser
Schulich School of Law and Department of
Psychiatry, Dalhousie University
For accused, police officers, lawyers, judges and the community,
this busy and fraught junction is frequently confusing, frustrating,
worrisome and traumatizing. Recognizing this unfortunate reality,
the Canadian Institute for the Administration of Justice recently held
its third (and best attended—about 165 people) conference on the
problems experienced when people with mental illness come into
conflict with the justice system.
The conference was “intended to bring together many of the
actors responsible for ensuring equitable treatment … in a time of
change”, according to the CIAJ brochure for the February 1 event
at the Schulich School of Law in Halifax. Its mixed audience of
lawyers, judges, police officers, community advocates, mental health
professionals and people with lived experience rated the day a major
success. The Co-Chairs, Judge Anne Derrick, Justice Joel Fichaud and
Professor Archie Kaiser, were supported by an advisory committee,
Five panels strove to inform and update the audience, explain the
challenges and encourage dialogue in a field historically characterized
by well-intentioned actors operating in under-resourced silos.
The opening seven-person discussion, “Living in the Community”,
started with a broad overview of historic and current issues,
emphasizing human rights and societal inclusion. It offered a range
of perspectives from academics, advocates, family members, service
providers and mental health professionals on stigma, the needs of
young people, employment barriers, dilemmas posed by certain
conditions and difficult but representative cases.
The next panel, “First Contact with the Justice System: Providing
Police Services for Persons with Mental Health Problems”,
comprised two RCMP members and an officer from Halifax
Regional Police, who explained the major issues to be confronted
30
The Society Record

in police service delivery. They presented a tour of many promising
recent developments in Nova Scotian rural and urban policing, and
discussed efforts to change institutional relations and individual
attitudes and behaviours.
The “Role Expectations for Crown and Defence Counsel” panel
began with a look at the continuum of justice involvements by
people with mental illness and then focussed on the middle ground,
with two Crown and two defence lawyers surveying fitness and not
criminally responsible strategic and substantive issues, Mental Health
Court practice and the post-NCR dispositional phase before the
Criminal Review Board.
The final topical panel, with one psychologist and three judges,
discussed “Courtroom Dilemmas: The Judicial Role at the Junction
of Criminal Justice and Mental Health”. It examined sentencing in
the face of reduced judicial discretion and the hugely complicated
life circumstances of accused, their complex variations in diagnosis
and lived experience, and the revelations emerging from Mental
Health Court on the obstacles the accused face in trying to live in
the community.
The wrap-up discussion, with representation from the judiciary, the
police, the academic community and the Crown and defence Bars,
ensured that audience questions could be fielded in a less structured
setting, with the panellists having an opportunity to respond to one
another as well.
The conference was not intended to issue a policy paper,
recommendations or an action plan, but it seems to have succeeded
in its aims of providing the bench, the Bar, the police, mental health
professionals, advocacy groups and community members with up-todate
information and a framework for a consensus around the need
to work together to remediate the criminalization of persons with
mental health problems.
The days of housing vulnerable people for interminable periods in
massive and often ineffective and abusive civil institutions have gone.
New phenomena followed the deinstitutionalization wave of the late
twentieth century: neglect and sometimes conflict in the community
and transinstitutionalization, making many prisons de facto mental
health facilities.
More gatherings like “Ambiguous Crossroads” should be held in
order to continue the transition towards an era of social inclusion,
prevention of crises, diversion from the justice system where possible,
and fair treatment within the criminal law where this response must
be used.
For more information about the Canadian Institute for the Administration
of Justice, see ciaj-icaj.ca. A recording of the entire conference will soon
be posted on YouTube, and the event brochure is online at http://www.
ciaj-icaj.ca/images/stories/eventsPDF/2013.MentalHealth.pdf.
LIANS & NSBS Mentorship Program
Have you ever mentored another lawyer?
Or could you benefit from a mentor’s support and experience?
Many organizations recognize that mentoring is vital in maintaining and enhancing professionalism and lawyering skills.
It improves relationships among lawyers, promotes camaraderie and can help in addressing issues of stress and isolation
faced by many lawyers.
The mentor receives satisfaction from helping someone grow and succeed in the practice of law. The mentee thrives with
regular encouragement and support, explores new ideas and alternatives, and develops new contacts and networking
opportunities.
Be sure to access the online resources in the Mentorship Program section of the LIANS website, under the Risk and Practice
Management heading at lians.ca/rpm/mentorship_program/.
Documents you’ll find on the website:
• the Mentorship Program Application Form,
• a Model Mentoring Activity Plan for participants,
• a Mentoring Guidelines booklet, and
• thoughts on mentoring from the Hon. Judge Anne Derrick.
Launched in April 2012, the program was developed by the Lawyers’ Insurance Association of Nova Scotia, in collaboration
with the Society’s Equity Office.
To inquire further about mentoring or finding a mentor, contact:
• Stacey Gerrard, LIANS Counsel, at 902 423 1300 or sgerrard@lians.ca, or
• Emma Halpern, the Society’s Equity Officer, at 902 422 1491 or equity@nsbs.org.
Spring 2013 31

Women bring strength to
leadership in legal profession
Janice Stairs (at left); Tilly Pillay QC (at right), Second Vice-President
In a new dialogue on how women lawyers can maximize their
potential and assume greater leadership roles in law and business,
the late Dara Gordon QC continues to inspire others. About 70
women from across the province attended the Society’s inaugural
Women – Strength in Leadership: Remembering Dara Gordon QC,
held February 28 at the Ashburn Golf Club in Halifax.
“Dara was proof that a woman can put her spouse and family first
yet still aspire to, and achieve, success in her profession,” said Suzan
Frazer, a Partner at McInnes Cooper who worked closely with Ms.
Gordon for two decades.
“Dara made a name for herself and opened the door for many of us
in Atlantic Canada – men and women alike – by proving there are
lawyers here who are every bit as competent as their counterparts in
major centres. Clients don’t need to go to Toronto to get their complex
work done.”
Janice Stairs, current Chair of the Board of Nova Scotia Business Inc.,
was invited to lead the conversation at the new annual event, which
is supported by McInnes Cooper. She recalled being torn between
business and law as a young graduate with an LLB and an MBA, and
met Ms. Gordon during her first articling rotation.
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The Society Record
“At that time, she was developing the
securities law practice. And if any of
you have worked in that area, you’ll
know it’s a wonderful melding and
Marla Cranston
Communications Officer
blending of both business acumen as well as the legal aspects. So I was
hooked,” said Ms. Stairs, who is also General Counsel and Corporate
Secretary to TSX-listed Namibia Rare Earths Inc., and Director of
TSX/NYSE-listed NovaCopper Inc.
This “serendipity” led to 20 years of working closely with Ms. Gordon
and Ms. Frazer, who developed a critical mass of women lawyers
in the firm’s corporate finance group, to the point where “the joke
kind of became why weren’t there more men working in that group
… but I think quite seriously it did reflect the fact that women working
together with women can really help women move careers along,”
Ms. Stairs said.
“It was a wonderful experience, and I was very fortunate. It’s one of
those things you don’t realize when it’s happening because I didn’t
appreciate that having a role model and a mentor like Dara was such
a gift to me and the development of my career and my practice. It’s
only now as I’ve gotten older and watched other women trying to
succeed and find a path through the legal profession and in business
that I realize how critically important it is to be able to find a mentor,
or what a difference it can make in your career.”

A desire to broaden and deepen her leadership skills led Ms. Stairs to make the switch
from private practice to the resource industries. One of the great things about practising
corporate law is “you get to see a lot of different companies, and you get to drill down
to the 10-foot level within those companies. But you don’t get the opportunity to really
drill down to the 50- or 60-foot level within a company and to be involved in the senior
management team on a day-to-day basis,” she explained.
“So the opportunities have been quite extraordinary, not only to work in a corporate
environment but also to experience cultures and different geographic areas that, if you’d
asked me when I was sitting in my accounting class in commerce, whether I ever saw
that in my future, it wasn’t anywhere on the radar.”
With members of the crowd also sharing anecdotes and examples, the discussion delved
into a number of issues that may be holding women back from leadership roles, from
continued gender stereotyping in the boardrooms to legal work environments that
haven’t kept pace with the corporate sector as far as adapting to allow greater flexibility.
The ‘courage gene’
Women can sometimes lack confidence when they have opportunities to move ahead,
added Ms. Stairs. “A lot of times, men just get over that bit of self-analyzing about ‘am I
good enough, do I have the skills, can I do this?’ I think as women, we often spend way
too much time thinking about can we or can’t we. As a result, we become paralyzed …
so I call it the courage gene, to be able to go out and push yourself outside your comfort
zone to take a risk.”
Again, Ms. Gordon was a great example – she was always extremely well prepared and
her confidence made her clients and colleagues feel very comfortable, and also made
opposing counsel take her very seriously when they saw the results she got.
“I remember when the Confederation Bridge file came in, we were representing the federal
government and there was just a hullabaloo across Canada at the major law firms, as
if there was no way a rinky-dink firm in Halifax could represent that file … Dara said,
‘We can do this.’ And she was fearless, she had that courage gene,” said Ms. Stairs.
Leadership styles
In general, she added, women can bring a more democratic and collaborative approach to
leadership situations – an assertion that’s backed up in many research studies, including
a new survey released in March by the International Journal of Business Governance and
Ethics.
“I think women do lead differently than men. The literature says we’re hard-wired differently
… that women use different parts of the brain and we multi-task better than
men do,” Ms. Stairs said.
Suzan Frazer of McInnes Cooper
“I don’t think that applies
across the board, every woman,
every man. And both styles of
leadership are important. One
of the reasons that diversity in
the boardroom in the C-suite,
and at the senior levels of law
firms and accounting firms,
is so important is because
the literature also says that
the more diverse your group
in the decision-making, the
better the decision-making for
the group.”
Remembering
Dara L. Gordon QC
Through the
strength of her
leadership and as
a highly regarded
lawyer and
business woman,
Dara Gordon
QC made many
contributions to
her country, her
province and her
profession.
Following graduation from Dalhousie Law
School in 1979, she advised government
bodies and corporations on major financing
and infrastructure projects, as a member of
McInnes Cooper’s Corporate Finance and
Energy & Natural Resources Groups and as a
lawyer with its predecessor firms.
Dara represented the Government of Nova
Scotia in its complex federal negotiations on
the sharing of offshore resource revenues,
and was lead counsel for the Government
of Canada in the financing, construction
and operation of the Confederation Bridge.
She also served as a director of the Nova
Scotia Law Foundation, the Nova Scotia
Gaming Corporation and the Atlantic Lottery
Corporation.
As an entrepreneur, Dara’s most notable
business endeavour was her family’s
internationally acclaimed Benjamin Bridge
winery in the Annapolis Valley. She was a
member of the Canadian Bar Association,
the Canadian Council for Public Private
Partnerships and, prior to her untimely death
in 2009, a member of McInnes Cooper’s
Board of Directors.
Dara was an extraordinary woman of style
and grace, with an abundance of wisdom
and compassion that she generously shared
with her family, friends and colleagues. As
a mentor and collaborator, she positively
influenced the outcomes of many legal issues,
the success of the firms and businesses where
she practised, and the careers of many lawyers
in Nova Scotia.
She always challenged us to be our best.
Spring 2013 33

Standing (L-R) in the J.L. Ilsley art room: Emile Kuchler, Fine Arts Department Head, J.L.Ilsley High, Nicholas Redmond, Eric
Bowdridge, Britton Depsey, Jared Dempsey and Connor Sampson. Seated (L-R): Colleen Spearns, Westley Hall-Jenkins, Poppy
Lawson and Will Hansen. Student artists not in photo: Aaron Stevens, Bruce Meade, Thomas Wasg and Samuel Canning
Reflections on justice
Spryfield youth explore legal issues through art
Young people throughout the Spryfield area are leaving their
creative mark across Halifax, with permanent artworks that
are generating a lot of interest in courthouses and other public
venues.
It’s tricky to depict law and justice themes visually, but students at J.L.
Ilsley High School and its feeder schools are embracing the challenge
with much imagination, enthusiasm and talent. The extracurricular
projects – tackled during lunch hours and after school – teach them
new artistic skills in everything from ceramics to working with ancient
techniques such as encaustic, which involves painting with hot wax.
Even more importantly, they’re flexing their critical thinking muscles
and gaining valuable life experience in teamwork and collaboration.
“It’s a really fun experience,” says student Westley Jenkins. “I never
really got to work with copper and glass before, so that’s cool. And
just the feeling that we get to create something that’s actually going
to be somewhere, it’s really great.”
It’s all part of Youth on the Radar, an innovative cultural program
spearheaded by Sabine Fels, the Halifax Regional School Board’s
ArtsExpress Coordinator for the Spryfield community of schools.
Over the past few years, a courthouse mural series took root with
help from Courts Administration and funding from provincial Lighthouses
Grants, a community crime prevention initiative of the Department
of Justice. The thought-provoking results now grace the
hallways of the Halifax Law Courts and Halifax Provincial Court.
This year, students are preparing a mixed media artwork for the lobby
of the Nova Scotia Barristers’ Society in Cogswell Tower, with an unveiling
ceremony planned for May. Individual expressions will appear
in 135 glass and copper sections, which will form an overall image of
a river, “a good symbol for change and flow, like the path of justice,”
explains Jenkins.
It’s inspired by a quote from the Greek philosopher Heraclitus, which
the students adapted for the modern age: “No one ever steps in the
same river twice, for it’s not the same river and they are not the same
person.”
Rivers – like laws – exist for a long period of time but they’re always
changing, says student Will Hansen.
“The core laws may stay the same but they do change and adapt to
fit the society at the time. As we keep going forward, we’ll have to
change the laws again. And the youth of today will be the ones who
will influence those laws in the future,” he says.
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The students appreciate
the opportunity to express
themselves, but they also hope
to shatter negative stereotypes
about Spryfield by sharing
their ideas and talents with the
wider community. Principal
Tim Simony is understandably
proud of the students’ efforts
and their commitment.
“One of the things about all this student work is that it doesn’t compromise
on quality,” says Simony, who has a degree in art education
from the Nova Scotia College of Art and Design.
“You can’t say, ‘Well that’s pretty good for a group of students’. The
level of quality and finish is always up to a professional standard.
Which talks a lot about how when you have high expectations for
the students, and you help them get there, they can always meet the
standards.”
Emile Kuchler, Head of the Fine Art Department, says the art room
is much more than just a comfortable spot to hang out, eat lunch and
interact. “They’re doing a phenomenal amount of work, coming in
after school too … they’re really passionate about it.”
The creative process is not always smooth for students, Fels adds:
“Sometimes there are obstacles and sometimes even tears of frustration.
But they are learning to solve conceptual, creative and technical
“No one ever steps in the same
river twice, for it’s not the same
river and they are not
the same person.”
problems together as a group.”
This communal process has been
similar for the justice projects every
year, with students working
on their own individual pieces
that form a larger masterpiece.
While they work, they share stories
and laughs, and it’s not so
different from a quilting bee, a shared studio space or the net-tying
tradition in the fishing industry.
“For a lot of students, that’s a very unique experience,” says Simony,
adding it’s ultimately helping students learn to build strong networks,
care about each other, and “find out more about the larger community
because they’re having these authentic interactions.”
It’s an exciting time for the high school, also involved in developing a
new community arts centre and performance space in a reconverted
auto shop nearby. It’s absolutely pivotal having staff like Fels in the
school system, says Simony, because cultural programming clearly
has a positive impact on students.
“You do have to really push for it, preserve it, and put things in place
to ensure it keeps on going,” he says. “Sabine has been forming longterm
relationships with the Department of Justice, the United Way,
lots of different funding and granting organizations. With every successful
project, it’s that much easier to do it again. That’s what we’re
trying to, is keep the momentum going and expand on it.”
Nautilus Mural of Truth: A perfect fit for the Nova Scotia Court of Appeal
A colourful mural
invites viewers to
think about the
meaning of truth
as they enter the
Nova Scotia Court
of Appeal.
“The mural is
amazing,” says
the Honourable
Michael MacDonald, Chief Justice of Nova Scotia. “People who
come and go from these courtrooms stop and look at it, and then
they smile ... my fellow members of the judiciary included.”
Under the guidance of local artists Miro Davis and Renée
Forrestall, the Nautilus Mural of Truth was created in 2011,
in a collaborative effort by students at J.L. Ilsley High and
Rockingstone Heights schools, as well as Team Possibles (young
adults with Down Syndrome) and the Phoenix Youth Program.
“I am very pleased and proud that the mural has found a home
in our courthouse. And the theme fits perfectly with the Law
Courts because that is a big part of what we do here ... look for
the truth,” says Chief Justice MacDonald.
It’s just one of many public artworks created through Spryfield’s
Youth on the Radar Project, funded by DOJ Lighthouses Grants.
The innovative cultural program also encompasses film, dance,
music, theatre and much more. Just a few other highlights:
• At the Captain William Spry Community Centre: an incredible
mosaic mural at the outdoor skate park, and a waterfall in the lobby
made from recycled water bottles
• At the Halifax Provincial Court: three artworks on the second floor;
and performance of the opera “Trial by Jury” during Nocturne 2011,
in partnership with the Gilbert and Sullivan Society of Nova Scotia
• Spoken word performances during a visit by the former Governor
General Michaelle Jean, at the launch of the new Youth Arts
Foundation
• An art display and performances at the Art Gallery of Nova Scotia
on December 6th, the National Day of Remembrance and Action on
Violence Against Women, in partnership with the Nova Scotia Status
of Women Council
• Film projects in partnership with Viewfinders, the education division of
the Atlantic Film Festival, including two documentaries for “Building
Legends” about Mi’kmaq culture: The Mi’kmaq Canoe Project and
the Mawio’mi Project
• “The Four Elements”, a science art project of J.L.Ilsley in partnership
with ArtsSmarts Nova Scotia and artist Renée Forrestall, on display
at the Department of Education
Spring 2013 35

LIANS
TIPS FROM THE RISK AND PRACTICE MANAGEMENT PROGRAM
Electronic data protection
BY STACEY GERRARD
LIANS Counsel
Many of us have a healthy
skepticism about flying
in “the Cloud”. We worry
about our client information being
compromised and tend to keep
our data stored a little closer to
home. So imagine arriving to work
one day, turning on your computer
and instead of accessing your
client files, a digital ransom note
appears: “If you pay our ransom
demands, we will restore access
to your computer.” This scenario
may sound farfetched but it’s what
a law firm in Alberta recently encountered.
Its lawyers were the victims of a “ransomware” attack in
which hackers burrowed deeply into their computer network, infiltrating
and encrypting their electronic records. No cloud required.
This kind of attack on your system can be mitigated by ensuring
your system has up-to-date antivirus software and anti-spyware
software. Ensure that you install the updates and patches released
by the software manufacturer. Back up your data regularly and store
that backup off-site to minimize the harm of blocked access. Get a
good firewall in place or use a network security gateway. If you don’t
know how to do all of this yourself, talk to a computer professional
about these and other recommendations for your system.
LIANS has reported at various times about email users (Yahoo!
Mail and others) having their accounts compromised after a
hacker retrieved passwords from the cookies stored in computer
browsers. Hackers use this access to forward an email containing a
malicious link to the yahoo account’s address book contacts.
This kind of attack can be avoided by using a strong password and
changing your password on a regular basis. A “strong” password
is 12 to 15 characters in length and contains a number, a special
character and a capital letter. You might try using a song phrase
or motto. According to Splashdata, the most vulnerable (weakest)
passwords are: password, 123456; 12345678; abc123; qwerty;
monkey; letmein; dragon; 11111; and baseball.
Online hackers have also threatened lawyers’ bank accounts. You
should ensure that your trust account is “read only” internet
access. Regular monitoring of your accounts will alert you to suspicious
transactions. In Manitoba, a hacker gained access to a law firm’s
general account, set up an automatic transfer of $5,000 to another
bank and then transferred money to a prepaid credit card. They did the
same thing the following day. Because the accounts were monitored
regularly, the firm’s bookkeeper caught the transactions on the second
day. The firm then froze the online access, changed its password and
reported the incident to the bank and the RCMP.
As these examples demonstrate, data protection – whether it is your
firm’s data or your clients’ – is becoming a much higher priority
for lawyers and law firms. Data loss can be as simple as losing a
document that took you hours to create, or as catastrophic as losing
all data due to a virus or a server crash. A hacker can not only cause
you to lose data, but can damage your reputation as well.
Here are the top 10 ways you can protect your data and prevent this
from happening to you:
1. Maintain physical security: lock your office door, file room
and your server doors when you leave at night, or lock away
sensitive information if you have afterhours cleaning staff. If you
have a laptop, either bring it with you at the end of day or lock
it away. Avoid putting printers and fax machines in high-traffic
areas – consider putting them in your file room or another room
with a locked door.
2. Maintain virtual security: password protect your laptop and
smartphone. This way if you leave your device behind in a
washroom or taxi, you won’t have the added worry of someone
accessing your private information. To password protect your
laptop: to go the start menu > control panel > User Accounts >
create password. On your smartphone, go to settings or options
> security > Screen lock (exact words may vary).
3. Protect your computer by using an operating system that
requires users to be “authenticated”. This can restrict what
individual users can see and do on the computer.
4. Use strong passwords and change them regularly.
5. Back it up: back up your data, and test your backups
regularly. Make sure to back up your email as well.
6. Keep a copy of your data offsite: if you’re not ready to store
information in the Cloud, you can use an external hard drive for
data backup. They are portable, inexpensive, and can store a
large volume of data. In fact, buy two.
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7. Update! Make sure you have the latest updates for your
software, including virus and malware protection software and,
if the feature is available, have it set up for automatic software
updates. Some malware poses as virus scanning software – know
the name of your software and if another program is asking to
scan your computer for viruses – just say no.
8. Don’t blindly trust your email: heed the LIANS warnings and
don’t click on any suspicious links, even if the email appears to
have been sent to you buy a friend. If your email reader is set
up to automatically open attachments, you should disable it and
always run attachments through your virus scanner first.
9. Perform regular maintenance: familiarize yourself with a
disk-scanning program, how to defragment your hard drive, or
whatever maintenance your system may need. These will keep
your system running smoothly and prevent little problems from
turning into big ones.
10. Google yourself regularly: You never know when someone
might be using your picture or personal information on a
website.
These are some ways to protect your data, your client’s data and
your reputation. For more information and resources on how
to protect your computer or laptop, visit the LIANS website at
www.lians.ca, under the Risk and Practice Management tab.
Gus Richardson is pleased to offer his services
as an arbitrator, mediator and appellate lawyer
in his new practice, Ad+Rem ADR Services.
With over 20 years litigation experience at all
levels of courts in Nova Scotia and Ontario,
Gus is also a Small Claims Court adjudicator.
Gus brings those skills to his practice as
an arbitrator and mediator in labour,
insurance, personal injury, commercial
and condominium disputes.
phone 902.422.6729
email gus@gusrichardson.com
www.gusrichardson.com
If you have any questions on these, or any other risk- or practice-related
matters, do not hesitate to contact the Risk and Practice Management
Program at info@lians.ca or call the Lawyers' Insurance Association
of Nova Scotia at 423 1300.
Paul G. Goodman, FCA, FCIRP, FIIC
Trustee
Mark S. Rosen, LLB, FCIRP
Trustee
Michael J. Connor, C I R P
Trustee
Kimberley A. Burke, CIRP
Trustee
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Spring 2013 37

International legal regulation
SUMMATION
Photo provided by United Way Halifax
Darrel I. Pink
Executive Director
The evolution of legal regulation
over my 20-plus years at the
Society has been profound.
In the 1990s, we were preoccupied by
local issues. The Society undertook two reviews of its operations as it
worked to ensure that it was as effective an organization as possible.
In the aftermath of the Marshall Inquiry, our focus was on addressing
diversity in the profession.
The first decade of this century saw greater focus on national issues.
The National Mobility Agreement gave rise to the need to address a
variety of matters that affect all Canadian law societies and lawyers
across the country. In the current decade, we now have a greater
emphasis on international issues and how lawyers are regulated in
other countries. We have come a long way.
What has led to this is the recognition that the challenges facing
clients, governments, the courts, and the profession are now global.
Whether the focus is on working to improve access to justice, the
impact of technology, differing client expectations, or new legal
services delivery models, we have realized that to regulate effectively
we have to understand what is happening abroad.
To that end a group of international legal regulators, from 19 countries
representing about 30 regulators, held its inaugural conference in
London last fall. Because so many of the changes we are seeing have
happened in England, it was an ideal location to become immersed in
the new forms of legal regulation there and to compare them to what
is going on around the globe.
In Canada, we have much to learn from the emergence of law
practices that are not owned by lawyers. When government identified
“consumer interest” as a paramount value in regulating legal service
delivery, it forced regulators to devise models that would allow
lawyers to practise in different structures ¾ in corporations owned
by non-lawyers, in banks that deliver legal services along with a wide
range of other products, and in law firms that are franchise operations
delivering legal services in a form developed by others. These are
only a small slice of new structures that are now regulated in a new
outcomes-focused regulation model that stresses the results of lawyer
practice rather than specifying particular rules for what lawyers can
and cannot do.
International discussions allow others to see the quality and integrity
of Canada’s law societies as well. In particular our discipline work,
which is likely the best in the world, in terms of both service to
complainants and quality of disposition, are noted. Our colleagues
want to better understand our processes so they can emulate what is
best among them.
Comparing what we do with American regulation raises difficult
issues to be considered. While we fiercely defend ourselves in Canada
from any form of government oversight, at the same time our U.S.
counterparts proudly assert the value of their regulation by the judicial
branch of government. As independent as judges are, the institutions
of the judiciary are dependent upon legislators for funding. The
indirect connection and impact this can have on lawyer regulation is
not lost on most observers.
Regardless of the model, international comparisons have allowed
us to share and discuss core values such as integrity, lawyer-client
privilege and independence ¾ one that is staunchly defended in every
jurisdiction. We have looked at admission programs, legal education
and continuing competence regimes. And we have only scratched the
surface. By learning from other ways of regulation, we are better able to
understand and articulate the reasons for much of what we do. More
importantly we are able to question long-held assumptions and the
biases that often come with doing things ‘as we have always done them’.
In Nova Scotia, the Society strives to be a regulator of world-class
quality. The public and lawyers in Nova Scotia should expect nothing
less. Achieving that goal becomes more likely when we invest the time
to understand what is happening elsewhere, to learn from others and
to then bring the best of what we see home with us.
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Spring 2013 39

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