‘Til Death (or Disbarment) Do Us Part

My brother got married !!

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Today’s Winnipeg Free Press reports on a decision of the Manitoba Law Society appeal panel denying retired lawyer Al Mackling’s attempt to act as pro bono counsel in a custody case.

Mackling,  formerly Manitoba’s former justice minister, founder of the province’s first legal aid program and former federal candidate has not practiced for 25 years.  He was denied his application unless he passes a competency exam and is supervised by an attorney for a year.

“Has the Manitoba Law Society the right to deny a retired lawyer, who has never been the subject of disciplinary proceedings, the right to volunteer his legal knowledge and experience without compensation on behalf of a litigant who had previously appeared unsuccessfully in court without counsel?” Mackling asked an appeal panel.

The answer, given in short order after Monday’s hearing, was yes. The appeal panel ruled the law society has a legislative obligation to the public to ensure anyone claiming to be a lawyer meets strict standards of competency and conduct, even if that lawyer only wants to work on one case for free.

Mackling, now 83, said he will likely appeal to the courts for a judicial review of Monday’s decision.”

The news report concludes:

“Mackling cannot resign from the law society and help the woman as a private citizen. Once a lawyer becomes a member, the only way out is to die or get disbarred.”[emphasis added]

That’s not entirely accurate. While it appears the case that Macklin is wedded to the Law Society of Manitoba until ‘death doth them part’, the issue is whether Macklin, as a retired lawyer, is still allowed to represent someone in court proceedings as a non-practicing or inactive lawyer.

According to the Rules of the Law Society of Manitoba, Part II, Div. 8, Rules 2-71 and 2-74, Macklin may withdraw from practice, but will only be allowed non-practicing or inactive member status:

Categories of membership
2-71(1) The following are the categories of membership in the society:
(a) practising lawyers, as defined in section 1 of the Act;
(b) non-practising members;
(c) inactive members; and
(d) suspended members;
(e) Canadian legal advisors.

Withdrawal from practice

2-74(1) Subject to subsection (4), a member who intends to withdraw from the practice of law in Manitoba and become a non-practising or inactive member must, before withdrawing, advise the chief executive officer in writing and obtain his or her approval of the member’s intended disposition of all:

(a) open and closed files,

(b) wills,

(c) titles and other important documents and records,

(d) other valuables, and

(e) trust accounts and trust money,

which relate to the member’s practice and are within the member’s possession or power.

Compare Ontario’s Law Society Act and By-law 4: Part II Licensing, which allows a licensee (lawyer or paralegal) to surrender his or her license:

Surrender of licence

30.  (1)  A licensee may apply to the Society in accordance with the by-laws to surrender his or her licence. 2006, c. 21, Sched. C, s. 26.

Acceptance of surrender

(2)  A licence is surrendered when the application to surrender the licence is accepted by the Society in accordance with the by-laws. 2006, c. 21, Sched. C, s. 26.

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