What’s the right course in the Wirick case?

by David A Paul

Beware to those who aspire to it; the Presidency of the CBABC is not for the faint of heart. You are accountable to 10,000 members; advocate on behalf of the Branch to the most senior levels of government and the judiciary; speak to the media on the most controversial legal topics; chair or sit on numerous committees; visit local bar associations whenever possible; run a law practice; and attend to family.

There is no question, I am enjoying it. Yet it is clear, even two months in, that this will be a watershed year – a year of hard work and setting a new course for the future. The province is still reeling from courthouse closures and devastating cuts to legal aid, and we continue to battle to uphold civil liability protections. But perhaps the most urgent challenge we face as a profession lies in our work ahead in responding to the Wirick case.

Let there be no mistake: the CBA believes that innocent victims of fraud perpetrated by a lawyer in his/her practice should be compensated for losses. Such fraud is an exceptionally rare event among the thousands of transactions BC lawyers conduct every day, involving many millions of dollars across the province. A lawyer’s undertaking is a sacred promise, and we stand behind the value of that promise lest it be demeaned and diminished for all of us.

Given the magnitude of the losses involved in the Wirick case, there are many questions about how best to go about resolving claims. For example, where there is shared culpability with lenders whose conveyancing practices may have contributed to the loss, is there not a shared responsibility? To what extent will negligence claims, or recovery efforts against Wirick and Gill affect special compensation fund exposure? Is a special levy appropriate?

The controversy also raises many questions for our profession generally. Are reforms needed for conveyancing practice? Is a transaction fee approach the answer for future claims? What are the overall implications for undertakings?

One thing that greatly concerns me about media coverage of the idea of a transaction fee is the complete omission of one critical message: the Law Society’s ‘innocent party insurance scheme’ was proposed as a means to guarantee that every transaction is insured. It’s not simply about paying off a past fraud debt; it’s about improving every person’s insurance so that this kind of unfunded liability does not occur again – and at a fraction of the price of title insurance. The media have not been passing this message on and, as a result, we face huge public misunderstanding and disapproval.

Another related topic of deep concern is the growing number of reports of credit unions and banks engaging in discriminatory practices against our members. Members are informing us of banks keeping ‘lists’ of lawyers they will allow to conduct a conveyance, with a bank surcharge to the client of up to $150 for those retaining a lawyer not on the list. We will investigate this and seek to eliminate that practice entirely and inform our members of any offending lenders.

The BC Branch will also take the lead, as has been our historic role, in tackling the difficult issue of the public image of our profession. The Wirick case has damaged us, but we are strong and resilient. Our Communications Committee and Executive Committee will be working on this task with an eye to every opportunity to “battle the negative and promote the positive.” The National Communications Committee is currently reviewing its Lawyers Care Initiative, with an eye to further leveraging the resources available to support the Branches. They are very aware of the challenges facing BC, and will be addressing that topic at their next meeting.

As always, the Branch stands ready to protect and advance your interests, and the reputation of the profession. We live in interesting times. With your help, though, I am confident we will be up to the challenge.

This article was published in the October 2002 issue of BarTalk. © 2002 The Canadian Bar Association. All rights reserved.