Back to Table of Contents

Order of Military Merit Bestowed on Member

Colonel G. (Bert) Herfst, a Law Soci-ety of Alberta member, was inducted into the Order of Military Merit for his role in furthering the role of legal officers in the planning and execu-tion of Canadian Forces operations, thereby ensuring that all operations are conducted in compliance with the rule of law.

The military equivalent to the Order of Canada, the Order of Military Merit was bestowed by Her Excellen-cy the Governor-General of Canada, Michaëlle Jean earlier this year.

Colonel Herfst enrolled in the Canadian Forces in 1971 and earned his BA from the University of Calgary in 1974. After serving in Ottawa and Egypt, he returned to Calgary where he left to pursue his LL.B at the University of Calgary. He was called to the Alberta bar in 1983, and re-enrolled in the Canadian Forces as a legal officer in 1984 and has served throughout Canada and Europe.

Colonel Herfst was promoted to his present rank in May 2004 and is presently the Deputy Judge Advocate General responsible for the provision of legal advice and services to all Canadian Forces operations.

Rule Repeal Being Considered for Signing of Trust Cheques

by Peter Michalyshyn, QC, Bencher and Chair, Finance Committee

The Benchers will consider repealing a Rule enabling trust cheques to be signed by persons not active members of the Law Society of Alberta. Rule 124(7) of the Rules of the Law Society provides that in spe-cial circumstances the Executive Director may au-thorize trust cheque withdrawals or money transfers to be signed or authorized by individuals other than active members. This Rule is an exception to the usual Rule which requires that all trust transactions must be signed by at least one active member.

The Rule has been used by sole practitioners, pri-marily in outlying rural areas, to enable individuals such as trusted employees or lawyers’ accountants to conduct trust transactions while the lawyer is absent from his or her practice, e.g., while on vacation.

In late August, the Finance Committee resolved that the exception should be deleted from the Rules. Noting recent trends of defalcations and employee thefts, the Committee concluded that the risk posed by Rule 124(7) outweighed the convenience to law-yers of delegating trust signing authority.

The Committee also noted:

The current practice of imposing strict condi-tions on the lawyer still poses too great a risk to the public interest. Conditions have included an obligation on the lawyer to cover any trust shortfalls. However, the lawyer’s potential in-ability to cover such shortfalls leaves the public unprotected since the Assurance Fund protects the public only when a lawyer misappropriates trust property.

The Law Society of Alberta appears to be the only jurisdiction in Canada to exercise a discre-tion that allows non-lawyer trust transactions.
The Rules of the Law Society of Upper Canada provide an ”exceptional circumstances” discre-tion, on condition that the non-lawyer surrogate be bonded. Ontario’s law society has never exercised its discretion in favour of naming a surrogate, likely in part owing to the prohibitive expense of bonding coverage.
The Law Society of Saskatchewan has a rule similar to Alberta’s; it has never been used.
Private insurance coverage against employee theft appears virtually impossible to obtain on an individual lawyer basis.
Although the LSA recognizes that the fall-back of having another lawyer in the community cover trust transactions is imperfect due to concerns for competition and conflicts, it is the only ar-rangement that protects the public interest.

Comments with regard to the proposed change to Rule 124(7) are welcomed, and may be made by email to feedback@lawsocietyalberta.com, or to Finance Committee chair Peter Michalyshyn, Q.C., at peterm@chatwin.ab.ca by November 28, 2006.