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8 | <strong>ARCTIC</strong> <strong>OBITER</strong> Mysterious Trust Fund Deposits WHAT SHOULD YOU DO IF FUNDS ARRIVE INTO YOUR TRUST ACCOUNT WITH NO EXPLANATION? By Deborah E. Gillis, QC, Risk and Practice Management Advisor A Halifax law firm called me last week regarding a significant deposit made electronically into its trust account the night before. The firm had received a call from a mortgage processing company saying that it had deposited the funds in error and asking that the firm write a cheque back to the company to remedy the error. The firm refused to do this. NEVER write a cheque back or otherwise automatically repay a company or individual who calls and tells you that they have deposited monies to your account in error. Rather, it is recommended that you immediately contact your bank and ask that it fully investigate the deposit and report to you on: who originated the deposit; how tile deposit was made; whether the funds came into your account on an irrevocable basis; and if the funds came into your account on a revocable basis when. if ever, the deposit is considered irrevocable, Follow up any verbal communication with a confirmatory letter summarizing your instructions, conversations and advice received from the bank. Any transfer into your account, other than a wire transfer sent via the LVTS (Large Value Transfer System – www.cdnpay.calfaqs/lvts.asp#1), is revocable and can be pulled back from your account. Not all electronic deposits are sent via the LVTS. For example, a bank-to-bank transfer (often referred to as a wire) is not normally sent via the LVTS and can be revoked. If funds have been deposited in error, it should be the sender who deals with the issue through his/her/its bank, with your bank, to remedy any problem. You do not want to be in the position of having funds withdrawn from your account and then finding out that the deposit was no good. You want to be clear with the bank that if it withdraws the funds from your account based on the deposit, it must be satisfied that the initial deposit was good. This risk and responsibility should be that of the bank, not you. Confirm your discussions with the bank in writing and ask that the bank confirms its advice to you in writing. Make sure the bank keeps you advised as the investigation progresses and writes a letter to you confirming what has happened. You should keep this letter with your trust account reconciliations and also notify the [Law Society of the Northwest Territories] of the incorrect deposit and how the bank dealt with it. From a risk management perspective, it is also extremely risky to allow clients to deposit cheques or drafts directly into your trust account, as you have no opportunity to assess the authenticity of that cheque or bank draft. I would appreciate hearing from any lawyers who may have had funds deposited directly into their account, without their knowledge or consent, and who may have been asked to directly reimburse the funds, I would like to monitor any trends that may be developing in this area. Deborah E. Gillis, Q.C., is the Risk and Practice Management (RPM) Advisor for the Lawyers’ Insurance Association of Nova Scotia. She writes and speaks regularly on various risk and practice management topics. This article was originally published in Nova Voce (LSNS, v.28,n.3, Spring 2010)
MAY 2010 | 9 What the Dickens? By Chief Judge Patrick Curran, Nova Scotia On August 12, 1900, my great-great-grandfather was killed by a passerby in front of his house on Queen Street in Halifax. Before the end of August there had been a police investigation, an inquest, a murder charge laid, a preliminary inquiry before a stipendiary magistrate and a manslaughter trial in the County Court, along with a great deal of family angst. A lifetime later, in Judge Martin Haley's court in Dartmouth in 1970, accused persons arraigned on Monday had their choice of trial dates on Tuesday, Wednesday, Thutsday or Friday - of the same week. Whatever else might be said about it, criminal justice in Nova Scotia before The Charter was certainly not delayed. It makes you wonder what "they" were worrying about when they adopted Section 11 (b): "Any person charged with an offence has the right ... to be tried within a reasonable time ..." In 1982, that was a solution in search of a problem. In 2010, we've found the problem, but we no longer seem to have an effective solution for it - in part because The Charter itself is a main cause. On average these days, no one gets into court the first time in the month during which they are charged. When they do finally reach the courthouse steps, they have little need to memorize their surroundings. They will use the same walkways, doors and hallways many more times before their cases are finished. Delays to get a lawyer. Interminable delays to get disclosure, review disclosure, obtain further disclosure of things referred to in, but inexplicably not included with, the earlier disclosure. When, out of exhaustion, the accused does enter a plea, that is only the end of the beginning. Trial backlogs force courts to schedule new trials for the 11th of Never. To a large extent, backlogs exist because of cases which will never go to trial. Prosecutors have not yet met the witnesses, some of whom saw little, recall less and have no intention of ever showing up. Defence counsel are "waiting to see the whites of their eyes" before giving their ultimate plea advice to clients, some of whom have no intention of ever showing up. Lawyers on both sides apply the "every dog is entitled to its first bite" rule and happily agree to their counterpart's initial adjournment request. Trial judges, with worried looks over their shoulders at appeal courts, hesitate to impose their will on consenting counsel. Everyone pretends not to know that countless trial spots will have become available before the newly scheduled case gets its day in court. As the old baseball manager Casey Stengel once said, "Doesn't anybody around here know how to play this game?" Jarndyce versus Jarndyce has come to a criminal court near you. The Hon. Patrick Curran is Chief Judge of the Nova Scotia Provincial Court. He was first appointed to the Provincial Court in August of 1981, then as Chief Judge in 2003. He earned his BA from Saint Mary’s University in 1965 and his B.Ed in 1966. He graduated from Dalhousie Law School in 1970 and was called to the Bar in that same year. WHAT’S NEW ON CBA PRACTICELINK Top 10 Ways Lawyers Win Referrals What In-House Counsel Really, Really Wants Law Firm Lessons of the Great Recession Find it all here: www.cba.org/PracticeLink
Page 1 and 2: ARCTIC OBITER MAY 2010 V OLUME XIV,
Page 3 and 4: MAY 2010 | 3 PRESIDENT’S MESSAGE
Page 5 and 6: MAY 2010 | 5 MEMBERSHIP and Malakoe
Page 7: MAY 2010 | 7 2. Before searching a
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Page 13 and 14: MAY 2010 | 13 the customer was will
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Page 17 and 18: MAY 2010 | 17 S.C.C. UPDATE HERE IS
Page 19: MAY 2010 | 19 Dear CBA Members: It

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