Temporary Mobility for Canadian Lawyers
Instructions for Lawyers from Other Canadian Provinces or Territories Intending to Practise in Manitoba on a Temporary Basis
On July 1, 2003 the National Mobility Agreement (NMA) of the Federation of Law Societies of Canada took effect in British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia and Newfoundland and Labrador. On July 10, 2006, New Brunswick implemented the NMA and Prince Edward Island implemented it on January 19, 2007. The agreement expanded on the Federation's 1994 Inter-Jurisdictional Practice Protocol and on the Western Mobility Agreement implemented in 2001 by British Columbia, Alberta, Saskatchewan and Manitoba. The NMA expanded the ability of lawyers to practise on a temporary basis in most Canadian provinces and created new provisions to ease restrictions on permanent mobility.
A visiting lawyer who is a practising member of the governing body of the legal profession in another province or territory of Canada may practise law in Manitoba on a temporary basis under Part 3 of the Law Society Rules (attached). In many cases a visiting Canadian lawyer will be entitled to practise law in Manitoba without a permit.
No permit fee is required if the visiting lawyer's home jurisdiction does not charge members of the Law Society of Manitoba a fee for permission to practise law in that jurisdiction on a temporary basis.
If the visiting
lawyer's home jurisdiction charges a fee to Manitoba lawyers, then
the same fee will be charged to the visiting lawyer requiring a
permit to practise in Manitoba.
Visiting lawyers who are practising members of the governing body of the legal profession in British Columbia, Alberta, Saskatchewan, Ontario, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland and Labrador may practise law in Manitoba on a temporary basis under Division 6 of Part 3 of the Law Society Rules.
A visiting lawyer may provide legal services in Manitoba without a permit for a maximum of 100 business days in any calendar year.
Requirements for A Visiting Lawyer to Practise in Manitoba Without a Permit
A visiting lawyer may practise law in Manitoba without a permit if he or she:
is a practising lawyer in his or her home jurisdiction;
carries liability insurance that:
is reasonably comparable in coverage and limits to that maintained by the Law Society of Manitoba, and
extends to the lawyer's temporary practice in Manitoba;
has defalcation compensation coverage from a governing body that extends to the lawyer's practice in Manitoba;
is not subject to conditions or restrictions on the lawyer's practice or membership in any jurisdiction; (AM. 24/03/04)
is not the subject of criminal or disciplinary proceedings in any jurisdiction;
has no disciplinary record in any jurisdiction; and
has not established an economic nexus with Manitoba.
An economic nexus will be established by a visiting lawyer through actions inconsistent with providing legal services on a temporary basis, including, but not limited to:
providing legal services beyond 100 business days;
opening an office from which legal services are offered or provided to the public;
becoming resident in Manitoba;
opening or operating a trust account; or
holding one's self out as willing or qualified to practise law in Manitoba, except as a visiting lawyer.
Application for a Permit
A visiting lawyer must apply for a permit to practise law in Manitoba if the lawyer intends to practise law beyond the temporary limits set out in the rules. This situation may arise if the lawyer intends to practise for more than 100 business days in any calendar year or if the visiting lawyer wishes to continue to provide legal services in Manitoba pending consideration of a Transfer Application.
A permit is also required when a visiting lawyer does not meet the requirements of the rules. This situation may arise when the visiting lawyer:
is currently the subject of conditions or restrictions on his or her practice in any jurisdiction;
has a record of discipline in any jurisdiction; or
is currently the subject of criminal or disciplinary proceedings in any jurisdiction.
applications will be considered by the Chief Executive Officer who
may issue a permit, subject to any conditions and restrictions that
he or she considers appropriate, if it is consistent with the public
interest to do so.
Visiting lawyers who are practising members of a governing body of the legal profession in Quebec, Nunavut, the Northwest Territories and the Yukon may practise law in Manitoba on a temporary basis under Division 7 of Part 3 of the Law Society Rules.
Lawyers from these jurisdictions may not practise law in Manitoba without a permit. A visiting lawyer may apply for an inter-jurisdictional practice permit and the Chief Executive Officer may issue a permit if it is consistent with the public interest to do so.
NOTES: (AM. 24/03/04; 13/04/04; 26/09/06; 18/01/07; 21/10/08)
The provisions of the National Mobility Agreement only determine whether an individual lawyer is eligible for mobility. The NMA does not deal with the business forms through which lawyers practise. If you practise through a professional corporation or as a partner in a limited liability partnership it is your responsibility to determine whether your practice form, and any benefits of practising through it, are portable to Manitoba. It may be necessary for you to practise outside of your professional corporation or limited liability partnership for the purposes of practising in Manitoba on either a temporary or permanent basis. Some things for you to consider are as follows:
If you intend to practise in Manitoba on a temporary basis, you may do so through a professional corporation incorporated outside the province. You do not require a law corporation permit from the Law Society of Manitoba. However, if you decide to complete the transfer process and become an active, practising member of the Law Society of Manitoba, then you will require a law corporation permit. As extra-provincial professional corporations do not qualify for a permit under The Legal Profession Act, you must either practice outside the confines of your existing professional corporation or incorporate a law corporation in Manitoba.
If you practise as a partner in a limited liability partnership (LLP) you should review The Manitoba Business Names Registration Act and The Partnership Act. Although the legislation permits the registration of extra-provincial LLPs, you should be aware of the following:
the declaration to register as an extra-provincial LLP must include the name and residential address in Manitoba of the Manitoba-resident partner who the partnership designates as its representative with respect to all matters relating to the partnership;
the Business Names Registration Act provides that no person shall hold himself or herself out as carrying on business in Manitoba as a Manitoba or extra-provincial LLP, or as a partner in such a partnership, unless the partnership is registered as a Manitoba or extra-provincial LLP;
if your partnership does not register as an extra-provincial LLP, you must structure and market your Manitoba practice so as to not hold yourself out as acting as a partner of a registered Manitoba or extra-provincial LLP. Firm letterhead, business cards and advertising should accurately reflect that your firm is not a Manitoba registered partnership or LLP. Your partners should also consider that they may have the potential liability of an ordinary partnership with respect to your practise in Manitoba;
If you do qualify to register as an extra-provincial LLP in Manitoba and intend to register and set up a law office in Manitoba, you must comply with the Law Society Rules on setting up an inter-jurisdictional law firm in Manitoba.
If you have any questions about practising law in Manitoba or you require an application form, please contact:
The Law Society of Manitoba
219 Kennedy Street
Winnipeg, MB R3C 1S8
Telephone: (204) 926-2028
Fax: (204) 956-0624
These FAQs are intended as a guide for lawyers from other Canadian jurisdictions who intend to practise on a temporary basis in Manitoba under the provisions of the National Mobility Agreement.
1. What rules govern mobility in Manitoba?
The temporary mobility provisions are contained in these two sections:
Part 3 - Division 6 - Inter-Jurisdictional Practice under the National Mobility Agreement
Part 3 - Division 7 - Temporary Practice by Lawyers from Non-signatory Jurisdictions
Law Society Rule 5-24 dealing with transfer applications is relevant with respect to permanent mobility.
2. How do I know which division of the rules applies to me?
The new National Mobility Agreement applies to lawyers who are actively practising in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland and Labrador. Division 6 of Part 3 applies to them.
Division 7 of Part 3 applies to lawyers who are actively practising in the Northwest Territories, Nunavut, Quebec, and the Yukon.
The National Mobility Agreement (NMA) is a reciprocal agreement. In other words, both the jurisdiction in which the lawyer is a practising member and the jurisdiction in which the lawyer wishes to exercise temporary or permanent mobility must both have signed and implemented the agreement. If not, the lawyer will be subject to the same mobility provisions that apply to Manitoba lawyers intending to practise on a temporary basis in that lawyer's home jurisdiction.
3. Are there any limitations on temporary mobility without a permit?
Yes. Under the NMA you may practise law on a temporary basis for not more than 100 days in a calendar year. Day is defined to include any part of a day. The onus is on you to keep a record of the days on which you practise law on a temporary basis both inside Manitoba or with respect to the law of Manitoba. The Society may require you to provide proof of compliance with the rules including proof of the number of days on which you have practised law on a temporary basis in Manitoba.
4. Is it possible to extend the 100 days?
Yes, with the permission of the Law Society. You must apply to the Law Society for an extension before the end of the 100 days.
5. What does practising law in Manitoba mean?
You will be considered to be practising law in Manitoba if:
you perform professional services for others as a lawyer with respect to or relying on the laws of Manitoba or the laws of Canada applicable to Manitoba; or
you give legal advice with respect to the laws of Manitoba or the laws of Canada applicable to Manitoba from any location.
This means that you could be practising law in Manitoba whether or not you are physically in the province. For example, if you are giving legal advice with respect to the laws of Manitoba on the telephone, by email or through correspondence from a province outside of Manitoba you are considered to be practising law in Manitoba. You must therefore keep track of all these activities.
It also means that you are practising law in Manitoba if you do so with respect to the laws of Canada applicable to Manitoba. For example, lawyers in the employ of the Government of Canada who perform professional services as a lawyer or give legal advice with respect to or relying on the laws of Canada applicable to Manitoba will be subject to the mobility rules.
Lawyers who practise law on a temporary basis for a single employer (corporate counsel) will also be considered to be practising law for the purposes of the mobility rules.
You will not be considered to be practising law in Manitoba for the purposes of the mobility rules if you are performing professional services or giving advice solely on the law of another province.
6. What does it mean to establish an economic nexus with Manitoba?
An economic nexus with Manitoba is established if, while practising law in Manitoba, you do something that is inconsistent with practising law on a temporary basis. If this kind of connection is established, you must cease practising law immediately, but may apply to transfer to Manitoba.
You will establish an economic nexus with Manitoba if you:
practise law in Manitoba for more than 100 days;
open an office in Manitoba from which you practise law;
open or operate a trust account at a financial institution located in Manitoba;
hold yourself out as willing or qualified to practise law in Manitoba, except as a visiting lawyer;
become resident in Manitoba;
act in any manner inconsistent with practising law in Manitoba only on a temporary basis.
7. What happens if I establish an economic nexus with Manitoba?
You are no longer eligible to practise law on a temporary basis in Manitoba and must cease doing so immediately. You may, however, apply to become a member of the Law Society of Manitoba. You may also, apply for a permit extending the number of days in which you may practise on a temporary basis in Manitoba pending the approval of your Application to Transfer.
8. While I am practising law in Manitoba on a temporary basis can I receive money in trust for a client?
If you are permitted to practise law in Manitoba on a temporary basis you may receive money in trust for a client provided that you pay the money into a trust account at a financial institution located in the province or territory in which you are entitled to practise law or you pay the money into a trust account that is operated and controlled by a member of the Law Society of Manitoba.
9. Are there restrictions on advertising when I am practising law on a temporary basis?
Yes. You must not hold yourself out to be qualified or willing to practise law in Manitoba except on a temporary basis. Any communications including letterhead, business cards or marketing efforts must conform to this restriction. You can comply with this by clearly identifying the governing bodies in which you are entitled to practise law.
10. How will third parties know I have the right to practise on a temporary basis in Manitoba without a permit?
A national database is in operation that allows law societies to determine whether a lawyer is eligible to practise law in Manitoba on a temporary basis without a permit. A third party wishing to make inquiries about a lawyer can contact the Law Society of Manitoba.
11. While I am practising law in Manitoba on a temporary basis am I subject to the Legal Profession Act?
The Legal Profession Act, the rules of the Law Society of Manitoba, all Practice Directions and the Code of Professional Conduct apply to you with necessary modifications.
12. While I am practising law in Manitoba on a temporary basis can I commission affidavits or sign as a Notary Public?
No. The Manitoba Evidence Act provides that an affidavit must be sworn by a barrister-at-law or attorney-at-law duly admitted and entitled to practise as such in the province. A visiting lawyer is not admitted to the bar in Manitoba and therefore cannot swear affidavits. A Manitoba Commissioner for Oaths must also be resident in the province so a visiting lawyer cannot become a Commissioner for Oaths in Manitoba. The Evidence Act also provides that a Notary Public must be a barrister or solicitor entitled to practise as such in the province. This is interpreted as requiring the lawyer to be admitted in Manitoba.
13. While I am practising law in Manitoba on a temporary basis am I authorized to give an undertaking to a Manitoba lawyer?
Yes, in accordance with the Law Society of Manitoba's Code of Professional Conduct.
14. Can I be a solicitor of record in Manitoba?
Yes. Visiting lawyers can be solicitors of record in Manitoba.
15. If I am solicitor of record in Manitoba does each day that I am solicitor of record count towards my 100 days?
No - the definition of day does not include the number of days you are solicitor of record.
16. Will I be able to get after hours access to the Great Library in Winnipeg while I am practising law in Manitoba on a temporary basis?
Yes, but you must show your local law society card to security to get access.
17. If an allegation of misconduct or incompetence is made against me with respect to my practise of law in Manitoba on a temporary basis what law society has jurisdiction over the matter?
The law society of your home governing body will usually deal with the matter, in consultation with and with the co-operation of the Law Society of Manitoba. The Law Society of Manitoba may take over the matter if your home law society agrees. The primary considerations in making the decision will be public interest, convenience and cost.
18. If I have calls in more than one jurisdiction do I need to maintain active practising status in all of them?
This will depend on your particular circumstances. If you have not established an economic nexus with more than one jurisdiction then you may wish to consider relying solely on the practising certificate of your home jurisdiction to allow you to practise on a temporary basis in others.
19. If I am required to maintain several calls do I also have to purchase insurance in each jurisdiction?
No. You will only be required to purchase insurance in the jurisdiction where you maintain your primary practice. The other jurisdictions will accept a Certificate of Insurance in lieu of your purchasing their coverage.