Ethics LAW 468
Ethics LAW 468, Fall 2014 Benedet
Introduction...................................................................................................................................................................... 3
Ethics and Reasoning ............................................................................................................................................... 3
Lawyers’ Ethics and Professional Regulation ................................................................................................ 3
Sources of Professional Regulation and Legal Ethics............................................................................. 4
Professions .............................................................................................................................................................. 4
Self Regulation ....................................................................................................................................................... 4
Discipline Process ................................................................................................................................................ 5
TWU ................................................................................................................................................................................ 5
The Lawyer’s Role .......................................................................................................................................................... 5
Woolley: Zealous Advocacy ................................................................................................................................... 6
Luban: Personal Morality ....................................................................................................................................... 6
Farrow: Sustainable Professionalism ................................................................................................................ 6
R v Neil, 2002 SCC ........................................................................................................................................... 7
Social Issues in the Legal Profession ...................................................................................................................... 7
Women in the Legal Profession ........................................................................................................................... 7
Backhouse: Gender and Race in the Construction of Legal Professionalism................................ 7
Nova Scotia Barristers’ Society: It will be Our Little Secret ................................................................ 7
Canadian Bar Association, How to Retain Top Female Talent ........................................................... 8
Addiction and Mental Health ................................................................................................................................ 8
Duty to Report ....................................................................................................................................................... 8
FLSC Proposed Amendments – Duty to Report................................................................................... 8
Mental Health ......................................................................................................................................................... 9
Gichuru v Law Society of BC, (2009) BCHRT ....................................................................................... 9
R v Lessing, (2013) LSBC .............................................................................................................................. 9
Addiction............................................................................................................................................................... 10
Lawyers Assistance Program BC ............................................................................................................ 10
Lawyers of Sound Mind, NY Times ........................................................................................................ 10
High-functioning Alcoholics: Lawyers are not Above the “Bar” ................................................ 10
Kansas Bar Association Legal Ethics Opinion No. 14-01 .............................................................. 11
Access to Justice ...................................................................................................................................................... 11
Lawyer's Duties .................................................................................................................................................. 11
Access to Civil and Family Justice ............................................................................................................... 12
Trial Lawyers Association of BC v BC (AG), (2014) SCC ............................................................... 12
Good Character ............................................................................................................................................................. 12
Good Character ........................................................................................................................................................ 12
Mohan (Re), 2012 LSBC 24 ....................................................................................................................... 13
Re: Applicant 5, 2013 LSBC 05 – Decision of the Benchers on Review .................................. 13
Law Student Code of Professional Conduct? ............................................................................................... 13
The Lawyer-Client Relationship ............................................................................................................................ 14
Advertising and Solicitation ............................................................................................................................... 14
Law Society of BC v Jabour, 1980 BCCA .............................................................................................. 14
Law Society of Saskatchewan v Merchant, 2000 LSDD ................................................................. 14
Choice of Client ........................................................................................................................................................ 15
Triggering the Lawyer-Client Relationship ................................................................................................. 15
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Termination of the Lawyer-Client Relationship ........................................................................................ 16
R v Cunningham, 2010 SCC....................................................................................................................... 16
Sexual Relationships with Clients .................................................................................................................... 17
Law Society of Upper Canada v Hunter, 2007 LSDD ...................................................................... 17
Competency .............................................................................................................................................................. 17
Note on Settlements for IRS Survivors ..................................................................................................... 17
Ethics of Advising and Negotiation ...................................................................................................................... 18
Advising and Test Cases....................................................................................................................................... 18
Law Society of Upper Canada v Sussman, 1995 LSDD................................................................... 18
Luban, Tales of Terror: Lessons for Lawyers from the ‘War on Terrorism’ .............................. 18
Negotiation................................................................................................................................................................ 19
Law Society of Newfoundland and Labrador v Regular, 2011 NLCA ...................................... 19
Pitel, Lawyer or Liar? ....................................................................................................................................... 19
Conflicts and the Duty of Loyalty .......................................................................................................................... 20
Bright Line Rule ...................................................................................................................................................... 20
R v Neil, (2002) SCC..................................................................................................................................... 20
CNR v McKercher, (2013) SCC................................................................................................................. 21
Cotter and Devlin, “Three Strikes and You’re Out: A comment on Canadian national
Railway Co v McKercher LLP” ........................................................................................................................ 22
The Duty of Confidentiality ..................................................................................................................................... 22
The Duty and its Exceptions............................................................................................................................... 23
Smith v Jones, 1999 SCC ............................................................................................................................ 23
R v Butt, 2012 ONSC 4326 ........................................................................................................................ 24
R v Cunningham, 2010 SCC....................................................................................................................... 24
Money Laundering Legislation ......................................................................................................................... 24
Federation of Law Society of Canada v Canada (AG), 2013 BCCA ............................................ 24
Ethical Advocacy .......................................................................................................................................................... 25
General Motors Acceptance Corp of Canada v Isaac Estate, (1992) Alta QB ........................ 25
Witness Preparation ........................................................................................................................................ 26
Cross-Examination............................................................................................................................................ 26
R v Lyttle, (2004) SCC ................................................................................................................................. 26
R v R(AJ), (1994) Ont CA ........................................................................................................................... 26
Civility .............................................................................................................................................................................. 27
Woolley, Does Civility Matter? .......................................................................................................................... 27
Amy Salzyn, “John Rambo v Atticus Finch” .................................................................................................. 27
Groia v Law Society of Upper Canada, (2013) ONLSAP ................................................................ 28
Law Society of Saskatchewan v Cherkewish, (2014) SKLSS ....................................................... 29
Retainers and Fees ...................................................................................................................................................... 29
PLTC Professionalism: Practice Management – Retainers, Fees and Disbursements ................ 29
Law Society of PEI v Aylward, (2001) LSDD ..................................................................................... 30
Law Society of Alberta v Blott, (2014) LSDD..................................................................................... 30
Contingency Fee Arrangements ....................................................................................................................... 30
Third Party Litigation Funding ......................................................................................................................... 31
Woolley, Ethical vs. Unethical: The Troubling Tales of Tony Merchant ........................................... 31
Issues in Specific Practise Areas............................................................................................................................ 31
Criminal Law ............................................................................................................................................................ 31
Ethical Duties of Officers of the Court ....................................................................................................... 31
Ethical Duties of Crown Counsel ................................................................................................................. 32
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Krieger v Law Society of Alberta, (2002) SCC ................................................................................... 32
R v Boucher, (1951) SCC ............................................................................................................................ 32
Ethical Duties of Defence Counsel .............................................................................................................. 33
Taking Custody and Control of Real Evidence ....................................................................................... 33
R v Murray, 2000 Ont SCJ .......................................................................................................................... 34
Negotiating a Guilty Plea ................................................................................................................................ 34
R v K(S), (1995) Ont CA ............................................................................................................................. 35
Corporate/In House Counsel ............................................................................................................................. 35
Milton Regan, Jr. “Professional Responsibility and the Corporate Lawyer” .............................. 35
Paul Paton, “Corporate Counsel as Corporate Conscience” .............................................................. 36
The Canadian Response: Law Society Rules ........................................................................................... 36
Wilder v Ontario (Securities Commission), (2001) Ont CA ......................................................... 36
INTRODUCTION
Ethics and Reasoning
Ethics is the study of morals, duties, values, and virtues – our attempts to order human conduct
toward the right and the good. Professional ethics are a code of rules worked out by members
of a profession to govern themselves.
Types of Reasoning:
(1) Deontological Reasoning: Reasoning from rules – religious, legal, group norms – nonconsequentialist (follow the rules no matter the outcome).
(2) Teleological Reasoning: Reasoning from consequences – consideration of harm and
weighing of competing harms.
(3) Ontological Reasoning: Reasoning from virtue or character (make decisions based on
personal ideals).
Role Morality: Ethical rules or norms of the role occupied. Legal ethics is a mixture of the
three types of reasoning.
Lawyers’ Ethics and Professional Regulation
All Canadian lawyers are regulated in significant part through a form of ‘self regulation’ in
which rules of ethical conduct, standards for admission to the profession, and enforcement of
those rules and standards, are set by lawyers themselves.
The Legal Profession Act creates the Law Society of BC and gives it power to set credentials for
membership, discipline members and make rules of conduct. These tasks are carried out by
elected lawyers and appointed lay people, known as benchers. There are both specific and
general rules, which extends to conduct outside the practice of law. Enforcement is driven by a
complaints process which tend to focus on a limited subset of the rules. This may be
problematic due to under-reporting, especially amongst lawyers.
Under s 3 of the Legal Profession Act: It is the object and duty of the society to uphold and
protect the public interest in the administration of justice. The Law Society of BC: creates the
Rules of Professional Conduct, sets credentials for memberships, and disciplines members
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through the Benchers. In several other countries, there is a third party that acts as a regulatory
agency of the legal profession.
SOURCES OF PROFESSIONAL REGULATION AND LEGAL ETHICS
(1) Case law and legislation;
 Fiduciary duties, contracts, negligence and solicitor-client privilege all impose
standards on lawyers. Inherent jurisdiction of the court also allows the court to
comment on lawyers' obligations.
(2) Rules of Professional Conduct;
 Most Canadian Law Societies have adopted or are in process of adopting a version of
FLSC’s Model Code of Professional Conduct. In general, rules are not rigorously
enforced, often include general/discretionary rather than mandatory obligations.
(3) Law Society Disciplinary Decisions;
 Indicate how law societies define professional misconduct (misconduct by the lawyer
when practising law) and conduct unbecoming (misconduct by the lawyer outside of
his/her legal practise). Only address narrow range of conduct.
(4) Principles or “Norms”;
 Whenever clear cut obligations or constraints are NOT present, lawyers must be
sensitive to ethical issues arising and respond appropriately. Doing so requires the
lawyer to think about their decisions and be committed to their role.
PROFESSIONS
What is a profession?
 Autonomous governing body regulating the members' conduct.
 Members have mastery over a specialized field of knowledge.
 Admission to the profession requires demonstration of such mastery.
 Members have, foremost, responsibilities to their clients/patients.
 Members provide important services to fulfil vital needs within society.
 Members have heightened social prestige.
Professions can be seen as arising out of self-interest and a desire for increased social status,
unfair market controls, or part of society that allows for internal competition and freedom from
external controls.
SELF REGULATION
Natural feature of law’s status as profession. Bargain or social K w/ the state in return for state
sanctioned market dominance of legal services. Market dominance is state sanctioned through
legislation AND self regulated by lawyers.
Defences for self regulation: (1) Historical argument; (2) Only lawyers have requisite
education/experience; (3) Social K w/ state; (4) More efficient and cost effective.
 Justifying self-regulation in public interest: (1) Protection of public (ensure quality);
(2) Independence of legal profession; (3) Balance the market.
Against self-regulation: Conflict of interest; market control; independence != self-regulation;
democracy != self-regulation; protectionist; reactivist.
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DISCIPLINE PROCESS
(1) Complaints/investigation stage: Complaints can be made by the public, other lawyers,
or judges. Quality-related complaints usually screened out. The complaint is reviewed
and assessed by the administrative staff of the law society to determine whether they
fall within the purview of the law society. Then the lawyer is informed and asked to
provide documentation/explanation.
(2) Hearings stage: Hearings are adversarial and quasi-judicial. Burden of proof on Law
Society. Requirements of natural justice or fairness.
(3) Penalty/sanction stage: Purpose is protection of public or profession’s reputation.
 The results of a hearing can be appealing within the law society and then to the courts.
TWU
FLSC declared TWU’s proposed law school to be an approved faculty of law. Committee stated
that “Beyond ensuring that the minimum admission requirements set out in the national
requirement are observed, the Approval Committee makes no enquiries into the admission
practices of either the law degree programs or the universities of which they are a part. The
Benchers in BC voted not to override the FLSC approval. A Special General Meeting of the LSBC
was held, in which the majority favoured a motion to reverse the Bencher’s decision. The LSBC
has not agreed to implement the results.
THE LAWYER’S ROLE
BC Code ch 2.1-3(e) – Zealous Advocacy
BC Code ch. 5.1 – The lawyer as advocate.
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
5.1-1 [Commentary 1]: In adversarial proceedings, the lawyer has a duty to the client
to raise fearlessly every issue, advance every argument and ask every question,
however distasteful, that the lawyer thinks will help the client’s case and to endeavour
to obtain for the client the benefit of every remedy and defence authorized by law.
Woolley: Zealous Advocacy
Classic view of lawyer’s role is that lawyer is a zealous advocate for his client and his client
alone – does not matter what consequences are for anyone other than client. Duty of loyalty
and fiduciary relationship. In favour of zealous advocacy: law is basis of civil society and
deserves respect and attention; advocacy is directed by client; lawyers provide access to the
system; lawyer can’t go beyond what system permits; lawyers can manage moral complexity.
Resolute advocacy has 2 central features: (1) Places decision-making about what is to be done
in a legal representation w/ the client; (2) Requires the lawyer to interpret and work through
the law to achieve the client’s goals.
Farrow's position (sustainable professionalism) is too grey and avoids the question of what the
right thing is for lawyers to do. Luban's position (personal morality) places too much trust in
an individual lawyer's concept of morality and no trust in the legal system AND it does not
account for a universe in which people with moral disagreement nonetheless coexist.
The function of law is to provide us w/ some way of resolving these difficult questions, even
when we disagree, and disagree strongly about the moral perspectives that different answers
reflect. If the law permits a course of action, and what constitutes legal merit is contentious,
then the decision as to what should be done should be given to the person whose interests are
at stake [the client!], not to the lawyer.
Luban: Personal Morality
Adversarial system is not very good at uncovering the truth, except perhaps when only
questions of law are argued. When lawyers are instead attempting to keep evidence from being
admitted, or distorting the meaning of their evidence, injustice is done. e.g. Dalkon Shield birth
control litigation - intimidating claimants so they do not go to trial (“dirty questions list”).
Ethical division of labour argument doesn’t make sense. Adversary advocacy as intrinsically
good argument ignores fact that the lawyer is the agent rather than occasion of morally-badbut-legally-legitimate outcomes. Pragmatic justification for adversary system: despite its
imperfections, etc., it seems to do as good a job as any at finding truth and protecting legal
rights. BUT it needs more to excuse immoral acts. Lawyers should use the same system for
moral determination as non-lawyers. If professional obligation or legal rules conflict
with moral obligations, the lawyer must disobey the legal/professional rule.
Farrow: Sustainable Professionalism
Zealous advocacy undermines public trust and is no longer appealing to lawyers. Luban's
suggestion of doing the morally correct thing leaves unanswered the question of what is good.
Sustainable professionalism will balance the interests of client, lawyer, the profession and the
public. This balance will cause lawyers and the profession to thrive.
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R v Neil, 2002 SCC
F: A brought application for stay of proceedings in his criminal trial on basis that there had
been an abuse of process. Abuse arose from conflict of interest of law firm that initially
represented him and that ultimately represented a co-accused.
A: The duty of loyalty is intertwined w/ the fiduciary nature of the lawyer-client relationship.
There is a: (i) duty to avoid conflicting interests; (ii) duty of commitment to the client’s cause;
(iii) duty of candour w/ the client.
R: “An advocate ... knows but one person in all the world, and that ... is his client”. Unless
clients are assured of their lawyer's undivided loyalty, public confidence in the legal system
will be undermined. A lawyer has a duty to be committed to his client's cause.
SOCIAL ISSUES IN THE LEGAL PROFESSION
Women in the Legal Profession
Equality and inequality are valid aspects of all 3 modes of ethical reasoning.
(1) Deontological: We have rules against discrimination;
(2) Teleological: Inefficiencies of inequality;
(3) Ontological: Equality as a value. Rules can influence our values.
BACKHOUSE: GENDER AND RACE IN THE CONSTRUCTION OF LEGAL PROFESSIONALISM
Concept of ‘professionalism’ has been inextricably linked historically to masculinity,
whiteness, class privilege, and Protestantism – has been used to defend discrimination
in the profession. In its early years, LSUC required candidates to be fluent in the classics –
unmistakable connotations of class, gender and race. Lawyers who became members of LSUC in
19th C were quite homogenous. Black, Aboriginal, and female lawyers all faced barriers to
entering the profession. E.g. Until 1951, if Aboriginal individuals became a lawyer, they were no
longer capable of holding status of ‘Indian’.
Those in minorities who were able to enter the profession continued to face barriers and
gendered, racist, classist treatment. Professional norms of civility and collegiality were used
to demarcate, bolster and protect masculine inner circles. E.g. Madam Justice Bertha Wilson,
Madam Justice L’Heureux-Dube, Madam Justice Corinne Sparks – traditional deference
extended to members of the judiciary by lawyers and other judges is not accorded to those
perceived as different from the norm. Prejudice and oppression also present in academia.
The homogenous nature of the profession and its resistance to diversification in the name of
preserving professionalism have serious implications for the services that lawyers offer to the
public, the arguments that lawyers make in courtrooms, and the decisions that are rendered by
judges.
NOVA SCOTIA BARRISTERS’ SOCIETY: IT WILL BE OUR LITTLE SECRET
“Laughing it off” is often the easiest/safest move when faced with sexist comments or
situations. Legal community must defend and support others who are being harassed or
mocked. Women are expected to be masculine, nice, not too nice, etc. Blatant sexism still exists
within the profession.
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CANADIAN BAR ASSOCIATION, HOW TO RETAIN TOP FEMALE TALENT
Female practising lawyers are outnumbered by male practising lawyers in BC by almost half,
but female non-practising lawyers outnumber male non-practising lawyers. Women are often
the better candidates coming out of law school, but leave due to firm culture, “tyranny of the
billable hour”, lack of balance, lack of mentors/networking and outright harassment. Firms
should first obtain solid numbers to determine what is going on, institute internal grievance
procedures, flexibly schedule work, provide support for workloads and scheduling, etc. Cost of
associate attrition is high – finding and training an associate costs $100,000 and social costs are
significant also. Cheaper to provide flexible hours and address concerns appropriately.
Addiction and Mental Health
Current Fitness Question for Application to the Bar/Articling: Based on your personal
history, your current circumstances or any professional opinion or advice you have received,
do you have any existing condition that is reasonably likely to impair your ability to function as
an articled student?
Under the current procedure: If there’s a positive answer to a question on fitness/character,
then the answer is severed from rest of application (principal of articling student will not see
answers). Discretion as to whether there is a need for application to go to credentials
committee – decision made by speciality panel in addictions and mental health. If it is decided
that more info is needed, then it is dealt w/ by specialty panel. Panel then gives general advice
to Law Society.
Note that under s 26.02 of the Legal Profession Act, the benchers may make an order relating
to medical examination of a lawyer or articling student if they are of the opinion that it is likely
necessary to protect the public.
DUTY TO REPORT
BC Code ch. 7.1-3 – Duty to Report
- Generally: If you realize that you have broken a rule, always best to self-report to Law Society
– 7.1-3 sets out reporting requirements for lawyers to report themselves or other lawyers
- Many of the circumstances set out in 7.1-3 are very vague/broad
- *7.1-3(d): Unless to do so would involve a breach of solicitor-client confidentiality
or privilege, a lawyer must report to the Society: the mental instability of a lawyer of
such a nature that the lawyer’s clients are likely to be materially prejudiced.
7.1-3 [Commentary 3]
- 7.1-4 – Have to encourage clients to report complaints against apparently dishonest lawyer.
BC Code ch 2.1-5(a)
FLSC Proposed Amendments – Duty to Report
Proposed amendment would remove duty to report a situation in which another lawyer’s
clients are likely to be materially prejudiced, including… “(d) the mental instability of a lawyer
of such a nature that the lawyer’s clients are likely to be materially prejudiced” and replace it
with “(e) conduct that raises a substantial question about the lawyer’s capacity to provide
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professional services because of mental, physical or emotional conditions, disorders or
addictions”.
Amendments would also: remove (f) from 7.1-3 (too amorphous); remove (d) from 7.1-3 (too
forward looking); collapse (a) and (a.1) into one; other changes that attempt to destigmatize
mental health.
MENTAL HEALTH
Gichuru v Law Society of BC, (2009) BCHRT
F: Old question for application to the bar/articling was “have you ever received treatment or
counselling from a ... mental health professional?” Lawyers recognized this as overbroad and
disadvantages people who seek treatment over those who do not and assumes that seeing a
therapist is relevant to the ability to practice law. New question: “Have you ever been treated
for schizophrenia ... manic depressive illness?”
G applies for temporary articles and answers Q affirmatively, has to provide additional info. G
applies for articles and has to provide additional info, then terminated. G applies for second
article and has to provide additional info. As a condition of admission to the bar, G had
conditions imposed wrt further reporting and consulting a doctor. G reports history of
depression but no current treatment or medication. G filed human rights complaint against
LSBC for discriminating against him in regards to his employment and membership in an
occupational association, contrary to ss 13 and 15 of the HRC.
I: Is the question discriminatory (both systemic and individual)?
A: Question and process that follows an affirmative answer to it create a barrier that affects
those w/ the mental illnesses listed in the Q in a disproportionately negative way. Consider:
specific conditions are highlighted; intensive/intrusive process following affirmative answer;
applications always sent to Committee for review following affirmative answer (delay); many
end up w/ conditions on membership There is a rational connection and the standard was
adopted in good faith, but it is not reasonable - little evidence that LSBC considered other
approaches; concerns about wording of Q; no evidence as to why it targets certain conditions;
relates exclusively to mental disabilities; narrower Qs in other jurisdictions; Q has no time
limit; doesn’t seem to relate to potential risk factors.
C: Question is not reasonably necessary to fulfil the stated purpose of ensuring lawyers are fit
to practice. The question and the process related to it systemically discriminate against those
with mental disabilities. Individual discrimination was also found.
R v Lessing, (2013) LSBC
F: L has been married five times. Breakup in marriages resulted in L becoming indebted. 8
judgments were entered against him, which he failed to report to the Law Society as required –
this is professional misconduct. L also breached 3 court orders made against him in a
matrimonial dispute in which he represented himself – this is conduct unbecoming. L was at
one point found in contempt of court. His professional conduct record contains multiple
warnings and suggestions. Hearing panel levied a fine and costs against him. LS seeks a Review
and asks for suspension in place of fine. L raised his mental state, namely his depression,
his avoidance behaviour, anxiety and symptoms of post-traumatic stress disorder.
I: What role does a lawyer’s mental health play in disciplinary action?
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L: 2 factors to consider in choosing penalty: (1) Protection of the public, including public
confidence in the disciplinary process and public confidence in the profession generally; (2)
Rehabilitation of the member. If there is a conflict, protection of the public prevails.
A: A: L’s mental health should be taken into account and mitigate the disciplinary action
actually imposed. BUT public confidence in the legal profession requires a suspension. Impact
on victims and L’s self-interest are aggravating factors.
C: L suspended for 1 month. L not to self-represent in any court or a tribunal w/o prior consent
of appropriate committee of Law Society.
R: Mental health issue may play a role in actually deciding whether the lawyer engaged
in professional misconduct or conduct unbecoming a lawyer. BUT it is more likely to
arise at disciplinary action (penalty) stage. Mental illness can mitigate or even alter the
penalty, but it depends on the facts.
ADDICTION
Lawyers Assistance Program BC
LAP is created under s 27 of the Legal Profession Act which provides: the benchers may (b)
establish and maintain a program to assist lawyers in handling or avoiding personal, emotional,
medical or substance abuse problems.
Tips on Warning Signs: Look for signs in friends and colleagues: attendance or performance
issues, behavioural problems and high-risk situations. Call LAP!
Lawyers of Sound Mind, NY Times
Few applicants who answer ‘yes’ to question are denied admission, but it does happen and in
other cases they are subject to further investigations, delays and granting of conditional
licences. Some applicants w/ mental disorders either delay or forgo treatment, while others lie
under oath. Mental health issues should be private and bear no relation to the ability to
practice law. These questions are stigmatizing and compromise the profession, which
benefits from diversity. They are also irrelevant and unethical, and in some cases illegal.
High-functioning Alcoholics: Lawyers are not Above the “Bar”
High-functioning alcoholics can maintain personal and professional life while drinking
alcoholically. Same disease as the stereotypical alcoholic, but it manifests or progresses
differently. Certain personality traits and tendencies allow HFAS to succeed professionally
while drinking alcoholically. Alcohol-use disorders that go both unnoticed and untreated are
rampant within the legal profession. HFAs often do not recognize their alcoholism as a
problem, justify drinking as a reward or to reduce stress, drink with colleagues, etc. Lawyers
must recognize the problem and realize they are risking their families and clients. Less stigma
will allow for lawyers to get help from LAP, therapy, etc. Disconnect between personal
values and professional realities; work hard, play hard culture; and needing to appear in
control all contribute to substance abuse by lawyers.
From Guest Speaker Doug Eastwood: The legal assistance profession counsel estimates that
throughout North America, 15-24% of lawyers will struggle w/ some form of alcoholism or
addiction at some point during their career. 60% of all complaints about lawyers and serious
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disciplinary issues relate to alcoholism and addiction, as well as a large portion of negligence
claims.
Kansas Bar Association Legal Ethics Opinion No. 14-01
A lawyer is not required to report another lawyer to the Disciplinary Administrator unless the
lawyer has knowledge of an action, inaction or conduct of the other lawyer that constitutes
misconduct under the Kansas Rules of Professional Conduct. Rather, in the event there are
memory lapses, cognitive deteriorations, or other potentially disabling conditions, the subject
lawyer should be referred to the Kansas Lawyers Assistance Program or other suitable service.
Access to Justice
Cost, delays, long trials, complex procedures and other barriers are making it impossible for
more and more Canadians to exercise their legal rights. Many people have everyday legal
problems. The poor and the vulnerable are particularly prone to legal problems. Problems
multiply. Legal problems have social and economic costs. There is a major gap between what
legal services cost and what the vast majority of Canadians can afford. While there are
problems throughout the system the needs are greatest and have most serious consequences in
family law, in child protection, and in poverty law.
Law societies and lawyers should see access to justice as a part of a modern notion of legal
professionalism. Historically, access to justice has been a concept that centered on the formal
justice system and its procedures – a more expansive, user-centered vision of an accessible civil
and family justice system is required.
We have an obligation to uphold public confidence in the admin of justice by making sure that
people have access to the justice system. Access to justice is part of obligation of Law Society as
a self-governing profession – it is difficult for lawyers to justify monopoly on legal services if
there aren’t enough (affordable) legal services to go around. Move towards regulating
paralegals is an attempt on the part of legal societies to address demand for more affordable
legal services.
LAWYER'S DUTIES
BC Code ch. 2.1, 2.2-2, 5.6: provide that a lawyer must serve the cause of justice, be fair before
a tribunal and encourage respect for and try to improve the administration of justice.
 2.2-2: A lawyer has a duty to uphold the standards and reputation of the legal
profession and to assist in the advancement of its goals, organizations and institutions.
One proposal is to consider mandatory pro bono hours by lawyers as a part of their annual
licensing requirement.
 Pros: more variety of services offered; greater supply; engage lawyers in access to
justice; improve well-roundedness of lawyers; improve reputation of legal profession;
maintain self-regulation; increase pressure on gov’t.
 Cons: risk of low quality work; there’s enough already; it is the gov’t’s responsibility;
distraction from real solutions; could ask as discount for regular clients; undue
hardship for public interest lawyers; lawyers aren’t as fungible as we think.
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ACCESS TO CIVIL AND FAMILY JUSTICE
Family law is the area of the law where most people come into contact w/ the legal system and
it shapes the way people view the fairness of laws and court processes. Meaningful access to
justice is required to provide assistance to individual women and to continue to develop family
law legal principles which reflect women’s legal rights to substantive equality. Women are
disproportionately affected by inadequate legal aid in family law. Lack of coordination w/
respect to court proceedings taking place at the same time is a significant concern for women in
violent relationships – for one family there can be up to 4 legal proceedings taking place at the
same time: criminal, family, child protection and immigration. The majority of family law cases
involve children, who are vulnerable, usually unrepresented non-parties who seldom
participate directly in the process.
Trial Lawyers Association of BC v BC (AG), (2014) SCC
F: Vilardell v. Dunham is a family law case that addressed the constitutionality of daily hearing
fees. In family law, the party who files the proceedings is charged a fee for every day of hearing
after the first three days. In this case, the mother applied to have her fees waived. In the course
of the application, the Court considered the constitutionality of this fee structure and heard
intervening arguments from the Trial Lawyers Association of BC and the Canadian Bar
Association – BC.
I: Are court hearing fees imposed by the Province of BC that deny some people access to the
courts unconstitutional?
L: Access to the courts is essential to the rule of law.
C: While the Province has the power to levy hearing fees, they cannot do so in a way that
deprives litigants of access to the superior courts. If fees are imposed, judges must be given
enough leeway to waive the fees if paying them would cause a litigant undue hardship by
requiring her to forgo other reasonable expenses. The hearing fees were declared an
unconstitutional barrier to access to justice and struck down. The Court left it open to the BC
government to impose a new fee structure that meets the constitutional requirements.
GOOD CHARACTER
BC Code ch 2.2-1 – Integrity
Under s 19(1) of the Legal Profession Act: No person may be enrolled as an articled student,
called and admitted or reinstated as a member unless the benchers are satisfied that the person
is of good character and repute and is fit to become a barrister and a solicitor of the Supreme
Court.
Good Character
Every law society across Canada asks you a series of questions about your character when you
apply for admission to the bar. Protection of the public requires regulators to endeavour to
ensure that members of the profession are suitable to practise and will conduct themselves in a
manner expected of them, both on admission and throughout their careers. If there is concern
relating to your answers, then you will have a credential hearing in front of a 3-member panel.
National Law Federation has suggested a uniform assessment of character that includes:
(1) Respect for the rule of law and the admin of justice;
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(2) Honesty;
(3) Governability;
(4) Financial responsibility.
Recommendation to replace concept of ‘character’ w/ one of ‘suitability to practise’ – focus
not on character traits, but on behaviour that is required of all members of the profession.
Standard of proof for disciplinary hearings is civil standard.
Mohan (Re), 2012 LSBC 24
F: M had cheated on a first year math exam. He is caught red-handed but repeatedly denies that
he cheated – says that the prof didn’t speak English properly and misunderstood the situation.
For this he received a one year suspension. He plagiarized an essay as a law student, receiving
an 18 month suspension. He failed to report the math exam when he applied for admission to
the bar. The bar also finds that portions of his honours thesis were plagiarized. Several
favourable character references regarding M’s more recent behaviour.
JH: Initial credentials committee decided that M should be admitted. Benchers reverse. BCCA
re-instates initial decision – M is admitted.
I: Is M fit to be admitted to the practise of law?
C: Given the 7 years since his last misconduct and his work in the intervening years, he is now
fit. The Panel came to this conclusion easily w/ respect to the math exam and law school essay,
but was less certain about the plagiarism in the honours thesis. Dissent finds that M's
explanation of the honours thesis incident is unbelievable and evidence of continuing unfitness.
Re: Applicant 5, 2013 LSBC 05 – Decision of the Benchers on Review
F: See above.
L: According to s 2-67 of the Law Society Rules, at a hearing the onus is on the applicant to
satisfy the panel on the balance of probabilities that the applicant has met the requirements of
s 19.
C: Panel in Mohan erred in failing to make a finding of credibility w/ respect to the honours
thesis. Since it failed to do so, it is not entitled to deference – error in law. Dissent decision
adopted.
D: This has since been overturned with the BCCA finding that the original panel had made an
implicit finding, which was entitled to deference.
Law Student Code of Professional Conduct?
Tanovich argues that law schools should have a code of conduct separate and distinct from
their general university code similar to law society rules. Currently, many law schools refer to
ethics or professionalism in their mission statements, but only a few explain what this means. A
more expansive code is necessary because most law students become lawyers and are involved
with “lawyering” (clinics, pro bono, internships, etc.) before graduating. Students in these
positions should be obliged to follow similar standards to lawyers – they are part of the legal
profession. These duties go beyond academic misconduct and include standards of
competence, confidentiality and professional obligations. Incidents both in the profession and
within law schools (sexist/racist/etc. law blogs, U of T marks scandal, cyber-bullying, failure to
report homophobic graffiti) occur for a number of reasons, in part the lack of professional
culture. A law school code of conduct could inspire and educate students to avoid these issues.
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Concerns: a code would be redundant; question of who would enforce it; imposing a legal
professional code on the students who do not intend to practice is overbroad; articling and
PLTC are sufficient; law schools shouldn't regulate off campus activities.
THE LAWYER-CLIENT RELATIONSHIP
Advertising and Solicitation
BC Code ch. 4 – Marketing of legal services
- 4.2-5: Any marketing activity undertaken or authorized by a lawyer must not be:
(a) false,
(b) inaccurate,
(c) unverifiable,
(d) reasonably capable of misleading the recipient or intended recipient, or
(e) contrary to the best interests of the public
- 4.2-6: Cannot advertise being the former firm of a current judge.
- 4.3: Can advertise preferred areas of practice, but not being a “specialist”.
Law Society of BC v Jabour, 1980 BCCA
F: J advertises his law firm in the paper, listing certain fees, and puts a neon sign over his office.
J found guilty of ‘conduct unbecoming’ and recommended that he be suspended for 6 months.
I: Can the Law Society regulate this conduct? What are the powers of the Law Society of BC to
regulate professional misconduct?
C: The Benchers have the power to prohibit the type of advertising that is found here and to
discipline w/ respect to that type of advertising.
R: Law Society has broad powers to regulate almost all types of conduct. Benchers may
prohibit any conduct that is contrary to the best interest of the public or the profession. The
Benchers are given a general power to determine what conduct is to be acceptable in the
practice of law and even outside the practice for those who are members.
Law Society of Saskatchewan v Merchant, 2000 LSDD
F: M sends letters to residential school survivors, attempting to solicit class action plaintiffs.
The letters say: “compensation will be significant and you have nothing to lose”; “compensation
for sexual assault could be $50,000 - $150,000”; “if you are prepared to receive the money that
we think is due to you, write out what happened in the school and send back the
'authorization'” - the authorization was a complex retainer agreement which included a variety
of situations in which the client would be responsible to pay legal fees; and asked for referrals
while promising to keep the referee's name confidential. Count 1 against M alleges that he was
guilty of conduct unbecoming a lawyer in that the letter was likely to create an unjustified
expectation of results. Count 2 against M pertains to conduct unbecoming in that the
correspondence may have been “reasonably capable of misleading…” Count 3 against M
pertains to conduct unbecoming in that the advertising activity may have been “undignified, in
bad taste or otherwise offensive…”
I: Is this misconduct?
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A: Letter was not likely to create an unjustified expectation about result that may be achievable,
because the amounts speculated as damages were not outside the realm of possibility. BUT
letters were “reasonably capable of misleading the intended recipients” since it assumes there
will be a valid cause of action; it minimizes the complexity of litigation and leaves the
impression that payment will happen very soon; it is not consistent with the terms of the
retainer agreement (p. 134), which could cause the client to suffer economic loss. LSS
disciplines M on basis of: reasonably capable of misleading clients, creating unjustified
expectation of results, undignified/in bad taste/offensive (assumes there is a valid cause of
action, minimizes complexity, leaves impression that payment will be speedy, etc.).
Furthermore, the marketing activity was undignified and in bad taste because it assumes
the recipients are survivors of residential schools and disregards the potential impact that
receiving such a letter may have.
C: Committee found M guilty of second count.
Choice of Client
BC Code ch. 2 – The standards of the legal profession
SEE ALSO The Lawyer’s Role p 5 for different perspectives of relationship between
professional and personal morality.
SEE ALSO Termination of the Lawyer-Client Relationship p 16
Once a client is taken on, the lawyer becomes committed to ethical and moral obligations. A
lawyer should refuse a client if: there is a conflict of interest; the lawyer lacks competence in
the matter; there is a continuing retainer w/ a previous lawyer; the lawyer has the potential to
be a witness in a case; or there is an illegal purpose.
Debate: moral non-accountability (lawyer is neutral agent – should represent the client w/o
consideration of the morality of the client – this is necessary to promote fair administration of
justice) versus taking it personally (lawyers must recognize the morals of their clients and
take responsibility for their choice of clients). A lawyer should not decline a prospective client
because of concern about public reaction to the client’s case – everyone deserves a lawyer.
Cause Lawyering: A lawyer needs to be able to give dispassionate advice and avoid conflict.
Sometimes conflicts arise from personal matters. Lawyers are citizens, but they may be
curtailed in some ways by the obligations associated w/ the profession.
Triggering the Lawyer-Client Relationship
BC Code ch 1.1-1 [Commentary 1]: A lawyer-client relationship can be established w/o
formality.
A “client” is a person for whom the lawyer has agreed to provide legal services or a person who
consults a lawyer and reasonably concludes the lawyer has agreed to render legal services.
Descoteaux v Mierzwinski – solicitor-client relationship arises as soon as the potential client has
his first dealings w/ the lawyer’s office in order to obtain legal advice. First dealings doctrine:
as soon as potential client has dealings w/ lawyer or lawyer’s office, at least some duties are
triggered.
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Termination of the Lawyer-Client Relationship
SEE ALSO The Lawyer’s Role p 5 for different perspectives of relationship between
professional and personal morality.
SEE ALSO Retainers and Fees p 29.
BC Code ch 3.7 – Withdrawal from representation
3.7-1: A lawyer must not withdraw from representation of a client except for good cause and
on reasonable notice to the client.
3 circumstances in which a lawyer must withdraw (3.7-7):
(a) If discharged by client;
(b) If client persists in instructing lawyer to act contrary to professional ethics;
(c) If lawyer is not competent; [For issues surrounding competence see BC Code ch 3.1]
[(d) If lawyer is in a conflict of interest, unless client gives express informed consent]
Optional withdrawal:
(1) Non-payment of fees (3.7-3) [but there are limits on this in criminal context see
Cunningham);
(2) Breakdown of relationship between lawyer and client (i.e. serious loss of confidence
– 3.7-2)
3.7-4: Withdrawal from criminal proceedings
3.7-9.1 – Confidentiality considerations in withdrawal
Lawyer-client relationship is primarily contractual in nature – so parties can anticipate the
demise of the relationship. Termination may be explicit or implied. Lawyers often remain on
retainer after completing business for a client in order to maintain the relationship. This can
lead to a conflict of interest if the lawyer is later retained by a client whose interests are
opposed to the original client's. Good practise is to send clients an explicit termination letter
once legal services have concluded. Clients can end the relationship at any time for any reason
– regardless of terms of retainer [3.7-1 – Commentary 1]. Lawyers do not have absolute right
to terminate relationship in all cases. Impermissible withdrawal can result in being found in
contempt of court and/or discipline by law society.
R v Cunningham, 2010 SCC
F: C is a legal aid employee, who was retained as defence counsel for M. M was charged w/
sexual assault, applied for and was granted legal aid. M later failed to update his financial
information. C wanted to withdraw for non-payment of fees.
I: In a criminal matter, can the court refuse to grant defence counsel’s request to withdraw
because the accused has not complied w/ the financial terms of the retainer?
L: Fiduciary nature of solicitor-client relationship means that counsel is constrained in ability
to withdraw from a case once she has chosen to represent an A.
R: Courts do have the power to force defence counsel to continue, notwithstanding the
fact that they are not getting paid – only if timing is an issue. BUT if counsel claims the
withdrawal is for ethical reasons, the court must accept this and allow withdrawal. If the
reason is for non-payment of fees, the court can refuse the request after considering all the
factors to determine whether there would be serious harm to the administration of justice –
more than administrative inconvenience.
D: See also 3.7-3 [Commentary 2]; 3.7-9.1 [Commentary 1].
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Sexual Relationships with Clients
BC Code ch. 3.4-1 – Commentary 8(e) (sexual relations w/ client)
BC Code 3.4-26.1 (conflict with clients)
Law Society of Upper Canada v Hunter, 2007 LSDD
F: H is a senior lawyer who, amongst other things, is president of the FLSC. H represented XY in
a long family matter. H and XY begin a consensual sexual relationship. They split up after 2.5
years (H admitted to having relationships w/ 2 other women at the law firm at the same time
as w/ XY), and H asks XY to sign a document saying he had informed her, at the start of the
relationship, of the potential for conflict, despite not actually doing so. He phoned, emailed and
showed up at her house to try to get her to sign. H then informed his law firm and admitted
everything to the LS. H was charged w/, and admitted to, professional misconduct in having
placed himself in a conflict of interest in relation to his client, XY, and in so going he failed to
maintain the integrity of the profession.
L: Rule 2.04 of the Rules of Professional Conduct deals w/ avoidance of conflicts of interest. It
does not create an absolute prohibition against initiating or continuing a
sexual/romantic relationship. It does not compel a lawyer to advise a client to obtain
independent legal advice about the conflicting interest in all cases. BUT, where the client is
unsophisticated or is vulnerable, the lawyer should recommend such advice to ensure
that the client’s consent is informed, genuine and uncoerced.
C: H breached the rule and pressuring her to sign a document for his protection exacerbated
the seriousness. Mitigating factors include his cooperation, self-reporting and remorse. No
evidence that legal work was actually harmed. 2 month suspension and 2.5K fine – conflict of
interest.
R: Sexual relationship can create potential for conflict of interest since lawyer may be
unable to provide objective, disinterested professional advice. Lawyer should, at the
outset of the relationship, inform the client of this potential and, if appropriate, suggest the
client obtain independent advice.
D: Should there be zero tolerance for sexual relationships between lawyers and clients?
Consider ethical issues of accepting gifts or socializing w/ clients – client wants to develop
relationship w/ you that goes beyond lawyer-client relationship, but isn’t sexual.
Competency
BC Code ch. 3.1 – Competence
3.1-2: A lawyer must perform all legal services undertaken on a client’s behalf to the standard
of a competent lawyer.
Cultural competence can be defined as “a set of behaviours, attitudes and policies that come
together in an individual system, or agency that allows a person or people to work effectively
with others from different cultures.”
NOTE ON SETTLEMENTS FOR IRS SURVIVORS
The Indian Residential Schools Settlement Act (IRSSA) 2006 set up the Common Experience
Payment (CEP) and the Independent Assessment Process (IAP). Number of claimants under
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both payments vastly exceeded gov’t expectations. Hearings conducted under IAP are
inquisitorial – adjudicator is only one who can ask questions of claimant. Many clients have
ended up being victimized by their lawyers through the IAP process. Gov’t pays 15% on top of
claim amounts to clients’ lawyers – but clients may agree to pay an additional 15% from their
claim money. Chief Adjudicator of IAP Secretariat has gone to court numerous times to
complain about misconduct of lawyers.
ETHICS OF ADVISING AND NEGOTIATION
Advising and Test Cases
As a general rule, you can’t recommend that your client engage in illegal activity. You have a
duty to attempt to dissuade your client from a course of illegal conduct, but it is debatable how
far that duty extends. Exceptions to the rule: family law context (Sussman), test cases.
BC Code ch. 3.2-7(4) – Test Cases
- 2.1-1(a): A lawyer owes a duty to the state, to maintain its integrity and its law. A lawyer
should not aid, counsel or assist any person to act in any way contrary to the law.
- 3.2-7: A lawyer must not engage in any activity that the lawyer knows or ought to know
assists in or encourages any dishonesty, crime or fraud.
- 3.2-7(4) A BF test case is not necessarily precluded by this rule. So long as no violence or
injury to a person is involved. No breach of ethical obligations in offering advice to a client
who is planning on breaking the law to bring a test case. In all situations the lawyer should
ensure the client understands the consequences of bringing a test case.
- 5.6-1 [Commentary 1]: … The lawyer in public life should be particularly careful in this
regard because the mere fact of being a lawyer will lend weight and credibility to public
statements. Yet, for the same reason, a lawyer should not hesitate to speak out against an
injustice.
Law Society of Upper Canada v Sussman, 1995 LSDD
F: S representing the wife in a family law matter. An interim access order is made and he
advises her to ignore the order until he can vary it. He fails to apply to vary the order.
A: S did not suggest that there was any imminent risk or danger to the child which might have
justified his behaviour. S did not follow up w/ judicial proceeding.
R: Can only advise disobedience with a court order if there is an honest and reasonable
fear of imminent risk to the child, and an immediate application is made to the court to
vary the order. If that application is denied, then cannot further disobey with the order.
Otherwise, the efficacy and reputation of the court system is harmed.
C: Professional misconduct.
LUBAN, TALES OF TERROR: LESSONS FOR LAWYERS FROM THE ‘WAR ON TERRORISM’
F: US wants to interrogate detainees after 9/11. Government asks legal counsel in the Justice
Department what methods are acceptable. They advise that interrogation is not torture unless
the method creates a risk of organ failure. Opinions have since been discredited as having
significantly overreached the legitimate interpretations of what constitutes torture.
I: What ethical obligations do lawyers have in their role as confidential counsellors, or legal
advisors, to their clients?
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C: Memos distorted the law and presented the conclusions as mainstream. This is OK in
litigation, because there is an adversary to balance any overreaching.
R: When acting as counsellor, the lawyer must provide independent and candid advice
that would be the same no matter what your client wanted. If the lawyer's true view of
the law is different from the mainstream view, that must be disclosed as well. (Eg I think
the law is X, but most people currently see it as Y).
Negotiation
BC Code ch. 7 – Relationship to the Society and Other Lawyers
The Law Society of AB Code of Conduct 6.02(2) states: A lawyer must not lie to or mislead
another lawyer. If confidentiality is an issue, lawyer can decline to answer. Lawyer must
immediately correct any misapprehensions they or their clients have caused. The concept of
‘misleading’ includes creating a misconception through oral or written statements, other
communications, actions or conduct, failure to act, or silence.
 No other Canadian Code of Conduct goes so far as to outright prohibit lying by lawyers.
Law Society of Newfoundland and Labrador v Regular, 2011 NLCA
F: R represents company and BJ, who holds 75% of shares. H represents S, who holds 25% of
shares. R and H were in negotiations on behalf of their clients to ascertain value of S’s shares. H
wrote letter to R inquiring about rumour that company was about to be sold. R advised H that
company is not being sold. The next day, S was removed as a director and shortly thereafter
about 50% of the assets were sold. R’s explanation that he did not consider 50% of the assets to
mean that the company was being sold was not accepted.
A: R’s response to H’s letter was deliberately intended to mislead H. Clearly a violation of
lawyer’s duty. You cannot simply tell a bold-faced lie.
C: R guilty of misconduct.
R: Lawyer cannot deliberately mislead the opposing side to benefit their client.
D: The letter from H didn’t request confirmation of the sale. R could have just acknowledged
receipt, and drawn his client’s attention to the agreement w/ H’s client – this would have been
sufficient. Even declining to answer if there’s no legal obligation to answer would be preferable
to a lie.
PITEL, LAWYER OR LIAR?
‘Lawyers who lie’ is a major factor in the public’s low opinion of lawyers. Why do lawyers lie?
Part of zealous advocacy, have to because the other side will lie. Lawyers might mean a
statement (“my client is innocent”) to be an opinion, but it is taken as a statement of fact.
Clearer in pleadings that lawyers’ statements represent client’s position rather than material
facts. In negotiations, lawyers may often lie in order to obtain the best bargain – if their clients
can, why/how should we regulate lawyers acting on their behalf. Practical difficulties in
regulating negotiations. Non-disclosure may also create the impression that lawyers lie.
Law Society Rules provide some guidance against lying, but only in certain contexts. Pitel
suggests that rules should be stronger and clearer. Public statements must be carefully
phrased as opinions or restatements of the client's position. In negotiations, lawyers
must be honest and, in particular, should not lie about monetary limits of the client. Non-
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disclosure has its own public goals and should be maintained even if it calls into
question the honesty of lawyers.
CONFLICTS AND THE DUTY OF LOYALTY
Whatever rules in relation to conflicts of interest say, the ultimate decision rests w/ the
client. Rules of professional conduct are designed to prevent lawyers from acting where there
is conflict, because there is a concern about use of confidential info or lack of zealous advocacy.
BC Code ch. 3.4 – Conflicts
- 3.4-1: A lawyer must not act or continue to act for a client where there is a conflict of interest,
except as permitted under this Code.
- Commentary 0.1 – Real property transactions
- Commentary 1 – Definition of Conflict
- Commentary 7 – Factors to consider
- Commentary 8 – Examples of conflict
- May be possible to act in circumstances of conflict if client consents – 3.4-2
- Limited circumstances in which consent may be inferred – 3.4-2(b)
- 3.3-1 [Commentary 5]: Fact of retainer w/ client is confidential
- 3.4-2 [Commentary 7]: Lawyer belief in reasonableness of representation
- 3.4-3: Despite rule 3.4-2, a lawyer must not represent opposing parties in a dispute.
- If representing conflicting interests, have to put in place system to manage confidential info –
3.4-4
- 3.4-5 – Joint retainers
- 3.4-10 - Acting against former clients
- 3.4-17 – Conflicts from transfer between law firms
BC Code ch 2.1-3(b)
BC Code ch 7.3-1 – Outside interests and the practice of law
Bright Line Rule
1. Rule: A lawyer may not represent one client whose legal interests are directly adverse to
the immediate legal interests of another current client – even if the matters are unrelated –
unless both clients provide full informed consent, and the lawyer reasonably believes that
he or she is able to represent each client w/o adversely affecting the other. (Neil)
 Exceptions: (1) When it is unreasonable to apply the rule (implied consent that comes
from a professional litigant and/or professional client); (2) When a lawyer is being
retained tactically to prevent them from being able to represent another client (i.e.
acting in bad faith). (Neil)
o Cannot be successfully raised by a party who seeks to abuse it, e.g. by retaining
every firm in town (McKercher)
2. If bright line rule does not apply, you still need to determine whether there is a substantial
risk that representation would be materially and adversely affected. (Neil, McKercher)
R v Neil, (2002) SCC
F: N is paralegal subject of 2 criminal investigations – one relating to mortgages and one
relating to family law. In mortgage work, L helped N – they are co-defendants. One law firm is
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representing N, and Laz in the same firm is representing L. Laz goes to meeting at firm in which
he comes into possession of confidential info, which he then uses against N. Laz also learns
about family law case, and gets info from the client in that matter to use against N (in order to
help L’s case). Law firm later withdrew from representing N due to Laz’s representation of L. N
claims that his lawyer failed to adequately represent him, and sold him out to interests of L.
L: Loyalty promotes effective representation. Duty of loyalty is intertwined w/ fiduciary
nature of lawyer-client relationship. Firm as well as individual lawyer owes fiduciary duty to
its clients. “Client” includes any person who reasonably believes that a lawyer-client
relationship exists. Conflict: a substantial risk that lawyer’s representation of the client would
be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to
another current client, a former client, or a third person.
C: In favour of N, but he is not entitled to a stay of proceedings.
R: “An advocate ... knows but one person in all the world, and that ... is his client”. Unless
clients are assured of their lawyer's undivided loyalty, public confidence in the legal
system will be undermined. A lawyer has a duty to be committed to his client's cause.
CNR v McKercher, (2013) SCC
F: McK was a large firm by SK standards. CNR has currently retained McK to represent it in
three ongoing matters. McK was one of CNR’s main go-to law firms in SK – McK did about 1/3
of CNR’s legal work. CNR had a policy that their legal counsel could act only for them and not
against them, although that hadn’t really been communicated to McK. McK was approached to
act against CN in $1.7M class action, unrelated to ongoing retainers w/ CN. McK agrees. First
that CN learns about this is when CN is served w/ statement of claim for class action. CN asks
McK to withdraw from class action. McK quickly terminates retainers w/ CN. CN brought action
against McK. Both CBA and FLSC intervened – CBA preferred substantial risk test, while
FLSC preferred bright line rule.
JH: TJ holds in favour of CN. Conflicts w/ duty of loyalty AND McK has unfair advantage – know
CN’s litigation strategy etc. from representing them for several years. SKCA finds in favour of
McK – says that McK can continue in the class action. CN is a professional litigant – CN should
expect that law firms who present CN will not be disqualified from ever acting against CN. No
risk here.
I: Did McK breach duty of loyalty to CN by placing itself in a conflict of interest, improperly
terminating existing retainers and potentially misusing confidential information?
L: Duty of loyalty includes: duty to avoid conflicting interests, duty of commitment to the
client's cause and a duty of candour. Conflict of interest includes misuse of confidential
information and an inability to provide effective representation.
Duty of candour requires that lawyer advise an existing client of potential of acting against
them, even if the situation falls outside the bright line rule. Since confidentiality applies to the
new client, new client must agree to allow this – if they do not, then the lawyer cannot
represent them.
Remedies – Disqualification may be required: (1) to avoid the risk of improper use of
confidential information; (2) to avoid the risk of impaired representation; and/or (3) to
maintain the repute of the administration of justice. BUT disqualification is not
automatic.
C: Bright line rule violated. Matter remitted to TJ to decide remedy.
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R: Reaffirms bright line rule from Neil. Where applicable, the bright line rule prohibits
concurrent representation. It does not invite further considerations.
COTTER AND DEVLIN, “THREE STRIKES AND YOU’RE OUT: A COMMENT ON CANADIAN NATIONAL
RAILWAY CO V MCKERCHER LLP”
In Martin v Gray (1990), Sopinka J concluded that where a reasonable possibility exists that
confidential info might be compromised, a high standard is called for in order to maintain
public confidence in the admin of justice. In Neil (2002), Binnie J elevated the standards –
emphasized the fiduciary nature of lawyer’s duty to client and set out governing principle of
lawyer’s duty of loyalty. McKercher was an opportunity for the SCC to clarify, modify or restate
its view on the question of the bright line rule.
3 positive aspects of McKercher:
(1) Analytical approach: 3 dimensions of duty of loyalty –
i.
Duty to avoid conflicting interests;
ii.
Duty of commitment to client’s cause and;
iii.
Duty of candour;
(2) Relative clarity of decision on nature of bright line rule (BUT client unreasonableness
exception rather than ‘professional litigant’ seems to expand the range of circumstances
in which law firms could be justified);
(3) Elaboration of 2 key elements of duty of loyalty – duties of commitment and candour.
3 weaknesses in McKercher:
(1) Language of “scope” (‘rules and exceptions’ would be better);
(2) Court’s conception of its role in the articulation of standards to govern the legal
profession;
(3) The remedy – didn’t disqualify McK outright.
Recommendations:
(1) Model Code should be drafted to be clearer;
(2) Lawyers should become more comfortable w/ termination letters;
(3) Ethical infrastructure in addition to rules.
THE DUTY OF CONFIDENTIALITY
BC Code ch. 3.3 – Confidentiality
- 3.3.1: A lawyer at all times must hold in strict confidence all information concerning the
business and affairs of a client acquired in the course of the professional relationship and must
not divulge any such information unless:
(a) expressly or impliedly authorized by the client;
(b) required by law or court to do so;
(c) required to deliver the information to the Law Society, or
(d) otherwise permitted by this rule.
- Future Harm/Public Safety Exception 3.3-3: A lawyer may disclose confidential
information, but must not disclose more information than is required, when the lawyer
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believes on reasonable grounds that there is an imminent risk of death or serious bodily harm,
and disclosure is necessary to prevent the death or harm. See Smith.
- 3.3-4: Lawyer may disclose confidential info to defend against allegations.
- 3.3-6: Does not violate your duty to your client to go to another lawyer to seek advice, and in
particular advice about an ethical matter.
 Under s 88 of the Legal Profession Act: (1.3): A lawyer who or a law firm that, in
accordance w/ this Act and the rules, provides the society w/ any information, files or
records that are confidential or subject to a solicitor client privilege is deemed
conclusively not to have breached any duty or obligation that would otherwise have
been owed to the society or the client not to disclose the information, files or records.
SEE ALSO retention of physical evidence p. 33
The Duty and its Exceptions
Solicitor-client privilege is a rule of evidence. Duty of confidentiality is much broader – applies
outside of the courtroom. There is an implied waiver of confidentiality to the extent that it is
necessary to represent the client’s interests.
Consider example’s: reveal of J.K. Rowling’s pseudonym, newspaper article by former lawyer of
Conrad Black.
Smith v Jones, 1999 SCC
F: J charged with aggravated sexual assault of a prostitute. His lawyer refers him to a
psychiatrist, S, and told him the consultation would be covered by solicitor-client privilege. J
tells S he had planned to continue committing rapes and murders. S reports to J’s lawyer that J
would likely commit future offences – S would like to make report that he believes that J will be
a serious danger to society. S learns that the judge will not be told of this report by J’s lawyer. S
wants report to be released.
JH: TJ released S from duties of confidentiality. TJ says that S has duty to disclose. Court of
Appeal affirmed, but changed mandatory order of disclosure to permitting S to disclose.
I: Can S disclose the statements made by J and his opinion on them? Must S disclose the
statements and his opinion?
L: Privilege is of utmost importance to ensure that clients provide all relevant
information to their lawyers so that lawyers can provide accurate advice, all of which is
integral to the functioning of the legal system. Privilege is that of the client, not the lawyer.
Solicitor-client privilege is the highest privilege recognized by courts.
Dissent: Chilling effect of completely breaching privilege would have undesired effect of
discouraging those individuals in need of treatment for serious and dangerous conditions from
consulting professional help. Balance is best struck by a more limited disclosure than what
majority proposes. Public interest in cases such as this requires: (1) that dangerous individual
be prevented from harming anyone and (2) that they obtain treatment if needed.
A: The risk is both clear and serious. There are some indications of imminence which, when
combined with the other two factors, is sufficient to indicate that privilege must be set aside.
C: Appeal dismissed. File will be unsealed, and ban on publication of contents removed, except
for parts that don’t fall within public safety exception.
R: Privilege may be set aside when the safety of the public is at risk. To determine
whether public safety can override privilege, consider:
(1) Is there a clear risk to an identifiable person or group of persons?
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- In general a group or person must be ascertainable
(2) Is the risk of serious bodily harm or death?
- Disclosure of planning future crimes w/o element of violence is insufficient.
- Serious psychological harm may constitute serious bodily harm.
(3) Is the danger imminent?
- Must create sense of urgency.
The weight of each factor will depend on all the circumstances, but in general there must be
positive answers to all three questions. Extent of disclosure should be limited as much as
possible.
D: Rule is permissive, not mandatory. Wording of rule of professional conduct now is more
expansive than that considered in this case – no longer limited to circumstances in which there
is a crime that is going to be committed.
R v Butt, 2012 ONSC 4326
Defence counsel of accused convicted of sexual interference w/ child was commended for
disclosing HIV+ status of client to Crown and Court.
R v Cunningham, 2010 SCC
F: See above p 16.
I: What role does privilege play when counsel is asked to give reasons for withdrawal? Can the
lawyer say to the judge that they want to withdraw because their client no longer qualifies for
legal aid?
L: Assuming that timing is an issue, court is entitled to enquire further. Counsel may reveal that
they seek to withdraw for ethical reasons, non-payment of fees, or another specific reason if
privilege is not engaged. If “ethical reasons” or non-payment of fees are cited, this must be
taken at face value in case any discussion results in breaking privilege.
R: The simple fact of a failure to pay fees is not privileged information, unless the client's
ability to pay is related to the merits of the case or may otherwise cause prejudice.
Where payment or non-payment of fees is relevant to merits of case, or disclosure of such info
may cause prejudice to client, solicitor-client privilege may attach.
D: See also 3.7-9.1 [Commentary 1].
Money Laundering Legislation
There is considerable concern that lawyers can be involved in laundering money for clients –
taking in large sums of money on client’s behalf and then paying money out again in a way that
conceals sources of those funds.
BC Code ch. 3.2-7 [Commentary 1, 2]
Law Society Rules on cash transactions
Federation of Law Society of Canada v Canada (AG), 2013 BCCA
F: Feds amended anti-money laundering legislation to make it applicable to legal counsel and
legal firms. Under regime, lawyers were required to report to FINTRAC transactions for which
there were reasonable grounds to suspect they related to commission of a money laundering or
terrorist financing offence. FLSC filed a petition challenging the application of the regime to
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lawyers under ss 7 and 8 of Charter. FLSC subsequently adopted model rule on client
identification and verification which requires lawyers to identify clients who retain them to
provide legal services and requires that when providing legal services in respect of the
receiving, paying or transferring of funds, lawyers must obtain independent source docs that
verifies the client’s identity.
JH: BCSC found that regime offended rights of lawyers and their clients in a manner that did not
accord w/ solicitor-client privilege pursuant to s 7 of Charter and could not be justified under s
1.
I: How does this match with privilege?
A: The statute provides sufficient safeguards against infringing on privilege. However, the
recording requirements allow for searches of lawyer's offices and computer systems,
effectively making the lawyers help government agents to find any information they
“may reasonably require”. This turns lawyers into agents of the state, breaching the
principle of independence of the bar.
C: Legislation severed and struck down as it applies to members of the legal profession.
R: Independence of the bar is a principle of fundamental justice. Any violation of s. 7 must
be in accordance with this principle.
ETHICAL ADVOCACY
BC Code ch. 5.1 – The lawyer as advocate;
5.1-1: When acting as an advocate, a lawyer must represent the client resolutely and
honourably within the limits of the law, while treating the tribunal w/ candour, fairness,
courtesy and respect.
BC Code ch. 5.3 – Interviewing witnesses: Subject to the rules on communication w/ a
represented party set out in rules 7.2-4 to 7.2-8, a lawyer may seek information from any
potential witness, whether under subpoena or not, but the lawyer must disclose the lawyer’s
interest and take care not to subvert or suppress any evidence or procure the witness to stay
out of the way.
BC Code ch 2.1-3(d) - A lawyer should treat adverse witnesses, litigants and counsel w/
fairness and courtesy, refraining from all offensive personalities. The lawyer must not allow a
client’s personal feelings and prejudices to detract from the lawyer’s professional duties. At the
same time, the lawyer should represent the client’s interests resolutely and w/o fear of judicial
disfavour or public unpopularity.
BC Code ch. 5.4 – Communication with witnesses giving evidence
Also 5.1-2(h), (i), (m) re: witnesses
Difficult balance between an advocate’s duty to his client and his duty to the court (or to admin
of justice more generally). Typically, basis of determinations is simply the conscience and good
faith beliefs of the lawyer personally. Lawyer must represent client within the limits of the law
and while treating the tribunal with candour, fairness, courtesy, and respect.
General Motors Acceptance Corp of Canada v Isaac Estate, (1992) Alta QB
F: There was an appeal case, Sherwood, which directly bore on the matter in this trial, to the
detriment of the P. Neither counsel brought it to the attention of the court. When the Judge
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mentioned the case at the end of trial, P's counsel admitted to knowing of the case – he was
counsel on it!
L: Counsel must bring all relevant cases to the attention of the court. This is required because it
is an adversarial system. If counsel feel the case is distinguishable they can argue as such, but
this does not allow them to fail to mention the case. Duty to assist the court may override
the duty to the client. Ignorance is no excuse. Counsel has a duty to be aware of all cases on
point decided within the judicial hierarchy of BC.
C: It was responsibility of counsel of P to bring Sherwood to judge’s attention.
D: Counsel’s misconduct is visited upon the client. BC Code ch 5.2-2(i): When acting as an
advocate, a lawyer must not deliberately refrain rom informing a tribunal of any binding
authority that the lawyer considers to be directly on point and that has not been mentioned by
another party.
WITNESS PREPARATION
As part of trial preparation, lawyers generally are expected to prepare their witnesses.
Important difference between witness preparation and witness ‘coaching’ – but line is not
always clear. Witness coaching is unethical, unprofessional, and illegal. Lawyers have a clear
obligation not to assist their own client/witness in the giving of false or misleading evidence.
Acceptable to tell witness how trial will proceed, but best to stay away from talking about
specific content of answers. Acceptable to practise answering questions – but don’t correct
answers.
CROSS-EXAMINATION
R v Lyttle, (2004) SCC
I: What are the appropriate limits of cross-examination – in particular cross-examination by the
defence? Does counsel need to have an evidentiary foundation for questions put to the witness
in cross-examination?
L: Cross-examination is a right under ss. 7 and 11(d) of the Charter. At some times there
will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital
info that would otherwise remain forever concealed. But, counsel cannot resort to
harassment, misrepresentation, irrelevant matters or anything where prejudice
outweighs probative value during cross-examination.
Questions w/o evidentiary foundation can be posed as long as there is a good faith basis
for the question. “Good faith” is a function of the info available to the cross-examiner, their
belief in its likely accuracy and the purpose for which it is used. Purpose of question must be
consistent w/ lawyer’s role as officer of court. Cannot suggest to the witness anything that is
known to be untrue. Cannot take shots in dark to undermine credibility. Very high threshold for
judges to intervene in cross-examination.
R v R(AJ), (1994) Ont CA
F: Counsel for appellant submits that Crown counsel’s cross-examination of appellant resulted
in miscarriage of justice.
L: If improper cross-examination of an A prejudices that A in his defence or is improper as to
bring the administration of justice into disrepute, an appellate court must intervene. No
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counsel can abuse any witness. Cross-examination can’t be used to demonstrate contempt
for the witness. The purpose of cross-examination is to establish what happened.
A: Crown counsel had sarcastic tone and inserted editorial commentary. Approach was
calculated to demean and humiliate the A. Repeatedly gave evidence and stated her opinion.
Also engaged in extensive argument w/ the A.
C: Cross-examination must be characterized as abusive and unfair. Appeal allowed.
CIVILITY
BC Code ch 7.2-1 – Courtesy and good faith
- 7.2-1: A lawyer must be courteous and civil and act in good faith w/ all persons w/ whom the
lawyer has dealings in the course of his or her practice.
- 7.2-2: A lawyer must avoid sharp practice and must not take advantage of or act w/o fair
warning upon slips, irregularities or mistakes on the part of other lawyers not going to the
merits or involving the sacrifice of a client’s rights.
BC Code ch 2.1-4 – Duty to Other Lawyers
Debate over whether Law Society should have jurisdiction to enforce rules relating to civility –
does this relate to admin of justice and/or behaviour that is simply rude or obnoxious?
Woolley, Does Civility Matter?
Civility refers primarily to the requirement that other people, and in particular other lawyers,
be treated w/ courtesy, manners, and politeness. To the extent that civility means the
enforcement of good manners amongst lawyers, it is not a proper subject for professional
regulation. Secondary meaning of civility refers generally to the conduct essential to ensure the
proper functioning of the judicial process, w/ a specific focus on advocacy. To the extent that
civility encompasses other ethical values, the use of ‘civility’ as an all-encompassing ethical
value obscures the real ethical principles at play.
An undue emphasis on civility has the potential to undermine the ability of law societies to
fulfill their obligation to regulate lawyers’ ethics – has potential to dampen effect of function,
and foster professional protectionism. Lawyers should not have to be civil where it
undermines their ability to advocate for their client, or prevents them from making a
substantive criticism of another lawyer. The historic collegiality w/ which civility is
often associated is also connected to discrimination and intolerance for diversity.
Many if not all of the requirements of the civility initiatives are restatements or specifications
of existing rules of professional conduct. To talk about misconduct as incivility or rudeness
obscures the real ethical problem w/ the lawyers’ conduct.
Amy Salzyn, “John Rambo v Atticus Finch”
How we talk about lawyering and ideal lawyers has an impact on how power is distributed in
the legal profession and associated financial and reputational benefits. What assumptions and
concepts about lawyers and professionalism are present in discussions of civility? Dominant
narrative places R and F in conflict – R embodies all the ills of the profession, while F is the
ideal. This imports the ideal of privileged white males into civility, (1) rendering women
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and others invisible, (2) romanticizing past discriminatory concepts and (3) reflecting
anxiety about changes to traditional exclusionary claims and authorities.
“The Rambo problem” is described as a win-at-all-costs attitude that causes an improperly
aggressive approach to lawyering. “The Atticus solution” invokes the model gentleman,
embodying civility, self-possession and dignity. The idea of a professional gentleman has class
and gender underpinnings.
Discussing the “Rambo” problem, referring to the hyper-competitive corporate culture which
has a pronounced negative impact on women lawyers, might improve gender equality. The
trouble is that the “solution” is another male figure. This places limits on acceptable lawyering
and marginalizes those who do not conform for gender/race/class/etc. reasons. Masculinity
becomes desexed into the norm, and as non-conformists enter the profession, they threaten
this supposed neutrality. This is responded to with hostility that fosters exclusion. Rather than
assuming prototypes, the discussion needs to consider individual differences and their impact.
Groia v Law Society of Upper Canada, (2013) ONLSAP
F: G is defending client against charges brought by securities commission. Very unpleasant
relationship developed between G and the prosecutor in the case – in particular clashed over
issues of disclosure. In addition, G kept accusing the prosecutor of prosecutorial misconduct
w/o ever offering foundation for those accusations. Crown lead motion for a mistrial – judge
should do something to regulate conduct of counsel. 70 days of trial w/o a single witness being
called.
TJ declined to intervene in G’s conduct. Eventually the case was appealed to the ONCA, who was
asked to consider whether the TJ lost jurisdiction by failing to reign in G. ONCA said no, but
they were very critical of G’s conduct – “A trial is not a tea party.” G’s client was acquitted.
BUT LSUC cited G for incivility – gave G a short suspension (1 month) but levelled on him over
$200K in costs for the proceedings. G took the same attitude to the LSUC proceedings as he did
to the Felderhof case itself.
I: When does a lawyer engage in professional misconduct because of his/her communications
in a courtroom? Given her obligation to conduct herself w/ professionalism, civility, courtesy
and good faith, when does her conduct cross the line?
L: The word ‘civility’ may tend to obscure the true nature of ethical misconduct of lawyers
subject to discipline for unprofessional communications – should not be used to discourage
fearless advocacy manifested by passionate, brave and bold language. Counsel must not
impugn the motives or integrity of opposing counsel or make allegations of prosecutorial
misconduct unless such allegations are made in good faith and have a reasonable basis.
Unprofessional communication in a courtroom necessarily harms the administration of
justice whether or not it ultimately undermines the fairness of a particular trial.
A: Many of the comments that G made cross the line. They included repeated personal attacks
on the integrity of the prosecutors and repeated allegations of deliberate prosecutorial
wrongdoing that did not have a reasonable basis and were not otherwise justified by the
context.
C: Finding of professional misconduct.
R: Whether uncivil courtroom communication constitutes professional misconduct is
fundamentally contextual and fact specific. Consider the dynamics, complexity and
particular burdens and stakes of the trial. A contextual analysis ensures that the
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challenges that confront courtroom advocates are fairly taken into account and do not
create a chilling effect on zealous advocacy.
Law Society of Saskatchewan v Cherkewish, (2014) SKLSS
F: C often represents claimants in the IRS Adjudication Independent Assessment Process. In the
relevant case, MM was testifying on behalf of the Investigations Committee. MM asked C for
copy of retainer and he said he didn’t have one. MM’s boss told her she needed to get it, so she
asked for it again. C became upset and angry and told MM to tell her boss to ‘shove it up his ass’.
When asked for the retainer again, C then wrote out a retainer w/ his client on toilet paper.
Alleged that C is guilty of conduct unbecoming for 2 acts – the comment to MM and the toilet
paper. C apologized to MM in person and over email.
A: Using toilet paper to write out an agreement which has legal consequences and significance
was intended to send a message of disrespect to MM. C’s conduct is a marked departure from
conduct expected of lawyers. BUT comment to MM does not rise to level of conduct
unbecoming.
C: C is guilty of conduct unbecoming for toilet paper incident.
RETAINERS AND FEES
K between lawyer and client is not a regular K – it arises in fiduciary context. As a result of this,
money has to be handled differently. Lawyers hold clients’ money in trust – all lawyers must
have trust accounts, and money from clients must go into trust accounts before being paid out.
Access to justice is a problem not because of a lack of lawyers, but because of prohibitively high
fees – there is ongoing tension between the idea of law as a business and law as a profession.
SEE ALSO Merchant p 14.
See BC Code ch. 3.6 – Fees and Disbursements
2.1-3(i): A lawyer is entitled to reasonable compensation for services rendered, but should
avoid charges that are unreasonably high or low. The client’s ability to pay cannot justify a
charge in excess of the value of the service, though it may require a reduction or waiver of the
fee.
2.1-3(j): A lawyer should try to avoid controversies w/ clients regarding compensation so far
as is compatible w/ self-respect and w/ the right to receive reasonable recompense for
services. A lawyer should always bear in mind that the profession is a branch of the
administration of justice and not a mere money-making business.
Note that Part 8 – Lawyers’ Fees of the Legal Profession Act allows the Law Society to make a
variety of rules pertaining to retainers and fees.
PLTC Professionalism: Practice Management – Retainers, Fees and Disbursements
Set the retainer early – both in terms of money payment and scope of work – and put it in
writing. Avoid agreeing to cut corners or do partial jobs. Make clear who you are acting for.
Contingent fee agreements must be written. If you decide not to take on a client after initial
consultation, send a non-engagement letter. The most common methods for arriving at a fee
are: a fixed fee; an hourly rate; percentage fee; contingent fee; quantum meruit, or lump sum
fee. There are no fixed rules for how much you can charge for your time, or how you can bill.
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The primary client protection devices w/ respect to lawyers’ fees are: review of fees by the
registrar; statutory prohibitions. By refusing to pay or otherwise challenging a lawyer’s bill, a
client waives solicitor-client privilege to the limited extent necessary to resolve the dispute.
General rule is that when there is a dispute about fees, the onus is on lawyer to prove the
retainer, and ambiguities will be resolved in favour of the client.
Law Society of PEI v Aylward, (2001) LSDD
F: Alleged that A committed unprofessional conduct – passive and active role in not revealing
or reporting to Law Society significant misappropriations of trust funds by his law partner W.
Book-keeper discovered that W had misappropriated trust funds and told A. A initially planned
to report right away, but ended up not reporting for 9 months. In the meantime he: did not get
an accountant to look into the full extent of the thefts, did not tell the clients whose funds had
been misappropriated, allowed W to continue to practise law for 1 month, allowed W to keep
coming into the office afterwards, allowed W to retain signing authority, allowed W to replace
the stolen money and fraudulently recorded these transactions, delayed an audit to avoid
having the thefts detected. A only ended up reporting W because he realized it was necessary
due to ‘Form 7’.
A: A is guilty not only of inaction, but of conduct designed to conceal what W had done. A
lawyer must be forthright and candid, particularly in his dealings w/ the Law Society.
C: Law Society tells A to resign. Fine of $10K. A cannot reapply for re-admission to Law Society
for 3 years.
D: Note that the ability to resign from the Law Society is governed by s 21.1 of the Legal
Profession Act.
Law Society of Alberta v Blott, (2014) LSDD
F: B’s application to resign while facing investigation by Law Society of Alberta into his
representation of thousands of residential school survivors in claims made under the IRS
Settlement Agreement. IRS Settlement Agreement created universal guidelines for
compensating claimants. In addition to paying claimants, Gov’t of Canada paid legal fees of 15%
of total award. Lawyers could also bill clients up to max 15% additional of total award –
reserved for most serious of claims involving complex issues. Mr. D’s company H Ltd. worked
w/ Blott & Company – employed form fillers. IRS survivors referred to H Ltd. in order to have
an IAP application completed by form filler. Form filler then referred claimant to Blott &
Company.
A: Inadequate services in following areas: processes used to certify applications to IAP;
procedures for internal controls and handling docs on client files; delay in actual submission of
certified applications to Adjudication Secretariat; inadequate preparation of claimants for their
hearings; misuse of progressive disclosure concept; retainer agreement and billing of clients
for additional services; inability of clients to contact Blott & Company lawyers.
C: Through B’s direction, victims of IRS were re-victimized and de-humanized by a process
where the ultimate goal appeared to be making as much money as possible w/ the least
amount of personal attention. Resignation accepted – B is not to practise law again.
Contingency Fee Arrangements
Permissive in BC – governed by Part 8 of the Legal Profession Act. Have to be in writing.
Written agreement must set out how the contingency fee arrangement can be terminated. Must
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tell client that they have a statutory right to have their bill reviewed. Clients should be
encouraged to seek independent legal advice before accepting contingency fee arrangements.
There are some special limitations on family law matters.
Registrar of the Supreme Court reviews lawyers’ accounts. If as a result of the review the
lawyer’s bill is reduced by more than 1/6, then the lawyer must pay the costs of the review as
well.
Third Party Litigation Funding
Is commercial funding a boon for access to justice, or is it a commodification of litigation? Can it
be both? Funders in Canada have recently shown increased interest in large commercial
lawsuits and class actions. TPLF in Canadian class actions is publicly known and judicially
approved. Unlike litigation financing in some personal injury cases, the funding of class actions
is not structured as a loan but rather as an investment w/ a return calculated as a percentage of
the settlement or judgment if one is obtained. Canadian funders do not appear to have strategic
control of their cases. BUT the notion that the representative P controls the litigation is a
fiction. Potential overreaching by the funder as well as subtle pressure on counsel to take a
court of action that is at odds w/ the interests of the class both affect the independence of
counsel. One alternative to TPLF is the ‘Class Proceedings Fund’ in Ontario and Quebec.
Woolley, Ethical vs. Unethical: The Troubling Tales of Tony Merchant
There is a distinction between a technical scheme that constitutes a wrongful breach of a court
order, and a technical scheme that constitutes a clever bit of zealous advocacy. M’s actions were
not wholly distinct from the proper conduct by lawyers – they were just unethical extensions of
behaviour that would otherwise be considered ethical and proper.
ISSUES IN SPECIFIC PRACTISE AREAS
Criminal Law
ETHICAL DUTIES OF OFFICERS OF THE COURT
Both Crown counsel and defence counsel in fact have ‘dual roles’ in the criminal trial.
The Crown is expected to be fair, objective and dispassionate in presenting the case for
the Crown but is also expected to argue forcefully for a legitimate result (which will
often be a conviction). The defence is expected to vigorously represent the interests of
the accused but is also expected to remain independent of the client and to be mindful of
various overriding duties to the court.
Both Crown and defence must seek “justice” and “truth”. Rondel v Worsley: counsel must
not mislead the court, must not cast aspersions on the other party or witnesses for which there
is no evidentiary basis, must not withhold authorities. Advocate has a duty to ensure the
administration of justice is not distorted or thwarted by dishonest or disreputable practices.
This includes avoiding frivolous arguments and maintaining civility. It can be difficult to
distinguish between “creative” and frivolous arguments.
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ETHICAL DUTIES OF CROWN COUNSEL
SEE ALSO R v R(AJ) p 26.
BC Code ch. 5.1-3 – Duty as Prosecutor
BC Code ch. 2.1-1(b) – Duty to the State as Crown Prosecutor
AG and agents are permitted liberal discretion in making decisions affecting the prosecution of
criminal cases, and they must be secure from political or social pressures. A prosecutor can
seek a conviction but must all the while strive to ensure that the D has a fair trial. Crown is
minister of justice. The efficacy of a prosecution service is an essential element in a safe society.
Because of the presumption of innocence, there are very high expectations for behaviour of the
Crown.
What do prosecutors do? Help the police prepare their case for court. Help the defence
prepare their case (disclosure). Held judges prepare their decisions. Play a part in the chain of
justice.
Krieger v Law Society of Alberta, (2002) SCC
F: K was Crown Counsel in AB in a murder case that took place a few years after Stinchcombe.
Approximately 2 weeks before the preliminary inquiry, K learned that ‘there were preliminary
results from the blood tests that implicated a different person’. K did not disclose this info to
defence counsel. Defence counsel discovered the favourable preliminary results of the blood
testing. K said he was simply delaying disclosure, pursuant to ‘discretion’ recognized in
Stinchcombe. AG’s office reprimanded K and removed him from the case.
I: Does the Law Society have jurisdiction to discipline K?
L: It is a constitutional principle that the AG must act independently of partisan concerns when
supervising prosecutorial decisions. BUT all lawyers are subject to rules of Law Society –
Crown prosecutors are no exception. Prosecutorial discretion refers to decisions regarding
the nature and extent of the prosecution and the AG’s participation in it. Decisions that do not
go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown
prosecutor’s tactics or conduct before the court, do not fall within the scope of
prosecutorial discretion.
C: Appeal allowed.
D: Prosecutors must respect law society rules w/ respect to being a lawyer generally, and the
specific rules for Crown counsel. There is a multi-layered control over prosecutors: in addition
to law society rules there are administrative controls, the tort of malicious prosecution, etc.
R v Boucher, (1951) SCC
F: B was accused of a murder in a small town outside of Quebec City. Prosecutor’s closing
statement had inflammatory jury address. Included statements such as ‘revoting crime’,
‘Cowardly, with blows of an ax’. Also stated that the Crown would not be bringing the case if it
were not convinced that B was guilty.
C: Jury address here was objectionable because it made the Crown into a witness and one who
was giving inadmissible evidence, and it employed an appeal to emotion.
R: 2 limitations on content of Crown jury addresses: Cannot express by inflammatory or
vindictive language his own personal opinion that the accused is guilty or leave jury an
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impression that the investigation made by the Crown is such that they should find the
accused guilty.
ETHICAL DUTIES OF DEFENCE COUNSEL
See: BC Code ch 5.1-1 [Commentary 9]: When defending an accused person, a lawyer’s duty
is to protect the client as far as possible from being convicted, except by a tribunal of
competent jurisdiction and upon legal evidence sufficient to support a conviction for the
offence w/ which the client is charged. Accordingly, and notwithstanding the lawyer’s private
opinion on credibility or the merits, a lawyer may properly rely on any evidence of defences,
including so-called technicalities, not known to be false or fraudulent.
See: BC Code ch. 2.1-3(f)
SEE ALSO zealous advocacy p 6.
Rule 4.01(1) of the Model Code: Defence counsel must represent the client resolutely and
fearlessly raise every issue and ask every question, no matter how distasteful. You
always have to be zealous, regardless of who your client is. However, being civil and following
the ethical rules are important regardless of your role. Some argue that there is a tension
between the defence counsel’s role as ‘zealous advocate’ and civility.
The most important ethical principle, when ‘defending the guilty client’, is to avoid
forming any opinions on the subject of guilt or innocence in the first place.
Notwithstanding the lawyer’s private opinion on credibility or the merits, a lawyer may
properly rely on any evidence or defences, including so-called technicalities, not known to be
false or fraudulent. The lawyer who is ‘convinced’ of the client’s guilt is subject to certain
ethical constraints in the conduct of the defence. CANNOT intentionally mislead the court.
However, it is important to recall that it is possible to run a case solely on the basis that the
Crown has not proven guilt beyond a reasonable doubt – part of role as defence counsel is to
advance your client’s constitutional rights.
TAKING CUSTODY AND CONTROL OF REAL EVIDENCE
BC Code ch. 3.5 – Preservation of clients’ property
SEE ALSO Confidentiality p 22.
Defence counsel’s taking custody or control of real physical evidence associated w/ the
commission of a crime raises in a very direct way issues concerning the scope of a criminal
defence lawyer’s zealous advocacy on behalf of a client, along w/ his duty to the court and to
the administration of justice generally. Generally, lawyers should avoid being implicated in
gathering of physical evidence.
In the criminal law, there is generally no reciprocal disclosure obligation placed upon the
defence. There are 3 exceptions to this general rule against defence disclosure: an alibi should
be disclosed in sufficient time to allow it to be properly investigated; defence should be
disclosed in time to allow a Crown psychiatrist to examine the accused; and any expert opinion
evidence to be relied on by the defence should be disclosed 30 days before the trial. Accused’s
private communications w/ defence counsel about real evidence are protected by law of
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privilege, assuming that accused client is seeking legal advice about what to do w/ the
real evidence. The lawyer who takes possession of real evidence risks criminal prosecution
under ss 139 and 23 of the CC, depending on state of mind and intention.
A regulatory or legal ethics approach to the problem would insist that defence counsel who
take possession of potentially inculpatory real evidence must, at a minimum, take the
following steps: review the material immediately and refuse to accept instructions from the
client not to review the material; advise the client that accepting such instructions and not
reviewing the material is unethical; advise the client that if the material, once reviewed, turns
out to be substantially or predominantly incriminatory, it is illegal and unethical for counsel to
conceal it from the authorities; and if the exculpatory uses of the material are not plain and
obvious, or are not clearly the predominant uses of the material, counsel must consult
immediately w/ a panel of senior lawyers convened by the relevant Law Society.
R v Murray, 2000 Ont SCJ
F: M told by client to collect videotapes stashed away in the client's house. The tapes show the
sexual assaults the client is accused of. Client's wife pled to a lesser charge in exchange for her
testimony. Had the Crown known of the tapes, they would not have accepted her plea. M says
that he was planning on using the tapes at trial to cross-examine wife. M consults senior lawyer
about a hypothetical situation and is advised that M does not have a duty to disclose (but senior
lawyer does not know nature of hard evidence in question). M is charged criminally w/
attempting to obstruct course of justice for retaining the tapes.
I: Did M commit the crime of attempting to obstruct justice? What are the ethical obligations of
a criminal defence lawyer in terms of control of real evidence?
A: Solicitor-client privilege protects communications – videotapes are not communications.
Although M had a duty of confidentiality to his client, absent solicitor-client privilege there was
no legal basis permitting concealment of the tapes. Once he had discovered the significance of
the tapes, M was left w/ 3 legally justifiable options: (1) Immediately turn over tapes to
prosecution, directly or anonymously; (2) Deposit them w/ TJ; (3) Disclose their existence to
prosecution and prepare to do battle to retain them.
C: Not guilty for lack of MR. M never ended up being disciplined by Law Society.
R: Retrieving physical evidence on behalf of a client is a BAD THING. Physical evidence is
not covered by solicitor-client privilege.
NEGOTIATING A GUILTY PLEA
BC Code ch. 5.1-7; 5.1-8 – Agreement on Guilty Plea
Four main ethical rules for defence counsel, when conducting plea and sentence
negotiations:
1. Counsel must not conclude plea and sentence discussions w/o first completing a thorough
analysis of the facts and law applicable to the case;
2. The client is entitled to weigh the relative merits of trial versus guilty plea on the basis of
competence advice;
3. The decision as to what plea to enter is the client’s decision and it must be made freely and
voluntarily;
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4. Although the client is entitled to make the ultimate decision to plead guilty, the plea must
be based on an admission of the necessary factual and mental elements of the offence
charged – can’t plead guilty while still proclaiming innocence.
 Part of the problem with negotiating a guilty plea when your client proclaims their
innocence is that it involves dishonestly portraying to the court that your client is
remorseful.
R v K(S), (1995) Ont CA
F: A was originally charged w/ 10 counts of sexual offences against 5 young girls, went to trial
in the youth court, and eventually pleaded guilty to 4 of these counts. He now seeks to set aside
the plea of guilty – says he was innocent and that he has always pled his innocence. Defence
counsel advised A of the likelihood of a significant custodial sentence and received instructions
to proceed w/ guilty pleas. Crown and defence submitted jointly for non-custodial sentence. TJ
indicated that he would not guarantee non-custodial sentence if predisposition report was not
favourable. Defence was advised by A that he was innocent. 2 reports were prepared by
probation officer and psychologist that said A said he was innocent. TJ concluded that custodial
sentence was required.
A: When A was told by probation officer that he would not receive required treatment if he
denied his offences, he decided to appeal. A was unaware of contradiction between plea of
guilty and denial until he received advice from probation officer.
C: Guilty pleas set aside, new trial on all 10 counts.
R: A sentencing judge should question the A as to the validity of the guilty plea
regardless of whether or not A is represented by counsel.
Corporate/In House Counsel
SEE ALSO – Luban “Tales of Terror” p 18 re: advising
BC Code ch. 3.2-8 – Dishonesty, Fraud When Client an Organization
BC Code ch. 3.1-2 [Commentary 10] – Giving non-legal advice
BC Code ch. 3.2-3 – When the Client is an Organization
Lawyers working in corporate contexts build relationships with clients that may not fit neatly
within the traditional paradigm of a sole practitioner or a lawyer in a law firm representing
individuals. They face the challenges of maintaining independence and integrity as
professionals while simultaneously functioning as employees of the organization they are
advising. They need to be especially careful when their advice and counsel is sought for
business matters as well as legal ones. They must also be aware of the challenges to their
independence and cognitive dissonance.
MILTON REGAN, JR. “PROFESSIONAL RESPONSIBILITY AND THE CORPORATE LAWYER”
Different issues for the corporate lawyer:
1. Complexities of representing an organization rather than an individual [who
speaks for the corporation?];
2. Ethical rules traditionally have been formulated primarily with the litigator in
mind [disclosure obligations are relatively relaxed in transactional settings;
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3. Many corporate lawyers not only represent organizations, but are employed by
them [calls into question traditional assumption that client determines the ends of
representation and lawyer selects the means];
4. Increasingly global nature of law practice;
5. Corporations are not simply private actors pursuing their own goals along w/
other interest groups in society – a market-based economy delegates to corporations
substantial authority over matters of wide-ranging social importance.
When you move to in-house counsel, you are the cost center rather than the engine of profit as
you are at the firm. BUT in-house counsel ensures sustainable profit.
PAUL PATON, “CORPORATE COUNSEL AS CORPORATE CONSCIENCE”
The fact of having one client – the corporation or the gov’t – means that an in-house lawyer is
particularly vulnerable when there is challenge from within the organization. Remaining
ethical, independent, and professional in an in-house practice requires a level of personal
sacrifice and dissociation from the company or the team not demanded of almost any other
corporate player. You have to have a thick skin to raise ethical issues. It is important to
remember that the client of in-house counsel is the corporate entity – not the directors or
shareholders or executives.
THE CANADIAN RESPONSE: LAW SOCIETY RULES
3.2-8: A lawyer who is employed/retained by an organization to act in a matter in which
the lawyer knows that the organization has acted, is acting, or intends to act dishonestly,
fraudulently, criminally, or illegally, must do the following:
(1) Advise the person from whom the lawyer takes instructions and the chief legal
officer that the proposed conduct is dishonest etc. and should be stopped;
(2) If necessary, advise progressively the next highest persons/groups all the way up to
the Board of Directors;
(3) If the organization continues w/ or intends to pursue the proposed wrongful
conduct, withdraw from acting in the matter - In some but not all cases, withdrawal
means resigning from his/her position or relationship w/ the organization.
In some circumstances, the final result may be a ‘noisy withdrawal’ – withdrawal combined
w/ some form of reporting to someone. BUT in Canada, there is nothing in Law Society Rules
that require you to make a noisy withdrawal – in fact it’s the opposite – you need to preserve
your client’s confidentiality in the process of withdrawal.
Wilder v Ontario (Securities Commission), (2001) Ont CA
F: W is a partner with Cassels Brock and is representing YBM. W writes to the Ontario
Securities Commission (OSC) on behalf of YBM. OSC alleges that letter contained misleading or
untrue statements of fact. LSUC submitted that OSC lacks statutory mandate to reprimand W.
I: Can OSC reprimand Wilder?
R: OSC has jurisdiction to reprimand a lawyer. Doing so does not interfere with law societies'
role of regulation the professional conduct of a lawyer. OSC is not disciplining a lawyer, per se,
just an individual who happens to be a lawyer. Both Law Society and OSC exercise public
interest functions, but the public interests that they seek to protect are not the same.
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