Call for Input
Information on Proposed Amendments to the Rules of
Professional Conduct Arising from Implementation of the
Federation of Law Societies of Canada’s Model Code of
Professional Conduct
Prepared by the Policy Secretariat
Proposed Amendments to the Rules of Professional Conduct Arising from
Implementation of the Federation of Law Societies of Canada’s
Model Code of Professional Conduct
INTRODUCTION
The Federation of Law Societies of Canada, which is the national coordinating body of Canada's
14 provincial and territorial law societies, recently approved the Model Code of Professional
Conduct (“the Model Code”). The Law Society of Upper Canada’s Rules of Professional
Conduct (“the Rules”) were used as the basis for the Model Code.
The primary impetus for the Model Code was the increased mobility of lawyers in Canada and
the need to have uniform ethical standards for the practice of law in Canada, based on a belief
that there are national, and international, ethical standards for the practice of law which should
be reflected in consistent conduct rules across the country. Law societies in Canada are now
implementing the Model Code as the rules or codes of professional conduct of their jurisdictions.
THE LAW SOCIETY’S REVIEW OF THE MODEL CODE
Since October 2011, the Law Society’s Professional Regulation Committee (“the Committee”)
has been reviewing the Model Code for the purpose of implementing it in Ontario.1 In keeping
with the goal of achieving national standards, the Committee focused on making changes to the
Rules to achieve consistency with the Model Code and only varying from that approach when
necessary to reflect Ontario’s unique practices and requirements. The Committee’s suggestions
for amendments to improve the Model Code are being referred back to the Federation.
While implementation of the Model Code would result in a series of minor and clarifying
changes to the Rules, some of the changes are more substantive and, in certain cases, introduce
new standards.
This document focuses on the substantive changes that result from implementing the Model
Code. While comments on any of the proposed rule amendments are welcome, the Law Society
is most interested in comments on the substantive changes that are discussed in this document. In
some cases, comment on specific rules is requested. With the exception of the rule on conflicts of
interest, explained below, all amendments to the Rules proposed by the Committee are shown in
the blackline version of the Rules found at Appendix 1.
1
At this time, the review concerns the Rules of Professional Conduct for lawyers. The Paralegal Rules of Conduct
will be subject to a separate review.
2
One of the more significant changes is to the rule on conflicts of interest. While some of the
guidance currently provided in Law Society rule 2.04 appears in the new proposed rule, there are
a number of substantive changes. The Committee in general agrees with the proposed rule. It
has commented on some possible revisions to the new rule in the interests of enhancing its
effectiveness.
The changes to the rule on conflicts of interest and the Committee’s comments on possible
revisions are explained in detail in the next section. The conflicts rule as proposed by the
Federation and the current Law Society rules on conflicts are reproduced in their entirety in
Appendix 1 but are not blacklined, given the many changes.
Page references in the text of this document are to the relevant rules in Appendix 1 unless
otherwise indicated.
The Model Code in its entirety can be viewed online on the Federation’s website at
http://www.flsc.ca/_documents/Model-Code-2011-Dec-REV.pdf.
Comments should be submitted in writing to the Law Society by August 31, 2012 to the
following address:
Professional Regulation Committee
Model Code Implementation
Policy Secretariat
Law Society of Upper Canada
Osgoode Hall, 130 Queen Street West
Toronto, ON M5H 2N6
or by email to [email protected]
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DISCUSSION OF PROPOSED AMENDMENTS
PART I - RULE ON CONFLICTS OF INTEREST
One of the most significant changes that would result from implementing the Model Code would
be to the Law Society’s rule on conflicts of interests. A new set of subrules and expanded
commentary are proposed which include changes to the definitions of “client”, “conflict of
interest” and “disclosure”. The subrules include some of the guidance currently in rule 2.04 in a
reorganized format.
For ease of reference, the explanatory text below follows the Model Code’s organization of the
rule and rule numbering. All page references refer to the Model Code’s version of the rules or
the Law Society current rules in Appendix I.
The Committee welcomes comments on these proposals.
Definition of “conflict of interest” [p. 43]
A new definition of conflict of interest is proposed. The Model Code defines a conflict as
follows.
A “conflict of interest” means the existence of a substantial risk that a lawyer’s
loyalty to or representation of a client would be materially and adversely affected
by the lawyer’s duties to another client, a former client, or a third person.
This definition is central to the meaning of the Model Code’s governing rule 2.04(1) on conflicts.
While there is no commentary to the definition, the commentary to the Model Code’s rule 2.04
(1) refers to the definition and elaborates on the meaning of “substantial risk”.
In the current Rules, the definition of a conflict of interest appears in the conflicts rule itself
(2.04(1)), at page 31, and describes a conflict as an interest that is “likely to affect” the lawyer’s
judgment or loyalty to a client. The current Rule’s commentary to the definition of “conflict of
interest” specifies that conflicting interests include the financial interest of a lawyer or an
associate of the lawyer, including a financial interest in a firm of non-lawyers in an affiliation.
The commentary also provides examples of situations where a conflict might or might not exist.
The substance of this commentary appears in the “Examples of Conflicts of Interest” section of
the Model Code’s commentary to rule 2.04(1), at pages 45 and 46, which include a discussion of
financial interests of the lawyer in paragraph 4.
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The Committee invites comment on the proposed definition of “conflict of interest” and
commentary under Model Code rule 2.04(1).
Definition of “client” [p. 43]
In the Model Code, “client” means a person who:
(a) consults a lawyer and on whose behalf the lawyer renders or agrees to render
legal services; or
(b) having consulted the lawyer, reasonably concludes that the lawyer has agreed
to render legal services on his or her behalf.
Commentary to this definition in the Model Code is as follows:
Commentary
A lawyer-client relationship may be established without formality.
When an individual consults a lawyer in a representative capacity, the client is the
corporation, partnership, organization, or other legal entity that the individual is
representing;
For greater clarity, a client does not include a near-client, such as an affiliated
entity, director, shareholder, employee or family member, unless there is
objective evidence to demonstrate that such an individual had a reasonable
expectation that a lawyer- client relationship would be established.
In the current rule 1.02, at page 2, “client” is defined as follows:
“client” includes a client of the law firm of which the lawyer is a partner or
associate, whether or not the lawyer handles the client’s work;
The Committee believes that this language is an important feature of the definition of “client”
and should remain in the definition.
The only common feature between the commentary to the current rule (below) and in the Model
Code is the first sentence:
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Commentary
A solicitor and client relationship is often established without formality. For example, an
express retainer or remuneration is not required for a solicitor and client relationship to
arise. Also, in some circumstances, a lawyer may have legal and ethical responsibilities
similar to those arising from a solicitor and client relationship. For example, a lawyer
may meet with a prospective client in circumstances that impart confidentiality, and,
although no solicitor and client relationship is ever actually established, the lawyer may
have a disqualifying conflict of interest if he or she were later to act against the
prospective client. It is, therefore, in a lawyer’s own interest to carefully manage the
establishment of a solicitor and client relationship.
However, the Model Code has added new commentary to rule 2.03 on confidentiality that
includes much of the substance of the commentary above.
The Committee’s proposal is to adopt the Model Code’s definition of client set out below and
commentary, with a cross-reference to the new commentary to rule 2.03.
"client" means a person who:
(a) consults a lawyer and on whose behalf the lawyer renders or agrees to render
legal services; or
(b) having consulted the lawyer, reasonably concludes that the lawyer has agreed
to render legal services on his or her behalf;
and includes a client of the law firm of which the lawyer is a partner or associate,
whether or not the lawyer handles the client’s work.
Commentary
A lawyer-client relationship may be established without formality.
When an individual consults a lawyer in a representative capacity, the client is the
corporation, partnership, organization, or other legal entity that the individual is
representing;
For greater clarity, a client does not include a near-client, such as an
affiliated entity, director, shareholder, employee or family member, unless
there is objective evidence to demonstrate that such an individual had a
reasonable expectation that a lawyer- client relationship would be
established.
(See commentary under Rule 2.03 Confidentiality)
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Definition of “disclosure” [p. 43]
The Model Code includes the following definition, which is new in the Rules:
“disclosure” means full and fair disclosure of all information relevant to a
person’s decision (including, where applicable, those matters referred to in
commentary in this Model Code), in sufficient time for the person to make a
genuine and independent decision, and the taking of reasonable steps to ensure
understanding of the matters disclosed;
This definition appears to have relevance only to the Model Code’s rule 2.04 on conflicts of
interest and may not fit well with other rules that use the term “disclosure”. For example, rule
2.03 on confidentiality prohibits disclosure of client information.
The Committee’s initial view is that the definition of “disclosure” should not be added to the
Rules, but comment on this new definition is invited.
Duty to Avoid Conflicts of Interest - Rule 2.04(1) [p.44]
The governing rule on conflicts in the Model Code, rule 2.04(1), which the Committee is
proposing, contains a general prohibition on acting where there is a conflict of interest which, as
noted earlier, is a defined term. The lengthy commentary that follows the rule specifies that the
prohibition applies with regard to current, former, concurrent and joint clients as well as to the
lawyer’s own interests. These aspects are all dealt with in the subrules that follow.
The Law Society’s current general rule on conflicts, rule 2.04(3), at page 31, also addresses the
issue of consent. In the Model Code, consent is the subject of a separate rule (rule 2.04(2))
(discussed below).
There are some minor similarities between the Model Code’s commentary and the commentary
to current Rule 2.04(3). For example, the second paragraph in each is very similar. The concepts
of freedom of judgment and action, appearing in the current commentary, also appear in the
Model Code’s commentary. As noted earlier, some of the examples in the Model Code’s
commentary of situations in which conflicts may arise reflect portions of commentary to the
current rule, but much of the text in the Model Code’s commentary is new and newly formatted.
While the Committee generally agrees with the language of the commentary, some changes are
proposed. Comment is invited on the original and amended text.
The Committee proposes to amend the language in the third paragraph of the Model Code’s
commentary to improve clarity, as follows:
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The general prohibition and permitted activity prescribed by this rule apply to In
order to assess whether there is a conflict of interest, the lawyer is required to
consider the lawyer’s duties to current, former, concurrent and joint clients as well
as the lawyer’s own interests.
The commentary to the Model Code’s rule goes on to emphasize the fiduciary relationship and
the fiduciary duty of loyalty. The commentary makes specific reference to Supreme Court of
Canada case law on current client conflicts2. It refers to a duty of a lawyer to not represent a
client whose legal interests are directly adverse to the immediate legal interests of another client
without consent, and that this duty arises even if the matters are unrelated.
The Committee proposes that amendments be made to the following paragraphs of the Model
Code’s commentary to improve the flow, clarify the explanation of the duties and more
accurately track the language of the Supreme Court of Canada jurisprudence:
The value of an independent bar is diminished unless the lawyer is free from
conflicts of interest. The rule governing conflicts of interest is founded in the duty
of loyalty which is grounded in the law governing fiduciaries. The lawyer-client
relationship is a fiduciary relationship and as such, the lawyer has a duty of
loyalty to the client. To maintain public confidence in the integrity of the legal
profession and the administration of justice, in which lawyers play a key role, it is
essential that lawyers respect the duty of loyalty. Arising from Aspects of the
duty of loyalty owed to a current client are other duties such as a are the duty to
commit to the client’s cause, the duty of confidentiality, the duty of candour and
the duty not to act against the interests of the client to avoid conflicting interests.
This obligation is premised on an established or ongoing lawyer client
relationship in which the Current clients must be assured of the lawyer’s
undivided loyalty, free from any material impairment of the lawyer and client
relationship.
This rule reflects the principle articulated by the Supreme Court of Canada in the
cases of R. v. Neil 2002 SCC 70 and Strother v. 346920 Canada Inc 2007 SCC 24
regarding conflicting interests involving current clients general rule that a lawyer
must not represent one client whose legal interests are directly adverse to the
immediate legal interests of another client without consent. This duty arises even
if the matters are unrelated. [...]
The commentary also lists factors that assist in determining if a conflict of interest exists and
provides examples of situations where conflicts might arise.
The Committee proposes that the introductory language be amended to more clearly state the
intention of the examples:
2
R. v. Neil, 2002 SCC 70 and Strother v. 3464920 Canada Inc., 2007 SCC 24.
8
Conflicts of interest can arise in many different circumstances. The following are
examples are intended to provide illustrations of conflicts of interest and are not
exhaustive. of situations in which conflicts of interest commonly arise requiring a
lawyer to take particular care to determine whether a conflict of interest exists:
In considering the list of examples, the Committee’s view is that examples 2 and 7 in the list of
possible situations of conflict (at paragraph 2 of the commentary) should not be included. In
example 2 dealing with positional conflicts, the Committee feels that a lawyer would have
difficulty knowing how to apply the language used in the example and that the American
approach to positional conflicts reflected in the example was not yet developed in Canada. The
Committee also believes that the last paragraph of the commentary which deals with
confidentiality in the context of lawyers who share office space should be removed and that
instead a cross-reference be added to the Model Code’s rule 2.03 Confidentiality.
2. A lawyer’s position on behalf of one client leads to a precedent likely to
seriously weaken the position being taken on behalf of another client, thereby
creating a substantial risk that the lawyer's action on behalf of the one client will
materially limit the lawyer’s effectiveness in representing the other client.
7. Sole practitioners who practise with other lawyers in cost-sharing or other
arrangements represent clients on opposite sides of a dispute.
The fact or the appearance of such a conflict may depend on the extent to which
the lawyers’ practices are integrated, physically and administratively, in the
association.
[See Rule 2.03]
Consent – Rule 2.04(2) [p. 47]
The Model Code’s rule 2.04(2), provides an exception to the prohibition against acting in a
conflict of interest where there is “express or implied consent” from all clients, and the lawyer
“reasonably believes” that there will be no “material adverse effect” on the representation of or
loyalty to the clients.
The Committee proposes changing “reasonably believes” to “it is reasonable for the lawyer to
conclude” as a more appropriate threshold for this rule.
The Model Code’s rule, unlike the current rules, explains what constitutes express and inferred
consent, and prescribes the circumstances in which consent may be inferred. With respect to
inferred consent, the Committee proposes to amend subparagraph iii. in the list under rule
2.04(2)(b) as follows so that the focus is on representation:
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the lawyer has no relevant confidential information from one client that might
reasonably affect the representation of the other client;
Extensive commentary follows subrule (2), much of which is new when compared to the Law
Society’s Rules. The Committee considers this to be useful guidance.
Dispute – Rule 2.04(3) [p. 48]
Rule 2.04(3) in the Model Code, prohibits the representation of opposing parties in a dispute.
Law Society rule 2.04(2), at page 31, is similar but uses the words “advise or represent more than
one side”.
The Committee proposes that the Model Code’s rule be adopted, together with the new
commentary that appears below the rule.
Concurrent Representation with protection of confidential client information – Rule 2.04(4) [p.
49]
The Model Code adds a new rule, permitting different lawyers in a law firm to act in a matter for
different current clients with “competing” interests as long as there is no dispute among the
clients about the matter. The Model Code does not define “competing interests”. In such a case,
the rule states that the lawyers may treat information received from each client as confidential
and not disclose it to the other clients.
The rule sets out a number of requirements to be met, including disclosure of the risk of the
concurrent representation to each client, consent by the clients after having received independent
legal advice on those risks, representation of each client by a different lawyer of the firm,
screening mechanisms to protect confidential information and withdrawal of all lawyers in the
law firm from the matter if a dispute that cannot be resolved develops among the clients. The
commentary that follows the rule emphasizes that concurrent retainers are intended in cases
where all the clients are equally sophisticated.
In the Committee’s view, the rule as drafted deals with matters that are more appropriately found
in a commentary rather than a rule. The Committee believes that adding a paragraph, like the
one below, to the commentary under the joint retainer rule (rule 2.04(5)) will provide the
appropriate guidance to law firms that accept competing retainers. Adding language to explain
how such retainers differ from joint retainers would be helpful.
Joint retainers should be distinguished from separate retainers in which a law
firm is retained to assist two or more clients compete for the same opportunity
such as, for example, by competing bids in a corporate acquisition or competing
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applications for a single licence. Since competing retainers of this kind are not
joint retainers, information received can be treated as confidential and not
disclosed to the client in the other competing retainer. However, competing
retainers to pursue the same opportunity require express consent pursuant to
subrule 2.04(2) because a conflict of interest will exist and the retainers will be
related. With consent, confidentiality screens as described in subrules 2.04(17) to
(26) would be permitted between competing retainers to pursue the same
opportunity. But confidentiality screens are not permitted in a joint retainer
because subrule 2.04(5)(b) does not permit treating information received in
connection with the joint retainer as confidential so far as any of the joint clients
are concerned.
Joint Retainers – Rule 2.04(5) [p. 50]
Other than some variations in the wording and organization of the rule, the Model Code’s rule
and the current joint retainer rule are generally the same.
There are minor differences in the Model Code’s rule 2.04(8) when compared to current rule
2.04(9), at page 36. The Model Code breaks out the duties in this rule in a different way although
the substance of the current rule remains. The Model Code adds a new requirement in
subparagraph (b) which requires the lawyer to withdraw if the contentious issues are not
resolved.
Current rules 2.04(6.1), 2.04(8.1), 2.04(8.2), at pages 35 and 36 which deal with joint retainers
by a borrower and lender in a mortgage or loan transaction are located in the Model Code under
the heading “Acting for Borrower and Lender” beginning at rule 2.04(12), at page 53.
The commentaries following the rules are also largely identical. The minor differences are as
follows:
a.
The commentary following current rule 2.04(6), unlike that following the Model Code’s
rule 2.04(5), refers to the Substitute Decisions Act, 1992 S.O. 1992 c. 30.
b.
A sentence has been added to the commentary under rule 2.04(7) of the Model Code
(current rule 2.04(8) that specifies that the consent of each client to the joint retainer
should be in a separate written communication. This reiterates what is already required in
the definition of “consent” in the current rules.
c.
The commentary under rule 2.04(9) of the Model Code (current rule 2.04(10) is new.
The Committee proposes that the Model Code’s version of this rule be adopted except that
a.
the reference to the Substitute Decisions Act should remain in the Law Society’s rules,
and
b.
the commentary under rule 2.04(9) need not be included.
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Acting Against Former Clients – Rule 2.04(10) [p. 52]
Rule 2.04(10) in the Model Code prohibits a lawyer from acting against a former client unless
the former client consents. The wording is similar to current rule 2.04(4) at page 33 except that
that the current rule includes “persons who were involved in or associated with the client” while
the Model Code does not.
The Committee proposes to adopt the Model Code’s version of the rule.
The commentaries under the current rules are similar to those in the Model Code except for the
commentary under rule 2.04(10) of the Model Code, which adds the following sentence:
This rule prohibits a lawyer from attacking the legal work done during the
retainer, or from undermining the client’s position on a matter that was central to
the retainer.
The Committee proposes that this sentence be replaced by the following, which in its view, more
appropriately describes the guidance that should be provided:
This rule guards against the misuse of confidential information from a previous
retainer and ensures that a lawyer does not attack the legal work done during a
previous retainer, or undermine the client’s position on a matter that was central
to a previous retainer.
The Model Code’s rule 2.04(11) is very similar to current rule 2.04(5) and deals with situations
where a lawyer has acted for a former client and obtained confidential information relevant to a
new matter. In such cases, another lawyer in the lawyer’s firm may act in the new matter against
the former client if certain conditions are satisfied. The Model Code adds an additional
subparagraph - (i) - that includes another factor to consider when choosing to act.
The commentary that follows subrule (11) restates the substance of the existing commentary, but
does not include the comment on the definition of “client” that is in the current commentary. The
current commentary reiterates the definition of “client” to reinforce that the rule applies to clients
of the firm and not just clients of the lawyer.
The Committee is of the view that the Model Code’s commentary is appropriate guidance in
relation to subrule (11) and proposes that it be adopted.
Acting for Borrower and Lender – Rule 2.04(12) [p. 53]
Except for minor variations, the rules in the Model Code mirror the existing rules. However, the
Model Code reorganizes some of the rules relating to mortgage and loan transactions, and
includes a definition of “lending client” applicable to subrules (14) through (16).
12
In the existing rules, the rules on acting for borrower and lender are located in the joint retainers
section, beginning at page 34, but the Model Code includes them under the “Acting for Borrower
and Lender” heading.
The main difference is in rule 2.04(14) of the Model Code which does not include a limit of
$50,000 for the consideration for the mortgage or loan. The Committee proposes to keep that
limit, which is in current rule 2.04(12), at page 38, as a matter necessary for Ontario. Otherwise,
the Committee proposes that the Model Code’s version of these rules be adopted.
Conflicts from Transfer Between Law Firms – Rules 2.04(17) to (26) [p. 55]
These rules and the commentaries are virtually identical to current rule 2.05 and commentaries
(page 67), except for some very minor language variations.
Doing Business with a Client– Rule 2.04(27) to (41) [p. 62]
Currently, the subrules on doing business with a client are located in rule 2.06 separate from the
conflicts rules. The Model Code includes them in the conflicts chapter
The definitions of “independent legal advice” and “independent legal representation” are
imported into the rule itself, whereas the current rules rely on the same definitions in the current
rule 1.02, at pages 3 and 4. In the Committee’s view, those definitions should remain in rule
1.02.
There is no definition of “syndicated mortgage” in the Model Code’s rule, as the rules that
include these words are deleted, as discussed below. For the reasons below, the Committee
proposes that this definition remain in the rules.
The Model Code’s rules 2.04(28) and commentary are new and provide a general rule and
guidance respecting a lawyer’s transactions with clients. The commentary imports the first
paragraph of the current commentary under rule 2.06(4) and adds the sentence about
remuneration in the context of conflicts. In the Committee’s view, the rule and commentary add
some clarity to the subject.
The Model Code’s rules 2.04 (28) to 2.04 (36), mainly reorganize our corresponding rules.
The Model Code makes minor but useful wording changes to rules 2.04 (32) and (33) on the
subject of a certificate of independent legal advice.
13
The Model Code appropriately adds new rule 2.04(34) that addresses the obligations where a
lawyer lends money to a client.
The Model Code makes a substantive change to the current rules by deleting subrules (6) through
(8) of rule 2.06. These rules deal in some detail with a lawyer holding mortgages in which clients
invest, a lawyer arranging mortgages for clients, disclosure obligations and advertising
restrictions. While these rules appear to be unique to Ontario, the Committee is proposing that
they remain.
The Model Code adds new rules on testamentary instruments and gifts. Subrule 2.04 (37)
prohibits a lawyer from including in a client’s will a clause directing the executor to retain the
lawyer’s services in the administration of the client’s estate. Subrule 2.04 (38), prohibits a lawyer
from preparing an instrument giving the lawyer or an associate a gift or benefit from the client,
unless the client is the lawyer’s family member or partner or associate. The Committee agrees
with those provisions and proposes that they be adopted.
The Committee does not propose to adopt subrule 2.04(39) that would prohibit a lawyer from
accepting more than a “nominal” gift from a client unless the client has received independent
legal advice. The Committee’s view was that it was not necessary to include a rule on this
subject.
The Model Code adds new rules 2.04(40) to (41) on Judicial Interim Release, which the
Committee proposes to adopt with a minor clarifying wording change as follows:
A lawyer shall not act as a surety for, deposit his or her own money or other
valuable security […]
Comment on Law Society Conflicts Rules Not Included in the Model Code
Affiliations – Rules 2.04(10.1) to (10.3) [p. 37]
The Model Code does not include the rules on joint retainers for affiliations. The Committee
proposes that these rules remain as unique to Ontario, given that it is the only province in Canada
that has the affiliation structure for services by licensees and non-licensees.
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Short-term limited legal services – Rules 2.04(15) to (19) [p. 39]
The Model Code does not include rules related to short-term limited legal services. The
Committee proposes that they remain as an important part of the guidance to Ontario lawyers
who engage in these services.
Lawyers acting for transferor and transferee in transfers of title – Rule 2.04.1 [p. 41]
The Model Code does not include rules on the subject of lawyers acting for transferor and
transferee in transfers of title. The Committee proposes that this rule remain as necessary
guidance to Ontario lawyers in these circumstances.
PART II - OTHER RULES
Rule 1.03 – Standards of the Legal Profession [p. 6]
In the Model Code, current rule 1.03, at page 6 is replaced by rule 1.01, at page 7.
New rule 1.01(1) includes the language of Law Society rule 1.03(1)(a), revised language from
rule 6.01, the commentary following rule 6.01, the commentary following the definition of
conduct unbecoming in rule 1.02 and some new commentary.
New rule 1.01(2) includes the language of current rule 1.03(1)(c) and some new commentary.
Thus, this reorganization of principles, with which the Committee agrees, now appears as a
discrete rule under the banner of a rule entitled “Integrity”.
However, the Model Code does not include the portion of current rule 1.03(1)(b) that emphasizes
the lawyer’s duty towards diversity, dignity of individuals and human rights laws in force in
Ontario or the commentary to that rule on French language rights. The Committee proposes that
this guidance remain in the commentary under new rule 1.01(1).
Rule 2.01 – Competence [p. 9]
The Model Code re-organizes the rules and commentary and adds new commentary following
rules 2.01 (1) and (2) at pages 9 through 13. Subrule (2) is moved immediately after subrule (1)
and the commentary following each subrule is combined into one following both subrules.
Additional commentary is also added. The Committee favours this re-organization.
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Rule 2.02 – Quality of Service [p. 14]
The Model Code adds a new rule 2.02(1) and commentary on quality of service. This appears as
the first rule and commentary in blackline version.
While some of the commentary mirrors concepts discussed in rule 2.01 on competence, the
proposed additions to the rules and commentary appear to be useful guidance, as competent
practice and quality of service obviously intersect.
Addition to rule 2.02(1) [Model Code rule 2.02(2)] and commentary [p. 14]
The Model Code adds the following (underlined) phrase to existing rule 2.02(1):
When advising clients, a lawyer shall be honest and candid and shall inform the
client of all information known to the lawyer that may affect the interests of the
client in the matter.
In the Committee’s view, the guidance in the current rule relates more to specific advice about
the legal matter. The additional language may broaden the obligation and encompass what
would usually be dealt with through specific advice by the lawyer on conflicts of interest. The
Model Code also adds a new paragraph to the commentary that relates to the above addition.
Before determining the merits of the change, the Committee is interested in receiving comments
on this change.
Threatening Criminal Proceedings: Rule 2.02(4) [Model Code Rule 2.02(5)] [p. 16]
The Model Code expands the prohibition against threatening or advising a client to threaten
criminal proceedings to include a complaint to a regulatory authority.
The Committee seeks views on this change. One issue noted by the Committee is that some
regulatory authorities are engaged in matters analogous to the civil jurisdiction of the courts
while other regulatory authorities are engaged in matters analogous to criminal proceedings.
New Subrule on Inducement for Withdrawal of Criminal or Regulatory Proceedings [p. 16]
The Model Code adds new subrule 2.02 (6) and commentary prohibiting a lawyer from offering
or giving or advising an accused to offer or give any valuable consideration to another person in
exchange for influencing the withdrawal of criminal or regulatory proceedings.
Before determining the merits of this new rule, the Committee seeks comments.
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Dishonesty/Fraud by client: Rule 2.02(5.1), (5.2) [p. 18]
The Model Code combines subrules (5.1) and (5.2) that deal with a lawyer’s obligations when
an organizational client is acting fraudulently, et cetera.
The current subrules separately address a lawyer’s obligations to report “up the ladder” in the
organization when an organizational client intends to act fraudulently and when the
organizational client is acting or has acted fraudulently. The Model Code’s rule shortens the rule
by one step in the process the lawyer must follow when the client intends to act fraudulently. In
the Committee’s view, this appears to be a better articulation of the requirement.
Additional commentary to Rule 2.02(6) on client with a disability [p. 21]
The Model Code expands significantly the commentary to the rule on a client with a disability at
Rule 2.02(6). The Committee’s view is that the briefer commentary that currently exists is
sufficient guidance to accompany the rule and proposes to adopt only the last paragraph of the
Model Code’s new commentary. It discusses the intersection of disclosure and the requirements
of the rule on confidentiality.
Rule 2.03 – Confidentiality [p. 25]
The Model Code reformats subrule (1) and adds a paragraph to rule 2.03(1) that provides another
exception to the prohibition on disclosure of confidentiality information, to permit a lawyer to
disclose required information to the Law Society. This adds an important feature consistent with
statutory provisions on disclosure of information to the Law Society.3
3
The Law Society Act provides as follows:
49.8 (1) A person who is required under section 42, 49.2, 49.3 or 49.15 to provide
information or to produce documents shall comply with the requirement even if the information or
documents are privileged or confidential. 1998, c. 21, s. 21; 2006, c. 21, Sched. C, s. 44 (1).
Admissibility despite privilege
(2) Despite clause 15 (2) (a) and section 32 of the Statutory Powers Procedure Act,
information provided and documents produced under section 42, 49.2, 49.3 or 49.15 are
admissible in a proceeding under this Act even if the information or documents are privileged or
confidential. 1998, c. 21, s. 21; 2006, c. 21, Sched. C, s. 44 (2).
Transition
(2.1) Despite clause 15 (2) (a) and section 32 of the Statutory Powers Procedure Act,
information that was provided and documents that were produced under section 49.4 of this Act,
before its repeal by section 43 of Schedule C to the Access to Justice Act, 2006, are admissible in a
proceeding under this Act even if the information or documents are privileged or confidential.
2006, c. 21, Sched. C, s. 44 (3).
Privilege preserved for other purposes
(3) Subsections (1), (2) and (2.1) do not negate or constitute a waiver of any privilege and,
even though information or documents that are privileged must be disclosed under subsection (1)
17
The Model Code also adds a paragraph to the commentary following subrule (1) as follows:
A lawyer also owes a duty of confidentiality to anyone seeking advice or
assistance on a matter invoking a lawyer’s professional knowledge, although the
lawyer may not render an account or agree to represent that person. A solicitor
and client relationship is often established without formality. A lawyer should be
cautious in accepting confidential information on an informal or preliminary
basis, since possession of the information may prevent the lawyer from
subsequently acting for another party in the same or a related matter. (See rule
2.04 Conflicts.)
Apart from the issue of confidentiality on which this commentary comments, it also assists in
emphasizing circumstances that relate to a potential client.
The Model Code also adds commentary that discusses:
a.
the circumstances that are presented when sole practitioners join together in spacesharing arrangements in one office location, providing useful guidance on the need to
protect confidential client information in such arrangements;
b.
the unique circumstance of disclosure of confidential information when action needs to
be taken to protect a person under disability; and
c.
the prohibition on benefiting from confidential information with the example of literary
works (now in current rule 2.03(6)).
The Model Code revises subrule (3) on justified or permitted disclosure where there is a risk of
imminent harm or death and adds new commentary.
The Model Code re-organizes subrule (4) to include four paragraphs with separate provisions
noting acts of misconduct and acts of negligence for the purposes of disclosure. The Model Code
also adds a subrule to permit disclosure to seek legal advice about a proposed course of conduct.
Rule 2.08 – Fees and Disbursements (Rule 2.06 in the Model Code) [p. 82]
The Model Code makes a number of additions and some amendments to the commentary
following subrule (2) respecting what constitutes a fair and reasonable fee. The Model Code also
reorganizes the second half of the commentary under subrule (2) that follows the individual
and are admissible in a proceeding under subsections (2) and (2.1), the privilege continues for all
other purposes. 2006, c. 21, Sched. C, s. 44 (4).
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paragraphs, and makes some deletions. The additions include providing in writing information
on fees and disbursements and the substance of all fee discussions.
The Model Code moves the last paragraph of commentary under subrule (2) to the rule dealing
with making legal services available (rule 3.01(1).
The Model Code adds a paragraph to the commentary following subrule (3) on contingency fees
that clarifies duties upon termination or withdrawal in circumstances where there is a
contingency fee agreement.
New commentary is added to subrule (8) to elaborate on matters related to division of fees and
referral fees, with some examples that illustrate some permitted activities.
The Model Code adds commentary to subrule (10) that elaborates on the rule prohibiting
appropriation of funds in trust except in accordance with the by-laws that govern trust funds. The
commentary indicates that refusal to refund advance fees for work not carried out when the
retainer terminates is a breach of integrity.
The Model Code adds a new subrule that requires a lawyer to repay as soon as practicable funds
owing as a result of a reduction of a fee at assessment.
Rule 2.09 – Withdrawal from Representation (Rule 2.07 in the Model Code) [p. 87]
The Model Code makes a number of amendments to the commentary following subrule (1)
including additional information about appropriate notice of withdrawal and the effect on the
retainer of the dissolution of a law firm. The latter commentary currently exists in a shorter form
following subrule (7) and as such, this commentary is deleted in favour of the commentary under
subrule (1). A commentary is also added following subrule (3) on withdrawal and non-payment
of fees. The commentary advises that sufficient time should be allowed for the client to obtain
another lawyer’s services.
The Model Code amends subrule (9) regarding the manner of withdrawal by adding a
requirement to notify the client, and by adding some additional descriptive or clarifying language
to other provisions that do not change the substance of the guidance. A minor addition is also
made to the commentary following this subrule respecting the withdrawal of a lawyer who is part
of a law firm.
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Rule 3.01 – Making Legal Services Available [p. 93]
The Model Code makes a number of amendments to the commentary following rule 3.01(1),
including some wording changes, comment on pro bono service and the availability of legal aid.
The Model Code also amends the commentary following subrule (2) to indicate that a lawyer
may offer assistance to a person whose relative or friend contacts the lawyer for this purpose.
Rule 3.04 – Interprovincial Law Firms [p. 98]
The Model Code deletes rule 3.04 that deals with compliance with Law Society rules, including
books and records and unauthorized practice. The requirements set out in that rule are already
covered elsewhere in the rules and the by-laws, including Law Society By-Law 4, Part VII
(Interprovincial Practice of Law) that governs such practice.
Rule 4.01 – The Lawyer as Advocate [p. 99]
The Model Code reorganizes the commentary under subrule (1) and moves one paragraph to
follow subrule (2). This appears to set out a more logical flow to the commentary.
The Model Code adds clarifying and minor wording amendments to the list of items in the
paragraphs under subrule (2), dealing with what an advocate must not do.
In addition to the change to the commentary described above, the Model Code makes minor
wording changes and adds two short paragraphs to the commentary that deal with withdrawal of
a criminal charge to gain a civil advantage and pursuing a hypothesis with a witness that is
honestly advanced.
The Model Code deletes the existing commentary under subrule (7) and instead provides a crossreference to the undertakings and trust conditions in Model Code’s subrule numbered 6.02(11)
(current subrule 6.03(10)). The Committee believes that the existing commentary, that
highlights the “personal promise and responsibility” character of an undertaking, should remain
but that the cross-reference above be added.
The Model Code re-organizes subrule (9) on agreement on guilty plea, without affecting the
substance. The Committee considers this to be a useful change.
Rule 4.02 – The Lawyer as Witness [p. 106]
The Model Code amalgamates subrules (1) and (2) into one subrule that covers the content on
submission of affidavit and testimony. The Model Code also adds the phrase “unless the matter
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about which he or she testified is purely formal or uncontroverted” to the rule dealing with a
lawyer who is a witness not appearing as an advocate in an appeal from the decision.
Rule 4.05 – Relations with Jurors [p. 110]
The Model Code changes subrule (3) on disclosure of information about improper conduct by a
jury panel or juror, setting out a reasonable belief test that the improper conduct has occurred.
The Model Code adds a new subrule (6) that prohibits a lawyer’s discussion after trial with a
member of the jury about its deliberations. The Committee is of the view that as this subject is
already covered in the Criminal Code, it would not be necessary to include the subrule in the
Rules.
Rule 5.02 – Students [p. 118]
The Model Code adds new commentary following subrule (2) on duties of principals to say that
the principal/supervising lawyer is responsible for the actions of students acting under his or her
direction.
Rules 5.03 and 5.04 – Sexual Harassment/Discrimination [p. 119]
The Model Code makes a significant change to these two rules. It reduces the two rules and their
extensive commentary to four brief subrules that reference the application of human rights laws
and definitions in human rights legislation, and prohibitions on any form of harassment,
including sexual harassment and discrimination. In this way, the rules now provide an
identifiable and broad set of principles.
If this rule is adopted, an option is that the extensive commentary, which is useful as an
interpretive guide to some of the principles in the rules, be maintained but outside the Rules. A
suggestion is that it be adapted for practice guidelines and published on the Resource Centre
page of the Law Society’s website.
The Committee received comment from the Law Society’s Equity Advisor that the proposed rule
in the Model Code may broaden what was accepted as the ambit of the Law Society’s rules on
discrimination and harassment, as they are currently linked to prohibited grounds in human rights
legislation. The Committee invites comment on these proposed rules.
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Rules 6.01 – Responsibility to the Profession, The Law Society and Others [p. 125]
As noted earlier in this report, the Model Code moves similar language from the Law Society’s
rule 6.01 on the subject of integrity to new rule 1.01 under the title of “Integrity” at page 7.
Meeting Financial Obligations - Rule 6.01(2) [p. 125]
The Model Code makes some wording changes (using “in relation to his or her practice” instead
of “in the course of practice” and deleting “on behalf of clients”) and splits the last half of this
rule into commentary. The Model Code also adds the obligation to pay the deductible under a
liability insurance policy.
The Committee believes that the Law Society’s rule should remain as is and that it is preferable
to have this subject in a rule and not partially in commentary. The Law Society has also enacted
a provision in By-Law 6 to address the non-payment of the insurance deductible. As such this
phrase is not required in the Rules.
Duty to Report Misconduct - Rule 6.01(3) [p. 126]
The Model Code makes a minor but important wording change to this rule, replacing the word
“severely” in paragraph (d) with “materially” to describe the threshold for prejudice that would
invoke the rule in the circumstances described.
Rule 6.03 - Responsibility to Lawyers and Others (Rule 6.02 in the Model Code) [p. 130]
New Rule on Inadvertent Communications [p. 136]
The Model Code adds a new rule numbered 6.02(10) and commentary which requires a lawyer
who inadvertently receives a document to notify the sender. Before determining the merits of this
rule, the Committee wishes to obtain comments.
Undertakings and Trust Conditions - Rule 6.03(10) [p. 137]
The Model Code adds a requirement to subrule (10) on undertakings to also require that a lawyer
honour every trust condition once accepted. Extensive commentary is also added to accompany
the new rule.
One paragraph of commentary is deleted by the Model Code, but the Committee believes this
paragraph on e-reg is important for Ontario practice and should not be deleted.
22
Rule 6.04 – Outside Interests and the Practice of Law (Rule 6.03 in the Model Code)
[p. 139]
The Model Code adds new commentary to subrule (1) that cautions against the effect outside
interests may have on the practice of law. The commentary advises the lawyer avoid a conflict
or circumstances in which it is difficult to distinguish the law practice from the outside interest.
Rule 6.05 – The Lawyer in Public Office (Rule 6.04 in the Model Code) [p. 140]
The Model Code deletes subrules (2) through (5) which deal with conflicts while in public office.
Rule 6.08 – Retired Judges Returning to Practice (Rule 6.07 in the Model Code) [p. 146]
The Model Code reduces the four subrules in the Rules on this subject into one subrule, as
follows:
A judge who returns to practice after retiring, resigning or being removed from
the bench must not, for a period of three years, unless the governing body
approves on the basis of exceptional circumstances, appear as a lawyer before the
court of which the former judge was a member or before any courts of inferior
jurisdiction to that court or before any administrative board or tribunal over which
that court exercised an appellate or judicial review jurisdiction in any province in
which the judge exercised judicial functions.
The current rule prohibits appearances for retired appellate judges unless approved and provides
no waiting period, and prohibits appearances for other retired judges for a period of two years
unless approved. If the Model Code version of this rule is adopted, transitional accommodation
would be likely be required.
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