EthicsLaw 360: Final Outline 2015

Sarah Chaster & Janessa Mason

INTRODUCTION TO LEGAL ETHICS...................................................................................................3IMPORTANCE OF LEGAL ETHICS ..............................................................................................................................3

1

LSBC v. Jabour (1980, BCCA).......................................................................................................................................................4

THE LEGAL PROFESSION AND LAWYER REGULATION..............................................................5INTRODUCTION TO SELF-REGULATION ...................................................................................................................5

Control over Entry............................................................................................................................................... 6Control over Conduct.......................................................................................................................................... 7

THE REGULATORY FRAMEWORK ..........................................................................................................................10Constitutional Framework............................................................................................................................ 10BC Framework: The Legal Profession Act...............................................................................................10National Framework: The Federation of Law Societies of Canada.............................................11

THE LAWYER – CLIENT RELATIONSHIP.......................................................................................12INTRODUCTION .........................................................................................................................................................12FORMATION OF THE LAWYER-CLIENT RELATIONSHIP .....................................................................................12

Advertising, Fee Sharing & Solicitation................................................................................................... 12LS of Saskatchewan v. Merchant (2000)..............................................................................................................................13Stewart v. CBC (1997, Ont)........................................................................................................................................................ 14

Choice of Client................................................................................................................................................... 14Descoteaux v Mierzwinski (1982, SCC)................................................................................................................................16

COMPETENCE ............................................................................................................................................................16Nova Scotia Barristers’ Society v Richey (2002)..............................................................................................................17Law Society of Alberta v Syed (1994)...................................................................................................................................17R v. Fraser (2011, NSCA).............................................................................................................................................................17

LSBC and Competence Issues....................................................................................................................... 18TERMINATING THE LAWYER-CLIENT RELATIONSHIP .......................................................................................19

The Retainer........................................................................................................................................................ 19Withdrawal: Obligatory and Optional..................................................................................................... 19

R v Cunningham (2010, SCC) 3.7............................................................................................................................................20“Up-the-Ladder Reporting”........................................................................................................................... 20Supplementary Obligations on Withdrawal..........................................................................................21

THE LAWYER’S DUTY TO PRESERVE CONFIDENCES................................................................21

CONFLICTS OF INTEREST.................................................................................................................. 27MacDonald Estate v Martin, 1990 3 SCR 1235.....................................................................................30R v Neil, 2002 3 SCR 631................................................................................................................................. 32Strother v 3464920 Canada Inc, 2007 SCC.............................................................................................34CN Railway v McKercher, 2013 SCC 39 (Wallace v CN at Sask CA).............................................36

GUEST LECTURES................................................................................................................................. 38

GUEST LECTURES................................................................................................................................. 38TIM MCGEE: CEO, LSBC......................................................................................................................................38MICHAEL MULLIGAN...............................................................................................................................................39DEB ARMOUR, CHIEF LEGAL OFFICER, LSBC....................................................................................................40ANDREW TAM.......................................................................................................................................................... 42MEGAN SWAIL..........................................................................................................................................................42

2

Introduction to Legal Ethics

Importance of Legal Ethics

What are Ethics & Professional Regulation? Morality standards of how to act – not everyone’s personal moral codes line up with the

professional code – need a standardized code Big issue: what if your personal moral code conflicts with the rules of the profession? Address constraints on conduct (rules, principles, legal obligations) and moral or ethical

aspirations Addresses the ethics of the legal practice generally (self-regulation) Integrity means being trustworthy, honourable and responsible, while avoiding questionable

conduct & circumstances where personal/professional moral codes might conflict Sources of legal professional rules:

i) Case law/legislation- negligence, fiduciary duty, conflicts of interest, law of contracts which govern

retainer agreements, law of evidence which governs privilege, etc)- civil/criminal procedure, judicial behaviour

ii) Rules of professional conduct and rules of court- BC Code of Professional Conduct & FLC’s Model Code – (note, many are

discretionary, not strictly enforced)- CBA Model Code

iii) Law Society disciplinary decisions- define/interpret provisions of Codes of Conduct – tend to address only clear

violations, not big middle ground- can be reviewed or varied by courts

iv) “Norms” of lawyering- principles which guide much daily conduct – Codes etc only address narrow, clear

ethical violations)- pursuing a “life well lived” as well as meeting professional standards

The Canadian Model Self-regulation: Regulation of lawyers by lawyers, through provincial LS Lawyers (members of LS) elect benchers, who make rules, carry out credentials, discipline

processes, and make policy “Lay” benchers participate in policy-making and discipline

Legal Profession Act S. 3, object and duty of the Law Society: To uphold and protect the public interest in the

administration of justice, by:a) preserving/protecting rights and freedoms of all persons,b) ensuring the independence, integrity, honour and competence of lawyers,

3

c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applications for call and admission,

d) regulating the practice of law, ande) supporting/assisting lawyers and articled students …. In fulfilling their duties.

S. 1, conduct unbecoming a lawyer/the profession: Includes a matter/conduct/thing considered, in the judgment of the benchers, a panel or review board,a) to be contrary to the best interests of the public or legal profession, orb) to harm the standing of the legal profession.

Conduct unbecoming versus professional misconduct? See LPA, s. 38(4)o LSBC 38(4): Panel must determine whether the respondent has committed: (i)

professional misconduct or (ii) conduct unbecoming a lawyer o Text, p. 9: professional misconduct (misconduct by the lawyer when practicing law)

versus conduct unbecoming (misconduct by the lawyer outside is or her legal practice)

"conduct unbecoming a lawyer" LPA s1 includes a matter, conduct or thing that is considered, in the judgment of the benchers, a panel or a review board,

(a) to be contrary to the best interest of the public or of the legal profession, or(b) to harm the standing of the legal profession;

What is the Lawyer’s Role? Loyal advocate/zealous advocacy (Woolley)

o Loyalty as the core moral requiremento Lawyer must place client’s interest above a) everyone else and b) lawyer’s own interestso Individuals have a right to a lawyer; loyalty to client gives them autonomy by allowing

them to make meaningful choiceso This is ethical in that it allows people to access the legal systemo Lawyer cannot substitute his/her moral judgment for that of the cliento Rejects Luban’s arguments – everyone has different moral codes and the law is about

compromise. Further, lawyers can’t substitute their moral decisions – the decisions must be left with clients

o Lawyers are vital to the compromise of law = their professional role is morally justified Moral agent in pursuit of justice (Luban)

o When professional and moral obligations conflict, moral obligations take precedenceo Lawyer must be a civil disobedient to professional ruleso Zealous advocacy argument allows unethical conduct – lawyers should have discretiono Doesn’t outright reject adversary system, but says the lawyer retains some responsibility

for his/her moral choices, and must sometimes disobey Integrity or sustainable professionalism (Farrow)

o “What is needed is a story of professionalism that captures the energy and positive attributes of both sides of this debate. What is needed is a story of professionalism that is sustainable.”

o Move away from the “traditional narrative” in law – lawyers want a meaningful career rather than a total life in law – want happiness

o New models from ethically suspect behaviour towards “good” or “moral lawyering”o Must balance client interests, lawyer interests, ethical/professional interests, and public

interest – move away from model that centralizes the client’s interests – it is a more complex and pluralistic landscape

4

LSBC v. Jabour (1980, BCCA)Facts Senior partner in NVan, low cost legal services provided and fees advertised

Disciplinary action taken by LSBC, found him guilty of “conduct unbecoming” He then challenged Law Society’s power to regulate this behaviour.

Held LSBC found him guilty of “conduct unbecoming”. Law Society’s power to regulate professional misconduct was upheld.

Reasons Interprets Benchers’ authority in the LPA (very broad) – they get broad discretion Defines conduct unbecoming (from Prescott): “Anything deemed in the judgment of

the Benchers to be contrary to the best interests of the public/legal profession, or that tends to harm the standing of the legal profession.” LPA 1

Benchers are “guardians of the proper standards of professional and ethical conduct” They can prohibit commercial advertising as part of this broad regulatory power

Ratio Defines conduct unbecoming. LS isn’t restricted to matters about competency/integrity; can prohibit anything against the best interests of the public or profession.

The Legal Profession and Lawyer Regulation

Introduction to Self-Regulation

Dominant model in Canada/US is self-regulation: provincial law societies (corporations created by legislation) govern the admission, conduct and discipline of lawyers

o Every practicing lawyer MUST be a membero Management is conducted by the Benchers (largely elected body)o LS is a creature of statute with delegated authority (not inherent jurisdiction)o Authority: Education/admission & can make rules & disciplineo Limits: Statutory grants of authority & Charter limitso Supervised by provincial superior courtso Core tasks: entry regulation (i.e. admission to the bar) and conduct regulation

Lawyers pay directly thru membership fees/insurance (clients indirectly pay, but only a small portion of bill goes towards LS membership – still, ethical question? Should clients, or general public via taxes?)

Not the only way to control lawyers’ conduct (e.g. civil remedies like negligence or breach of K, or rules of court/civil procedure – e.g. delay)

Arguments for self-governance: o Closest analogy is medical profession (teachers used to be, but now unionized)o Can you be a unionized profession? I.e. will the union act in public’s interest or the

interest of its members? (Justin Trudeau and marijuana example)o Competence standards act as mechanism to protect consumers/the publico Arguably necessary to keep legal profession separate from state – self-governance

allows profession to be depoliticized (protects both lawyers & judiciary) Estey J. in Canada v. LSBC: independence of the bar is a fundamental

constitutional principle & one of the “hallmarks of free society” Regulation must therefore be free from state interference

o Only lawyers have the expertise to assess competence & are in the best position to say what constitutes professional misconduct

Counter-argument: lawyers only have this specialized knowledge b/c they create a monopoly and don’t let anybody else in!

5

o Some see professions as contributing to order/stability in society, as an important form of community – thus self-governance is a good thing

o Finally, argue that this is more efficient/cost-effective than external regulation (i.e. costs covered by own members rather than taxpayers

Arguments against self-governance: o Free market restraint (consumers can only choose member of Law Society)o Dampens competitiono Controls entrance to the profession – harder to become a lawyer, easier for members to

accrue wealth, elitismo Is self-governance unduly exclusionary? Does it serve interests of the profession over

interests of the public?o In practice, minimal discipline. Merchant, being disbarred etc.

Legislative limits: o Self-governing regulatory power diminished somewhat by use of legislation to control

lawyers’ practiceso E.g. regulations per money laundering legislation that lawyers must secretly report

suspicious client transactions challenged as unconstitutional infringement of independence of the Bar & lawyers’ duties of confidentiality

o FLSC v AG Canada: FLSC challenged federal legislation on behalf of Canada’s law society – position partially upheld at BCSC

Control over Entry

o This is one of the biggest tasks of the law society – decide who becomes a lawyero LS thus controls access to legal profession using a) education requirements (law schools) and b) must

be a person of good character1. Education requirements:

Used to find an existing barrister to mentor you for 3-5 years before LS membership elitist, practice-oriented versus academic

This was exclusive, difficult, only available to rich men, basically Evolved into 3 year JD program. Still tension between foundational, practice-oriented

courses, versus broader, academic, inter-disciplinary views of law Law societies tended to not control law school curriculum (left largely to unis & law

faculties), tho members of the profession often sat on governing bodies) Today, LS trying to get more actively involved FLSC’s Task Force on Cdn CL Degree

Report adopted by all Cdn law societies – sets national competency requirements – 1L very similar, but some schools will have to make certain courses mandatory in 2L and 3L

LSAT meant to make it less exclusive/diversify/equalize access US school stratified (“for-profit” law schools) – more equal in Canada Ethical concerns over cost of law school, quality of articles, how few law schools there are in

Canada (undue barrier to education?) Always more ppl in Canada want to go to law school, but available seats haven’t expanded

much since 1975 Do these barriers (limited seats, high cost) artificially limit the number of lawyers, resulting in

a higher cost of legal services? Ethical question. Articles: vary widely, unstructured, much left to student’s initiative Law Societies now trying to become more proactive in supervising articles Note pilot project in Ontario – 3 year “double track” licencing program Articling stds must also complete bar admission program – meant to provide uniform

instruction due to uneven nature of articling experience Finally, students must bass bar exam set by provincial LS

2. Good character:

6

Meant to protect public, maintain high ethical standards, public confidence But is this too subjective? What can they ask you? Ambiguous term – either ineffective, or can be a “dangerous instrument” for an arbitrary

and discriminatory denial of the right to practice law Martin v. LSBC: 1950 – court upheld LS’s refusal of admission for someone affiliated with

communism No clear def’n of the term = unpredictable/inconsistent application Very passively enforced: applicant’s complete questionnaires, self-report things like crim.

record, 3P referees – not particularly effective

Control over Conduct

Intro to Codes of Conduct: o Starts with Canons of Legal Ethics (1920s, first set of written standards)o Archaic/sexist language, but many of the same themes resonate todayo Comparing provincial codes strong national consensus around conducto Codes are aspirational and ideological, but also contain concrete rules, the breach of

which will be penalized as unprofessional conducto These codes also make a statement to the public about lawyers – PR stunt!o Problems with a written code – inflexible? Rigid? Does this mean anything not written

down is okay?o Further, how effective is it? LS catches the egregious breaches – but what about day to

day complaints, borderline unethical behaviour? These usually aren’t caught by the code of conduct. Is there more space for consumer protection here?

CBA, Canons of Legal Ethics (1920): This was the first set of written standards (previously just compliance with accepted standards) Meant to be a non-exhaustive, general guide – not a denial of other duties Very general and aspirational; relatively short Central theme: The lawyer is more than a mere citizen. He is a minister of justice, an officer of

the Courts, his client’s advocate, and a member of an ancient, honourable and learned profession.

Duties listed in the following categories: 2.1 Canons1. To the State -1

- Duty to maintain integrity of the law- Prosecutor’s duty is to “see that justice is done”, not to convict

2. To the Court -2- Conduct marked by candour and fairness- Respect the judges (not complain/criticize unduly)- Shouldn’t try to influence the judges or purposely offer inadmissible evidence

3. To the Client -3- NB: This is the longest of the five categories (most duties here)- Obtain full knowledge of the case before giving advice; be realistic about success- Don’t enter into conflicts of interest, avoid controversy- Try to get best results for client but always be bound by the law- Take all “fair and honourable” means to defend a person accused of a crime,

regardless of personal opinion as to guilt- Careful with trust money, don’t overcharge (entitled to reasonable compensation)

4. To his Fellow Lawyer -4- Conduct should be characterized by “courtesy and good faith”- Accommodate opposing counsel, wherever possible- Fulfil any undertaking given

7

- Avoid “sharp practices” and “take no paltry advantage”5. To Himself -5

- Maintain integrity of the profession – expose dishonest conduct by any other lawyer, but also accept a retainer to defend another lawyer accused of a wrong

- Guard against admission of lawyers with bad moral character or unfit education- Solicitation of business is unprofessional – careful about advertising!- No obligation to act for anyone – allowed to decline employment- Oath to the Bar is a solemn undertaking. Maintain high traditions of the profession.

1970s-80s: CBA adopted Code of Professional Conduct – slightly more comprehensive – adopted with minimal changes by most Law Societies

2009: CBA Code and FLSC’s Model Code – represents strong national consensus on ethics Pros of a written code: Present collective beliefs, ideals and values of legal community

o Help guide lawyers’ conducto Make a statement to public about legal valueso Regulatory efficiency (set out standards of conduct – serve as basis for discipline)

Cons of a written code: Very general – holds lawyers to the “lowest common denominator” onlyo Can you really write down ethics? Some say no.o Ethics are based on personal, moral choices – can’t be regulated through written ruleso Might impede moral development (focus on written rules rather than rationales)o Ethics codes serve interests of legal profession, not public (used to promote an “ethical”

image, based on class bias, promulgated with no public input)o Few lawyers actually use the written code of conduct to identify or resolve ethical issues

– so what is its purpose? Does it have symbolic value alone?

Anatomy of Lawyers’ Codes: FLSC/CBA codes similarly structured (and being adopted by each province) In addition to 2 broad categories below, also many rules around advertising, solicitation, fees and

unauthorized practice Duties owed to clients, courts and other lawyers:

o Duty to act honourably and with integrityo Duty to be competent (legal knowledge, professional judgement, practice management)o Ethical limits on advocacy (can’t abuse process, present false evidence, etc.)o Must be candid and honesto Duty of confidentiality: facilitate open communication with client (broad duty, but not

absolute – may sometimes need to disclose info for broader interests)o Duty to avoid conflicts of interests: representing multiple clients in same dispute, old

client against a new client, merger of law firms may lead to problems, etc. Duties owed to the profession and society:

o Aimed to maintain public confidence in the professiono Must avoid even the appearance of impropriety & report other lawyers if necessaryo Make sure legal services are available and accessibleo Duty to ensure admin. of justice is conducted in an open, fair, impartial manner

Discipline: Primary function of law societies Goal is to protect public and professional reputation and deter , rather than to

punish Standards of discipline:

o Can discipline for “professional misconduct”, “conduct unbecoming” or “conduct deserving of sanction”

8

o Vague/imprecise – left to the governing bodies of law societies to sort outo Based on peer review – practicing lawyers best suited to say what constitutes

professional misconducto Imprecise definitions leave room for creativity and flexibilityo Some LS’s define “professional misconduct” (see BC framework below)o Criticisms: Ethical codes are actually ineffectual as a basis for discipline (only arises in

the most serious cases – theft, fraud, violated fiduciary duty, etc)o Incompetence is also a basis for discipline (didn’t used to be) – codes recognize the duty

to provide competent legal services Very relative term Discipline often accompanied by remedial measures (take continuing ed, etc.)

o Professional Misconduct v. Conduct Unbecoming: PM usually relates to lawyer’s professional activities; CU usually relates to personal/private conduct which can lead to professional discipline (private behaviour which discredits the legal profession (dishonesty, certain criminal behaviour – what about noncriminal deviant gambling behaviour? How far should LS go here? Grey areas.)

Discipline proceedings:o Fairly complex, multi-staged proceedings, divided into distinct phases (below)o Complaint/Investigation Stage:

Reactive, i.e. triggered by a complaint (usually current/former client, but can be other lawyers, judges, etc)

Complaint then reviewed/assessed by LS staff Complaint shared with lawyer who can answer questions, produce material Decision then to dismiss complaint or refer to a (1) practice standards

committee (if competence is at issue) or (2) conduct/discipline committee Criticism of this – many things underreported, clients often don’t know what

constitutes unethical conduct, system doesn’t respond properly to complaints about quality of legal services (clients’ needs not properly addressed by system)

o Hearing Stage: Adversarial hearing, conducted before panel of discipline/conduct committee BOP on counsel for law society to prove misconduct Acc’d is entitled to full disclosure and is compellable as a witness Quasi-judicial; rules of procedural fairness usually attach Very formal nature, subject to Charter scrutiny

o Penalty/Sanction Stage: Remember: purpose is protection of public & profession’s reputation, not the

punishment of the lawyer Broad range: reprimand, fine, suspension, to disbarment Disbarment only for most serious offences – reinstatement very hard May also require remedial training/education Right of appeal usually exists, to an appeal panel or to the courts

Unauthorized Practice of Law Unauthorized practice of law: Provincial legislation prevents practice of law by non-lawyers What is “legal practice”? Broad range – case-by-case basis Enables lawyers to maintain monopoly over market for legal services More non-lawyer competition given how $$ it is – paralegals, etc – people need less expensive

alternatives. Justification for preventing non-lawyers from practicing protects clients from incompetence Criticisms maintain monopoly, limits competition Why not allow non-lawyers to practice, and simply regulate them? (Access to justice concerns)

9

Ontario approach – Access to Justice Act – independent paralegals who are regulated/educated

External Regulation of the Legal Profession Regulated by: courts (malpractice/professional liability actions) & voluntary membership in

professional organizations (e.g. CBA) Legal liability:

o Self-regulation protects public/professional reputation. Damage liability, on the other hand, compensates clients for loss or injury suffered

o Distinguish competence (professional discipline) versus negligence (which can lead to legal liability). Each informs the other.

o Lawyers’ duty of care assessed against other lawyers in like circumstances (usually implied in the retainer, not express)

o Can be concurrently liable in tort (negligence) and contract Voluntary professional organizations:

o Some regulation through these (tho participation isn’t mandatory)o CBA: only national lawyer organization – has been around for 100 yearso Largest professional association for lawyers in Canadao Divided into provincial branches – primary purpose is continuing education, but also

includes law reform and lobbying on important matterso Most lawyers members, but don’t actively participate in professional projectso CBA Code – model for law society codes – now being replaced by FLSC Model Codeo Beyond CBA, many lawyers belong to specialist groups (crim law, etc) network, build

relationships, learn from each other

The Regulatory Framework

Constitutional Framework Professional regulation falls under Property and Civil Rights – i.e. provincial jurisdiction No federal head of jurisdiction identified – but increasing collaboration in FLSC Challenges to form interprovincial law firms: Martin v. AG BC, Black v. Law Society of Alta Challenges to the limits that law societies can impose: Andrews v. LSBC (Charter, s. 15 and

discrimination re: becoming a member of LSBC – met all requirements except he wasn’t a Canadian citizen)

BC Framework: The Legal Profession Act Legal Profession Act SBC 1998 Establishes the LSBC as a “legal person” (i.e. can sue and be sued, hold property, etc) Object and duty “to uphold and protect the public interest in the admin. of justice” – s. 3 Review definition section carefully. Consider, is the LS an instrument of protection for lawyers, or for the greater public good? General tasks:

o Provides governance of legal profession – credentials and admission, practice standards, competence, discipline, continuing education

o Interprovincial practice, unauthorized practice, foreign practitionerso Election and role of benchers & committees in the LSBC

LPA s. 1 defines the practice of law:o Establishes a monopoly for lawyers (includes a range of legal activities, but excludes acts

performed by non-lawyers, notary public, insurance adjusters, etc) Financial matters:

o s. 30 LPA insurance requirementso Rules around trust accountso Law Foundation established (supports legal ed/research, legal aid, etc.)

10

o Control of lawyers’ fees, retainer agreements, review of bills Law corporations versus LLPs:

o Law corporations began in 1980s – can incorporate, but still need insurance (incorporation doesn’t shield you from liability)

o LLPs much more recent – allow lawyers to practice in partnership, but not all partners are liable for the negligence of one partner (now standard format for law firms)

“Conduct Unbecoming a Lawyer”: interest of the publico LPA, s. 1: includes a matter, conduct or thing that is considered, in the judgment of the

benchers, a panel or review board,a) to be contrary to the best interests of the public or of the legal profession, orb) to harm the standing of the legal profession.

o Is professional misconduct different from conduct unbecoming? Can they overlap? BCCA in Jabour, as adopted from Prescott: Benchers are “guardians of proper

professional/ethical standards”. Doesn’t matter if conduct is of a professional character or otherwise. If the conduct is contrary to best interests of public or legal profession,

or tends to harm standing of legal profession, then it is “conduct unbecoming”, whether in professional context or otherwise

Seems to indicate overlap (e.g. using foul language against a witness – obviously conduct unbecoming, but if done at work then also professional misconduct)

Law Society of Upper Canada defines “professional misconduct” as “conduct in a lawyer’s professional capacity that tends to bring discredit upon the legal profession” (includes violating Rules of Professional Conduct, requirements of the Law Societies Act, dealing inappropriately with client’s money, etc)

This standard is subjective, i.e. left to the Benchers’ discretiono See LPA s. 38(4)

Law Society Rules:o s. 11 LPA gives Benchers power to make legally binding ruleso Much like regulations in a statute – basically fill in the framework of the LPAo Rules cover governance of the LSBC itself (benchers, meetings, elections, etc.)o Executive team acts as permanent support for the benchers

Support: Website lists Benchers, executive team, etc – you can call them!o Ethics Committee: made up of Benchers & lay-people – review Code, ongoing support as

to how to solve ethical problemso Involvement of lay Benchers creates some public participation/oversighto Emphasis on professional development: CPD, Law Society Online Learning Centre

Small firms have to take more CDP than big firms – is this okay?

National Framework: The Federation of Law Societies of Canada Very active & many new national initiatives Rationale: create a “pan Canadian” regulation in increasingly national/int’l marketplace

o Better mobility, common standards, consistency between provinces Creating a Model Code of Professional Conduct (will replace the CBA Code which has been

maintained since the 1920s):o Moving towards harmonized national standard for ethical conduct nation-wideo FLSC model = more regulatory heft (made by a national group of statutory regulators,

rather than collective statement of a voluntary ass’n of lawyers w/out regulatory power)o Slowly being implemented across the country

National admission standards – sets benchmark for accreditation of law degrees National discipline standards – all LS must respond to complaints in a timely/responsive manner

11

12

The Lawyer – Client Relationship

Introduction

BC Code, Chp. 2: Canons as a statement of general principles for lawyer conduct Duty to Client: Not the only duty (also to the state, to the Court, to other lawyers) but is central

o Multifaceted duty of loyalty, based on “zealous advocacy”o Central moral conflict: how to reconcile lawyer’s duty to client with other duties?

BC Code: 2.1-5(c): Duty to make legal services available to the public in an efficient and convenient manner that will command respect and confidence

o Access to justice crisis in our system – client selection is linked to access to justice (those who need legal help the most will e the least able to get it)

o Could we make pro bono work mandatory?

Formation of the Lawyer-Client Relationship

Who is your client?

BC Code, chp 1.1: Defines “client” as person who:a) consults a lawyer & on whose behalf the lawyer renders or agrees to render legal services; orb) having consulted the lawyer, reasonably concludes that the lawyer has agreed to render

legal services on his or her behalf. (subjective) Commentary:

[1] A lawyer-client relationship may be established without formality.[2] Client can be in a representative capacity (i.e. on behalf of a corporation, partnership, etc)[3] But client does not include a “near-client” (like an affiliated entity, shareholder, employee or family member) unless objective evidence demonstrates the individual had a reasonable expectation that a lawyer-client relationship would be established.

Basically, would a reasonable person believe this person had become their lawyer? Written agreement not required (tho recommended, for more complex agreements, or to clearly

limit the scope of a lawyer’s retainer) CYA! (Cover Your Ass). If it was just a free consultation, not a retainer, send a letter to that effect. Doesn’t even need to be an express, formal agreement – just enough that a person “reasonably

concludes” the lawyer has agreed to render legal services

Advertising, Fee Sharing & Solicitation

Advertising

Marketing/Advertising Standards: BC Code chp. 4 and Canons 2.1-3(a), (c), (f)

Content and format of marketing activities4.2-5 Any marketing activity undertaken or authorized by a lawyer must not be;(a) false,(b) inaccurate,(c) unverifiable,(d) reasonably capable of misleading the intended recipient, or(e) contrary to the best interests of the public.

Commentary:

13

[1] For example, marketing violates this rule if it is calculated to take advantage of recipient’s vulnerability (either physical or emotional), creates an unjustified expectation about the result the lawyer can achieve, or otherwise brings the administration of justice into disrepute.

Anything must be verifiable – can’t verify, “I’ve never lost a constitutional case!” (many settle) Above code/commentary similar to standards in Merchant and also FLSC Code chp. 4 Think of Jabour – would his advertising contravene this? (Gave sample fees, listed situations

“available at moderate cost, with pre-set fees for many services”, large illuminated signo No taxes back then, but there would be disbursements on top of feeso Very risky to promise a simple will for a flat fee – might become WAY more complicated

Tensions: Concern that advertising may reduce professional status, “introduce vulgarity and commodification” to the profession

o But advertising might make legal services more accessible, competition = lower costso BUT, bad advertising might easily take in unsophisticated clientso Aside from Jabour, few law societies discipline for inappropriate advertising

Examples in text: “I may be a son of a bitch, but I’m your son of a bitch”; “Life’s short, get a divorce”; Heenan Blakey but SCC J. Bastarache’s face in their advertising – unsophisticated client may still think he has pull. All examples of inappropriate advertising.

Fee Sharing

Lawyers can’t split fees with non-lawyers, or give referral fees to any non-lawyers But lawyer can take a reasonable referral fee from another lawyer (as long as client consents)

Solicitation of Clients

BC Code2.1-3 To the client(a) A lawyer should obtain sufficient knowledge of the relevant facts & give adequate consideration to the applicable law before advising a client, and given an open and undisguised opinion of the merits and probable results. The lawyer should be wary of bold and confident assurances to the client…2.1-5 To oneself(c) A lawyer should make legal services available to the public in an efficient and convenient manner that will command respect and confidence. A lawyer’s best advertisement is the establishment of a well-merited reputation for competence and trustworthiness.(f) All lawyers should bear in mind that they can maintain the high traditions of the profession by steadfastly adhering to the time-honoured virtues of probity, integrity, honesty and dignity.

Concerns inherent to solicitation: invading privacy, taking advantage of vulnerable people, opportunistic ambulance-chasing, etc

Benefits of solicitation: People don’t always know their rights – lawyers can let them know. Integrity, dignity per 2.1-5(f) – was this upheld in Merchant or Stewart?

LS of Saskatchewan v. Merchant (2000)Facts Merchant wrote letters to survivors of residential schools

Language: compensation will be significant, you have nothing to lose, if we do not recover anything then you pay nothing (listed $50K - $150K possible win)

Enclosed two page Agreement set out other terms (if client switches lawyers, or if decides not to pursue claim, must pay fees incurred up to that point)

Also asked people to send names/numbers of anyone else they thought should claim Complaints to LS of Saskatchewan – felt distressed, reprehensible conduct, people

14

felt misled, letters made them feel shameIssue Was Merchant guilty of “conduct unbecoming a lawyer”?Reasons Did the letter create an “unjustified expectation about the result”? No. Amounts

speculated weren’t outside the realm of possibility Was the letter “reasonably capable of misleading the recipient? Yes.

o Promises lots of $, but claimant may not have had a sustainable cause of actiono Even if they did, left out possible length/complexity of litigationo Gives impression that payment will be simple/forthcomingo Agreement was long, in small type – unlikely that reader would rely on it –

sneaky (client may well have to pay money if they stop halfway thru) Was this an undignified/offensive marketing activity? Yes.

Ruling Due to wording of provision, did not have power to discipline for this particular breach, but fined him $5000 (plus $10,000 in costs).

Ratio Illustrates “conduct unbecoming a lawyer” and inappropriate solicitation of clients (preying on vulnerable people, misleading them). Also example of problem with written codes – specific drafting of provision precluded disciplinary action!

Public/Media Appearances

BC Code, 7.5: Public appearances and public statements7.5-1: Provided there is no infringement of the lawyer’s obligations to the client, the profession, the courts, or the administration of justice, a lawyer may communicate information to the media & may make public appearances and statements.[2] A lawyer’s duty to the client demands that, before making a public statement concerning the client’s affairs, the lawyer must first be satisfied that any communication is in the best interests of the client and within the scope of the retainer.[3] Public communications about a client’s affairs should not be used for the purpose of publicizing the lawyer and should be free from any suggestions that a lawyer’s real purpose is self-promotion or self-aggrandizement.

What about duties in respect of former clients? See Stewart MOB says, probably safer to just never talk about your cases publicly My thoughts: do you ever have a duty to speak about a case, inform/educate the public?

Stewart v. CBC (1997, Ont)Facts Greenspan represented Mr. Stewart – case of criminal negligence causing death

10 yrs later, Greenspan did a detailed, expose of the case on TV (Scales of Justice) Exposed a lot of details – Stewart was very upset, brought a claim for breach of the

implied terms of his K & breach of a fiduciary duty of loyaltyIssue What are a lawyer’s obligations to former clients when the lawyer is in the media?Reasons When in the media, lawyers must not engage self-promotion or self-aggrandizement

Greenspan’s primary reason was not to educate the public – it was self-promotion He was clearly motivated by self-interest – trying to show what a good lawyer he was

Ruling Greenspan paid Stewart $2500 for minor distress and disgorged the $3250 profit he received from the program to Stewart.

Ratio Example of a lawyer using the media to engage in self-promotion.

Choice of Client

15

Described as the most important decision – taking on a client commits a lawyer to a whole host of ethical and moral obligations

When must a lawyer refuse to take a client?o Conflict of interest (3.4-1)o Lawyer not competent (3.1-2, commentaries [5] and [6])o Continuing retainer with a previous lawyer (3.7-10)o Lawyer is a potential witness to the case (Canons 2.1-3(k); 5.2-1)o Client’s purpose is illegal (3.2-7 and commentary)

Take reasonable steps to adduce criminal purpose, if you are suspicious Make sure client isn’t just trying to hide/launder $ in your trust account If concerned, go to senior partner at your firm Never go along with something that makes you uncomfortable

When may a lawyer refuse to take a client?o Competing theories – some people say lawyer is a neutral agent, don’t worry about

morality of client’s conduct. Others say, there are limits! Lawyers must take responsibility for the choice of their clients and the morality of their actions.

o Middle ground: lawyers should have some discretion – when personal distaste is so severe that the quality of legal representation would suffer as a result

o However, lawyers can’t discriminate, or let private opinions as to guilt determine whether to decline employment

o Practice tip: discuss ethics/expectations with client before taking them on!o FLSC Model Code 4.1-1, Commentary 4 – allows right to decline representation (no

equivalent in BC Code) A lawyer has a general right to decline a particular representation, but it is a

right to be exercised prudently, particularly if the probable result would be to make it difficult for the person to obtain legal advice or representation. Generally, a lawyer should not exercise the right merely because the person’s cause is unpopular or notorious, or because powerful interests or allegations of misconduct or malfeasance are involved, or because the lawyer’s private opinion about the guilt of the accused. A lawyer declining representation should assist in obtaining the services of another lawyer.

E.g. Devout Catholic lawyer, asked to defend against an assisted suicide law – if it would affect your ability to properly represent him/her, then you should probably try to find someone else

o Can’t refuse services based on discrimination! (BC Human Rights Code, as well as Code 6.3-5 and commentary 1)

o Concern: How to reconcile this w/ duty to make legal services available?

Representing a person accused of a crime:

Code 2.1-3(f), Code 5.1-1 (commentary 9)It is a lawyer’s right to undertake the defence of a person accused of crime, regardless of the lawyer’s own personal opinion as to the guilt of the accused. Having undertaken such defence, the lawyer is bound to present, by all fair and honourable means and in a manner consistent with the client’s instructions, every defence that the law permits, to the end that no person will be convicted except by due process of law.

The lawyer and the administration of justice:

BC Code 5.6: Encouraging respect for the admin. of justice5.6-1 A lawyer must encourage public respect for and try to improve the administration of justiceCommentary [2] The practice of law implies, on the part of the lawyer, a basic commitment to the concept of equal justice for all within an open, ordered and impartial system…

16

There is an access to justice crisis in our system. How do we do better

Triggering the lawyer-client relationship:

BC Code 1.1-1: Def’n of client as anyone who “reasonably concludes” someone is their lawyer

Descoteaux v Mierzwinski (1982, SCC)Facts Citizen filled out an application form for legal aid

Police later sought that legal aid formIssue Was the form protected by solicitor-client privilege? More generally, when did the

solicitor-client relationship begin?Reasons Yes – form protected by privilege

Though it was only at the application stage, client was consulting a lawyer for the purposes of obtaining legal services, so confidentiality/privilege attached

So privilege may attach even before a lawyer is properly retained Even if lawyer ultimately isn’t retained, those early communications are still

protected by confidentiality/privilege Also covers information concerning the client’s ability to pay Known as the first dealings doctrine

Ratio The solicitor-client relationship is triggered before a formal retainer is established; it arises as soon as potential client has first dealings with the lawyer in order to obtain legal advice.

Competence

Part of a lawyer’s duty of loyalty is to provide competent services Disciplinary proceedings for pure incompetence are relatively rare But incompetence or low quality services often lea to breaches of the Code and disciplinary

action other than for incompetence Competence can be addressed either via lawyer malpractice (primarily negligence) or codes of

professional conduct. Legal standard of care: That of a “reasonably competent solicitor” (Central Trust v. Rafuse, SCC)

o Usually requires expert evidence, unless actions constitute gross negligence (i.e. obvious failure like missing a limitation period, which prejudices your client)

Incompetence/quality of service set out in great detail in BC Code, 3.1-2: detailed description of competence, with commentary. Exam hint – read this! (Except commentary 11)

o 3.1.1-3.1-2: Detailed description of what constitutes competence. 3.2: Description of quality of service (courteous, thorough, prompt.)

o MOB emphasized 3.2-2 – honesty and candour – be up front when something is beyond your knowledge & bring in a more experienced lawyer.

o Not a standard of perfectiono Learning is ongoing and competence is an ongoing duty – requires continuing education

Errors and Omissions: BC Code, 7.8o 7.8-1: When you discover an error/omission that might damage your client and cannot

be easily rectified, duty to notify cliento Connected to compulsory liability insurance policy, but also an ethical duty to cliento If you’ve made a mistake like this, promptly notify your client, without admitting any

legal liability (b/c you may not actually be liable – may be outside the scope of your retainer, or you didn’t actually fall below the standard

17

o 7.8-2, 3, 4, 5:Duty to notify insurer and cooperate with insurer; negligence is usually covered, but must deal with claim and pay any amount not covered by insurance, and not take advantage of client when doing so

Alleging/proving incompetence is very difficult – much of it goes to judgment

Nova Scotia Barristers’ Society v Richey (2002)Facts Richey charged w/ professional misconduct and incompetence

Experienced member of the bar, but failed to do anything on the file (didn’t bring it to trial, didn’t advise his clients, was late, didn’t answer emails, basically did sweet F-A)

Issue Incompetence wasn’t defined in the Act – what does it mean?Reasons The Act is designed to protect public from incompetence; lawyers must have skills

reasonably required of the circumstances Incompetence distinct from misconduct Defined by a pattern of behaviour, in this case Incompetence and misconduct are fact and time specific

Result Guilty of both incompetence and professional misconduct – fined $1000 and paid costs of proceeding (almost $30K) and practice was subject to monitoring.

Ratio Repeated absence of specific skills (conscientious, diligent and efficient service to client, in this case) will support a finding of incompetence.

Law Society of Alberta v Syed (1994)Facts Syed acting in criminal defence of sexual assault – senior counsel

Failed to listen to client, investigate facts (age of complainants), or review witness statements; entered an election without consulting client, etc.

Basically was over-confident i– thought he would be successful in plea bargain and didn’t bother looking at FUNDAMENTAL PARTS OF THE CASE like the age of the complainants

He also realized on the trial date that he had a possible conflict of interest (representing co-accused on an unrelated charge)

Held His conduct showed not only incompetence but gross neglect. HE failed to conduct even a cursory investigation, failed to advice his client of his options (thereby precluding informed instructions or consideration of possible defences. He was reprimanded.

Ratio Example of gross neglect and incompetence. However, result was only reprimand.

Cultural Competence: Communicate, listen and understand client’s instructions; demonstrate judgment and empathy; basically, recognize that your clients are not you, and be open to different backgrounds and circumstances which affect their perceptions.

R v. Fraser (2011, NSCA)Facts Black teacher convicted of sexual improprieties

Appealed conviction on the basis that he did not receive effective representationHeld He did not receive effective legal advice and representation – resulted in a miscarriage of

justice. He was denied his constitutional right to make full answer and defence.Reasons Counsel failed to advise on many basic things (trying jurors for cause), failed to

effectively prepare for trial, basically completely screwed up the whole trial. Borrowed precedents and forgot to edit them, used flatly wrong defences, didn’t do his job.

Incompetence is measured on a reasonableness standard, with a strong presumption that counsel’s conduct is reasonable – but that presumption was rebutted here

18

Lawyers can’t be judged on a standard of perfection, nor subject to a “forensic audit every time unfavourable results occur” – but in this case he was clearly incompetent

Ratio Incompetence can lead to a miscarriage of justice and necessitate a new trial. Note, however, that this was the Nova Scotia superior court – not a Law Society discipline.

LSBC and Competence Issues

LPA ss. 26-27: Practice standards investigations and remedial actiono s. 26: Allows public to complain if a lawyer is incompetent or guilty of professional

misconduct or conduct unbecoming Complaint may be from any “person” leading to an investigation Investigation may result in disciplinary action, limitations on practice,

requirement to take CPD, or other remedial action Benchers also have powers to make detailed rules Exam hint: See LS rules Part 3 (protection of public), 3-15 to 3-22 Rules 3-15 to 3-22: Executive Director (Tim McGhee!) must consider all

complaints, and may investigate. Once under investigation, lawyer must cooperate fully (interview, provide documents, etc). Once investigation is complete, LS may decide to take no action, or refer to Practice Standards Committee or Discipline Committee. Committees made up of Benchers and others (both lawyers and non-lawyers)

Note: These complaints may come from opposing/successor counsel; sometimes form opposing clients, but Law Society takes these with a grain of salt (very common for client to lose case and then complain about opposing counsel – some complaints are valid but many aren’t)

Practice Standards Committee: 3-16: Role of the PSC 3-17: Consideration of complaints referred by Executive Director 3-18: Practice reviews (conducted by qualified persons, who then

make a report to PSC) 3-19: PSC then considers the report and decides on action to be taken

(can tell lawyer not to practice in certain area, complete a remedial program, undergo an assessment/counselling, etc.)

3-19(4): Recommendations of PSC then delivered to lawyer 3-20: Conditions or limitations on practice by order of PSC if lawyer

refuses or fails to comply w/ a recommendation 3-21: Possible referral to Discipline Committee at any stage 3-22: Remedial programs LS Rules 3-26 to 3-29: Address CPD (Continuing Professional

Development) – general rule in BC is 12 hours of CPD per year, of which 2 must pertain to professional responsibility, ethics, client care or practice management. Monetary penalties for late completion or reporting – suspension from practice is a possible result

LS Online Learning Centre: “Small firm practice course” (may be required for those at small firms – big firms usually have lots of infrastructure for dealing with billings, trust accounts, etc. but small firms don’t). Focus on trust accounts because these are very important and can easily be mismanaged (which can lead to disbarment, due to breach of fiduciary duty – concern over lawyers stealing $$)

o s. 27: Practice standards – Benchers may set practice standards and set remedial programs for lawyers who need assistance

19

They may also investigate a lawyer’s competence to practice law and discipline or order remedial

o s. 28: Benchers may establish systems of ongoing legal education and professional training (as well as continuing legal education)

Thus CPD is now a requirement (ensures competence, maintains public competence in the profession)

Terminating the Lawyer-Client Relationship

The Retainer

Lawyer-client relationships are primarily contractual (though they often involve many fiduciary obligations)

Thus, like all contracts, they usually end. Termination can be either explicit or implied. But conflicts can arse (e.g. Neil and Strother – a conflict may arise if a lawyer is retained by two

clients that do not have a legal dispute, but have competing business interests) Simplest way to avoid this: an explicit termination letter. This reports that legal services have

concluded & usually encloses final invoiceo Lawyers often reticent to write these, b/c they often seem like the client is being

“dumped”, and it is in the lawyer’s economic interest to maintain relationships, even if a particular legal service is completed – easier to keep a current client than find a new one

Withdrawal: Obligatory and Optional

Lawyer has some discretion when to take a client, but once they agree to take one on, they don’t have the same discretion in ending that relationship

If a lawyer accepts a client, they have a duty of loyalty which limits the ability to end the relationship cannot terminate for capricious/arbitrary grounds. Basically, must be good reason to do so, and must give reasonable notice

Obligatory withdrawal: o BC Code 3.7-7:

When discharged by client Where client persists in instructing the lawyer to act contrary to professional

ethics Where the lawyer is not competent to handle the matter (3.1-2) Continuing relation with another lawyer, lawyer as a potential witness, or

client’s purpose is illegalo BC Code 3.4-1: Conflicts of interesto BC Code 5.1-1, 5.1-4 and Commentaryo Client can always fire a lawyero If client is persistently asking you to contravene ethical obligations, you can withdraw

(you have a duty to the tribunal to act honestly and with integrity)o Practice tip: don’t let your client push you into a position you can’t defend.

Optional withdrawal: o BC Code 3.7-1: Only for good cause and on reasonable grounds (commentary)o BC Code 3.7-2: “Serious loss of confidence” and commentary

Dishonesty, fraud by client, or client persists in instructing the lawyer ot act contrary to professional ethics

20

o BC Code 3.7-3: Non-payment of fees Generally speaking, you can withdraw if your client stops paying your fees (civil

context). In a criminal context, there must be time for your client to get another lawyer before trial – Cunningham (overruled the BC position that a lawyer could withdraw for non-payment of fees in a criminal case, and that the court had no discretion to refuse withdrawal)

NB: What about sneaky lawyers who pretend there is a loss of confidence but really they aren’t being paid for their fees?

o BC Code 3.7-4: Withdrawal in criminal caseso Exam hint: 3.7-2 and commentary (“serious loss of confidence”) read carefully!o Exam hint: Do 3.7-5 and 3.7-6 match the judgment in Cunningham?

Seems to be similar – these provisions indicate that a lawyer in a criminal case cannot withdraw due to non-payment of fees if there is insufficient time to get another lawyer or adjourn proceedings; leaves the door open to withdraw for reasons other than non-payment of fees.

o You may never use the threat of withdrawal to force a client to take a position 3.7-7  A lawyer must withdraw if: (a)     discharged by a client; (b)     a client persists in instructing the lawyer to act contrary to professional ethics; or (c)     the lawyer is not competent to continue to handle a matter.

o

R v Cunningham (2010, SCC) 3.7Facts Cunningham was legal aid lawyer for defendant; he was then suspended from legal

aid services and couldn’t pay, so she withdrewIssue When can a lawyer withdraw due to non-payment of fees in a criminal matter? Can a

court refuse to grant counsel’s request to withdraw?Reasons Once lawyer agrees to take on a client, he/she is constrained in ability to withdraw

(outlined in codes of professional conduct) Earlier position in BC/Yukon is that courts have no authority to prevent criminal

defence counsel from withdrawing due to non-payment of fees – SCC overturns this. The oversight of lawyer withdrawal does not fall exclusively to the law societies Notes the presumption that lawyers act ethically – however, counsel may still try to

withdraw for inappropriate reasons, and courts have to supervise this However, court won’t always deny counsel’s attempt to withdraw. If counsel seeks to

withdraw far enough in advance (so no adjournment necessary), then withdrawal is okay; counsel can also withdraw for ethical reasons (such that they cannot, in good conscience, continue to represent the acc’d). In this case, withdrawal must be granted

Factors include: whether there is enough time for other representation, whether acc’d can represent himself, impact on Crown and co-accused, fairness to counsel, etc.

Ratio Overruled BC position that a lawyer could withdraw for non-payment of fees in a criminal case and that the court had no discretion to refuse withdrawal. However, if counsel seeks to withdraw far enough in advance, or acc’d can feasibly represent him or herself, then counsel can withdraw.

“Up-the-Ladder Reporting”

Enron scandal: massive institutionalized accounting fraud ($18.7 billion loss)

21

o Many lawyers were clearly complicito Led to revised US securities regulatory regime which incorporated “up-the-ladder”

reporting – FLSC Model Code also adopted this Up-the-ladder reporting: A lawyer employed/retained by an organization which is engaging in

dishonesty, fraud, criminality or legality must advise the person giving them instructions that the conduct should be stopped – keep working up (board of directors, board of trustees, etc.) – and should withdraw from practice if the wrongful conduct does not desist

o Problematic – can make you unemployableo So once you are aware of fraud, must advise client/cease working with them, but don’t

need to go public about it (this would breach your confidentiality undertakings) BC Code 3.2-8 and commentary sets out these requirements What about a duty of “noisy withdrawal”? Securities Commission in US considered this post-

Enron – this would mean that, if there was no response from the highest authority, lawyer would need to withdraw “noisily” by notifying the Securities Commission that they had withdrawn due to “professional considerations” (ultimately was rejected)

o Per MOB, this likely wouldn’t work in Canada – would turn legal advisors into securities police

o Would be a breach of confidentiality or SCP

Supplementary Obligations on Withdrawal

3.7-1 (commentary [1] to [3]) 3.7-8 and 9: Notice to client, minimize expense, avoid prejudice, assist in transfer to successor

lawyero Wherever possible, do it with as much time as possible and notify everyoneo “Reasonable notice” – but no hard and fast rules here. As a general rule, client should

have enough time to retain and instruct replacement counsel.o Make reasonable efforts to find your client (if withdrawing b/c you can’t find them)o These are also rules of civil procedure – not just limited to the Codeo Cannot desert a client at a critical stage in the matter

Model commentary re: solicitor’s liens: Discouraged from asserting a lien if it will cause prejudice to your client

3.7-10: Duty of successor lawyerso If you withdrew b/c of a serious loss of confidence, no duty to disclose reasons to

successor lawyer (confidentiality). At least, this is what MOB thinks – but no easy answer here. If withdrawing b/c client is a nutjob, can’t really warn successor lawyer without breaching confidence. Just hope the next lawyer is wise to the client shenanigans.

The Lawyer’s Duty to Preserve Confidences

SumConfidentiality v Privilege

Confidentiality 3.7-9.1 Privilege Ethical principle Core principle of duty of loyalty

Legal dutyLegal right of client, principle of fundamental justice

Engaged with all of client info acquired by lawyer in course of

Limited to private communication between lawyer

22

professional relationship and client Ethical obligation continues even after info becomes known to others

Disclosure to 3P can and usually brings end to lawyer’s legal duty

Defining feature of all lawyer client r’ships

Usually associated with evidence law

Mere fact that there was communication b/w SC triggers, as long as there’s an existing r’ship

Must be for the purposes of providing legal advice

Codes of Pro conduct articulate continuing duration of duty

Guided by common law

Code 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 a court to do so;(c) required to deliver the information to the Law Society, or(d) otherwise permitted by this rule

Commentary[1] Can’t have effective legal service without full communication, knowing it will be held in strict confidence. [2] this isn’t SCP – but wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.[3] Duty to every client without exception, if continuing or casual client, survives professional r’ship, continues indefinitely [4] Duty also owed 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 3.4-1 Conflicts.)[5]  Generally, a lawyer should not disclose having been: (a) retained by a person about a particular matter; or (b)consulted by a person about a particular matter, whether or not the lawyer-client relationship has been established between them.[6] Avoid disclosing confidential info from one client to another; decline employment that might require such disclosure.[7] Lawyers in cost-sharing, space-sharing or other arrangements should be mindful of the risk of advertent or inadvertent disclosure of confidential information, especially when representing opposing clients.

23

[8] Avoid indiscreet conversations and gossip, even with the lawyer’s spouse or family, about a client’s affairs, even though the client is not identified. Don’t repeat gossip or info about the client’s business or affairs that is overheard or recounted to the lawyer. If overheard by 3Ps, could result in prejudice to the client. This probably lessens the respect for lawyers and the profession. Even when the facts are publicly known. [9] May have inferred consent – when necessary in court, or implied that lawyer may disclose to associates in the firm and, to the extent necessary. But this implied authority puts lawyer under a duty to impress upon them the importance of non-disclosure (during and after employment) and requires the lawyer to take reasonable care to prevent their disclosure.[10] Consent may be inferred where the lawyer is acting on behalf of a person lacking capacity, to protect them, until a legal representative can be appointed. The lawyer should consider all circumstances, including the reasonableness of the lawyer’s belief the person lacks capacity, the potential harm that may come to the client if no action is taken, and any instructions the client may have given the lawyer when capable about the authority to disclose. Similar considerations apply to confidential information given to the lawyer by a person who lacks the capacity to become a client but nevertheless requires protection.[11]  A lawyer may have an obligation to disclose information under rules 5.5-2, 5.5-3 and 5.6-3. If client information is involved in those situations, the lawyer should be guided by the provisions of this rule.

Policy To encourage full and frank disclosure from client. Lawyer must have full information to give proper legal advice so need a system to protect it – makes client feel safe and confidence that the legal system preserves the confidence

Lawyer with all relevant information is better able to advice client and provide competent service

DUTIES Duty of loyalty gives rise to duty of confidentiality (Neil) o Being loyal to client means keeping information confidential o Duty of commitment to client’s cause /zealous advocate 5.1o Duty to avoid conflicting interest and of candour also engaged

FLSC Model Code 2.03

Lawyer must hold in strict confidence all info concerning business and affairs of client acquire in course of professional relationship and must not divulge unless:

Expressly/impliedly authorized by client Required by law/court Required to deliver info to the Law society Otherwise permitted by this rule

Exceptions: Criminal Communications, Descoteaux Public Safety, Smith v Jones, 3.3-3 Innocence at Stake, McClure

Crime Xn

Descoteaux v Mierzwinski

1982 1 SCR 860

Facts: In order to prove that an applicant for legal aid had committed an indictable offence by fraudulently reporting a lower income in order to be eligible for such services, 2 officers presented a search warrant to legal aid office, for the applicant’s $ info

Issue: scope of and procedures of exercising the authority to search a lawyer’s offices in view of the confidential client files

Right to SCP: the right to communicate in confident with one’s legal advisor is a fundamental and civil legal right, founded upon unique r’ship of SC and a

24

person confined to prison retains all of those rights unless taken by law, Solosky A lawyer who discloses SCP should be sued, and a 3P who sees could be

prohibited by injunction from disclosing Principles Confidentiality of SC communication may be raised anytime such

communications are likely to be disclosed without client’s consent Unless the law provides otherwise, when and to the extent that the legitimate

exercise of a right conflicts with another person’s SCP, the conflict should be resolves in favour of nondisclosure

When SCP disclosure is authorized by law, the disclosure should only be done to extent absolutely necessary in order to achieve the ends sought by the enabling law

Acts providing for disclosure should be interpreted restrictively. A distinction should not be made between information given to establish the

probably existence of a valid claim and that given to establish eligibility (from the point of view of financial means), as it may be just as highly confidential as anything else. This is no less fatal to the ability to obtain legal services.

SCP attaches early:o Info that a lawyer requires to determine if they will agree to advise or

represent a client is just as much comm. Made in order to obtain legal advice as anything said subsequently. SCP attaches.

o Even if lawyer doesn’t agree to advise, SCP attaches to gathered info SC communications lose confidentiality if and to the extent that they were

made for the purpose of obtaining legal advice to facilitate the commission of a crime. The same is true where the communication is itself a material element to a crime (here: the actus reus of fraud)

HELD: No SCP attaches. Public Safety Xn

Smith v Jones

1999 1 SCR 455

3.3-3

SCP should be set aside when public safety is involved and death or serious bodily harm is imminent.

Facts: Acc’d advised by lawyer to see a psychiatrist. Told Dr detailed plans to rape, kidnap and kill prostitutes.

BC Pro Conduct Handbook, Chapter 5, S. 12: lawyer may disclose SCP info if lawyer has reasonable grounds to believe that the disclosure is necessary to prevent a crime involving death or serious bodily harm to any person.

PUBLIC SAFETY TEST: o (1) Is there a clear risk to an identifiable person or group? (Clarity)o (2) Is there a risk of serious bodily harm or death? (Seriousness) o (3) Is the danger imminent? (Imminence)

Dissent: The whole confession shouldn’t have been disclosed – simply the psychiatrist’s opinion that he was a threat. (more compelling?)

Innocence at Stake

M v McClure

Facts: McClure charged with a murder of sex offences against former students. McClure sought production of litigation files relating to one complainant to assess the motive of fabrication.

SCP may only be waived by client THRESHOLD TEST:

o SCP may be overridden where acc’d shows that the privileged information cannot be obtained from any other source and he’s unable to raise a reasonable doubt any other way.

Disclosure TEST (stringent)o Acc’d must provide evidence that privileged comm exist o Trial judge then examines to see if such comm (that would raise a

reasonable doubt) does exist

25

SCP will yield to the Charter guarantee of a fair trial where it stands in the way of an innocent person establishing their innocence.

Comm should be disclosed only to the extent necessary Policy: avoidance of wrongful conviction

R v Brown

(Narrows McClure)

Facts: Allegation by acc’d that lawyer’s client confessed to a the murder and requested that lawyer be ordered to testify.

Appropriate mechanism is appeal to royal prerogative if wrongly convictedo PROBLEMATIC: This is not really an effective remedy!

McClure applies to both oral and written communications Disclosure of privileged communication may be made to the accused but not

the Crown The disclosure may not be used to incriminate the privilege holder – ONLY to

exonerate the acc’dDisclosure to the Law Society

LS Sask v Merchant

Facts: Merchant allegedly disobeyed court order requiring him to pay into court any funds that his client received from a claim, in order to secure child support obligations. LSSask investigated and requested info from merchant about his dealings.

Disclosure to LS to determine if lawyer has breached a court order/the Code Issue: was privilege waived? Does he have to disclose communication? Ratio: LS has authority to demand the production of privileged records. The

disclosure must be framed as narrowly as reasonably possible, and only disclose docs to the extent necessary to investigate

CODE: LPA s. 88 (1.1) When required by this Act, must disclose despite being confidential or privileged o (1.2) – Info and files must also be disclosed, despite confidential or privilege o (1.3) – Clear and absolute excuse for firms/lawyers- If required to disclose,

they CONCLUSIVELY DID NOT breach any duties otherwise owedo (2) Despite FOI Act, any 3P who requires disclosure per this Act has the same

obligation as the person who owed the duty (transfers privilege to the recipient and bound by SCP in the same way as original lawyer)

o (3) A person who acquires the comm under this Act must not disclose to anyone except as required by this law.

Goodis v Ontario, 2006 SCC 31

Journalist sought to get docs relating to charges of sexual assault from Ont ministry

The appropriate test for any doc claimed by SCP is “absolute necessity” LSBC Rules 3-5(11) A lawyer who is required to produce files, documents and other

records, provide information or attend an interview under this Rule must comply with the requirement

(a) even if the info or files or docs are privileged or confidential, and (b) as soon as practicable and, in any event, by the time and date set by the Executive Director.

3.3-2-1 – A lawyer who is required under law to produce privileged documents must claim SCP (Commentary: only disclose what is necessary)

o This will then trigger process to demand it, usually court to determine if actually privileged

3.3-4-6 – If alleged that a lawyer has committed a crime, is civilly liable, professionally negligence or professional misconduct/conduct unbecoming, lawyer may disclose to extent necessary to defend against allegations.

o If client sues you for negligence, they’ve made it a public case and have TF waived privilege

-5 may disclose, to extent necessary, to collect lawyer’s fees -6 may disclose to another lawyer to secure legal/ethical advice about proposed

26

conduct (e.g. a bencher, but keep formal and private) Proceeds of Crime

AG Can v FLSC

2015 SCC 7

Background: Post-9/11, there was a financial action task force created to identify terrorist financing (FinTrac), with power to demand/search/seize docs to see who’s profiting from proceeds of crime. Lawyers would be required to collect info from clients and retain it so the info can be available to law enforcement officials.

o FLSC argued this infringed Charter s 7 (prin of fundamental justice) and s. 8 (unreasonable search/seizure), and acquired injunction so it wouldn’t be applicable to lawyers because (1) SCP (2) duty of loyalty to clients (3) independence of the bar.

o Law societies implemented “client identification” “large case payment” or “no cash” rules to impede the use of lawyer’s offices for money-laundering. Rules 3-98-109 (see below)

Lawyers required to obtain, verify and record certain info about clients when retained

The proceeds of crime regime, as applies to lawyers, constitutes an unreasonable search and seizure, infringing s. 8 (Majority (6, Cromwell)

Duty of commitment to client’s cause is prin of funda justice and therefore infringes. S7 (Min (Moldaver and McL)

S. 8: is it unreasonable? First step: is FinTrack primarily penal in nature, rather than administrative? Court says yes penal, because aimed at targeting, and punishing behaviour. Allows sweeping searches, which creates an inherent risk to SCP. High expectation of privacy in relation to SCP (the highest of all), must remain as close to highest as possible (Lavallee)

No way to determine privilege without lawyer making claim on behalf of client Burden on lawyers to assert is unduly high 3.3-3 [38-39] the need for full protection of privilege is activated in criminal

expectations. The reasonable expectation in relation to SCP is invariably high, regardless of context. The nature of the relationship is of importance, not the prosecution’s desire to intrude. The context is essentially irrelevant.

When looking at regulatory function of LS and their disciplinary control over lawyers, it’s a different consideration. Not a ruling if law society rules are same potential intrusion.

S. 7: infringed - lawyers face imprisonment if don’t follow regime At Trial, Gerow J. (text, 2001 case) lawyers rights substantially infringed b/c puts them in conflict

o Protecting clients’ legitimate interests against ruleso you must act as a state agent basically, you have to keep records in

order to help It is a principle of justice that state cannot impose duties on lawyers that

infringe on their duties to cliento (1) legal principle (2) consensus that it’s fundamental to the operation

of law (3) Sufficiently precise to measure Duty to commitment to client’s cause meets this test: sufficiently precise (e.g.

lawyer must take proper steps to ensure not used for illegal ends) Deference to what law societies say re: crime and regulations The significance of relationship between lawyers and client’s and how

important it is to the administration of justice to maintain P. 72, SDJ – the importance of independence of the bar from the state

LSBC Proceeds of Crime Rules

3-98-109: Lawyers required to obtain/verify info about clients when retained (99) Exceptions: in-house counsel/employee lawyers, duty counsel/pro bono

(i.e. where no financial transaction) and where another lawyer refers client and

27

has already complied (100) lawyer to make reasonable effort to obtain client’s name/business /

contact info and details of the business 101 – exemptions from verifications (e.g. banks, public office, between lawyers)

or when pays to or receives money from these places (102) when a lawyer provides legal services in respect of financial transactions,

must take reasonable steps to verify the identity of the client (103) extends to the identities of shareholders and directors if financial transaction advice for a corporation

104 – non face-to-face transactions, must get attestation to identity by guarantor

105 – must verify identity at the time of providing legal services, but not subsequently if you recognize them

106 – must verify the identity of an organization within 60 days 107 – must retain these records for longer of r’ship necessary to provide

services, or 6 years after completion of work 109 – Duty to withdraw – if lawyer knows or ought to know that assisting in

fraud 3-59 – Cash Transactions

Cunningham

3.7

In some cases, disclose due to non-payment may relate to client’s case (and therefore violate SCP), so be careful of context when withdrawing

If counsel seeks to withdraw far in advance that it won’t prejudice the client, then court should allow – no need to ask for reasons why

If timing is a problem, court can question why withdrawing if SCP not engaged Counsel can withdraw “for ethical reasons” Counsel cannot say “for ethical reasons” if it’s about the payment of fees The court must accept counsel’s answer at face value and not enquire further

to avoid SCP infringement R v Murray

(Crime case, did not talk about in class)

Person charged with willfully obstructing justice by concealing the smoking gun evidence of videos of child porn

Defence counsel argued that the videos were SCP, but says no because they weren’t communications for legal advice

Absent SCP, no legal basis permitting concealment of tapes In US, SCP does not protect physical evi, and may suggest obligation to turn in

o Some support in Canada When lawyer faced with this kind of evidence, 3 legal options:

o (1) turn in to prosecution directly or anonymously, (2) give to trial judge (3) disclose existence to prosecution and “do battle” to retain

Rest of the case speaks to the mens rea and actus reus of concealing evidence

Conflicts of Interest

There are two main types of conflicts of interest and dutyo (1) Between clients (2) Between lawyers

The duty to avoid conflicts arises from duty of loyalty Warning: This can be abused for tactical purposes, in which a party alleges a conflict of interest in

order to disqualify opposing counsel Due to the increase in lawyer mobility, size and reach of law firms, the avoidance of conflicts

between clients is more difficult Quartet of Cases

28

1. Duty to Former clients Conflict between former and current client

i. Conflicts arise in the case of “transferring lawyers” 1. Conflict between the transferring lawyer’s duty to former

client and duty of the new firm to its current client Possibility of Mischief Test, MacDonald v Martin

2. Duty to Current Clients Conflict between current clients The Bright Line Rule, Neil If the situation is “liable to create conflicting pressures on a lawyer’s

judgment” there is a conflict, which lawyers must avoid, CN McKercher3. Solicitor-Client Conflict

Fiduciary Duty means client comes before own interests, Strother

BC Code 3.4 3.4-1 – cannot act where in a conflict of

interest Commentary: [1] – [8] 3.4-1 (a) and (c) examples (d) – extension to family members and

business interests (e) – very close personal relationships,

sexual relationships may result in conflicts

(f) – lawyer acting as a director of the corporation

(g) - cost-sharing and space sharing arrangements – 3.4-42 – 3.4-43 and commentary

3.4-26.1- general prohibition restated?

3.4-2 - Exception where clients consent and lawyer reasonably believes they are able to represent both

(a) Full disclosure, consent must be voluntary

(b) Instances where consent implied

Commentary to 3.4-2 3.4-3 – exception does not apply to

disputes between clients These are, in her opinion, unlikely to

occur If clients consent to you acting in a

conflict of interest (and both must consent), the lawyer must still believe they can represent both

- 3.4 is where all the main rules are. She encourages us to read all the rules, provisions and commentary very carefully! The commentary basically explains it.

- 3.4(1): If you breach the code, it is ipso facto professional misconduct. Cannot act in a conflict of interest unless an exception. Law Societies are trying to assert control over lawyers here, but it is difficult for them to do so.

- Task Force (mentione din a Bencher’s Bulletin lately) trying to create governance rules for FIRMS, not just lawyers. B/c this is an issue for overall firms – not just lawyers

- Commentary (1) gives us the outline of the test, what is considered a conflict of interest: “When there is a substantial risk that a lawyer’s loyalty to a client will be materially/adversely affected by a lawyer’s OWN interests, or a lawyer’s interest to another client, third party, etc.”

- Very general – anything that would make a lawyer less dedicated to the client’s cause

- Commentary (2): Always be aware when conflicts may arise

- Commentary (3): Applies not just to current but also to former clients

- Commentary (4): Makes clear that it is just in-court advocacy – applies to all the

29

This potentially occurs with professional litigants – i.e. broad professional organizations that employ different law firms to do different work at different times. They know that in engaging big law firms, there may be another office of that law firm acting against them – e.g. happens with banks. 3.4-2

behind-the-scenes out of court stuff, too- Commentary (5): Statement of the policy

position and reasons for having a duty to avoid conflicts of interest

- Commentary (6): Neil and Struther cases – we will come back to those

- Commentary (7): How to judge whether a conflict has arisen – how immediately connected are the interests? Are they directly or indirectly adverse? Is the issue substantive or procedural? Temporal connection? Ongoing relationship or one-off thing? Significance of issue to immediate and long-term interests? Remember the public isn’t really interested in these details – they are just interested in whether or not their lawyer is THEIR lawyer, working only for them, and committed to their cause.

- Commentary (8): Gives some examples. If someone close to you has an interest, you may be tempted to look out more for their interests than the client’s. Must be very careful here. E.g. if a family member works for a company that you are acting against – might affect your ability to litigate against them to the fullest – may not even be required that you withdraw, but is left to your judgment, and you may want to pass it on to someone else. This, again, arises much more in big than in small firms.

- (e): Some egregious cases where lawyer of record on a divorce proceeding starts sleeping with their client.

- (f): firms often have rules around this. Can you both act for a corporation and sit on a board? Directors of corporations have fiduciary obligations to corporations, whereas lawyers have a duty of loyalty to firm, firm partners, other clients, etc. Can lead to a confusing situation. Also duty to court (must withdraw if fraud, illegality, etc).

- (g): Space-sharing – VERY common. Group of lawyers not forming a firm (i.e. not shared trust accounts, client’s, etc) – but share space and employees for efficiency’s sake & to save costs. May not be obvious when a client first walks in that this is space-sharing, not an actual firm.

- Neil: Sometimes in shared space

30

circumstances, even the lawyer isn’t thinking about it enough. How closely can your practices interrelate? What if both sides in the same space are against each other? Things could be overheard way too easily (receptionists hear everything, you might share photocopiers and everything is recorded in there)

- 3.4-42 and 43: Rules around disclosure to client’s for what exist

MacDonald Estate v Martin, 1990 3 SCR 1235Facts Dangerfield previously represented Martin

Dangerfield’s firm dissolved and she transferred to a new firm who was representing MacDonald Estate in ongoing litigation against Martin

Dangerfield was not working on this case and was not in any way involved in representing MacDonald

Marin made application to have Dangerfield’s new firm disqualified from representing MacDonald in the litigation against him

Issue What constitutes a disqualifying conflict of interest? Held Disqualification. Did not pass part 2 of Possibility of Mischief TestReasons Policy Considerations:

o (1) Concern to maintain high standards of legal profession and integrity of justice system

o (2) Litigants should not be deprived of their choice of counsel without good cause

o (3) Desirability of permitting reasonable mobility in the legal profession

Confidentiality in solicitor-client r’ship is of utmost importance Code of Professional Conduct is important statement of public policy

(1 above) and demands standards of legal professionals. Even the appearance of impropriety should be avoided.

The courts, who are not bound by the Code, have inherent jurisdiction to remove a lawyer who has a conflict of interest b/c lawyers are officers of the court

Strong inference of imputed knowledge : o that lawyers who work together share confidences, the

assumption that the knowledge of one member of the firm is the knowledge of all

o Inference unless satisfied by clear and convincing evidence that all reasonable measures have been taken to ensure that there will be no disclosure from tainted lawyer to members of

31

firm engaged against former client Include: Chinese Wall, cone of silence Can ask LSBC if you aren’t sure about conflict. This also

bolsters defence if other side tries to disqualify you Needs more than “probability of mischief” to satisfy public

confidences – requires stricter standard of possibility Idea of imputed knowledge is unrealistic and “overkill” in the era of

the mega-firm – you can’t realistically know what’s happening in every branch of office

Ratio There is a rebuttable presumption that confidential info was imparted once it is shown by the client that there existed a previous r’ship which is sufficiently related to the current action

POSSIBILITY OF MISCHIEF TESTThe reasonably informed member of the public must be satisfied that no inappropriate use of confidential information will occur. This is a two stage inquiry:

o (1) Did the lawyer receive confidential information attributable to a solicitor-client r’ship relevant to the matter at hand?

Solicitor rebuts by showing no relevant info was imparted (affidavit from lawyer is insufficient)

If not discharged, particular lawyer is DQed from acting Very difficult to discharge – likely requires client to confirm

that no such info was disclosed o (2) Is there a risk that it will be used to prejudice the client?

o Court considers strong inference of imputed knowledge – burden on the firm to show otherwise

DISSENT Cory J: there should be an irrebuttable presumption that confidences will be shared. But from small firm and long-time judge (less realistic)

The most important of policy considerations is the preservation of integrity of legal system, the others come second to this

The public perception of unfairness arises from the ease with which confidential info could be privately communicated b/w lawyers in same firm – e.g. chit chat around the water cooler

CODE 3.4-10 – unless consent, can’t act against former client in same matter, related matter, other matter if relevant confidential info

3.4-11 – new law firm may take on despite confidential info if reasonable giving measures taken for non disclosure, extent of prejudice, good faith

3.4-17 to 19 – background -20 – law firm must self disqualify if disclosed, unless consent, it’s

otherwise reasonable, timing ok, extent of prejudice, good faith - 22-24 – continued firm rep does not involve transferring lawyer

32

3.4-25 – can seek LS opinion for remedy - 26 – must exercise due diligence Appendix D to the BC Code provides some guidelines on how to

handle the situation when a lawyer joins a firm that is acting against a former client of that lawyer

Tensions Consider the interests at stake:

o Unfair for client to lose their choice of counsel o Lawyers need some sort of reasonable mobility w/in

profession (esp. for pathetic articling students!) o What if a lawyer legitimately acquires relevant information?

Danger that lawyer would avoid using it b/c it might be perceived to have come from the client

Imputed knowledge in the mega-firm erao Impractical to have blanket prohibition on whole firm (is there

really a risk that info will be shared? How big? SOo Result – particular lawyer is automatically disqualified from

acting against former client in virtually every case (unless they can rebut the very difficult burden)

R v Neil, 2002 3 SCR 631Facts Neil was client of Venkatraman law firm. Lambert was Neil’s assistant.

Lazin represented Lambert. Lazin and Venkatraman share space with and/or was a Venkatraman employee.

Ethical issue 1: The Canada Trust charge o Neil charged for improper paralegal practice, Lambert not yet

charged but CLEARLY coming and anticipated o With another Vankatraman lawyer, Lazin attended meeting

with Neil. o Lazin’s plan was to defend Lambert by making her look

innocent and testify against Neil Ethical issue 2: The Doblanko forgery

o Neil did faulty divorce for Doblanko, forged paperwork/invalid o Lazin now acting for Doblanko to correcto Lazin to use this forgery against Neil in Canada Trust charge to

make him look even worse o Brings to divorce court - judge says to report to cops + LSBCo Lazin doesn’t disclose to LSBC his r’ship w/ Neil or Venkat.o LSBC says go ahead and report, which he does – the cop that

that is investigating Neil on Canada Trust Reasons Conflict: circumstances that present a “substantial risk that a

lawyer’s loyalty to or representation of a client would be materially

33

and adversely affected by the lawyer’s interest or duty to another client, a former client, or a third person” (Restatement Third), 3.4-1, commentary 1

Court recognizes implied consent for “professional litigants” – big, national companies will, unless interests are directly adverse, likely allow different firms and offices within those firms to act for an against them in different matters 3.4-2

Applicatn Here there were 2 violations:o (1) acting for lambert when the firm was acting for Neilo (2) accepting the Doblanko divorce when it was necessary

to rely on and reveal Neils forgery to represent Doblanko A stay in proceedings was an excessive remedy

Ratio Lawyers owe a duty to existing clients to avoid conflicts of interest BRIGHT LINE “TEST ”, 3.4-1, com 6: 3.4-2

o a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client – even if the two matters/retainers are unrelated – UNLESS:

BOTH clients consent after receiving full disclosure (and preferably independent legal advice), AND

The lawyer reasonably believes that they are able to represent each client without adversely affecting the other

Code 3.4-4 – Concurrent representation – 2 lawyers in firm can act for current clients with competing interests if there’s no dispute about the matter of representation provided: disclosure, consent, independent legal advice, screening mechanisms, lawyers withdraw if necessary

Commentary [2] – Provided that each client is represented by a different lawyer in the firm and there is no real risk that the firm will not be able to properly represent the legal interests of each client, the firm may represent both even though the subject matter of the retainers is the same. Is this really possible? [3] even if both consent, is it in the best interest of client? May have one less sophisticated client.

3.4-5 – Joint retainers – must advise been asked to act for both, no SCP between parties, if unresolvable conflict, lawyer to withdraw - example of joint wills in commentary [2]

Scenario Seven p. 64 of Text 3.4-6 and -7 – continuing client and new client in joint retainer 3.4-37 – 3.4-39 – Testamentary instruments and gifts

Commentary 2: She thinks that not many clients would be happy about that situation. If you had a transferred lawyer who had particular expertise

34

in this area, and you wanted them to keep acting in that capacity, maybe they could separate out the interests at stake – but she thinks this is unlikely. You would have to have a LOT of confidence in your lawyer that they could keep all your info confidential. Very sophisticated type of work means there may not be that many firms which have this kind of sophisticated lawyer on staffYou stopped listening. Read thru these provisions yourself.3.4-37: Another Merchant case!! A lawyer cannot have a clause directing the executor to hire the lawyer in dealing with the estate.Lawyer cannot accept a gift that is more than “nominal”, unless they received independent legal advice. Dinner, bottle of wine, that’s fine. But you have to be careful here – can’t let clients sway/persuade you. But it can also be cultural. Be very careful, tho, about attempts to co-opt you. Especially when you’re first starting out.NB: She didn’t go thru every single rule and commentary b/c she wants us to read them in conjunction with the cases.

Tensions Are matters really unrelated when you’re relying on evidence from one matter to defence a client in another? Though legally unrelated, but there may be a legal relationship and a strategic linkage

Strother v 3464920 Canada Inc, 2007 SCCFacts Davis = law firm. Strother = lawyer with Davis. Monarch = most

significant Davis client. Darc = Monarch executive.Monarch had exclusive retainer of Stroger and Davis until 1997 when

Income Tax Act changed to eliminate advantages of film tax shelters – Monarch’s specialty. Strother advised Monarch that no way around new law so Monarch began closing business.

’98: Monarch only had non-exclusive retainer (generally oral agreement) to advise on “tax assisted business opportunities”

Darc came to Strother in 98, proposing new advance tax ruling (ATR) for modified tax shelter plan (a loophole in new law). Strother prepared request in exchange for 50% interest in new company = Sentinel. Davis told Stother not to take personal financial interest in Sentinel.

Monarch found out about ATR, and that Strother and Darc in business together. Sues Strother, Davis, Darc, Sentinel. o FYI: ATRs are public in principle but with redactions. Still useful for

tax planning if you’re doing the same transaction b/c roadmap for what works. ATR is a modified tax shelter and provides similar benefits.

ISSUE Breached duty of loyalty by:o (1) Putting own interest before duty for zealous representation

35

Strother K’ed for personal financial interest, which led him to prefer Sentinel’s interests over Monarch’s.

Put him in breach of fiduciary duty 3.4-1 com 5, as a result…

o (2) Not fulfilling duty of candour 3.2-2 Failed to provide candid and proper legal advice.

The conflict compromised his duty to zealously represent Monarch’s interests, compounded by lack of candour

Reasons

(Binnie)

Duty of loyalty includes duty to avoid conflict of interest Fiduciary obligations extend beyond the written text of a contract

o Obligations may be implied, rather than expresso This was the case here, esp since Monarch acted in reliance of

Strother’s advice o More is required than “didn’t ask, didn’t tell”. The public

expects more from lawyers than it does of used car salesmen and pawnbrokers.

Duty is not to alter past opinions on concluded matterso But Strother “knew perfectly well” that Monarch would be

vitally interested in the re-evaluation. o Updating advice doesn’t mean you were negligent, but now

that situation has changed, maybe the advice no longer applies Conflict of Interest principles generally do not preclude a firm/lawyer

from acting concurrently for different clients who are in the same line of business or who compete with each other for business, provided confidential information remains confidential

o The more sophisticated the client, the more readily the inference of implied consent

o Don’t want to create blanket prohibition (preventing lawyers from taking clients who may compete) because the legal system depends on people with legal needs obtaining access to what they think is the best legal advice they can get

The lawyer must not keep the client in the dark about matters they know to be relevant to the client’s interest

o Monarch was a current client and was unquestionably entitled to continuing loyalty of Strother and Davis.

Court should evaluate whether there is a serious risk that the lawyer’s ability to properly represent the complaining client may be adversely affected, and what steps can be taken to provide an adequate remedy

The possibility of adverse impact must be more than speculation [104-5] Considering their relationship, ongoing retainer, the impact of

Strother’s conduct on M’s ability to do business and Strother putting his personal needs first: Monarch paid for and was entitled to expect better representation from Strother. They were entitled to undivided

36

loyalty, full disclosure and candid advice. He failed in that respect and the LSBC experts better of its members.

Ratio Fiduciary (lawyer) must always act solely in the best interest of the charge (client).

Lawyer has a duty of candour 3.2-2o Generally, lawyer does not have a duty to alter a past opinion

in light of a subsequent change of circumstances – with exception.

Extras To what degree can a lawyer use knowledge and expertise gained to benefit another client?

o You can take your personal knowledge and database, became an expert, possibly use same forms if it’s your work, but you need to be concerned and cautious of confidentiality

Can a lawyer contract out of the fiduciary duty of loyalty? o NO! It’s the client’s right and to their protection.

CN Railway v McKercher, 2013 SCC 39 (Wallace v CN at Sask CA)Facts McKercher acted for CN on several unrelated matters.

McKercher accepts retainer for Wallace in a class action against CN CN only found out when they got notice of claim McKercher terminated all other retainers with CN, except 1 which

CN canceled CN applied to strike McKercher from representing Wallace in class

action against CN, stating 1) conflict of interest 2) had improperly terminating the other existing CN retainers 3) McK might misuse confidential information (that would know from other matters)

DUTIES Duty of commitment to the client’s cause o Prevents lawyer/firm from summarily and unexpectedly

dropping a client to avoid a conflicto Part of duty of loyalty

Duty of candour 3.2-2 o Requires a firm to advise its existing clients of situation

Trial

Court of Appeal

Trial McKercher was DQed on MacDonald Estate test b/c “understandable

sense of betrayal” and the knowledge of CN’s strengths/weaknesses etc. constituted relevant info which McKercher firm had.

Appeal Overturned b/c not relevant confidential info warranting being DQed McKercher could act concurrently for Wallace as CN was large

corporate client, not vulnerable or dependent on McKerchero Implied consent of “professional litigant” (that lawyer

would act in unrelated legal matters was inferred) 3.4-2

37

BUT said there was a breach of loyalty for peremptorily terminating r’ship on existing files. BUT there is no risk of prejudice to CN because other files were terminated.

Reasons

(SCC)

SCC applies the bright line rule (can’t represent clients with adverse legal interests without consent)

o Even though matters are unrelated, Cn and Wallace are adverse in legal interest

o Client loses benefit of bright line rule if they try to use it to prevent adversary from having counsel of choice

o CN wasn’t attempting to abuse the bright line rule: It was reasonable here for CN to expect that McK would not concurrently represent a party in a huge suit against it.

If not adverse in legal interest, does the concurrent representation create a “substantial risk that the 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, former client, or 3P?”

There is implied consent where client is a “professional litigant” 3.4-2 Inherent supervisory jurisdiction over lawyers to disqualify a lawyer:

o where there is a risk of improper use of confidential info (this is then the appropriate remedy)

o where bright line rule applieso to avoid risk of impaired representation o to maintain the reputation of the admin of justice, to deter

firms from doing, and protect the public confidence of lawyers Where there is no longer a concern of prejudice to complaining party,

court may still consider: o Other behaviour by complaining party (e.g. delay in bringing

motion) o Significant prejudice to new client (e.g. ability to retain new

counsel) o If the firm accepted the second retainer in good faith,

genuinely believing they could represent both clients Ratio TEST: If the situation is “liable to create conflicting pressures on a

lawyer’s judgment” there is a conflicto Onus is on the client to establish the existence of conflict

Duty to Avoid Conflicts of Interest o Main application is to refrain from misusing confidential infoo Lawyer must refrain from avoid placing themselves in a

situation that jeopardizes effective representation (duty of zealous advocacy/effective representation)

o Bright line rule applies when client’s immediate legal interests are directly adverse 3.4-1 com 6

38

Duty of Candour 3.2-2o Lawyer must disclose any factors relevant to ability to provide

effective representation o Even where bright line does not apply, lawyer must advise

existing client before accepting a retainer than requires them to act against existing client, while respecting the confidentiality of new client

General Not allowed to get into a conflict of interest by taking on a new client that automatically and directly conflicts with current duties. (You CAN enter into a new agreement if you get informed consent)

You cannot summarily withdraw from existing client in order to avoid a conflict of interest that would arise by taking a new client

Bright line did not apply in Neil because clients were adverse in strategic, not legal interest

Bright line did not apply in Strother, b/c interests were commercially opposed

Terminating a retainer does not always have to reflect on the admin of justice

Don’t have sex with your clients – LSUC v Hunter Using former client’s case for publicity for yourself is a breach of

duty of loyalty – Stewart v CBC (former counsel, Greenspan, portrayed Stewart in an unfavourable way on radio program)

Guest Lectures

Guest Lectures

Tim McGee: CEO, LSBC

No ppt. See OneNote, Sept. 23.

Law Society regulates lawer – i.e. self-regulating profession (not govt. regulators) Why do we regulate? To uphold and protect the public interest (not for safety reasons).

o We protect the public interest in the administration of justice by preserving rights and freedoms and by ensuring the independence, integrity & honour of lawyers

o Codified in the LPA, ss. 3(a) and (b) Barrister & Solicitor’s Oath: Lifetime commitment by practicing and non-practicing lawyers

o Delegation of commitments in LPA s. 3 down to each individual lawyer

Lawyers and Civility Groia v. LSUC (2015, ONSC): Bre-X case involving mining fraud. Executive charged with insider

trading. Lawyer, Groia, was allegedly being uncivil in the course of defence to his client. Law

39

Society had a hearing, said his behaviour constituted professional misconduct. He was suspended & fined – appealed up to the ONSC.

o Issue: Focal point in tension between lawyer’s duty to his client versus duties to the court and the public. Very complex area.

o Reasons: Court took judicial notice of growth in incivility among lawyers. Why does this happen? People conflate being aggressive with being a good advocate, among other rsn

No fixed definition for incivility (nuanced, context-specific) But here, Groia went way too far – unfounded, relentless personal attacks Do disciplinary hearings like this cast a chill on zealous advocacy? Where interests clash, zealous advocacy should be favoured over civility!

Civility is fundamental, but so too is a lawyer’s ability to fearlessly and forcefully protect client’s rights

Definition of incivility: Conduct that is rude, abrasive, demeaning, etc – but important qualifier is it must ALSO bring the administration of justice into disrepute, to rise to the level of professional misconduct

Lawyers as Guardians of the Public Interest Legal does not always equal ethical! Transocean: Case which highlights lawyer’s ethical obligations CSR (corporate social responsibility) may segue into legal profession Tax Abuses, Poverty & Human Rights (Int’l Bar Ass’n Article): Tax avoidance is okay (legal). But

any tax structuring that deprives institutions of funds has negative impacts on human rightso Starts with tax law, but may apply to any other areao Merely complying with tax law isn’t enough if it violates human rights. Lawyers should

use their leverage to ensure clients don’t engage in this kind of conduct Trafigura: Dutch oil & commodity company, Ivory Coast toxic waste dump (many deaths)

Other Trends Rise of the megafirm (e.g. Dentons) Technology without borders, offshore legal process outsourcing, commoditization of services Where can regulation help and where does it hinder? Recent legislative changes allow LS to regulate entities (i.e. firms), not just lawyers. Obligation on

lawyers to educate lawyers & help them navigate ethical lines, since the firms can now be disciplined & held accountable

Michael Mulligan

No ppt. See OneNote, Sept. 30.

Discusses the TWU case and the role of LS in relation to this To be accredited, a law school is presumptively approved, subject to Benchers saying no Traces history of TWU claim FLSC gave preliminary approval – went to Benchers Debate : What is the role of law societies? Are they overstepping their bounds by denying TWU

based on the covenant (i.e. should they just be focused on educational requirements)? Or should they have more of a substantive/normative role?

Mulligans’ argument: TWU shouldn’t rely on Teachers case, b/c role of Law Society (broad objectives and duties) is much broader than College of Teachers. Question isn’t, would a future student engage in improper conduct (which was how it was framed in Teachers). Rather, should be – will the granting of approval to TWU be in the public interest & would it aid in protecting the rights and freedoms of all persons, and the integrity/honour of the legal profession?

40

o He is concerned about the university, not the graduateso Woman got pregnant out of wedlock – expelled. We as a profession should stand up to

this. Benchers: senior, elected, takes up a lot of time, mostly conservative (doesn’t reflect modern

makeup of legal profession – mostly old white men) Within a week, all lawyers sign a petition asking Benchers to reverse decision, which they do –

but mail out a referendum and basically abdicate responsibility. Mulligan wishes Benchers had taken more responsibility, more nuanced assessment. The way they did it creates a JR problem (fettered discretion) and, as we now know, BC has come down on the side of TWU

Deb Armour, Chief Legal Officer, LSBC

Ppt saved to folder.

Protection of the public:o Defines everything the LS doeso Not the same thing as protecting lawyers’ interestso Basically, helping lawyers do a better job so the public is protectedo Law Society would rather pre-empt issues than discipline, retroactively – invest a lot in

proactive and preventative regulation to avoid issues front-end Biggest regulatory issues:

o Poor communication – biggest issue (unresponsive lawyers) Biggest advice she can give – really listen to your clients! Pay attention! Also communicate well with 3Ps/other lawyers (not just clients)

o Conflicts of interesto Service Issueso Dishonesty, trust accounting deficiencies – most extreme end of spectrumo Breach of undertaking: foundational – legal profession is build on promises – lawyers

must be able to count on each othero Civility issueso Incompetence – as it relates to operating a practice (rather than being tied to a specific

area of law)o Personal life issues – disproportionate number of lawyers with addiction/mental health

issues LAP (Lawyers’ Assistance Program, helps with personal issues) Tips to avoid complaints:

o Clear, accurate, respectful communicationso Manage clients’ expectations! Avoiding bad news gets you in trouble. Be honest.o Understand professional/regulatory obligationso Seek help early! Everyone is happy to help.o Avoid “dabbling” (anecdote about lawyer helping friend with a will – huge problems)o Don’t procrastinate. If there’s a file you’re avoiding, give it to someone else.

Complaintso 1 lawyer complained of every 4 years; many aren’t valido Very small number actually go to discipline committeeo Regulatory complaints go either to “Practice Standards Committee” or “Discipline

Committee” Discipline Committee results:

o Conduct review (most common): “Muscular” meeting, sit down with two lawyers and a Bencher, must discuss where they went wrong (not public)

o Citation (second most common): Public – appear before a panel.

41

o Practice standards: May happen in addition to discipline committee, if lawyer is struggling in a certain area

Common issues: clients are deferential to lawyers, afraid to as questions, cultural or ESL issues, sometimes even illiterate (per MOB) – you must recognize this as a lawyer

Sanctions: LPA, s. 38(5), panel must do one or more of the following:o Reprimand, fine not to exceed $50K, conditions/limitations on practice, suspend, disbar,

or require remediation/medical help (or testing, if addiction issues) Sanctions – key principles: To protect public, not punish lawyers

o Aim to ensure public confidence in legal systemo Deterrence, denunciation, rehabilitationo Principle of progressive discipline (i.e. step-up principle)o Sanctions only enacted against a fraction of practicing lawyerso Benchers Bulletin always has a section on disciplinary proceedings –popular section

Timeframe: Varies widely – standard is 80% to be completed within a year (usually on track, but depends on complexity)

Professional misconduct: Test from LSBC v. Martin (2005, LSBC) “…whether the facts as made out disclose a marked departure from that conduct the LS expects from its members; if so, it is professional misconduct.”

o Sounds objective, but may be very subjective in practice – what is a marked departure for one person probably isn’t for another

o No limitation period, but older claims harder to prove Notable cases (professional misconduct):

o Wirick (2002, LSBC): Stole money in numerous cases by taking undertakings to discharge encumbrances on property (i.e. mortgages), but then eeping the money and not discharging the encumbrances. Wirick was then giving all the $ to Gill, a real estate developer. Wirick was imprisoned for a number of years.

Positive note – led to better protection in the LS against this Plus audit programs (each firm every 6-7 years)

o Zoraik (2013, LSBC): Lost jury trial (spectacular loss – verdict w/in matter of minutes). She then forged a letter, pretending to be the spouse of a juror & alleged jury tampering. Caught on video at the registry. Criminal conviction and LS also reacted.

o McCormick (2015, LSBC): Hired by RCMP to prosecute someone charged w/ sexual harassment, but then came to an agreement. Years later, went on 5th Estate – very open & critical, said she would’ve won if “allowed to go ahead with it”, horrific breach of SCP & duty of loyalty to client (i.e. the RCMP)

Conduct unbecoming: Definition in the LPA:o …includes a matter, conduct or thing, that is considered, in the judgment of the

benchers, a panel or review board, a) to be contrary to the best interest of the public or of the legal profession, or b) to harm the standing of the legal profession.

o Test for conduct unbecoming – LSBC v. Berge, 2007 LSBC: “A lawyer does not get up to leave his/her status as a lawyer at the office door. The imposition of this high standard of social responsibility, with the consequent intrusion into the lawyer’s private life, is the price that lawyers pay for the privilege of membership in a self-governing profession. Conduct unbecoming not only includes the obvious examples of criminal conduct and dishonesty, but it also includes ‘any act of any member that will seriously compromise the body of the profession in the public estimation.”

o Basically, being a lawyer is a quid pro quo Notable cases (conduct unbecoming):

o Rea (2012, LSBC): Child pornography charges. Lawyer supposed to protect vulnerable members of public. Assed him, discovered he had intense psychological issues – mitigating factor. He had to get treatment & supply regular reports to this effect, but not disbarred. LS looks holistically at these cases (not just commission of the offence)

42

o Power (2009 LSBC): Convicted in Ontario, came here, lied to LS & used a different name – disbarred. Decision focused just as much on misleading the law society as his criminal conviction.

o Debate: Should law societies regulate private conduct? Self-regulation is a privilege – few countries still allow this Perception of public is thus incredibly important S. 3 gives LS broad mandate (regulate integrity/honour of lawyers)

Ungovernabilityo Hall, 2007 LSBC: Consistent failure to respond to LS, misleading LS, failed to attend

discipline meetings, history of breaches (list of 7 factors)… found him ungovernableo Basically means refusing to be controlled by LS – incredibly rare – but two recent caseso McLean (2015, LSBC): Persistent/wanton disregard for LS’s regulatory process.o Welder (2015, LSBC): Added 8th factor to Hall list – “conduct reviews”

Becoming lawyers:o Responsibilities to clients, opposing parties, 3Ps, courts, other lawyers, and yourselfo Choose the best environment for you and take care of yourself!

Exam Hint: Note distinction between professional misconduct versus conduct unbecoming.

Andrew Tam

No ppt. See OneNote Oct. 7.

Discussing ethical issues around plea bargaining and perjury Don’t commit to a position too early – early GP = can’t change later, hands tied ethically Guilty/not guilty pleas: It isn’t unethical to enter a not guilty plea even if your client has said they

are guilty – in fact your ethical obligation may be to advise your client to plead guilty, even if you know they are. It is not them testifying to their innocence (that is unethical) it just refusing to take away the Crown obligation to prove its case BRD.

o But doesn’t work the same in reverse (if client says they aren’t guilty, then can’t ethically plead guilty)

Ethical dilemma : access to justice/prioritizing a GP as a mitigating factor, versus making sure acc’d is actually taking responsibility for the charge

GP means you simply admit the elements of the offence, not all the allegations S. 606, CCC: Court only accepts a GP if it is satisfied that the plea is voluntary, understood, nature

and consequences, and court isn’t bound by any agreement between defence and prosecutor. Ethical dimension has been codified! Cover with client.

Megan Swail

Ppt & speaking notes saved to folder. Also Nov. 30 OneNote.

Claims counsel for the LIF (Lawyer’s Insurance Fund) with LSBC LIF: Branch of the LSBC which manages the LSBC’s compulsory professional liability insurance for

every lawyer in private practice in BCo Does not apply to retired, non-practicing, in-house, Crown, etco Protect lawyers who are liable for negligence; ensures clients get compensation to

which they are entitled Negligence: Test from Central Trust v. Rafuse

o Standard is REASONABLENESS, not perfection!o Lawyers regularly come to different conclusions; just b/c you ended up being wrong

does not mean you were negligent

43

o List of 7 factors from Newton v. Marzban to be a “reasonably competent solicitor”

Errors that have roots in professionalism: Know the law and procedure

o Don’t need to know everything – but know when you need to learn more/get helpo Careful about dabbling

Practice careful preparation and careful draftingo Develop a culture of carefulness!o Many lawyers move too quickly, don’t think big picture, forget the consequenceso Ease & rapidity of technology exacerbates this

Practice careful communication with clientso Explain things carefully, take the time, & put in writing when necessaryo Manage expectations!

Keep a good file**o It is a professional obligation to keep a good file! o CRUCIAL to document legal advice/client instructionso Claims can come up years later, when you’ve forgotten everything

Deal effectively with difficult clientso Be careful/cautions w/ these clients. Stay in an objective middle ground between your

client’s emotion and the case Always consider conflicts of interest

o Two parts to this:1. The duty of loyalty - Canada v. FLSC (SCC, 2015): Duty to avoid conflicts of interest is at the heart of

lawyers’ fiduciary and ethical duties. It aims to avoid the risk of misusing confidential information, as well as the risk of impairing the lawyer’s representation of the client.

- Duty of commitment to the client’s cause, and duty of candour to the client on all relevant matters

- Duty of undivided loyalty – can come up if you try to represent too many parties. Careful in multiparty situations – make sure you know who you represent! Otherwise people may not get the legal advice they need.

- MOB’s pet peeve: a family may walk in and think they have a single interest, but they don’t. You can’t do everything for everybody.

2. You are in a conflict with your client b/c an error has allegedly occurred - Ongoing duty to provide objective legal advice to client; this includes advising on

any error or omission you made, and telling them to get independent legal advice on the matter. This is part of your ethical obligation.

SCP!o Canada v. FLSC: SCP = fundamental to our legal systemo Protect the contents of your file!o SCP Can only be waived by the client; lasts forever (i.e. survives death)o If you accidentally reveal info, call the LIF right away

44