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Quotes
“Legal ethics is not reducible to an unthinking compliance with the prevailing rules of professional conduct in order to avoid discipline or disrepute. Indeed, the rules are rarely referenced, and it is more common for practitioners to resort to personal conscience to determine what is a professionally appropriate course of action” (W.H. Simon, “The Trouble with Legal Ethics” p.44).
“Legal ethics should not be satisfied by memorizing appropriate institutionalized responses to particular fact situations”.
Lawyers tend to identify more than most people with their jobs, the amorality of their professional role will begin to infect their personal lives. As Robert Megarry concluded, “clients, of course, come and go; but your conscience does not, and you will have to live with it for the rest of your life”.
“Aristotle insisted that moral character and good judgment are developed by engaging in practical situations and reflecting critically on those experiences so as to enhance and refine their sense of judgment. Consequently, the achievement of moral character and good judgment cannot be grasped by feeding students the relevant rules and a sense of the theoretical models; theory cannot substitute for practice, and logic cannot replace judgment. This does not mean that theory has no place, but it cannot dispense with the need for learning by immersion in practical situations”.
“... in answering Socrates’ famous question about how should one live, lawyers cannot respond by simply mumbling that it is acceptable to do whatever is not expressly prohibited by law of disallowed by the professional codes. This is not so much an ethical stance as an abnegation of one”.
“A recurring theme of this book is that there are no absolutes when it comes to ethics generally and legal ethics particularly; what will and will not amount to a satisfactory fulfillment or professional responsibility is a contextual matter”.
“Ultimately, the legal profession is only as good as the people who comprise it. It is not better rules, but better people, that will enhance the standards of ethical lawyering”.
Test for moral character – p.61-66
LEGAL PRACTICE: THE ETHICAL DIMENSION
COMPETENCE AND MALPRACTICE
Standard of Competence
Duty to prevent unauthorized practice of law
Not to employ disbarred or suspended lawyers / too much responsibility to legal assistants
LAWYERS AS CITIZENS
Conduct in private life
Conduct in non-legal business
THE CHOICE OF CLIENTS
Waive client’s fee if hardship or poverty
“though fiduciary responsibilities normally arise from an existing contractual relationship of solicitor and client, the contractual tie is not essential.
Shoppers Trust Co. v Dynamic Homes Ltd (1992)
HELD: a lender’s solicitor will have a fiduciary duty to a borrower’s spouse to ensure that he or she receives independent legal advice where that person is unrepresented and unfamiliar with legal matters.
Negligent misstatements – Duty to third parties
1) Loyalty
Lawyers who have acted for clients in a previous matter should not act against those clients in a related matter, and lawyers should not act for more than one client in a transaction (e.g. vendor-purchaser), unless they have first advised the clients about the benefits and safeguards of being separately represented (see V, Commentary, ss.8 and 10).
Lawyers must also be very careful to prevent outside social, political, and economic considerations from influencing their judgment (see VII, Commentary, ss.2 and 4).
Limits on the extent to which lawyers can go in meeting the obligation to be loyal to their clients:
If lawyers realize that clients have misunderstood the advice, they must inform them of (and make certain that clients understand) the “true position” (see III, Commentary, ss.1, 2, and 3).
However, although lawyers must take all reasonable efforts to be candid and avoid too many caveats and conditions in the giving of advice, they must be “wary of bold and confident assurances” that might also mislead clients or lead to them taking inadvisable action (see III, Commentary, s.4).
Some particular matters that require complete candour:
It is the lawyer’s duty to ensure that their clients’ interests are pursued in an active and vigorous manner. However, lawyers must not let their zeal (eager, enthusiastic) get the better of them and engage in disreputable practices. Lawyers must negotiate through the other party’s lawyer.
In regard to their work as advocates, lawyers must advance all arguments and seek all remedies. They must be vigorous and thorough in pursuing their clients’ case, even if it involves asking certain “distasteful” (but necessary) questions (see IX, Commentary, s.1).
This duty must be tempered by two particular restrictions:
A duty of secrecy is owed to all clients, both continuous and casual. This duty can arise even before a person or an institution becomes a client, and it can outlive even the professional relationship. For instance, not only are lawyers not to divulge information to any third party but they cannot use such information for their own benefit, even where it will have no detrimental effect on the client’s interests and affairs.
As suggested, lawyers might want to engage in a conversation with their clients both generally at the beginning of the professional relationship and as and when tricky situations arise.
Representing couples
In preparing wills for couples or other parties who seem to have common interests, lawyers should inform both clients that information collected form one client will not be held confidential from the other client.
Representing organizations
Lawyers must make it clear to all such constituents that the interests of the organization are paramount to those of any constituents who become “adverse” in interest (see V, Commentary, s.16).
Held: the plaintiff lost the action
On appeal: the plaintiff’s lawyer moved for a new trial because of the misconduct by the defendant’s counsel.
CA HELD: the appeal should be allowed and a new trial ordered. With regard to the lawyers’ obligations, the judges drew a distinction between having to reveal something to a party’s discredit and actively continuing a false pretence, where counsel knows that the court is so deluded. While the former is acceptable, the latter is not. Accordingly, the court took the view that each party has the primary responsibility to prove its own case and that the other side had no affirmative duty of disclosure. While it is acceptable for lawyers to remain silent about relevant matters, they must not take active steps to mislead the court.
DUTIES TO OTHERS
(2) Lawyers should not take advantage of “slips or oversights not going to the real merits” (see IX, Commentary, s.7).
(3) Lawyers are responsible for ensuring that all legal authority that is “directly in point” is brought to the attention of the court. This requirement extends to mentioning binding authorities that are damaging to their own case and which have not been mentioned by their opponents (see IX, Commentary, s.2(h)).
As part of their overall responsibility to maintain the integrity of the profession, all lawyers have a duty to report breaches of the professional rules by lawyers where it is reasonable to believe that, as a result of such a breach, someone will suffer serious damage. The only exceptions exit where information is privileged or such reporting would be unlawful (see XV, Commentary, s.1).
Treatment of clients
In the pragmatic approach that I (Allan C. Hutchinson) encourage, lawyers should treat their clients as conversational partners who can contribute to and be persuaded about particular courses of action and their likely consequences.
BEING CONFIDENTIAL: SECRETS AND LIES
There are two main sources that place obligations of confidentiality on lawyers: the law of evidence (evidentiary privilege) and the professional rules.
THE LAWYER-CLIENT PRIVILEGE (1st evidentiary privilege/the law of evidence)
Under the law of evidence, communications between lawyers and their clients are privileged and impose on lawyers a duty not to reveal them or use them in any way to the client’s disadvantage. It is for clients to decide when the privilege can be waived and information disclosed (Anderson v Bank of British Columbia (1876)). Consequently, lawyers cannot choose to make public any communications with their clients, even if they believe it is in the clients’ best interests to so do.
(see 115 for rationale of lawyer-client privilege)
Lord Brougham: “... If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case (Greenhough v Gaskell (1833)).
Duty to disclose relevant legal authorities
Although lawyers’ duty to divulge facts and opinion is constrained by their confidential commitments to their clients, they have a definite duty to disclose all relevant legal authorities to courts or tribunals. Lawyers are responsible for ensuring that all legal authority that is “directly in point” is brought to the attention of the court. Moreover, they have an affirmative duty to mention binding authorities that are damaging to their clients’ case and which have not been mentioned by their opponents (see IX, Commentary, s.2(h)).
Lawyer-client privilege used to hide the truth
Ontario (Ministry of Environment) v McCarthy Tetrault (1992)
The court acknowledged the general concern that “corporations wishing to conceal their environmental sins from the eyes of regulatory agencies might attempt to adorn environmental audits with the badges of solicitor-client communications in order to assert, disingenuously, that the purpose of the exercise was to obtain legal advice.
Leading authority of lawyer-client privilege
Pritchard v Ontario (Human Rights Commission) (2004) 1 S.C.R.
SCC HELD: “The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented”.
Controversial strength of the lawyer-client privilege
R v Murray (2000) (hidden Paul Bernardo videotapes)
FACTS: the accused, Paul Bernardo’s former lawyer, was charged with wilfully attempting to obstruct justice by concealing incriminating videotapes from the authorities. In his defence, the accused claimed that he was operating under instructions from his client. Paul Bernardo, however, applied for a court order prohibiting the disclosure of his instruction on the ground of solicitor-client privilege.
HELD: the court held that “there is no doubt that Mr. Bernardo’s privilege must give way to the overwhelming importance of Mr. Murray’s right to full answer and defence”. The accused’s ability to participate and bring forth evidence in his trial was sufficient to breach the solicitor-client privilege.
The theme in R v Murray is reiterated in other main exceptions to the lawyer-client privilege. Lawyers may reveal confidential information in order to:
(1) Defend themselves against allegations of criminal conduct, civil liability, or misconduct/malpractice;
(2) To establish or collect their fees; and
(3) To avert “an imminent risk to an identifiable person or group of death or serious bodily harm (Smith v Jones (1999) 1 S.C.R.)
Breach of lawyer-client privilege
If lawyers breach confidentiality in other non-authorized situations, they are subject to sanctions, such as malpractice suits and disbarment.
Non-legal advice is not privileged
Lawyers must understand and make sure that their clients appreciate that any communications that do not relate to legal affairs will not be privileged. Although they will fall under lawyer’s general duty to keep all communications with their clients confidential, lawyers might be ordered by courts to reveal and disclose information that does not involve the giving of legal advice and assistance. Accordingly, lawyers must make it clear to clients when they are giving legal advice, as opposed to non-legal advice. Non-legal advice is not within the scope of the evidentiary privilege and will have to be disclosed in legal proceedings (Alfred Crompton Amusement Machines Ltd. v Commissioners of Custom and Excise (No.2) (1972) All E.R.).
Non-legal advice will be privileged if confidentiality is expressly claimed
For instance, if in-house counsel sends legal communications out on a legal letterhead, it is possible that non-legal advice produced on a page with legal letterhead may indicate an intention to claim privilege.
Descoteaux v Mierzwinski (1982) 1 S.C.R.
FACTS: an accused person had made an application for legal aid. The police sought to enforce a search warrant on a legal aid office to obtain a copy of an applicant’s application form in order to establish if there had been fraud in the application.
HELD: the financial information on the form was not privilege and that the lawyer who had received the information must disclose it. Apart from the fact that a misrepresentation of a person’s financial position amounted to a criminal offence, it was held that the statement of financial affairs was not part of the lawyer’s communications with the client over legal advice and therefore did not fall within the ambit of the rule. However, the Court did make clear that the other contents of the form were privileged and ought not to be disclosed to the police or anyone else.
Lawyer-client privilege extends to identity of the client
In some situations, the duty of confidentiality might extend to keeping the identity of the client confidential. This issue will arise only in special circumstances where the clients go to the lawyer in order to preserve their anonymity. For example, where a person has committed a criminal offence and wants to seek advice before turning himself in to the authorities, the lawyer would be under and obligation not to reveal the identity or whereabouts of the person, unless there is a possibility that the client is likely to commit further offences (Thorson v Jones (1973)).
Lawyer-client privilege extends even after professional relationship ended (or death)
Moreover, the lawyer’s duty of confidentiality continues after the professional relationship with the client has ended and even after the client has died (Guay v Societe franco-manitobaine (1985)). Exception in a testamentary disposition (Geffen v Goodman Estate (1991) 2 S.C.R. see 119).
THE LITIGATION PRIVILEGE (2nd evidentiary privilege/the law of evidence)
Apart from the lawyer-client privilege that is sanctioned by the law of evidence, another evidentiary privilege exists – the general litigation privilege. This privilege entitles and requires lawyers to keep confidential those communications that are made to them in the course of their professional efforts to litigate on behalf of their clients. This privilege is narrower in that, whereas the general lawyer-client privilege attaches to all communications whether in relation to litigation or not, the litigation privilege applies only to those matters that arise in the contemplation or the course of litigation. However, the litigation privilege is much broader in that it covers non-confidential communications between lawyers and third parties, and also material of non-communicative nature (such as notes and records).
Hickman v Taylor (1947) (American case) (see 120)
FACTS: Following an accident in which people drowned, the owners of a tug employed a law firm to defend them against possible legal actions. One of its lawyers interviewed all the survivors. The plaintiff’s lawyers later requested summaries of those interviews.
HELD: SC declined to order disclosure on the basis that such material was covered by the litigation privilege, even though those interviewed did not provide such information on a confidential basis; the plaintiff’s lawyers were free to interview the witnesses for themselves.
Rationale of litigation privilege
Without some sort of protection for the product of lawyers’ investigations or ruminations, the adversarial incentive to pursue all possible lines of argument and inquiry might be hampered. Lawyers might not be as vigorous as they might otherwise be if the fruits of their labours were available to their opponents, and if unfavourable information that was gathered had to be disclosed to opponents.
Hon. Wilbur Roy Jackett: “... a lawyer’s preparation of his client’s case must not be inhibited by the possibility that the materials he prepares can be taken out of his file and presented to the court in a manner other than that contemplated when they were prepared” (Susan Hosiery Ltd. v Minister of National Revenue (1969).
Modern trend in Canada
The modern trend in Canada has been to limit the potentially wide scope of the litigation privilege – Tully v Kurtz (1992).
Situations where the privilege might be limited
(see 123)
THE GENERAL DUTY OF CONFIDENTIALITY (Professional Rules)
The professional rules impose on lawyers a series of compelling duties that concern the need to preserve confidentiality. Lawyers have a clear and demanding obligation to “hold in strict confidence” all information that comes into their possession and knowledge while fulfilling their professional duties towards clients (see IV). It is, of course, a privilege held by clients and can only be waived with their consent. Lawyers must act in such a way as to ensure that there is “full and unreserved communication” between lawyers and clients (see IV, Commentary, s.1).
Professional Rules cover all information concerning a client
Whereas the evidentiary rule applies only to legal advice given by the lawyer, the ethical rule embraces “all information concerning the business and affairs of the client”, whether it is of a legal nature or not (see IV).
‘Casual’ clients
Lawyers are under a “continuing” obligation to keep confidential any information that passes between themselves and their clients, even if they are only “casual” clients (see IV, Commentary, s.5).
What does ‘confidential/privileged information’ include?
The duties concerning safekeeping of clients’ property are connected to those governing confidential information; all papers, files, and property are also considered to be privileged information (see VIII, Commentary, s.5).
Duties/behaviour with confidential/privileged information
If a third party attempts to seize information (including files and property), lawyers have a duty to “be alert to claim on behalf of clients any lawful privilege respecting information about their affairs (see VIII, Commentary, s.6).
Lawyers “should avoid indiscreet conversations ... and should shun gossip” about their clients’ affairs (see IV, Commentary, s.7).
Even if the facts in question are “public knowledge”, lawyers should avoid “speculation concerning the client’s affairs or business” (see IV, Commentary, s.8).
Lawyers’ as witnesses
Lawyers who testify as witnesses may not be asked, nor answer, questions posed to reveal confidential information, unless there has been a clear waiver by the clients.
Refrain from using confidential information
Lawyers are obliged to refrain from using confidential information to the detriment of the clients. They must also be assiduous to ensure that they do not use such information to their own advantage or that of a third party. This obligation governs literary works or autobiographies by lawyers (see IV, Commentary, s.10).
Szarfer v Chodos (1986)
HELD: an Ontario lawyer used confidential information about his client’s sexual problems to initiate an affair with the client’s wife. This behaviour led to civil and professional penalties.
R v S(R.J.) (1985)
HELD: if a lawyer acted as a counsellor to a sexual abuse victim, it might be that the lawyer could be put under a duty not to disclose the information that passes between them.
SCOPE AND LIMITS
If disclosure of confidential information is required by law, lawyers must be “careful not to divulge more than is required” (see IV, Commentary, s.11).
Explain confidentiality to clients
In light of the possibility that lawyers might have to forgo their duty of confidentiality, it is imperative that lawyers explain the reach and limits of the confidentiality principle to clients before any delicate or incriminating information is divulged.
Duty to disclose:
Confidentiality in dangerous situations (death or harm)
SCC Held: that the client could not claim that the information was privileged and that the lawyer must disclose such information; “communications that are in themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime” are not privileged and need not be held in confidence by lawyers. In such circumstances, lawyers have a positive duty to disclose such information to the authorities.
Confidentiality of past crimes
Law or judge can abridge confidentiality
Lawyers can disclose information revealed in confidence by clients if it is necessary to defend themselves against accusations of malpractice (see IV, Commentary, s.4)
Piercy v Piercy (1990)
HELD: a client challenged a lawyer’s fees while matrimonial litigation was pending. In defending himself at the assessment, the client’s lawyer had to disclose information about the chosen strategy; this information later came to the attention of the client’s wife and her counsel. The client was considered to have waived his right to privilege by commencing the assessment proceedings and, therefore, could not stop his wife from using the information against him.
Collecting fees
Lawyers can also disclose information if necessary to collect fees (see IV, Commentary, s.4).
Advancing the public interest (i.e. protecting an innocent accused person)
Lawyers can and sometimes must disclose certain confidential information or communications to advance the public interest. For instance, it has been held that lawyers are required to reveal confidential information where it might allow an accused person to establish his or her innocence (R v Stinchcombe (1991) 3 S.C.R.).
Multiple clients
In situations where lawyers are retained by more than one client in the same matter, lawyers must advise the clients that “no information received in connection with the matter from one can be treated as confidential so far as any of the others is concerned” (see V, Commentary, s.6).
WAIVER AND DISCLOSURE
The clients are the “holders” of the privilege and it is their entitlement to waive the privilege and disclose the information. Such a waiver must be clear, freely made, and informed; the clients must realize that the choice is entirely theirs and must appreciate the consequences of any waiver (Kulchar v Marsh (1950)). Although it will be best for the lawyer if the waiver is express and in writing, a waiver can be implied.
Implied waivers
While a valid waiver can be express or implied, lawyers should act on implied waivers only in the clearest of circumstances. Indeed, it might be good practice to obtain such consent in writing where possible. However, lawyers have implied consent to disclose information when working in consultation with partners, associates, and other firm staff.
In such circumstances, lawyers are “under a duty to impress” upon those working on the file the importance of confidentiality and must “take reasonable care to prevent” disclosure (see IV, Commentary, s.9).
Consequence of a waiver
Once clients have waived their privilege, it is generally not possible to reclaim privilege (London Trust & Savings Corp. v Corbett (1994)).
Cooperation with successor lawyer
When lawyers do withdraw from cases or files, they should cooperate with the successor lawyer. Nevertheless, any “confidential information not clearly related to the matter” should be disclosed to the new lawyer only with the “express consent” of the clients (see XII, Commentary, s.9).
CONFLICTS OF INTEREST: SCREENS AND SILENCES
LAWYERS’ OWN INTERESTS
On the basis of the fiduciary relation between lawyers and clients, lawyers are not to take advantage of or benefit from information that is received from clients, even if it would not disadvantage the clients.
The professional rules insist that lawyers must be “as free as possible from compromising influences” which are characterized as anything that would “affect adversely the lawyer’s judgment, ... advice ... or loyalty” to the clients, actual or prospective (see V, Commentary, ss. 1 and 2).
When dealing with potential conflict of interest between layers and their clients, lawyers’ associates must be taken into account. “Associates” has a wide definition (see VI, Commentary, s.3 or see 136).
Intimate relations
While the rules are silent on the issue of less formal relationships, lawyers would be wise to disclose any intimate relations they have had with other lawyers who might have some interest or connection to the file.
Conflict of interest situations to avoid:
Debtor-creditor relationship
Lawyers should not enter into debtor-creditor relationships with clients; they should not borrow money from clients (unless that is the client’s business); and lawyers should not lend money to clients except when it is to advance clients’ expenses in legal matters (see VI, Commentary, s.4).
Business ventures
Lawyers with interests in joint business ventures may represent the venture against third parties, but not as between the business venture and the joint ventures (see VI, Commentary, s.5).
Business transactions with clients
Lawyers who wish to enter into business transactions with clients or otherwise exchange proprietary or pecuniary interests are placed under exacting duties (see VI). They must ensure that they fulfill three substantial conditions:
(1) The transaction must be “fair and reasonable” and its terms must be fully disclosed to clients in writing ... (see 137)
(2) Clients must be advised to take independent legal advice and be given a reasonable opportunity to do so ... (see 137)
(3) Clients must consent in writing to the transaction ... (see 137)
When involved in legal transactions where they also have personal interests, lawyers must disclose these personal interests and whether they are acting in a personal or a professional capacity (see VII, Commentary, s.4).
If also a member of another profession
Provincial laws establish to what extend it is possible to be concurrently members of other professions.
Where lawyers do have outside interests, it is supposed to be the kind of undertaking that is compatible with the practice of law, in the sense of being “honourable” ... (see VII, Commentary, s.6). However, in reality, there is little that has been sanctioned; lawyers have become rock stars, loan sharks, and journalists.
Public office
Lawyers in public office who foresee potential conflicts of interests must “declare such interests at the earliest opportunity” and must not take any further part in any “consideration, discussion or vote with respect” to such issues (see X, Commentary, s.4).
Lawyers must withdrawal from public duties where it becomes apparent that it is impossible to perform such duties without avoiding conflict situations (see XII, Commentary, s.4).
MULTIPLE CLIENTS
Lawyers must make complete disclosure to clients about conflicting interests that exist or are likely to arise (see V, Commentary, s.3).
Lawyers must advise clients that in the event of an unresolvable dispute, lawyer may have to withdraw as counsel of one party or all of them.
Lawyers must disclose to clients if there is a pre-existing and continuing relationship with one of the parties, and they should advise other clients to seek independent representation (see V, Commentary, s.5).
Upon disclosure, lawyers can continue to act for clients who consent (see V, Commentary, s.4). While written consent is preferable, it is not essential (see V, Commentary, s.6). Nonetheless, even after obtaining consent, lawyers should not act for multiple parties when it is “reasonably obvious” that their interests “will diverge as the matter progresses” (see V, Commentary, s.6).
Examples of situations in which lawyers should be on guard about possible conflicts:
The courts have decided that it is an accused’s constitutional right, under s.7 of the Charter, to be represented by counsel who is not hamstrung by conflicts of interest (R v Silvini (1991)).
In particular, lawyers should not put accused clients in situations where lawyers might not be able to render effective service to one accused client if the best trial strategy is likely to be an attempt to shift blame to another accused client. While co-accuseds can waive their constitutional right, courts are reluctant to hold that a defendant did so knowingly and voluntarily. The validity of a waiver “is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge ... (see 141).
“Contentious issues” between clients
(see 141)
Checklist/Questions to ask when determining whether to represent multiple clients
In making any decision as to whether to act on behalf of multiple parties to a transaction, lawyers would be well advised to consider three interrelated issues (Korponey v Canada (A.G.) (1982) 1 S.C.R., and R v Clarkson (1986) 1 S.C.R.):
FORMER CLIENT’S INTERESTS
Lawyers who have represented clients in one matter should not act against them “in the same or any related matter”.
Lawyers may act against former clients in “fresh and independent matters wholly unrelated” to any previous work (see V, Commentary, s.12).
Definition of “clients” (see V, Commentary, s.13).
The conflict rules kick in with regard to those people for whom, after a brief consultation, lawyers decline to act on their behalf. For instance:
Popowich v Saskatchewan (1995)
HELD: a firm was disqualified from acting on a defendant’s behalf because a lawyer in the firm had held a ten-minute consultation with the plaintiff before litigation, even though the lawyer involved swore that no confidential information had passed between them.
Borrower – Lender situation: if a lawyer has represented a borrower, it is unacceptable to represent a lender in future dealings with the borrower because confidential information about the borrower’s financial position might have been divulged.
Lawyer switching firms
Macdonald Estate v Martin (1990) 3 S.C.R. (The Martin presumption)
FACTS: Martin retained law firm A to represent him against Gray, who was represented by law firm B. Kristen, a young lawyer, worked extensively on Martin’s file with a senior partner. Two years later, Kristen moved to law firm C, which two years later merged with law firm B. After her move to law firm B, Kristen had no involvement with Gray’s file, though the dispute with Martin was still continuing. Kristen and senior members of law firm B filed sworn statements that not discussions had or would take place between Kristen and firm members in respect to the Martin/Gray case.
HELD: supported Martin’s application to have law firm B removed (but split 4 to 3).
Ramsbottom v Morning (1992)
HELD: two years’ delay after the realization that there was a potential conflict was held to amount to acquiescence (because it was an unreasonable delay).
Canadian Bar Association (CBA) recommended thirteen guidelines that law firms might follow in developing appropriate schemes. Of these, three were considered absolutely essential to the viability and efficacy of any screening process. In their present form (see V), they read (see 148).
CURRENT CLIENTS
Clients in a Vancouver office have claims to professional obligation against lawyers in Toronto who they will never meet. As such, it is incumbent on law firms to have in place a process and system whereby they can monitor the client base of the firm and take all reasonable steps to ensure that conflicts do not inadvertently arise and that appropriate measures are taken to protect confidential information (Ford Motor Co. of Canada v Osler, Hoskin, & Harcourt (1996)).
“a fiduciary cannot act at the same time both for and against the same client, a firm cannot act for one client while his partner is acting for another in the opposite interests” (R v Neil (2002) 3 S.C.R.). After Neil, It appears clear that lawyers should only agree to represent two clients where and when those clients’ interests are not directly adverse to each other. In most situations, it is possible for lawyers to represent concurrent clients, even if conflicts exist, provided that there is a valid waiver from the client.
Waiver
For a waiver to be valid, several conditions must be met:
Full disclosure by the lawyer to the clients;
Signed and detailed waivers, preferable after independent legal advice; and
A considered decision by the lawyers that they reasonably believe that they are able to represent each client without adversely affecting the other (Moffat v Wetsein (1996)).
CONCLUSION
The professional rules make it reasonably clear that lawyers must avoid not only actual and potential conflicts of interest, but also situations that might create the appearance of jeopardizing the duty of confidentiality and loyalty to their clients. This means that lawyers have a clear professional responsibility not to move to law firms against which they are currently litigating.
CRIMIANAL LAWYERS: PUTTING UP A DEFENCE
THE CRIMINAL LAWYER
Most lawyers develop an indifference to whether their clients are guilty or not and take refuge in the professional pleasure of a job well done.
Are criminal lawyers more devoted to criminals than to the law?
While prosecutors have a duty to ensure that the truth is exposed in court, defence counsel have no such duty.
Criminal defence lawyers must take all possible steps to raise a reasonable doubt about the client’s guilt. Many rights are given to the accused that are independent of their guilt or innocence, and it is for defence lawyers to ensure those rights are respected.
Declining a client
It is a matter of principle that they should accept all requests for legal assistance, no matter how unpopular or unjust, because any other course would deprive people of their rights and usurp the function of the jury or judge.
Lawyers should not exercise the right to decline employment “if the probable result would be to make it very difficult for a person to obtain legal advice or representation”. Furthermore, lawyers should not decline simply because the “cause is unpopular or notorious” (see XIV, Commentary, s.6).
If lawyers do refuse to accept someone as a client, they have an obligation to assist that person to find the services of another competent lawyer (see XIV, Commentary, s.4).
DUTIES AND LIMITS
Lord Reid: advocates are expected “fearlessly to raise every issue, advance every argument, and ask every question ... which they think will help their clients’ case” and “to obtain for their clients the benefit of any and every remedy and defence which is authorized by law” (Rondel v Worsley (1969) HL England).
Guidelines for the criminal lawyer
While the list of permitted and prohibited conduct is intended to apply to all lawyers, the following guidelines have particular relevance for the criminal lawyer:
Monroe Freedman: “the lawyer’s trilemma – the lawyer has a duty to know everything, to keep it in strict confidence, and to reveal it to the court”.
Freedman controversially opted for the position that the duty of confidentiality should be paramount.
Articles of evidence (to be turned in)
If lawyers come into possession of articles they know will make up physical evidence in a case, they cannot destroy or conceal them. Such evidence must be handed over to the police or the appropriate authorities. However, lawyers are obliged to take all efforts to keep confidential the source of the evidence that is turned over to the police or other authority. To preserve confidentiality as best as possible in such circumstances, the most desirable course it to turn over the physical evidence to an intermediary (e.g., Law Society), which could then pass the evidence to the police without revealing who or where it came from.
MAKDING A DEFENCE
False evidence or suppressing what ought to be disclosed / Defences
There is a general duty on lawyers not to participate in the deception of the court by “offering false evidence” or by “suppressing what ought to be disclosed” (see IX, Commentary, s.2(e)).
The duty of defence counsel is to “protect” the accused. In defending their clients, lawyers can use “all available evidence or defences ... no known to be false or fraudulent” (see IX, Commentary, s.10).
Knowing the client is guilty
In many circumstances, lawyers cannot really claim to know that their clients are guilty; there may be a host of extraneous reasons for clients seeking to take responsibility for the crime. Also, it is not the criminal lawyers’ job to decide whether clients are deserving of punishment. Their task is to raise a reasonable doubt in the judge and/or jury’s mind: it is not to prove the innocence of the accused.
Even if they know the prosecution evidence to be true, they are still “entitled to test the evidence given by each individual for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged”. However, defence lawyers “should go no further than that” (see IX, Commentary, s.11).
Lawyers must be “convinced that the admissions are true and voluntary” (see IX, Commentary, s.11). Even when clients tell their lawyers expressly that the evidence to be presented is false, lawyers should take steps to confirm that the clients’ statements are true.
Steps to approaching perjury
Once lawyers have actual knowledge that their clients are going to commit perjury, there are steps to follow:
(1) Counsel must make all possible efforts to dissuade the client from this course of action.
(2) There are several options open to the lawyer (see 172 for details):
o proceed as if nothing has happened and allow the client to testify;
o ask the client to make a narrative statement to the court as regards that part of the testimony believed to be perjurious;
o inform the court of the client’s intention to lie;
o or withdraw from the case.
Knowing clients are making false statements / Withdrawal
If lawyers know that their clients are making false statements under oath and do nothing to correct it, their silence “indicates, at the very least, a gross neglect of duty” (Re Ontario (Crime Commission) 1963)).
If clients persist in their intention to give perjurious testimony after their lawyers’ best efforts to dissuade them, lawyer have no alternative other than to “withdraw or seek leave of the court to do so” as promptly as possible and with a minimum of prejudice to their client (see IX, Commentary, s.4).
Once lawyers inform the court that they are withdrawing from a case, judges cannot order them to continue to act as counsel for an accused, nor can the court ask lawyers about “their reasons for withdrawing”.
However, judges should only allow defence counsel to withdraw during trial if all efforts at persuasion have failed and there is no significant prejudice to the accused (Dunkley v R (1995) (England)).
THE CASE FOR THE PROSECUTION
Insofar as a prosecutor has a client, it is the public. Prosecutors play a dual role: they must seek convictions for the guilty and, at the same time, guard against the wrongful convictions of the innocent.
Guidelines particularly relevant for prosecuting counsel
While the list of permitted and prohibited conduct is intended to apply to all lawyers, the following guidelines have particular relevance for the prosecuting counsel (see 175-176):
Stinchcombe (1991) 3 S.C.R.
FACTS: a former secretary of a lawyer, charged with fraud and theft, was interviewed by police; defence counsel was informed of the existence of the statement, but not its content, and requests for disclosure were refused by the police and trial judge.
HELD: allowed the accused’s appeal against conviction on the basis that the prosecution was under a duty to disclose all relevant evidence to the defence.
It is estimated that approximately 95 percent of criminal charges do not make it to trial.
All plea bargains have to be approved by the court; it is counsel’s professional responsibility to obtain the best deal they can in the circumstances.
Although it is absolutely clear that judges are not bound by the terms and conditions of a plea bargain reached by counsel (R v Naraindeen (1990)), defence lawyers are required to ensure that any proposed guilty plea does not compromise the public or the clients’ interest (see IX, Commentary, s.13).
Considerations to be followed in making a plea bargain
Insofar as they pertain to matters of legal ethics, the following considerations ought to be followed by lawyers in making plea bargains (see 180-181 for details):
CORPORATE LAWYERS
Corporate lawyers must always remember that they work for the corporation itself and owe their primary duties and allegiance to it, and not to any of its officers, shareholders, employees, or other connected persons (see V, Commentary, s.16).
Whatever the corporation’s management might think, corporate lawyers are first and foremost lawyers, and they are subject to the ethical responsibilities imposed by the professional Rules. Consequently, it remains incumbent on corporate lawyers to follow lawful courses of action and to reject plans that are ethically dubious. It is all lawyers’ general duty to avoid “dishonourable or questionable conduct” and, in particular, to “be on guard against becoming the tool or dupe of an unscrupulous client” (see III, Commentary, s.7).
E. Norman Veasey: “Above all, I think the corporate lawyer should have the courage of a modern day Atticus Finch. ... But, perhaps more importantly, corporate counsel should not fear the responsibility to “just say no” to a board or management bent on a questionable or potentially reckless course of conduct”.
Representing constituents of the corporation
Lawyers acting for organizations can represent their constituents, as long as they are in accordance with the rules and commentaries concerning conflicts of interest (see v, Commentary, s.16). If there is a conflict, the duties to the corporation must prevail.
They should inform agents of the corporation that, in the event of a conflict of interests, they will be representing the corporation as a whole and that individual agents should seek independent representation (see V, Commentary, s.5).
Privileged communication
The courts have had little difficulty with deciding that communications to lawyers from anyone who has some control over the company’s decision-making process is a privileged communication. However, there has been less clarity over whether communications from lower-level employees are privileged.
Upjohn Co. v United States (1981) (American Supreme Court)
HELD: the duty of confidentiality is in play beyond dealings with those who actually control the corporation (managers and directors) and encompasses all those employees who disclose to the lawyers any information whose subject matter is the employee’s duties of employment.
HELD: it was decided on an audit that the company’s lawyer was not obligated to hand over to Revenue Canada at its request most documents that were in the lawyer’s possession. As well as granting privilege to all legal communications between the lawyer and the management and employees of the company, the court extended confidentiality to all legal communications between the lawyer and employees of a wholly owned subsidiary, since the management of the two companies was closely connected. However, in line with the traditional doctrine, communications between the lawyer and management or other employees about business matters were not privileged, nor were documents simply received and filed by the lawyer if they were not directly related to legal matters. Accordingly, corporate lawyers must make it clear when they are giving legal as opposed to non-legal advice (Alfred Crompton Amusement Machines Ltd. v Commissioners of Custom and Excise (England)).
In-house counsel
Despite the fact that in-house counsel may lose a certain independence by becoming too closely linked with the mentality and goals of their corporate employers, the obligations on in-house counsel and outside lawyers are the same (U.S. Steel Corp. v United States (1984)).
Guidelines for in-house counsel when they moonlight (to work at an additional job after one’s regular, full-time employment, as at night; working by the light of the moon):
It is clear that corporate lawyers are entitled to breach their duty of confidentiality “if the lawyer has reasonable grounds for believing that a crime is likely to be committed”. It becomes a mandatory duty on if “the anticipated crime is one involving violence” (see IV, Commentary, s.2). This means that the Rules permit, but do not demand, disclosure. Furthermore, the entitlement extends only to future crimes, not past ones.
Steps to take before whistleblowing
In reaching any decision on whether to whistleblow, corporate lawyers should take some initial steps. After informing the employees involved in writing that their activities are illegal and making all efforts to dissuade them from such conduct, corporate lawyers should report the unlawful activity to those who have overall responsibility for the company’s operation, including, if necessary, the board of directors. If these efforts are unsuccessful, corporate lawyers must decide if they are prepared to go public and resign over the issue. At all times, lawyers should put everything down in writing and obtain confidential guidance either through the Law Society or other senior members of the legal profession.
ALTERNATIVE DISPUTE RESOLUTION
While lawyers who act as mediators are generally covered by the provisions of the code, they must ensure that the parties to it understand fully that “the lawyer is not acting as a lawyer for either party but, as mediator, is acting to assist the parties to resolve the matters in issue and that they will not be covered by the solicitor-client privilege” (see XXI).
Lawyers’ duties as mediator
Lawyers have a duty to advise and encourage clients to settle disputes “whenever possible on a reasonable basis”. This includes discouraging clients from engaging in “useless” litigation (see III, Commentary, s.6).
Even after litigation has begun, lawyers should still actively encourage clients to settle if the case “can be settled reasonable” (see IX, Commentary, s.8).
Also, it is clear that the general prohibitions against engaging in conduct that is “dishonourable or questionable” apply to settlement negotiations (see I, Commentary, s.3)
Apart from these vague directives, lawyers are left to their own ethical sensibilities.
Lying
Charles Curtis: The prime ethical mandate is “do what you can to help friend and harm enemy, as long as you stay within the law”. If this requires lawyers to lie, then they should do so (as long as they are not under oath). The lie is not the lawyer’s lie, but the system’s: lawyers are actors in an institutional drama scripted by clients, not themselves.
Scenario:
If a client informs you that you should settle for anything over $100,000, you presumably lie when you respond to the other side’s opening offer of $50,000 with the line that “my client will not accept less than $150,000”.
Response:
There is a difference between acceptable negotiating strategy (bluffing and exaggeration) and outright lying. Negotiating is a game whose essence is bluff and counterbluff.
Suggestion:
Instead of asserting that “my client will not accept less than $150,000, you could say that “an offer nearer to $150,000 would be more reasonable”.
Also, as with all negotiating, there is a strong strategic (if not moral reason) not to lie: if you get found out and cannot back up your claim, you will be perceived as a bad negotiator. A good negotiator must retain credibility, and “lying” regularly is no way to do that (J.J. White).
False demands in negotiating
There is a line between so-called bluffer and outright lying. There is a tricky question of whether it is acceptable to include the “false” demand in order to drop it later in the negotiations as a concession and sign of good faith.
POVERTY LAWYERS
While lawyers are collectively encouraged to participate in legal aid plans, referral services, pro bono work, and public education programs to help make legal services more accessible and understandable to the “inexperienced”, there is no duty on individual lawyers to do so (see XIV, Commentary, s.5).
However, there is an obligation on lawyers who decide not to act on behalf of someone after a consultation meeting “to assist in finding” another lawyer “without charge” (see XIV, Commentary, s.4).
GOVERNMENT LAWYERS
Lawyers in public office must continue to maintain the same high standards expected of lawyers in private practice because their position “is in the public eye” and, therefore, “the legal profession can more readily be brought into disrepute” by misconduct (see X, Commentary, s.1).
Government lawyers are held to a similar standard as lawyers in private practice (Everingham v Ontario (1992)).
Restrictions
Lawyers “should not appear professionally” in front of official bodies of which they are members, but they can appear professionally before committees of some official bodies, as long as the lawyers are not members of those specific committees (see X, Commentary, s.5).
Conflict of interests
In case of an unforeseen conflict, it is clear that “official duties must prevail”. Personal interests of lawyers include those of lawyers’ relatives, professional associates, partners, and clients (see X, Commentary, ss.2 and 3).
Lawyers in public office who foresee potential conflicts of interest must “declare” them at the “earliest opportunity” and must “take no part in any consideration, discussion or vote with respect” to such issues (see X, Commentary, s.4).
Once they have acted in an official capacity in respect of “any persons or interests”, lawyers should not represent those parties “in the same or any related matter”. If lawyers were members of official bodies at the time certain rulings were made, they should not advise clients on such rulings (see X, Commentary, s.6).
Information acquired in the course of holding public office must be maintained as confidential even after lawyers have ceased to hold such positions (see X, Commentary, s.7).
Discreditable conduct
Discreditable conduct in public office affecting lawyers’ integrity may lead to disciplinary action (see X, Commentary, s.8).
Leaving public office
On leaving public office, lawyers should not accept employment connected to matters with which they would have had “substantial responsibility or confidential information” while in office, to avoid the “appearance of impropriety”. In such matters, lawyers may act in a professional capacity on behalf of the public body for whom they worked (see XIX, Commentary, s.3).
CLASS ACTION LAWYERS
The rules of professional conduct are almost silent on how ethical challenges, like confidentiality and conflicts, are to be dealt with in the context of class actions.
CANADIAN BAR ASSOCIATION: CODE OF PROFESSIONAL CONDUCT
CHAPTER I: INTEGRITY
Disciplinary action (questionable conduct in practice or private life)
Non-Professional Activities (only concerned with extra-professional activities if bring into question integrity of legal profession)
CHAPTER II: COMPETENCE AND QUALITY OF SERVICE
Knowledge and Skill (only take work if competent in that area of law)
Seeking Assistance (lawyer must recognize areas s/he is not fully competent and needs help)
Quality of Service (i.e. keep the client reasonably informed, failure to answer client’s q’s, etc.)
Promptness (prompt service to clients)
Consequences of Incompetence
CHAPTER III: ADVISING CLIENTS
Scope of Advice (lawyer should explain and make sure client understands situation)
Second Opinion (lawyer should assist in obtaining a second opinion if client wants one)
Compromise or Settlement (lawyer should encourage settlement)
Dishonesty of Fraud by Client (lawyer should not assist fraud and be on guard against it)
Test Cases (lawyer may represent such a case if based on good faith and reasonable grounds)
Threatening Criminal or Disciplinary Proceedings (lawyer must not do to gain a civil advantage)
Advice on Non-Legal Matters (lawyer to explain lack of experience & distinguish legal advice)
Errors and Omissions
Giving Independent Advice
CHAPTER IV: CONFIDENTIAL INFORMATION
Maintaining Information in Confidence (includes ‘all’ information, even non-legal advice)
Public Safety Exception (lawyer shall disclose confidential info. if risk of harm / reasonable grounds to believe a dangerous situation)
Disclosure Where Lawyer’s Conduct in Issue (lawyer may disclose to collect fees or defend against allegations of malpractice, but only to the extent necessary for such purposes)
Guiding Principles (lawyer-client privilege)
Disclosure Authorized by Client
Confidential Information Not to be Used
Disclosure Required by Law (Lawyer must be careful not to divulge more than is required)
Whistleblowing (Lawyer in a corporation should first notify higher authority, maybe resign)
CHAPTER V: IMPARTIALITY AND CONFLICT OF INTEREST BETWEEN CLIENTS (and organizations)
Guiding Principles (Lawyer may not represent a client whose interests are adverse to others)
Disclosure of Conflicting Interest (before accepting both clients, lawyer must advise both on all issue, i.e. that no information can be confidential from the other ...)
Lawyer as Arbitrator
Prohibition Against Acting for Borrower and Lender
Acting Against Former Client
Acting for More than One Client
Requests for Proposals and Other Enquiries (discussing a potential retainer with a prospective client does not itself preclude a lawyer from acting in the matter for another party)
Confidential Government Information
Burden of Proof
Conflicts Arising as a Result of a Transfer Between Law Firms (...)
CHAPTER VI: CONFLICT OF INTEREST BETWEEN LAWYER AND CLIENT
Rule (Lawyer should not go into business with client unless ...)
Debtor-Creditor Relationship to be Avoided
Joint Ventures
When Person to be Considered a Client
CHAPTER VII: OUTSIDE INTERESTS AND THE PRACTICE OF LAW
Guiding Principles (Lawyer must not carry on any business in such a way that makes it difficult to distinguish in which capacity a lawyer is acting)
CHAPTER VIII: PRESERVATION OF CLIENTS’ PROPERTY
Guiding Principles (Lawyer should clearly label and identify the client’s property and place it in safekeeping separate from the lawyer’s own property)
Privilege
CHAPTER IX: THE LAWYER AS ADVOCATE
Guiding Principles (fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case ...”)
Prohibited Conduct (Lawyer must not: abuse the process by assisting malice on client’s part, knowingly offer false evidence, assist in fraud, deliberately refrain from informing tribunal of pertinent adverse authority ...)
Errors and Omissions
Duty to Withdraw
The Lawyer as Witness (If lawyer is a necessary witness s/he should withdraw and entrust the case to someone else)
Interviewing Witnesses
Unmeritorious Proceedings (In civil matters, lawyer should avoid and discourage the client from frivolous or vexatious objections or attempts to gain advantage from slips or oversights not going to the real merits, or tactics that will merely delay or harass the other side)
Encouraging Settlements and Alternative Dispute Resolution
Duties of Prosecutor
Duties of Defence Counsel
Agreement on Guilty Plea
Undertakings
Discovery Obligations
Courtesy
Role in Adversary Proceedings
Communicating with Witnesses
Agreements Guaranteeing Recovery
Scope of the Rule
Relations with Jurors
CHAPTER X: THE LAWYER IN PUBLIC OFFICE
Guiding Principles (Legal profession can more readily be brought into disrepute by failure on the lawyer’s part to observe its professional standards of conduct)
Conflict of Interest (Lawyer should declare interests)
Appearances before Official Bodies
Disclosure of Confidential Information
Disciplinary Action
CHAPTER XI: FEES
Rule (Lawyer shall not accept any fee that is not fully disclosed, fair and reasonable, ...)
Factors to be Considered (A fair and reasonable fee will depend on: ...)
Rule (reduce or waive a fee in cases of hardship or poverty or ...)
Avoidance of Controversy (Lawyer should avoid controversy over fees with client and should e ready to explain the basis for charges. Lawyer should give client an early and fair estimate of fees so that the client may be able to make an informed decision)
Interest on Overdue Accounts
Apportionment and Division of Fees
Hidden Fees
Sharing Fees with Non-Lawyers (constitutes professional misconduct)
Contingent Fees
CHAPTER XII: WITHDRAWAL
Rule (Lawyer owes a duty to client not to withdraw except for good cause ...)
Obligatory Withdrawal
Optional Withdrawal
Non-Payment of Fees
Notice to Client
Duty Following Withdrawal
Lien for Unpaid Fees
Duty of Successor Lawyer
Dissolution of Law Firm
CHAPTER XIII: THE LAWYER AND THE ADMINISTRATION OF JUSTICE
Rule (Lawyer should encourage public respect for and try to improve the administration of justice)
Scope of the Rule
Criticism of the Tribunal
Improving the Administration of Justice
CHAPTER XIV: ADVERTISING, SOLICITATION AND MAKING LEGAL SERVICES AVAILABLE
Guiding Principles (It is essential that a person requiring legal services be able to find a qualified lawyer with minimum difficulty or delay)
Finding a Lawyer (The lawyer who is consulted by a prospective client should be ready to assist in finding the right lawyer to deal with the problem / Right to decline a client, but should be slow to exercise this ...)
Enforcement of Restrictive Rules
CHAPTER XV: RESPONSIBILITY TO THE PROFESSION GENERALLY
Guiding Principles (It is proper for a lawyer to report to a governing body any occurrence involving a breach of this Code unless the information is privileged or it would otherwise be unlawful for the lawyer to do so)
Participation in Professional Activities
CHAPTER XVI: RESPONSIBILITY TO LAWYERS AND OTHERS
Avoidance of Sharp Practices (Lawyer should avoid taking advantage of slips or mistakes ...)
Undertakings (Lawyer should not communicate or attempt to negotiate a matter directly with any party who is represented by a lawyer except through or with the consent of that lawyer)
Acting Against Another Lawyer
CHAPTER XVII: PRACTICE BY UNAUTHORIZED PERSONS
Rule (Lawyer should assist in preventing the unauthorized practice of law)
Suspended or Disbarred Persons
Supervision of Employees
Legal Assistants
CHAPTER XVIII: PUBLIC APPEARANCES AND PUBLIC STATEMENTS BY LAWYERS (media appearances)
Public Statements Concerning Clients
Standard of Conduct
Contacts with the Media
CHAPTER XIX: AVODING QUESTIONABLE CONDUCT
Guiding Principles (Even the appearance of impropriety should be avoided)
Duty after Leaving Public Employment
Retired Judges
Inserting Retainer in Client’s Will
Duty to Meet Financial Obligations
Dealings with Unrepresented Persons
Bail
Standard of Conduct
CHAPTER XX: NON-DISCRIMINATION
Duty of Non-Discrimination
Extent of Duty of Non-Discrimination
Special Programs
Responsibility
Discrimination in Employment
Duty of Accommodation
Sexual Harassment and Harassment
CHAPTER XXI: THE LAWYER AS MEDIATOR
CHAPTER XXII: INDEPENDENCE OF THE BAR
PRINCIPLES OF CIVILITY FOR ADVOCATES
PART I – RELATIONS WITH OPPOSING COUNSEL
PART II – COMMUNICATIONS WITH OTHERS
PART III – TRIAL CONDUCT
PART IV – COUNSEL’S RELATIONS WITH THE JUDICIARY
Multiple Clients
A lawyer can choose to represent whichever clients she wishes. She is under no obligation to accept the case. Although the commitment to “refuse no man’s just cause” is taken as oath on call to the bar, this statement is more of a ceremonial gesture. However, once the lawyer accepts a client’s case, she is in a special relationship that cannot simply be abandoned whenever they wish. Therefore, the lawyer should not neglect this important stage on deciding whether or not to accept a case.
Lawyers are under no obligation to accept a case subject to XX, Commentary, s.1(a), which states that lawyers must not “deny services or provide inferior services on the basis of discriminatory grounds”.
Before taking on a client, it would be a good ethical approach to sit down and have a conversation with them first where the lawyer and client can both discuss their expectations of one another.
Lawyers may act for multiple clients if they choose to do so. However, before making such a decision to act for more than one client in a case, the lawyer must take certain precautions and consider possible issues.
Chapter V: Impartiality and Conflict of Interest Between Clients
Rule – The lawyer shall not advise or represent both sides of a dispute and, except after adequate disclosure to and with the consent of the clients or prospective clients concerned, shall not act or continue to act in a matter when there is or is likely to be a conflicting interest.
In making any decision as to whether to act on behalf of multiple parties to a transaction, lawyers would be well advised to consider three interrelated issues (Korponey v Canada (A.G.) (1982) 1 S.C.R., and R v Clarkson (1986) 1 S.C.R.):
After considering these guidelines, if the lawyer decides to represent both clients, the lawyer will have certain obligations under the Code of Professional Conduct:
In a situation where a client has obtained a lawyer regarding a legitimate lawsuit, but that client has ulterior motives for pursuing the case, such as the desire to ‘crush’ the other side. The lawyer should evaluate her relationship with the client before proceeding with the matter in order to ensure not to bring the administration of justice and the legal profession into disrepute.
Unmeritorious Proceedings
... In civil matters it is desirable that the lawyer should avoid and discourage the client from resorting to frivolous or vexatious objections or attempts to gain advantage from slips or oversights not going to the real merits, or tactics that will merely delay or harass the other side. Such practices can readily bring the administration of justice and the legal profession into disrepute (IX, Commentary, s.7).
Duty to clients: checking zealous partisanship
The professional rules impose on lawyers a series of compelling duties that concern the need to preserve confidentiality. Lawyers have a clear and demanding obligation to “hold in strict confidence” all information that comes into their possession and knowledge while fulfilling their professional duties towards clients (see IV). It is, of course, a privilege held by clients and can only be waived with their consent. Lawyers must act in such a way as to ensure that there is “full and unreserved communication” between lawyers and clients (see IV, Commentary, s.1). The Professional Rules embrace “all information concerning the business and affairs of the client”, whether it is of a legal nature or not (see IV).
Withdrawal
Chapter III: Advising Clients
Compromise or Settlement
The lawyer should advise and encourage the client to compromise or settle a dispute whenever possible on a reasonable basis and should discourage the client from commencing or continuing useless legal proceedings (III, Commentary, s.6)
Encouraging Settlements and Alternative Dispute Resolution
Whenever the case can be settle reasonably, the lawyer should advise and encourage the client to do so rather than commence or continue legal proceedings. The lawyer should consider the use of ADR for every dispute and, if appropriate, the lawyer should inform the client of the ADR options and, if so instructed, take steps to pursue those options (IX, Commentary, s.8).
Privilege
The leading authority, Pritchard v Ontario (Human Rights Commission) held that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.
“Legal ethics is not reducible to an unthinking compliance with the prevailing rules of professional conduct in order to avoid discipline or disrepute. Indeed, the rules are rarely referenced, and it is more common for practitioners to resort to personal conscience to determine what is a professionally appropriate course of action” (W.H. Simon, “The Trouble with Legal Ethics” p.44).
“Legal ethics should not be satisfied by memorizing appropriate institutionalized responses to particular fact situations”.
Lawyers tend to identify more than most people with their jobs, the amorality of their professional role will begin to infect their personal lives. As Robert Megarry concluded, “clients, of course, come and go; but your conscience does not, and you will have to live with it for the rest of your life”.
“Aristotle insisted that moral character and good judgment are developed by engaging in practical situations and reflecting critically on those experiences so as to enhance and refine their sense of judgment. Consequently, the achievement of moral character and good judgment cannot be grasped by feeding students the relevant rules and a sense of the theoretical models; theory cannot substitute for practice, and logic cannot replace judgment. This does not mean that theory has no place, but it cannot dispense with the need for learning by immersion in practical situations”.
“... in answering Socrates’ famous question about how should one live, lawyers cannot respond by simply mumbling that it is acceptable to do whatever is not expressly prohibited by law of disallowed by the professional codes. This is not so much an ethical stance as an abnegation of one”.
“A recurring theme of this book is that there are no absolutes when it comes to ethics generally and legal ethics particularly; what will and will not amount to a satisfactory fulfillment or professional responsibility is a contextual matter”.
“Ultimately, the legal profession is only as good as the people who comprise it. It is not better rules, but better people, that will enhance the standards of ethical lawyering”.
Test for moral character – p.61-66
LEGAL PRACTICE: THE ETHICAL DIMENSION
COMPETENCE AND MALPRACTICE
Standard of Competence
- Lawyers have a clear duty to be competent and to deliver services “in a conscientious, diligent and efficient manner” (see II, Commentary, ss.1, 2, 7 and 8). The standard demanded of lawyers is that expected of “a competent lawyer in a like situation”. Notwithstanding the circular nature of this standard, it is clear that it involves more than a basic understanding of legal principles, that lawyers must keep up to date, and that the required level of skill will vary depending on the subject matter and the experience of the lawyer (see II, Commentary, ss.3,4,5, and 6). However, the standard to be maintained is a reasonable one, and there is no expectation that particular lawyers will have to meet, even though they should aspire to, the perfection of the ideal lawyer.
- Of particular importance is the requirement that lawyers should only take on specific cases in areas in which they have a sufficient knowledge or in which they could quickly become competent. Unfortunately, there is no evidence that anyone is discipline for this failing, even though its incidence is likely far from negligible (minor, insignificant). At the very least, lawyers must be up front with their clients about their (lack of) knowledge and experience in certain matters. Accordingly, lawyers can take on cases in areas they do no usually practice, provided they explain this to their clients and are willing to refer the case to another, more expert lawyer at a later date if the circumstances so demand (see II, Commentary ss.3,5, and 6). Also, if lawyers undertake to offer non-legal advice or engage in other business, they must ensure that they make their clients aware of their limited knowledge or expertise in the matter, provide competent advice, and give precedence to their legal duties (see III, Commentary, s.10 and VII, Commentary, s.3). In both legal and non-legal business, lawyers must withdraw in situations where it becomes clear that they are not competent to continue acting (see XII, Commentary, s.4(d)).
- As professionals, lawyers assume power over others who are more vulnerable and they must, therefore, exercise that power in the best interests of their clients. For example, lawyers must not accept a referral fee from any person or organization, such as a mortgage broker or a real estate agent, to whom lawyers introduce one of their clients. Also, lawyers cannot accept any hidden fees and must disclose any collateral benefits they will receive from having someone as a client (see XI, Commentary, s.7).
- It is not enough that a lawyer makes an error or a mistake. In addition, it must be shown that it was the kind of error or mistake that reasonably competent lawyers would not make. It is not enough that a lawyer makes an error or a mistake. However, while the appeal to the common professional customs will often be determinative, the courts have held that those customary practices must be demonstrably reasonable if lawyers are to escape liability (Dorion v Roberge (1991) 1 S.C.R.).
- Although the general language of the Code suggests a high standard of care and competence, there is a clear comment to the effect that “a mistake, even though it might be actionable for damages in negligence, would not necessarily constitute a failure to maintain a standard set by the Rule” (see II, Commentary, s.9). It would seem that to warrant disciplinary action against lawyers, there must be “evidence of gross neglect”. The profession take the view that simply being found liable for tortuous malpractice is not conclusive evidence of professional misconduct by a lawyer or, at least, a trigger for an inquiry to be made into the lawyer’s general practice. Law societies are more concerned with eradicating behaviour that is “disgraceful and dishonourable”, that affects their professional reputation. It is extremely rare for lawyers to lose their right to practise because of incompetence.
- Judges may also possess devices to take action against lawyer who act incompetently or improperly in the course of litigation (p.69).
Duty to prevent unauthorized practice of law
- It is the duty of lawyers to “assist in preventing the unauthorized practice of law” (see XVII). Because lawyers are members of a professional body, there are other safeguards that accrue to clients, such as liability insurance, the maintenance of compensation funds, and the direct supervision of lawyers by the courts (see XVII, Commentary, s.1). Although this common-sense regulation is obviously intended to protect the public, it also permits the legal profession to maintain its monopoly over the provision of legal services.
- R v Lawrie (1987) (Lawrie and Pointts)
Not to employ disbarred or suspended lawyers / too much responsibility to legal assistants
- As well as not employing any lawyer who has been disbarred or suspended, lawyers must be careful to ensure that they do not allow their staff or assistants to do work that should more properly be done by a lawyer personally (see XVII, Commentary, ss.2 and 3). It is the responsibility of lawyers to draw a distinction between “the special knowledge of the legal assistant and the professional legal judgment of the lawyer (see XVII, Commentary, ss.4, 5, and 6). Asking legal assistants to undertake too much responsibility can lead to a breach of the ethical rules, and might also result in clients being charged for work done and at a rate that is not matched to the actual status of the person doing the work.
LAWYERS AS CITIZENS
Conduct in private life
- It is generally understood that law societies are “not concerned with the purely private or extra-professional activities of a lawyer” (see I, Commentary, s.4). However, it will become a matter of institutional concern where such activities “bring into question the integrity of the legal profession or the lawyer’s professional integrity or competence”. Indeed, disciplinary action is considered justified where lawyers engage in “dishonourable or questionable conduct in ... private life” (see I, Commentary, s.3). The Rules explicitly note that “self-induced disability, for example form the use of intoxicants or drugs”, will be considered prima facie to interfere with lawyers’ ability to act in a required professional manner (see II, Commentary, s.7(m)).
- Cwinn v Law Society of Upper Canada (1980)
Conduct in non-legal business
- When lawyer engage in non-legal business or in outside work, they must take care that such activities do not “jeopardize their professional integrity, independence or competence”. If the activity is in no way connected with the provision of legal services to clients (e.g., politics or acting), lawyers are constrained only by the general obligation not to bring themselves or the profession into disrepute (see VII, Commentary, ss.2 and 3).
- When involved in outside activity, it is incumbent (obligatory) on lawyers not to leave any impression that they are acting in a legal capacity and not to act in a dishonourable way (see VII, Commentary, ss.5 and 6).
- While lawyers are not actively discouraged from such involvement, it is clear that there is a strong desire on the part of the profession for public appearances to be limited and constructive rather than critical and opinionated. In short, lawyers are expected to “encourage public respect for and try to improve the administration of justice” (see XVIII, Commentary, s.4). In no circumstances are such media appearances to be used as a way to solicit business (see XIV, Commentary, s.7)
- For example, around Native issue or anti-war activities.
- Leaving aside engagement in criminal activities, lawyers should be at liberty to do what any other citizen can do, provided they do so in good faith and with a sense of ethical proportion. It is only when they use their status as lawyers or participate in law-related activities that the collective morality of the profession ought to stand in judgment on them.
THE CHOICE OF CLIENTS
- Client selection is one of the most important and most neglected issues for lawyers. They are engaged in a special relationship that lawyers cannot simply abandon as and when they choose. In Canada, lawyers can choose to represent whichever clients they wish. While the oath taken on call to the bar often contains a commitment to “refuse no man’s just cause”, this is more of a token gesture of ceremonial window-dressing.
- The traditional practice of client selection is that lawyers are not under any obligation to take unpopular cases, nor are they ethically compromised by the moral (un)worthiness of their client’s causes. Unless they participate directly in unethical or illegal behaviour themselves, lawyers are to be treated as independent and moral agents; the sins of clients are not to be inflicted upon their lawyers.
- Most lawyers draw the line at representing clients free of charge. This restriction is not unreasonable; lawyers are not charities.
- Lawyers must not “deny services or provide inferior services on the basis of [discriminatory] grounds” (see XX, Commentary, s.1(a)).
- Before taking on clients, it seems ethically incumbent (obligatory) on lawyers to talk to them. This need not be a one-way lecture to the potential client about the lawyer’s ethical values, but it might be a conversation in which lawyer and client outline their basic expectations of each other.
- Although the billing of clients is treated as a matter of economic bargaining, it is also very much a moral matter. Because lawyers exercise a monopoly over the important services rendered and such services are not optional in social life, there is a special need to ensure that the terms and amount of compensation are fair and reasonable.
- Hourly rates appear to be on the way out, with clients pressing for capped fees, flat fees, and other billing alternatives.
- As the professional rules highlight, the reasonable price to be charged for a similar service can be influenced by a wide variety of factors (see XI, Commentary, s.1), including the time and effort involved, special skills required, customary charges of other lawyers in like matters, etc.
- The professional rules have little to say about the actual prices charged, other than that they be “fair and reasonable”, and are more concerned with ensuring that lawyers do not engage in dubious practices, such as charging for hidden fees, splitting fees with non-lawyers, or not giving full disclosure to clients on the basis for fees charged (see XI).
- It is the right of all clients to invoke a formal procedure for determining whether lawyer’s charges are fair and reasonable in the particular circumstances; this process is known as “taxing the bill”.
Waive client’s fee if hardship or poverty
- The Rules exhorts lawyers to remember that “it is in the best traditions of the legal profession to reduce or waive a fee in case of hardship or poverty”.
- The lawyer agrees that payment will be received only if the outcome of litigation (or the agreed services) is favourable to the client.
- The response of the profession has been that “it is proper” for lawyers to enter into such arrangements (see XI, Commentary, s.10).
- There are a few circumstances in which lawyers are obliged to withdraw from the case. In litigation, this occurs where clients want the lawyers to engage in prohibited conduct, such as knowingly deceiving the court or tribunal, taking malicious action, attempting to influence decisions or officials improperly, and harassing witnesses (see IX, Commentary, ss.2 and 4). In such circumstances, after efforts to persuade clients of the impropriety of such conduct, lawyers must withdraw or seek the leave of the court to do so. In non-litigious matters, lawyers have a similar obligation to withdraw where clients instruct them to act improperly, where they learn that a conflict of interest has occurred, or where they realize that they are no longer competent to handle the matter (see XII, Commentary, s.4).
- However, as a general matter, lawyers can withdraw only where there are compelling and justifiable reasons to do so. While clients have a clear right to dismiss their lawyers as and when they wish (provided they settle their outstanding account), lawyers do not have an equivalent right.
- For lawyers to choose to withdraw, there must have been “a serious loss of confidence between lawyer and client” such as the clients’ persistent failure to follow the lawyer’s advice, to provide necessary instructions, and, most important, to pay their bill after a reasonable time (see XII, Commentary, ss.5 and 6).
- In effecting withdrawal, lawyers must take all reasonable steps to protect the clients’ interests, especially if the case is at a particularly crucial phase in the action or dealing, and to deliver all documents, papers, and property to their clients or the successor lawyer. Nevertheless, lawyers do have a lien over such papers and property until their fees are paid (see XII, Commentary, ss.8 and 11).
- Apart from the exhortation “to reduce or waive a fee in cases of hardship or poverty”, the Code is almost silent about lawyers’ duty or willingness to provide services to those who cannot afford legal services (see XI, Commentary, s.2). Lawyers are on their own when it comes to dealing with the less fortunate in society. There is a grudging concession that lawyers “MAY ... assist in making legal services available by participating in legal aid plans and referral services (see XIV, Commentary, s.5).
- Moreover, professional rules make it clear that, in the name of free choice, lawyers have a strong right to decline particular employment that is conditional only on the weak duty not to exercise such a right too quickly, not to be too influenced by the unpopularity of the person’s cause, and to help rejected clients to find another lawyer (see XIV, Commentary, s.6).
- The traditional attitude has been that professionals should wait for business to come to them because, to do otherwise, would be to become crass (stupid, without refinement) merchants; it might confirm the popular suspicion that an organized legal profession is little different from “a retail grocers’ association” (R. Pound).
- Such advertising must not be “so undignified or otherwise offensive as to be prejudicial to the interests of the public or the legal profession” (see XIV, Commentary, ss.1 and 3).
- Many different regulations have been enacted by provincial law societies, but their main gist is that the advertising is to be largely informational and non-competitive.
- No “ambulance chasing”. Club memberships and schmoozing are the strategies.
- It can also be argued that the Rules’ restrictive approach to advertising, solicitation, and contingency fees has further exacerbated the problem of unequal access to justice.
- Lawyers are under a strong obligation to put their clients’ interests ahead of all others and to act as zealous partisans on their behalf.
- Like all professionals, they owe a series of duties to the public at large, to individuals with whom they have contact, and to their professional communities and colleagues.
- As a general rule, lawyers can owe a duty to a third party (even if that party is represented), but there is understandable reluctance to impose such a duty if the third party is adverse in interest as this will dilute and hamper the lawyers’ duties to their own clients (Nelles v Ontario (1980) 2 S.C.R.). Nevertheless, the courts have been prepared to go as far as imposing a fiduciary duty on lawyers to non-clients in some situations. For example, in a real estate transaction:
- Tracy v Atkins (1977)
“though fiduciary responsibilities normally arise from an existing contractual relationship of solicitor and client, the contractual tie is not essential.
Shoppers Trust Co. v Dynamic Homes Ltd (1992)
HELD: a lender’s solicitor will have a fiduciary duty to a borrower’s spouse to ensure that he or she receives independent legal advice where that person is unrepresented and unfamiliar with legal matters.
Negligent misstatements – Duty to third parties
- The general rules for negligent misstatements require among other things (e.g., misleading representation, detrimental and reasonable reliance, etc.) that there exist a ‘special relationship’ between the professional and the affected party. While this will obviously encompass clients, it can also extend to others: foreseeability and proximity are the standard requirements for imposing a duty of are on advice-givers (Hercules Managements Ltd. v Ernst & Young (1997) 2 S.C.R.).
- The lawyers’ function is to be “openly and necessarily partisan” (IX, Commentary, s.17), there is the general requirement that “the lawyer’s conduct toward all persons with whom the lawyer comes into contact in practice should be characterized by courtesy and good faith” (XVI). While the requirement of ‘good faith’ cannot be said to impose a fiduciary duty to ‘all persons with whom the lawyer comes into contact’, it does demand that lawyers do not treat non-clients “as if they were barbarians and enemies” (C.P. Curtis).
- A lawyer must, among other things, be “accurate, candid, and comprehensive” with an unrepresented adversary (IX, Commentary, s.17); not take advantage of “slips, irregularities or mistakes ... not going to the real merits” (XVI, Commentary, s.4); bring all legal authority “directly in point” to the court’s attention (IX, Commentary, s.2(h)); and not impose on other lawyers “impossible, impractical or manifestly unfair conditions of trust, including those with respect to time restraints and the payment of penalty interest” (XVI, Commentary, s.4). All in all, it is incumbent (obligatory) on lawyers to deal with everyone with a genuine, if variable, sense of ethical integrity and professional regard.
- While the existence of a retainer will be proof positive that a lawyer-client relationship exists, the absence of such an agreement does not mean that the lawyer-client relationship has not come into existence. In other words, lawyers can owe a host of special responsibilities to persons even when they have not obtained the elevated and singular status of client.
- By agreeing to meet with persons, they must be considered to have impliedly assumed certain duties of confidentiality towards them and to “render professional services”. While the Code stats that “the lawyer owes a duty of secrecy to every client without exception, regardless of whether it is a continuing or causal client” (IV, Commentary, s.5), this duty should be considered to extend to the “might-be client”.
- It is generally accepted that all members of the law office will be treated as being in a professional relationship with the client and, therefore, will owe them the full range of appropriate professional obligations; office staff will be obliged to respect the clients’ claim to confidentiality and the supervising lawyer will be liable for any breaches by such employees.
- One lawyer’s client is considered to be the client of all the firm’s lawyers and, therefore, will be entitled to the same duties and obligations as the circumstances allow: “it is the firm, not just the individual lawyer, that owes a fiduciary duty to its clients” (R v Neil (2002) 3 S.C.R.).
- “Breach of the ethical rules that could raise concerns of the Law Society does not necessarily give grounds to a malpractice action or justify a constitutional remedy” (R v Neil).
- A famous example of the force and rationale of this duty of zealous partisanship is offered by the reasoning of Lord Brougham, who was retained by Queen Caroline, the king’s wife, to defend her against charges of treason. In pursuing the case, he took the daring step of alluding to evidence that might harm the king (see 99).
- Charles Curtis (American commentator): the duty to clients is so strong that lawyers must “treat outsiders as if they were barbarians and enemies”. Lawyers should see themselves as actors who take pride in how well they play their part, but not take responsibility for the part they are asked to play. This view is directly rejected by the Rules.
- Lawyers have a special duty, over and above the already onerous general obligation and fiduciary duty. (in child protection proceedings, children are considered incompetent clients, so litigation guardians may be appointed. See 99).
- To act legally is not the same as acting ethically.
- Lawyers must not “knowingly assist in or encourage any dishonesty, fraud, crime or illegal conduct” (see III, Commentary, s.7).
1) Loyalty
Lawyers who have acted for clients in a previous matter should not act against those clients in a related matter, and lawyers should not act for more than one client in a transaction (e.g. vendor-purchaser), unless they have first advised the clients about the benefits and safeguards of being separately represented (see V, Commentary, ss.8 and 10).
Lawyers must also be very careful to prevent outside social, political, and economic considerations from influencing their judgment (see VII, Commentary, ss.2 and 4).
Limits on the extent to which lawyers can go in meeting the obligation to be loyal to their clients:
- Lawyers have a duty to refuse to follow client’s instructions that would place them in breach of the professional rules. Examples include abusing process by launching legal proceedings motivated by malice, assisting clients in dishonest behaviour, deceiving a court or tribunal, misstating the contents of a document, and suborning a witness (see IX, Commentary, ss.2 and 4). If clients do not desist, lawyers should withdraw from the case.
- Lawyers can override their client’s instructions in matters of general strategic approach (see 102).
- Even though there is no express prohibition against lawyers engaging in sexual relations with clients, lawyers are well advised to consider the propriety (the conventional standards of proper behaviour; manners: to observe the proprieties) of such conduct.
If lawyers realize that clients have misunderstood the advice, they must inform them of (and make certain that clients understand) the “true position” (see III, Commentary, ss.1, 2, and 3).
However, although lawyers must take all reasonable efforts to be candid and avoid too many caveats and conditions in the giving of advice, they must be “wary of bold and confident assurances” that might also mislead clients or lead to them taking inadvisable action (see III, Commentary, s.4).
Some particular matters that require complete candour:
- Lawyers must disclose all costs and may not accept hidden fees. Express consent must be obtained from clients in order to accept compensation from anyone other than the client. If someone (legal aid or a spouse) else is paying the lawyer’s fees, that institution’s or person’s consent is also required. Also, where disbursements are to be paid (e.g., brokerage or copying agency), disclosure must be made to the clients (XI, Commentary, s.7).
- If lawyers “unknowingly” do or fail to do something that, if done or omitted knowingly, was prohibited conduct under the professional rules, they have a duty to disclose and rectify their errors or omission on discovery (see IX, Commentary, ss.2 and 3). See 103.
It is the lawyer’s duty to ensure that their clients’ interests are pursued in an active and vigorous manner. However, lawyers must not let their zeal (eager, enthusiastic) get the better of them and engage in disreputable practices. Lawyers must negotiate through the other party’s lawyer.
In regard to their work as advocates, lawyers must advance all arguments and seek all remedies. They must be vigorous and thorough in pursuing their clients’ case, even if it involves asking certain “distasteful” (but necessary) questions (see IX, Commentary, s.1).
This duty must be tempered by two particular restrictions:
- Lawyers must represent their clients by “fair and honourable means”, as lawyers also have a duty to treat the court with respect and courtesy; it is not appropriate to engage in tactics or initiative that will taint the overall process of the court (see IX, Commentary, s.1).
- Lawyers are not expected to engage in “frivolous or vexatious” behaviour that will “delay or harass the other side” (see IX, Commentary, s.7).
A duty of secrecy is owed to all clients, both continuous and casual. This duty can arise even before a person or an institution becomes a client, and it can outlive even the professional relationship. For instance, not only are lawyers not to divulge information to any third party but they cannot use such information for their own benefit, even where it will have no detrimental effect on the client’s interests and affairs.
As suggested, lawyers might want to engage in a conversation with their clients both generally at the beginning of the professional relationship and as and when tricky situations arise.
Representing couples
In preparing wills for couples or other parties who seem to have common interests, lawyers should inform both clients that information collected form one client will not be held confidential from the other client.
Representing organizations
Lawyers must make it clear to all such constituents that the interests of the organization are paramount to those of any constituents who become “adverse” in interest (see V, Commentary, s.16).
- This rule is based on the notion that lawyers do not represent the interests of the people involved, but the artificial entity of the organization they form, whether it is a corporation or a loose association.
- There are limits so lawyers’ obligations to be zealous partisans. If the adversary system is to have any chance of working, the court must be able to rely on the fact that it is not being fed out-and-out lies. As advocates, lawyers are under a duty to use tactics that are legal, honest, and respectful of courts and other tribunals. They ought not to employ strategies that are intended to mislead the court or to influence decisions by anything other than open persuasion. Lawyers should not mislead courts about clients agreements with one or more parties (see IX, Commentary, ss.1, 2, 14, 17, and 18).
- Lord Denning describes the lawyers’ duty: “The advocate has a duty to the court which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he want. He owes allegiance to a higher cause. It is the cause of truth and justice. ...” (Meek v Fleming (1961)) (see 107).
- Lawyer’s duty to their clients is only a secondary one; the duty to the court and the profession is primary.
- Meek v Fleming (England)
Held: the plaintiff lost the action
On appeal: the plaintiff’s lawyer moved for a new trial because of the misconduct by the defendant’s counsel.
CA HELD: the appeal should be allowed and a new trial ordered. With regard to the lawyers’ obligations, the judges drew a distinction between having to reveal something to a party’s discredit and actively continuing a false pretence, where counsel knows that the court is so deluded. While the former is acceptable, the latter is not. Accordingly, the court took the view that each party has the primary responsibility to prove its own case and that the other side had no affirmative duty of disclosure. While it is acceptable for lawyers to remain silent about relevant matters, they must not take active steps to mislead the court.
DUTIES TO OTHERS
- The duty to be a zealous partisan in the pursuit of clients’ interests involves the prioritizing of clients’ interests, not the obliteration of everyone else’s: it simply means that lawyers can give their clients’ interests more weight on the scales than those of others. Other interests still count, but for less.
- Lawyers should not impose unreasonable conditions or time constraints on other lawyers (see XVI, Commentary, s.4).
- The Rules leave no doubt that a lawyer’s function it to be “openly and necessarily partisan”. In particular, the Rules make it explicit that lawyers are not obliged “to assist an adversary or advance matters derogatory to their clients’ case” (see IX, Commentary, s.17). Apart from those situations expressly required by law, there are three exceptions to this general situation:
(2) Lawyers should not take advantage of “slips or oversights not going to the real merits” (see IX, Commentary, s.7).
(3) Lawyers are responsible for ensuring that all legal authority that is “directly in point” is brought to the attention of the court. This requirement extends to mentioning binding authorities that are damaging to their own case and which have not been mentioned by their opponents (see IX, Commentary, s.2(h)).
- My reply: in order to avoid hardship to your client/case while still following this rule, it would help to illustrate how the biding authority is differentiated by the case at bar.
- As mentioned, lawyers are under an obligation to represent their clients by “fair and honourable means” and not to engage in tactics or initiatives that will taint the overall process of the court (see IX, Commentary, s.1)
As part of their overall responsibility to maintain the integrity of the profession, all lawyers have a duty to report breaches of the professional rules by lawyers where it is reasonable to believe that, as a result of such a breach, someone will suffer serious damage. The only exceptions exit where information is privileged or such reporting would be unlawful (see XV, Commentary, s.1).
Treatment of clients
In the pragmatic approach that I (Allan C. Hutchinson) encourage, lawyers should treat their clients as conversational partners who can contribute to and be persuaded about particular courses of action and their likely consequences.
BEING CONFIDENTIAL: SECRETS AND LIES
There are two main sources that place obligations of confidentiality on lawyers: the law of evidence (evidentiary privilege) and the professional rules.
THE LAWYER-CLIENT PRIVILEGE (1st evidentiary privilege/the law of evidence)
Under the law of evidence, communications between lawyers and their clients are privileged and impose on lawyers a duty not to reveal them or use them in any way to the client’s disadvantage. It is for clients to decide when the privilege can be waived and information disclosed (Anderson v Bank of British Columbia (1876)). Consequently, lawyers cannot choose to make public any communications with their clients, even if they believe it is in the clients’ best interests to so do.
(see 115 for rationale of lawyer-client privilege)
Lord Brougham: “... If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case (Greenhough v Gaskell (1833)).
Duty to disclose relevant legal authorities
Although lawyers’ duty to divulge facts and opinion is constrained by their confidential commitments to their clients, they have a definite duty to disclose all relevant legal authorities to courts or tribunals. Lawyers are responsible for ensuring that all legal authority that is “directly in point” is brought to the attention of the court. Moreover, they have an affirmative duty to mention binding authorities that are damaging to their clients’ case and which have not been mentioned by their opponents (see IX, Commentary, s.2(h)).
Lawyer-client privilege used to hide the truth
Ontario (Ministry of Environment) v McCarthy Tetrault (1992)
The court acknowledged the general concern that “corporations wishing to conceal their environmental sins from the eyes of regulatory agencies might attempt to adorn environmental audits with the badges of solicitor-client communications in order to assert, disingenuously, that the purpose of the exercise was to obtain legal advice.
Leading authority of lawyer-client privilege
Pritchard v Ontario (Human Rights Commission) (2004) 1 S.C.R.
SCC HELD: “The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented”.
Controversial strength of the lawyer-client privilege
R v Murray (2000) (hidden Paul Bernardo videotapes)
FACTS: the accused, Paul Bernardo’s former lawyer, was charged with wilfully attempting to obstruct justice by concealing incriminating videotapes from the authorities. In his defence, the accused claimed that he was operating under instructions from his client. Paul Bernardo, however, applied for a court order prohibiting the disclosure of his instruction on the ground of solicitor-client privilege.
HELD: the court held that “there is no doubt that Mr. Bernardo’s privilege must give way to the overwhelming importance of Mr. Murray’s right to full answer and defence”. The accused’s ability to participate and bring forth evidence in his trial was sufficient to breach the solicitor-client privilege.
- Thus, it is an exception in the lawyer-client privilege for the lawyer to reveal information (breach the privilege) in order to defend himself (right to full answer and defence).
The theme in R v Murray is reiterated in other main exceptions to the lawyer-client privilege. Lawyers may reveal confidential information in order to:
(1) Defend themselves against allegations of criminal conduct, civil liability, or misconduct/malpractice;
(2) To establish or collect their fees; and
(3) To avert “an imminent risk to an identifiable person or group of death or serious bodily harm (Smith v Jones (1999) 1 S.C.R.)
Breach of lawyer-client privilege
If lawyers breach confidentiality in other non-authorized situations, they are subject to sanctions, such as malpractice suits and disbarment.
Non-legal advice is not privileged
Lawyers must understand and make sure that their clients appreciate that any communications that do not relate to legal affairs will not be privileged. Although they will fall under lawyer’s general duty to keep all communications with their clients confidential, lawyers might be ordered by courts to reveal and disclose information that does not involve the giving of legal advice and assistance. Accordingly, lawyers must make it clear to clients when they are giving legal advice, as opposed to non-legal advice. Non-legal advice is not within the scope of the evidentiary privilege and will have to be disclosed in legal proceedings (Alfred Crompton Amusement Machines Ltd. v Commissioners of Custom and Excise (No.2) (1972) All E.R.).
Non-legal advice will be privileged if confidentiality is expressly claimed
For instance, if in-house counsel sends legal communications out on a legal letterhead, it is possible that non-legal advice produced on a page with legal letterhead may indicate an intention to claim privilege.
Descoteaux v Mierzwinski (1982) 1 S.C.R.
FACTS: an accused person had made an application for legal aid. The police sought to enforce a search warrant on a legal aid office to obtain a copy of an applicant’s application form in order to establish if there had been fraud in the application.
HELD: the financial information on the form was not privilege and that the lawyer who had received the information must disclose it. Apart from the fact that a misrepresentation of a person’s financial position amounted to a criminal offence, it was held that the statement of financial affairs was not part of the lawyer’s communications with the client over legal advice and therefore did not fall within the ambit of the rule. However, the Court did make clear that the other contents of the form were privileged and ought not to be disclosed to the police or anyone else.
Lawyer-client privilege extends to identity of the client
In some situations, the duty of confidentiality might extend to keeping the identity of the client confidential. This issue will arise only in special circumstances where the clients go to the lawyer in order to preserve their anonymity. For example, where a person has committed a criminal offence and wants to seek advice before turning himself in to the authorities, the lawyer would be under and obligation not to reveal the identity or whereabouts of the person, unless there is a possibility that the client is likely to commit further offences (Thorson v Jones (1973)).
Lawyer-client privilege extends even after professional relationship ended (or death)
Moreover, the lawyer’s duty of confidentiality continues after the professional relationship with the client has ended and even after the client has died (Guay v Societe franco-manitobaine (1985)). Exception in a testamentary disposition (Geffen v Goodman Estate (1991) 2 S.C.R. see 119).
THE LITIGATION PRIVILEGE (2nd evidentiary privilege/the law of evidence)
Apart from the lawyer-client privilege that is sanctioned by the law of evidence, another evidentiary privilege exists – the general litigation privilege. This privilege entitles and requires lawyers to keep confidential those communications that are made to them in the course of their professional efforts to litigate on behalf of their clients. This privilege is narrower in that, whereas the general lawyer-client privilege attaches to all communications whether in relation to litigation or not, the litigation privilege applies only to those matters that arise in the contemplation or the course of litigation. However, the litigation privilege is much broader in that it covers non-confidential communications between lawyers and third parties, and also material of non-communicative nature (such as notes and records).
Hickman v Taylor (1947) (American case) (see 120)
FACTS: Following an accident in which people drowned, the owners of a tug employed a law firm to defend them against possible legal actions. One of its lawyers interviewed all the survivors. The plaintiff’s lawyers later requested summaries of those interviews.
HELD: SC declined to order disclosure on the basis that such material was covered by the litigation privilege, even though those interviewed did not provide such information on a confidential basis; the plaintiff’s lawyers were free to interview the witnesses for themselves.
Rationale of litigation privilege
Without some sort of protection for the product of lawyers’ investigations or ruminations, the adversarial incentive to pursue all possible lines of argument and inquiry might be hampered. Lawyers might not be as vigorous as they might otherwise be if the fruits of their labours were available to their opponents, and if unfavourable information that was gathered had to be disclosed to opponents.
Hon. Wilbur Roy Jackett: “... a lawyer’s preparation of his client’s case must not be inhibited by the possibility that the materials he prepares can be taken out of his file and presented to the court in a manner other than that contemplated when they were prepared” (Susan Hosiery Ltd. v Minister of National Revenue (1969).
Modern trend in Canada
The modern trend in Canada has been to limit the potentially wide scope of the litigation privilege – Tully v Kurtz (1992).
Situations where the privilege might be limited
(see 123)
THE GENERAL DUTY OF CONFIDENTIALITY (Professional Rules)
The professional rules impose on lawyers a series of compelling duties that concern the need to preserve confidentiality. Lawyers have a clear and demanding obligation to “hold in strict confidence” all information that comes into their possession and knowledge while fulfilling their professional duties towards clients (see IV). It is, of course, a privilege held by clients and can only be waived with their consent. Lawyers must act in such a way as to ensure that there is “full and unreserved communication” between lawyers and clients (see IV, Commentary, s.1).
Professional Rules cover all information concerning a client
Whereas the evidentiary rule applies only to legal advice given by the lawyer, the ethical rule embraces “all information concerning the business and affairs of the client”, whether it is of a legal nature or not (see IV).
‘Casual’ clients
Lawyers are under a “continuing” obligation to keep confidential any information that passes between themselves and their clients, even if they are only “casual” clients (see IV, Commentary, s.5).
What does ‘confidential/privileged information’ include?
The duties concerning safekeeping of clients’ property are connected to those governing confidential information; all papers, files, and property are also considered to be privileged information (see VIII, Commentary, s.5).
Duties/behaviour with confidential/privileged information
If a third party attempts to seize information (including files and property), lawyers have a duty to “be alert to claim on behalf of clients any lawful privilege respecting information about their affairs (see VIII, Commentary, s.6).
Lawyers “should avoid indiscreet conversations ... and should shun gossip” about their clients’ affairs (see IV, Commentary, s.7).
Even if the facts in question are “public knowledge”, lawyers should avoid “speculation concerning the client’s affairs or business” (see IV, Commentary, s.8).
Lawyers’ as witnesses
Lawyers who testify as witnesses may not be asked, nor answer, questions posed to reveal confidential information, unless there has been a clear waiver by the clients.
Refrain from using confidential information
Lawyers are obliged to refrain from using confidential information to the detriment of the clients. They must also be assiduous to ensure that they do not use such information to their own advantage or that of a third party. This obligation governs literary works or autobiographies by lawyers (see IV, Commentary, s.10).
Szarfer v Chodos (1986)
HELD: an Ontario lawyer used confidential information about his client’s sexual problems to initiate an affair with the client’s wife. This behaviour led to civil and professional penalties.
R v S(R.J.) (1985)
HELD: if a lawyer acted as a counsellor to a sexual abuse victim, it might be that the lawyer could be put under a duty not to disclose the information that passes between them.
SCOPE AND LIMITS
If disclosure of confidential information is required by law, lawyers must be “careful not to divulge more than is required” (see IV, Commentary, s.11).
Explain confidentiality to clients
In light of the possibility that lawyers might have to forgo their duty of confidentiality, it is imperative that lawyers explain the reach and limits of the confidentiality principle to clients before any delicate or incriminating information is divulged.
Duty to disclose:
Confidentiality in dangerous situations (death or harm)
- Confidential information may be disclosed if lawyers have a reasonable belief “that there is an imminent risk to an identifiable person or group or serious bodily harm”, but disclosure becomes mandatory only if “it is necessary ... in order to prevent ... death or harm” (see IV, Commentary, s.2). Also, this duty of disclosure is triggered by the existence of a reasonable belief that “a dangerous situation is likely to develop at a court facility”. In such a situation, lawyers assume a responsibility to “suggest solutions” to deal with the problem (see IV, Commentary, s.3). Obviously, lawyers must not assist clients in planning unlawful acts, and lawyers have a public responsibility to prevent imminent and serious harm.
- The duty of confidentiality does not extend to communications that are themselves criminal. Because the general basis of the duty is the facilitation of the administration of justice, it would defeat the purpose if the duty was extend to cover lawyers who aided and abetted criminal or illegal activities. The leading authority is Descoteaux.
SCC Held: that the client could not claim that the information was privileged and that the lawyer must disclose such information; “communications that are in themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime” are not privileged and need not be held in confidence by lawyers. In such circumstances, lawyers have a positive duty to disclose such information to the authorities.
Confidentiality of past crimes
- While confidentiality does not extend to information about future crimes and to communications that are criminal in themselves, it does cover information about past crimes.
- Even if clients tell their lawyers about responsibility for past crimes, lawyers cannot reveal that information; the exception covers information only about future crimes an communications that are criminal in themselves (R v Bennett (1963)).
Law or judge can abridge confidentiality
- Of course, a lawyers’ duty to retain the confidentiality of their clients’ communications can be abridged (reduce or lessen scope, authority, duration; to deprive) by the rules of law or by judicial order.
Lawyers can disclose information revealed in confidence by clients if it is necessary to defend themselves against accusations of malpractice (see IV, Commentary, s.4)
Piercy v Piercy (1990)
HELD: a client challenged a lawyer’s fees while matrimonial litigation was pending. In defending himself at the assessment, the client’s lawyer had to disclose information about the chosen strategy; this information later came to the attention of the client’s wife and her counsel. The client was considered to have waived his right to privilege by commencing the assessment proceedings and, therefore, could not stop his wife from using the information against him.
Collecting fees
Lawyers can also disclose information if necessary to collect fees (see IV, Commentary, s.4).
Advancing the public interest (i.e. protecting an innocent accused person)
Lawyers can and sometimes must disclose certain confidential information or communications to advance the public interest. For instance, it has been held that lawyers are required to reveal confidential information where it might allow an accused person to establish his or her innocence (R v Stinchcombe (1991) 3 S.C.R.).
Multiple clients
In situations where lawyers are retained by more than one client in the same matter, lawyers must advise the clients that “no information received in connection with the matter from one can be treated as confidential so far as any of the others is concerned” (see V, Commentary, s.6).
WAIVER AND DISCLOSURE
The clients are the “holders” of the privilege and it is their entitlement to waive the privilege and disclose the information. Such a waiver must be clear, freely made, and informed; the clients must realize that the choice is entirely theirs and must appreciate the consequences of any waiver (Kulchar v Marsh (1950)). Although it will be best for the lawyer if the waiver is express and in writing, a waiver can be implied.
Implied waivers
While a valid waiver can be express or implied, lawyers should act on implied waivers only in the clearest of circumstances. Indeed, it might be good practice to obtain such consent in writing where possible. However, lawyers have implied consent to disclose information when working in consultation with partners, associates, and other firm staff.
In such circumstances, lawyers are “under a duty to impress” upon those working on the file the importance of confidentiality and must “take reasonable care to prevent” disclosure (see IV, Commentary, s.9).
Consequence of a waiver
Once clients have waived their privilege, it is generally not possible to reclaim privilege (London Trust & Savings Corp. v Corbett (1994)).
Cooperation with successor lawyer
When lawyers do withdraw from cases or files, they should cooperate with the successor lawyer. Nevertheless, any “confidential information not clearly related to the matter” should be disclosed to the new lawyer only with the “express consent” of the clients (see XII, Commentary, s.9).
CONFLICTS OF INTEREST: SCREENS AND SILENCES
LAWYERS’ OWN INTERESTS
On the basis of the fiduciary relation between lawyers and clients, lawyers are not to take advantage of or benefit from information that is received from clients, even if it would not disadvantage the clients.
The professional rules insist that lawyers must be “as free as possible from compromising influences” which are characterized as anything that would “affect adversely the lawyer’s judgment, ... advice ... or loyalty” to the clients, actual or prospective (see V, Commentary, ss. 1 and 2).
When dealing with potential conflict of interest between layers and their clients, lawyers’ associates must be taken into account. “Associates” has a wide definition (see VI, Commentary, s.3 or see 136).
Intimate relations
While the rules are silent on the issue of less formal relationships, lawyers would be wise to disclose any intimate relations they have had with other lawyers who might have some interest or connection to the file.
Conflict of interest situations to avoid:
Debtor-creditor relationship
Lawyers should not enter into debtor-creditor relationships with clients; they should not borrow money from clients (unless that is the client’s business); and lawyers should not lend money to clients except when it is to advance clients’ expenses in legal matters (see VI, Commentary, s.4).
Business ventures
Lawyers with interests in joint business ventures may represent the venture against third parties, but not as between the business venture and the joint ventures (see VI, Commentary, s.5).
Business transactions with clients
Lawyers who wish to enter into business transactions with clients or otherwise exchange proprietary or pecuniary interests are placed under exacting duties (see VI). They must ensure that they fulfill three substantial conditions:
(1) The transaction must be “fair and reasonable” and its terms must be fully disclosed to clients in writing ... (see 137)
(2) Clients must be advised to take independent legal advice and be given a reasonable opportunity to do so ... (see 137)
(3) Clients must consent in writing to the transaction ... (see 137)
When involved in legal transactions where they also have personal interests, lawyers must disclose these personal interests and whether they are acting in a personal or a professional capacity (see VII, Commentary, s.4).
If also a member of another profession
Provincial laws establish to what extend it is possible to be concurrently members of other professions.
Where lawyers do have outside interests, it is supposed to be the kind of undertaking that is compatible with the practice of law, in the sense of being “honourable” ... (see VII, Commentary, s.6). However, in reality, there is little that has been sanctioned; lawyers have become rock stars, loan sharks, and journalists.
Public office
Lawyers in public office who foresee potential conflicts of interests must “declare such interests at the earliest opportunity” and must not take any further part in any “consideration, discussion or vote with respect” to such issues (see X, Commentary, s.4).
Lawyers must withdrawal from public duties where it becomes apparent that it is impossible to perform such duties without avoiding conflict situations (see XII, Commentary, s.4).
MULTIPLE CLIENTS
Lawyers must make complete disclosure to clients about conflicting interests that exist or are likely to arise (see V, Commentary, s.3).
Lawyers must advise clients that in the event of an unresolvable dispute, lawyer may have to withdraw as counsel of one party or all of them.
Lawyers must disclose to clients if there is a pre-existing and continuing relationship with one of the parties, and they should advise other clients to seek independent representation (see V, Commentary, s.5).
Upon disclosure, lawyers can continue to act for clients who consent (see V, Commentary, s.4). While written consent is preferable, it is not essential (see V, Commentary, s.6). Nonetheless, even after obtaining consent, lawyers should not act for multiple parties when it is “reasonably obvious” that their interests “will diverge as the matter progresses” (see V, Commentary, s.6).
Examples of situations in which lawyers should be on guard about possible conflicts:
- Co-accuseds in criminal cases,
- Co-plaintiffs in tort cases,
- Insureds and their insurers,
- Parties named as beneficiaries under wills or trusts,
- Construction lien and bankruptcy claimants
The courts have decided that it is an accused’s constitutional right, under s.7 of the Charter, to be represented by counsel who is not hamstrung by conflicts of interest (R v Silvini (1991)).
In particular, lawyers should not put accused clients in situations where lawyers might not be able to render effective service to one accused client if the best trial strategy is likely to be an attempt to shift blame to another accused client. While co-accuseds can waive their constitutional right, courts are reluctant to hold that a defendant did so knowingly and voluntarily. The validity of a waiver “is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge ... (see 141).
“Contentious issues” between clients
(see 141)
Checklist/Questions to ask when determining whether to represent multiple clients
In making any decision as to whether to act on behalf of multiple parties to a transaction, lawyers would be well advised to consider three interrelated issues (Korponey v Canada (A.G.) (1982) 1 S.C.R., and R v Clarkson (1986) 1 S.C.R.):
- What is the kind of relationship that exists between the clients?
- What are the strategic interests of the clients?
- What is the nature of the services to be performed?
FORMER CLIENT’S INTERESTS
Lawyers who have represented clients in one matter should not act against them “in the same or any related matter”.
Lawyers may act against former clients in “fresh and independent matters wholly unrelated” to any previous work (see V, Commentary, s.12).
Definition of “clients” (see V, Commentary, s.13).
The conflict rules kick in with regard to those people for whom, after a brief consultation, lawyers decline to act on their behalf. For instance:
Popowich v Saskatchewan (1995)
HELD: a firm was disqualified from acting on a defendant’s behalf because a lawyer in the firm had held a ten-minute consultation with the plaintiff before litigation, even though the lawyer involved swore that no confidential information had passed between them.
Borrower – Lender situation: if a lawyer has represented a borrower, it is unacceptable to represent a lender in future dealings with the borrower because confidential information about the borrower’s financial position might have been divulged.
Lawyer switching firms
Macdonald Estate v Martin (1990) 3 S.C.R. (The Martin presumption)
FACTS: Martin retained law firm A to represent him against Gray, who was represented by law firm B. Kristen, a young lawyer, worked extensively on Martin’s file with a senior partner. Two years later, Kristen moved to law firm C, which two years later merged with law firm B. After her move to law firm B, Kristen had no involvement with Gray’s file, though the dispute with Martin was still continuing. Kristen and senior members of law firm B filed sworn statements that not discussions had or would take place between Kristen and firm members in respect to the Martin/Gray case.
HELD: supported Martin’s application to have law firm B removed (but split 4 to 3).
- Sopinka J.: A disqualifying conflict of interest would arise where a reasonably informed person would be satisfied that use of confidential information. Lawyers are in a conflict if there is a risk that it will be used to the prejudice of that former client. No guarantee that the confidential information received will not be so used is valid or acceptable.
- Sopinka J.: as the junior lawyer had actively worked on the very case on which her new firm was acting against the former client, she was ineligible to be involved in the case AND no general process of screening (of the new lawyer) had been implemented by the firm and there was no evidence that potential dangers or difficulties had been brought to the new lawyer’s attention when she joined the firm.
- Sopinka J.: did not believe that disqualification of other lawyers should be automatic once it was shown that there was confidential information at risk. However, more was required than a simple affidavit by lawyers declaring that no disclosure had occurred.
- In order to rebut the Martin presumption, lawyers must effectively prove beyond a reasonable doubt that no relevant confidential information was exchanged.
Ramsbottom v Morning (1992)
HELD: two years’ delay after the realization that there was a potential conflict was held to amount to acquiescence (because it was an unreasonable delay).
Canadian Bar Association (CBA) recommended thirteen guidelines that law firms might follow in developing appropriate schemes. Of these, three were considered absolutely essential to the viability and efficacy of any screening process. In their present form (see V), they read (see 148).
CURRENT CLIENTS
Clients in a Vancouver office have claims to professional obligation against lawyers in Toronto who they will never meet. As such, it is incumbent on law firms to have in place a process and system whereby they can monitor the client base of the firm and take all reasonable steps to ensure that conflicts do not inadvertently arise and that appropriate measures are taken to protect confidential information (Ford Motor Co. of Canada v Osler, Hoskin, & Harcourt (1996)).
“a fiduciary cannot act at the same time both for and against the same client, a firm cannot act for one client while his partner is acting for another in the opposite interests” (R v Neil (2002) 3 S.C.R.). After Neil, It appears clear that lawyers should only agree to represent two clients where and when those clients’ interests are not directly adverse to each other. In most situations, it is possible for lawyers to represent concurrent clients, even if conflicts exist, provided that there is a valid waiver from the client.
Waiver
For a waiver to be valid, several conditions must be met:
Full disclosure by the lawyer to the clients;
Signed and detailed waivers, preferable after independent legal advice; and
A considered decision by the lawyers that they reasonably believe that they are able to represent each client without adversely affecting the other (Moffat v Wetsein (1996)).
CONCLUSION
The professional rules make it reasonably clear that lawyers must avoid not only actual and potential conflicts of interest, but also situations that might create the appearance of jeopardizing the duty of confidentiality and loyalty to their clients. This means that lawyers have a clear professional responsibility not to move to law firms against which they are currently litigating.
CRIMIANAL LAWYERS: PUTTING UP A DEFENCE
THE CRIMINAL LAWYER
Most lawyers develop an indifference to whether their clients are guilty or not and take refuge in the professional pleasure of a job well done.
Are criminal lawyers more devoted to criminals than to the law?
While prosecutors have a duty to ensure that the truth is exposed in court, defence counsel have no such duty.
Criminal defence lawyers must take all possible steps to raise a reasonable doubt about the client’s guilt. Many rights are given to the accused that are independent of their guilt or innocence, and it is for defence lawyers to ensure those rights are respected.
Declining a client
It is a matter of principle that they should accept all requests for legal assistance, no matter how unpopular or unjust, because any other course would deprive people of their rights and usurp the function of the jury or judge.
Lawyers should not exercise the right to decline employment “if the probable result would be to make it very difficult for a person to obtain legal advice or representation”. Furthermore, lawyers should not decline simply because the “cause is unpopular or notorious” (see XIV, Commentary, s.6).
If lawyers do refuse to accept someone as a client, they have an obligation to assist that person to find the services of another competent lawyer (see XIV, Commentary, s.4).
DUTIES AND LIMITS
Lord Reid: advocates are expected “fearlessly to raise every issue, advance every argument, and ask every question ... which they think will help their clients’ case” and “to obtain for their clients the benefit of any and every remedy and defence which is authorized by law” (Rondel v Worsley (1969) HL England).
Guidelines for the criminal lawyer
While the list of permitted and prohibited conduct is intended to apply to all lawyers, the following guidelines have particular relevance for the criminal lawyer:
- Lawyers must not “knowing” assist clients to do anything they consider to be “dishonest or dishonourable” (see IX, Commentary, s.2(b)).
- Lawyers must not “knowingly” assist in any fraud, crime, or illegal conduct in dealing with the court (see IX, Commentary, s.2(e)).
- It amounts to the criminal offence of perjury for lawyers to counsel false evidence (see Criminal Code, ss.22 and 120).
- Lawyers can interview “any potential Crown witnesses” whether under subpoena or not, provided that they disclose their identity and interest. Where those persons are legally represented, the consent of their lawyers is required (see IX, Commentary, s.6).
- Lawyers should “never waive or abandon” their clients’ legal rights without the clients’ “informed consent”. This means that all possible defences should be fully considered and brought to the attention of clients (see IX, Commentary, s.7).
- Lawyers must not assist, encourage or instruct their clients to commit crimes or other illegal conduct. At all times, they “should be on guard against becoming the tool or dupe of an unscrupulous client” (see III, Commentary, s.7).
- Lawyers must disclose confidential information only if “there is an imminent risk to an identifiable person or group or death or serious bodily harm” (see IV, Commentary, s.2). This duty to disclose is also triggered when a lawyer develops a reasonable belief that “a dangerous situation is likely to develop at a court facility”. In such a situation, a lawyer is to inform those responsible for security, and is supposed to “suggest solutions” to deal with the problem (see IV, Commentary, s.3).
- Lawyers “shall not stand bail” for an accused client, unless there is a “family relationship”, in which case lawyers should not represent the accused person (see XIX, Commentary, s.9).
- Lawyers should be “courteous, civil and act in good faith to the court” and their adversaries in all proceedings. While rude and disruptive behaviour might not amount to contempt of court, it can still be grounds for disciplinary action (see IX, Commentary, s.16).
- Lawyers must advocate their clients’ cases “within the limits of the law” and, if clients insist on courses of action that would “breach” the rule, lawyers should withdraw from the case (see IX).
- Lawyers must follow local rules governing communication with witnesses. However, it is considered “improper” for lawyers to communicate with their witnesses while they are being cross-examined (except by leave of the court) (see IX, Commentary, s.18).
- Lawyers should not advise, threaten, or bring about a criminal prosecution “to secure some civil advantage for the client” and, conversely, should not “procure (to obtain by indirect means) with the withdrawal of such a proceeding” in return for money or property (see III, Commentary, s.9).
Monroe Freedman: “the lawyer’s trilemma – the lawyer has a duty to know everything, to keep it in strict confidence, and to reveal it to the court”.
Freedman controversially opted for the position that the duty of confidentiality should be paramount.
Articles of evidence (to be turned in)
If lawyers come into possession of articles they know will make up physical evidence in a case, they cannot destroy or conceal them. Such evidence must be handed over to the police or the appropriate authorities. However, lawyers are obliged to take all efforts to keep confidential the source of the evidence that is turned over to the police or other authority. To preserve confidentiality as best as possible in such circumstances, the most desirable course it to turn over the physical evidence to an intermediary (e.g., Law Society), which could then pass the evidence to the police without revealing who or where it came from.
MAKDING A DEFENCE
False evidence or suppressing what ought to be disclosed / Defences
There is a general duty on lawyers not to participate in the deception of the court by “offering false evidence” or by “suppressing what ought to be disclosed” (see IX, Commentary, s.2(e)).
The duty of defence counsel is to “protect” the accused. In defending their clients, lawyers can use “all available evidence or defences ... no known to be false or fraudulent” (see IX, Commentary, s.10).
Knowing the client is guilty
In many circumstances, lawyers cannot really claim to know that their clients are guilty; there may be a host of extraneous reasons for clients seeking to take responsibility for the crime. Also, it is not the criminal lawyers’ job to decide whether clients are deserving of punishment. Their task is to raise a reasonable doubt in the judge and/or jury’s mind: it is not to prove the innocence of the accused.
Even if they know the prosecution evidence to be true, they are still “entitled to test the evidence given by each individual for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged”. However, defence lawyers “should go no further than that” (see IX, Commentary, s.11).
- It is vital to remember that defence counsel do not have to prove what did or did not in fact happen: all they have to do is raise a reasonable doubt in the minds of the jury about the case brought by the Crown against the accused.
- Rather than undermining truth and the system’s capacity to uncover it, criminal lawyers raise doubts in order to question the legitimacy of the government’s power to punish the accuseds for their alleged behaviour
Lawyers must be “convinced that the admissions are true and voluntary” (see IX, Commentary, s.11). Even when clients tell their lawyers expressly that the evidence to be presented is false, lawyers should take steps to confirm that the clients’ statements are true.
Steps to approaching perjury
Once lawyers have actual knowledge that their clients are going to commit perjury, there are steps to follow:
(1) Counsel must make all possible efforts to dissuade the client from this course of action.
(2) There are several options open to the lawyer (see 172 for details):
o proceed as if nothing has happened and allow the client to testify;
o ask the client to make a narrative statement to the court as regards that part of the testimony believed to be perjurious;
o inform the court of the client’s intention to lie;
o or withdraw from the case.
Knowing clients are making false statements / Withdrawal
If lawyers know that their clients are making false statements under oath and do nothing to correct it, their silence “indicates, at the very least, a gross neglect of duty” (Re Ontario (Crime Commission) 1963)).
If clients persist in their intention to give perjurious testimony after their lawyers’ best efforts to dissuade them, lawyer have no alternative other than to “withdraw or seek leave of the court to do so” as promptly as possible and with a minimum of prejudice to their client (see IX, Commentary, s.4).
Once lawyers inform the court that they are withdrawing from a case, judges cannot order them to continue to act as counsel for an accused, nor can the court ask lawyers about “their reasons for withdrawing”.
However, judges should only allow defence counsel to withdraw during trial if all efforts at persuasion have failed and there is no significant prejudice to the accused (Dunkley v R (1995) (England)).
THE CASE FOR THE PROSECUTION
Insofar as a prosecutor has a client, it is the public. Prosecutors play a dual role: they must seek convictions for the guilty and, at the same time, guard against the wrongful convictions of the innocent.
Guidelines particularly relevant for prosecuting counsel
While the list of permitted and prohibited conduct is intended to apply to all lawyers, the following guidelines have particular relevance for the prosecuting counsel (see 175-176):
- The abiding duty of prosecutors “is not to seek a conviction”, but to present all “credible” and “relevant” evidence to the court so “that justice may be done through a fair trial” (see IX, Commentary, s.9).
- Prosecutors fulfill a “public function”, which must be carried out “fairly” (see IX, Commentary, s.9).
Stinchcombe (1991) 3 S.C.R.
FACTS: a former secretary of a lawyer, charged with fraud and theft, was interviewed by police; defence counsel was informed of the existence of the statement, but not its content, and requests for disclosure were refused by the police and trial judge.
HELD: allowed the accused’s appeal against conviction on the basis that the prosecution was under a duty to disclose all relevant evidence to the defence.
- The Crown operates as a guardian of the public interest and is authorized to ensure that justice is done. It is not the goal of the Crown to secure a conviction at all costs.
- Nevertheless, the Crown does have a discretion over whether the evidence is relevant and must exercise it in good faith.
- Apart from the existence of any legal privilege that attaches to relevant evidence, information should not be withheld if there is a reasonable possibility that this restriction will impair the right of the accused to make full answer and defence.
It is estimated that approximately 95 percent of criminal charges do not make it to trial.
All plea bargains have to be approved by the court; it is counsel’s professional responsibility to obtain the best deal they can in the circumstances.
Although it is absolutely clear that judges are not bound by the terms and conditions of a plea bargain reached by counsel (R v Naraindeen (1990)), defence lawyers are required to ensure that any proposed guilty plea does not compromise the public or the clients’ interest (see IX, Commentary, s.13).
Considerations to be followed in making a plea bargain
Insofar as they pertain to matters of legal ethics, the following considerations ought to be followed by lawyers in making plea bargains (see 180-181 for details):
- Counsel must have been present and have acted candidly in negotiating a plea bargain
- Judges out not to participate in negotiations
- The Crown should consult victims and/or their intimates
- Judges must be satisfied that the accused’s consent to a plea bargain is voluntary and informed
- The Crown should be able to repudiate (reject) a bargain before trial only in the rarest of circumstances
- Appeals should only be allowed in exceptional cases
CORPORATE LAWYERS
Corporate lawyers must always remember that they work for the corporation itself and owe their primary duties and allegiance to it, and not to any of its officers, shareholders, employees, or other connected persons (see V, Commentary, s.16).
Whatever the corporation’s management might think, corporate lawyers are first and foremost lawyers, and they are subject to the ethical responsibilities imposed by the professional Rules. Consequently, it remains incumbent on corporate lawyers to follow lawful courses of action and to reject plans that are ethically dubious. It is all lawyers’ general duty to avoid “dishonourable or questionable conduct” and, in particular, to “be on guard against becoming the tool or dupe of an unscrupulous client” (see III, Commentary, s.7).
E. Norman Veasey: “Above all, I think the corporate lawyer should have the courage of a modern day Atticus Finch. ... But, perhaps more importantly, corporate counsel should not fear the responsibility to “just say no” to a board or management bent on a questionable or potentially reckless course of conduct”.
Representing constituents of the corporation
Lawyers acting for organizations can represent their constituents, as long as they are in accordance with the rules and commentaries concerning conflicts of interest (see v, Commentary, s.16). If there is a conflict, the duties to the corporation must prevail.
They should inform agents of the corporation that, in the event of a conflict of interests, they will be representing the corporation as a whole and that individual agents should seek independent representation (see V, Commentary, s.5).
Privileged communication
The courts have had little difficulty with deciding that communications to lawyers from anyone who has some control over the company’s decision-making process is a privileged communication. However, there has been less clarity over whether communications from lower-level employees are privileged.
Upjohn Co. v United States (1981) (American Supreme Court)
HELD: the duty of confidentiality is in play beyond dealings with those who actually control the corporation (managers and directors) and encompasses all those employees who disclose to the lawyers any information whose subject matter is the employee’s duties of employment.
- Employees are in a very exposed position. While counsel cannot disclose any communications to the government, they are at liberty and must, if requested, reveal such information to the company’s managers, as they are also holders of the privilege and are free to waive it on the corporation’s behalf.
- The Upjohn test enables employers to take advantage of whatever information employees give to company lawyers.
HELD: it was decided on an audit that the company’s lawyer was not obligated to hand over to Revenue Canada at its request most documents that were in the lawyer’s possession. As well as granting privilege to all legal communications between the lawyer and the management and employees of the company, the court extended confidentiality to all legal communications between the lawyer and employees of a wholly owned subsidiary, since the management of the two companies was closely connected. However, in line with the traditional doctrine, communications between the lawyer and management or other employees about business matters were not privileged, nor were documents simply received and filed by the lawyer if they were not directly related to legal matters. Accordingly, corporate lawyers must make it clear when they are giving legal as opposed to non-legal advice (Alfred Crompton Amusement Machines Ltd. v Commissioners of Custom and Excise (England)).
In-house counsel
Despite the fact that in-house counsel may lose a certain independence by becoming too closely linked with the mentality and goals of their corporate employers, the obligations on in-house counsel and outside lawyers are the same (U.S. Steel Corp. v United States (1984)).
Guidelines for in-house counsel when they moonlight (to work at an additional job after one’s regular, full-time employment, as at night; working by the light of the moon):
- See 186-187 for guidelines
It is clear that corporate lawyers are entitled to breach their duty of confidentiality “if the lawyer has reasonable grounds for believing that a crime is likely to be committed”. It becomes a mandatory duty on if “the anticipated crime is one involving violence” (see IV, Commentary, s.2). This means that the Rules permit, but do not demand, disclosure. Furthermore, the entitlement extends only to future crimes, not past ones.
Steps to take before whistleblowing
In reaching any decision on whether to whistleblow, corporate lawyers should take some initial steps. After informing the employees involved in writing that their activities are illegal and making all efforts to dissuade them from such conduct, corporate lawyers should report the unlawful activity to those who have overall responsibility for the company’s operation, including, if necessary, the board of directors. If these efforts are unsuccessful, corporate lawyers must decide if they are prepared to go public and resign over the issue. At all times, lawyers should put everything down in writing and obtain confidential guidance either through the Law Society or other senior members of the legal profession.
ALTERNATIVE DISPUTE RESOLUTION
While lawyers who act as mediators are generally covered by the provisions of the code, they must ensure that the parties to it understand fully that “the lawyer is not acting as a lawyer for either party but, as mediator, is acting to assist the parties to resolve the matters in issue and that they will not be covered by the solicitor-client privilege” (see XXI).
Lawyers’ duties as mediator
Lawyers have a duty to advise and encourage clients to settle disputes “whenever possible on a reasonable basis”. This includes discouraging clients from engaging in “useless” litigation (see III, Commentary, s.6).
Even after litigation has begun, lawyers should still actively encourage clients to settle if the case “can be settled reasonable” (see IX, Commentary, s.8).
Also, it is clear that the general prohibitions against engaging in conduct that is “dishonourable or questionable” apply to settlement negotiations (see I, Commentary, s.3)
Apart from these vague directives, lawyers are left to their own ethical sensibilities.
Lying
Charles Curtis: The prime ethical mandate is “do what you can to help friend and harm enemy, as long as you stay within the law”. If this requires lawyers to lie, then they should do so (as long as they are not under oath). The lie is not the lawyer’s lie, but the system’s: lawyers are actors in an institutional drama scripted by clients, not themselves.
Scenario:
If a client informs you that you should settle for anything over $100,000, you presumably lie when you respond to the other side’s opening offer of $50,000 with the line that “my client will not accept less than $150,000”.
Response:
There is a difference between acceptable negotiating strategy (bluffing and exaggeration) and outright lying. Negotiating is a game whose essence is bluff and counterbluff.
Suggestion:
Instead of asserting that “my client will not accept less than $150,000, you could say that “an offer nearer to $150,000 would be more reasonable”.
Also, as with all negotiating, there is a strong strategic (if not moral reason) not to lie: if you get found out and cannot back up your claim, you will be perceived as a bad negotiator. A good negotiator must retain credibility, and “lying” regularly is no way to do that (J.J. White).
False demands in negotiating
There is a line between so-called bluffer and outright lying. There is a tricky question of whether it is acceptable to include the “false” demand in order to drop it later in the negotiations as a concession and sign of good faith.
POVERTY LAWYERS
While lawyers are collectively encouraged to participate in legal aid plans, referral services, pro bono work, and public education programs to help make legal services more accessible and understandable to the “inexperienced”, there is no duty on individual lawyers to do so (see XIV, Commentary, s.5).
However, there is an obligation on lawyers who decide not to act on behalf of someone after a consultation meeting “to assist in finding” another lawyer “without charge” (see XIV, Commentary, s.4).
GOVERNMENT LAWYERS
Lawyers in public office must continue to maintain the same high standards expected of lawyers in private practice because their position “is in the public eye” and, therefore, “the legal profession can more readily be brought into disrepute” by misconduct (see X, Commentary, s.1).
Government lawyers are held to a similar standard as lawyers in private practice (Everingham v Ontario (1992)).
Restrictions
Lawyers “should not appear professionally” in front of official bodies of which they are members, but they can appear professionally before committees of some official bodies, as long as the lawyers are not members of those specific committees (see X, Commentary, s.5).
Conflict of interests
In case of an unforeseen conflict, it is clear that “official duties must prevail”. Personal interests of lawyers include those of lawyers’ relatives, professional associates, partners, and clients (see X, Commentary, ss.2 and 3).
Lawyers in public office who foresee potential conflicts of interest must “declare” them at the “earliest opportunity” and must “take no part in any consideration, discussion or vote with respect” to such issues (see X, Commentary, s.4).
Once they have acted in an official capacity in respect of “any persons or interests”, lawyers should not represent those parties “in the same or any related matter”. If lawyers were members of official bodies at the time certain rulings were made, they should not advise clients on such rulings (see X, Commentary, s.6).
Information acquired in the course of holding public office must be maintained as confidential even after lawyers have ceased to hold such positions (see X, Commentary, s.7).
Discreditable conduct
Discreditable conduct in public office affecting lawyers’ integrity may lead to disciplinary action (see X, Commentary, s.8).
Leaving public office
On leaving public office, lawyers should not accept employment connected to matters with which they would have had “substantial responsibility or confidential information” while in office, to avoid the “appearance of impropriety”. In such matters, lawyers may act in a professional capacity on behalf of the public body for whom they worked (see XIX, Commentary, s.3).
CLASS ACTION LAWYERS
The rules of professional conduct are almost silent on how ethical challenges, like confidentiality and conflicts, are to be dealt with in the context of class actions.
CANADIAN BAR ASSOCIATION: CODE OF PROFESSIONAL CONDUCT
CHAPTER I: INTEGRITY
Disciplinary action (questionable conduct in practice or private life)
Non-Professional Activities (only concerned with extra-professional activities if bring into question integrity of legal profession)
CHAPTER II: COMPETENCE AND QUALITY OF SERVICE
Knowledge and Skill (only take work if competent in that area of law)
Seeking Assistance (lawyer must recognize areas s/he is not fully competent and needs help)
Quality of Service (i.e. keep the client reasonably informed, failure to answer client’s q’s, etc.)
Promptness (prompt service to clients)
Consequences of Incompetence
CHAPTER III: ADVISING CLIENTS
Scope of Advice (lawyer should explain and make sure client understands situation)
Second Opinion (lawyer should assist in obtaining a second opinion if client wants one)
Compromise or Settlement (lawyer should encourage settlement)
Dishonesty of Fraud by Client (lawyer should not assist fraud and be on guard against it)
Test Cases (lawyer may represent such a case if based on good faith and reasonable grounds)
Threatening Criminal or Disciplinary Proceedings (lawyer must not do to gain a civil advantage)
Advice on Non-Legal Matters (lawyer to explain lack of experience & distinguish legal advice)
Errors and Omissions
Giving Independent Advice
CHAPTER IV: CONFIDENTIAL INFORMATION
Maintaining Information in Confidence (includes ‘all’ information, even non-legal advice)
Public Safety Exception (lawyer shall disclose confidential info. if risk of harm / reasonable grounds to believe a dangerous situation)
Disclosure Where Lawyer’s Conduct in Issue (lawyer may disclose to collect fees or defend against allegations of malpractice, but only to the extent necessary for such purposes)
Guiding Principles (lawyer-client privilege)
Disclosure Authorized by Client
Confidential Information Not to be Used
Disclosure Required by Law (Lawyer must be careful not to divulge more than is required)
Whistleblowing (Lawyer in a corporation should first notify higher authority, maybe resign)
CHAPTER V: IMPARTIALITY AND CONFLICT OF INTEREST BETWEEN CLIENTS (and organizations)
Guiding Principles (Lawyer may not represent a client whose interests are adverse to others)
Disclosure of Conflicting Interest (before accepting both clients, lawyer must advise both on all issue, i.e. that no information can be confidential from the other ...)
Lawyer as Arbitrator
Prohibition Against Acting for Borrower and Lender
Acting Against Former Client
Acting for More than One Client
Requests for Proposals and Other Enquiries (discussing a potential retainer with a prospective client does not itself preclude a lawyer from acting in the matter for another party)
Confidential Government Information
Burden of Proof
Conflicts Arising as a Result of a Transfer Between Law Firms (...)
CHAPTER VI: CONFLICT OF INTEREST BETWEEN LAWYER AND CLIENT
Rule (Lawyer should not go into business with client unless ...)
Debtor-Creditor Relationship to be Avoided
Joint Ventures
When Person to be Considered a Client
CHAPTER VII: OUTSIDE INTERESTS AND THE PRACTICE OF LAW
Guiding Principles (Lawyer must not carry on any business in such a way that makes it difficult to distinguish in which capacity a lawyer is acting)
CHAPTER VIII: PRESERVATION OF CLIENTS’ PROPERTY
Guiding Principles (Lawyer should clearly label and identify the client’s property and place it in safekeeping separate from the lawyer’s own property)
Privilege
CHAPTER IX: THE LAWYER AS ADVOCATE
Guiding Principles (fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case ...”)
Prohibited Conduct (Lawyer must not: abuse the process by assisting malice on client’s part, knowingly offer false evidence, assist in fraud, deliberately refrain from informing tribunal of pertinent adverse authority ...)
Errors and Omissions
Duty to Withdraw
The Lawyer as Witness (If lawyer is a necessary witness s/he should withdraw and entrust the case to someone else)
Interviewing Witnesses
Unmeritorious Proceedings (In civil matters, lawyer should avoid and discourage the client from frivolous or vexatious objections or attempts to gain advantage from slips or oversights not going to the real merits, or tactics that will merely delay or harass the other side)
Encouraging Settlements and Alternative Dispute Resolution
Duties of Prosecutor
Duties of Defence Counsel
Agreement on Guilty Plea
Undertakings
Discovery Obligations
Courtesy
Role in Adversary Proceedings
Communicating with Witnesses
Agreements Guaranteeing Recovery
Scope of the Rule
Relations with Jurors
CHAPTER X: THE LAWYER IN PUBLIC OFFICE
Guiding Principles (Legal profession can more readily be brought into disrepute by failure on the lawyer’s part to observe its professional standards of conduct)
Conflict of Interest (Lawyer should declare interests)
Appearances before Official Bodies
Disclosure of Confidential Information
Disciplinary Action
CHAPTER XI: FEES
Rule (Lawyer shall not accept any fee that is not fully disclosed, fair and reasonable, ...)
Factors to be Considered (A fair and reasonable fee will depend on: ...)
Rule (reduce or waive a fee in cases of hardship or poverty or ...)
Avoidance of Controversy (Lawyer should avoid controversy over fees with client and should e ready to explain the basis for charges. Lawyer should give client an early and fair estimate of fees so that the client may be able to make an informed decision)
Interest on Overdue Accounts
Apportionment and Division of Fees
Hidden Fees
Sharing Fees with Non-Lawyers (constitutes professional misconduct)
Contingent Fees
CHAPTER XII: WITHDRAWAL
Rule (Lawyer owes a duty to client not to withdraw except for good cause ...)
Obligatory Withdrawal
Optional Withdrawal
Non-Payment of Fees
Notice to Client
Duty Following Withdrawal
Lien for Unpaid Fees
Duty of Successor Lawyer
Dissolution of Law Firm
CHAPTER XIII: THE LAWYER AND THE ADMINISTRATION OF JUSTICE
Rule (Lawyer should encourage public respect for and try to improve the administration of justice)
Scope of the Rule
Criticism of the Tribunal
Improving the Administration of Justice
CHAPTER XIV: ADVERTISING, SOLICITATION AND MAKING LEGAL SERVICES AVAILABLE
Guiding Principles (It is essential that a person requiring legal services be able to find a qualified lawyer with minimum difficulty or delay)
Finding a Lawyer (The lawyer who is consulted by a prospective client should be ready to assist in finding the right lawyer to deal with the problem / Right to decline a client, but should be slow to exercise this ...)
Enforcement of Restrictive Rules
CHAPTER XV: RESPONSIBILITY TO THE PROFESSION GENERALLY
Guiding Principles (It is proper for a lawyer to report to a governing body any occurrence involving a breach of this Code unless the information is privileged or it would otherwise be unlawful for the lawyer to do so)
Participation in Professional Activities
CHAPTER XVI: RESPONSIBILITY TO LAWYERS AND OTHERS
Avoidance of Sharp Practices (Lawyer should avoid taking advantage of slips or mistakes ...)
Undertakings (Lawyer should not communicate or attempt to negotiate a matter directly with any party who is represented by a lawyer except through or with the consent of that lawyer)
Acting Against Another Lawyer
CHAPTER XVII: PRACTICE BY UNAUTHORIZED PERSONS
Rule (Lawyer should assist in preventing the unauthorized practice of law)
Suspended or Disbarred Persons
Supervision of Employees
Legal Assistants
CHAPTER XVIII: PUBLIC APPEARANCES AND PUBLIC STATEMENTS BY LAWYERS (media appearances)
Public Statements Concerning Clients
Standard of Conduct
Contacts with the Media
CHAPTER XIX: AVODING QUESTIONABLE CONDUCT
Guiding Principles (Even the appearance of impropriety should be avoided)
Duty after Leaving Public Employment
Retired Judges
Inserting Retainer in Client’s Will
Duty to Meet Financial Obligations
Dealings with Unrepresented Persons
Bail
Standard of Conduct
CHAPTER XX: NON-DISCRIMINATION
Duty of Non-Discrimination
Extent of Duty of Non-Discrimination
Special Programs
Responsibility
Discrimination in Employment
Duty of Accommodation
Sexual Harassment and Harassment
CHAPTER XXI: THE LAWYER AS MEDIATOR
CHAPTER XXII: INDEPENDENCE OF THE BAR
PRINCIPLES OF CIVILITY FOR ADVOCATES
PART I – RELATIONS WITH OPPOSING COUNSEL
PART II – COMMUNICATIONS WITH OTHERS
PART III – TRIAL CONDUCT
PART IV – COUNSEL’S RELATIONS WITH THE JUDICIARY
Multiple Clients
A lawyer can choose to represent whichever clients she wishes. She is under no obligation to accept the case. Although the commitment to “refuse no man’s just cause” is taken as oath on call to the bar, this statement is more of a ceremonial gesture. However, once the lawyer accepts a client’s case, she is in a special relationship that cannot simply be abandoned whenever they wish. Therefore, the lawyer should not neglect this important stage on deciding whether or not to accept a case.
Lawyers are under no obligation to accept a case subject to XX, Commentary, s.1(a), which states that lawyers must not “deny services or provide inferior services on the basis of discriminatory grounds”.
Before taking on a client, it would be a good ethical approach to sit down and have a conversation with them first where the lawyer and client can both discuss their expectations of one another.
Lawyers may act for multiple clients if they choose to do so. However, before making such a decision to act for more than one client in a case, the lawyer must take certain precautions and consider possible issues.
Chapter V: Impartiality and Conflict of Interest Between Clients
Rule – The lawyer shall not advise or represent both sides of a dispute and, except after adequate disclosure to and with the consent of the clients or prospective clients concerned, shall not act or continue to act in a matter when there is or is likely to be a conflicting interest.
In making any decision as to whether to act on behalf of multiple parties to a transaction, lawyers would be well advised to consider three interrelated issues (Korponey v Canada (A.G.) (1982) 1 S.C.R., and R v Clarkson (1986) 1 S.C.R.):
- What is the kind of relationship that exists between the clients?
- What are the strategic interests of the clients?
- What is the nature of the services to be performed?
After considering these guidelines, if the lawyer decides to represent both clients, the lawyer will have certain obligations under the Code of Professional Conduct:
- Lawyers must make complete disclosure to clients about conflicting interests that exist or are likely to arise (see V, Commentary, s.3).
- Lawyers must advise clients that in the event of an unresolvable dispute, the lawyer may have to withdraw as counsel of one party or all of them.
- Upon disclosure, lawyers can continue to act for clients who consent (see V, Commentary, s.4). While written consent is preferable, it is not essential (see V, Commentary, s.6). Nonetheless, even after obtaining consent, lawyers should not act for multiple parties when it is “reasonably obvious” that their interests “will diverge as the matter progresses” (see V, Commentary, s.6).
- Examples of situations in which lawyers should be on guard about possible conflicts:
- Co-accuseds in criminal cases,
- Co-plaintiffs in tort cases,
- Insureds and their insurers,
- Parties named as beneficiaries under wills or trusts,
- Construction lien and bankruptcy claimants
- Lawyers must also consider confidentiality issues involved if representing multiple clients. In situations where lawyers are retained by more than one client in the same matter, lawyers must advise the clients that “no information received in connection with the matter from one can be treated as confidential so far as any of the others is concerned” (see V, Commentary, s.6).
In a situation where a client has obtained a lawyer regarding a legitimate lawsuit, but that client has ulterior motives for pursuing the case, such as the desire to ‘crush’ the other side. The lawyer should evaluate her relationship with the client before proceeding with the matter in order to ensure not to bring the administration of justice and the legal profession into disrepute.
Unmeritorious Proceedings
... In civil matters it is desirable that the lawyer should avoid and discourage the client from resorting to frivolous or vexatious objections or attempts to gain advantage from slips or oversights not going to the real merits, or tactics that will merely delay or harass the other side. Such practices can readily bring the administration of justice and the legal profession into disrepute (IX, Commentary, s.7).
Duty to clients: checking zealous partisanship
- Lawyers are under a strong obligation to put their clients’ interests ahead of all others and to act as zealous partisans on their behalf.
- A famous example of the force and rationale of this duty of zealous partisanship is offered by the reasoning of Lord Brougham, who was retained by Queen Caroline, the king’s wife, to defend her against charges of treason. In pursuing the case, he took the daring step of alluding to evidence that might harm the king (see 99).
- Charles Curtis (American commentator): the duty to clients is so strong that lawyers must “treat outsiders as if they were barbarians and enemies”. Lawyers should see themselves as actors who take pride in how well they play their part, but not take responsibility for the part they are asked to play. This view is directly rejected by the Rules.
- There are limits so lawyers’ obligations to be zealous partisans. If the adversary system is to have any chance of working, the court must be able to rely on the fact that it is not being fed out-and-out lies. As advocates, lawyers are under a duty to use tactics that are legal, honest, and respectful of courts and other tribunals. They ought not to employ strategies that are intended to mislead the court or to influence decisions by anything other than open persuasion. Lawyers should not mislead courts about clients agreements with one or more parties (see IX, Commentary, ss.1, 2, 14, 17, and 18).
- The lawyer must not abuse the process of the tribunal by instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring another party (IX, Commentary, s.2(a)).
- Lord Denning describes the lawyers’ duty: “The advocate has a duty to the court which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he want. He owes allegiance to a higher cause. It is the cause of truth and justice. ...” (Meek v Fleming (1961)) (see 107).
- Lawyer’s duty to their clients is only a secondary one; the duty to the court and the profession is primary.
The professional rules impose on lawyers a series of compelling duties that concern the need to preserve confidentiality. Lawyers have a clear and demanding obligation to “hold in strict confidence” all information that comes into their possession and knowledge while fulfilling their professional duties towards clients (see IV). It is, of course, a privilege held by clients and can only be waived with their consent. Lawyers must act in such a way as to ensure that there is “full and unreserved communication” between lawyers and clients (see IV, Commentary, s.1). The Professional Rules embrace “all information concerning the business and affairs of the client”, whether it is of a legal nature or not (see IV).
Withdrawal
- There are a few circumstances in which lawyers are obliged to withdraw from the case. In litigation, this occurs where clients want the lawyers to engage in prohibited conduct, such as knowingly deceiving the court or tribunal, taking malicious action, attempting to influence decisions or officials improperly, and harassing witnesses (see IX, Commentary, ss.2 and 4). In such circumstances, after efforts to persuade clients of the impropriety of such conduct, lawyers must withdraw or seek the leave of the court to do so. In non-litigious matters, lawyers have a similar obligation to withdraw where clients instruct them to act improperly, where they learn that a conflict of interest has occurred, or where they realize that they are no longer competent to handle the matter (see XII, Commentary, s.4).
- However, as a general matter, lawyers can withdraw only where there are compelling and justifiable reasons to do so. While clients have a clear right to dismiss their lawyers as and when they wish (provided they settle their outstanding account), lawyers do not have an equivalent right.
- For lawyers to choose to withdraw, there must have been “a serious loss of confidence between lawyer and client” such as the clients’ persistent failure to follow the lawyer’s advice, to provide necessary instructions, and, most important, to pay their bill after a reasonable time (see XII, Commentary, ss.5 and 6).
- In effecting withdrawal, lawyers must take all reasonable steps to protect the clients’ interests, especially if the case is at a particularly crucial phase in the action or dealing, and to deliver all documents, papers, and property to their clients or the successor lawyer. Nevertheless, lawyers do have a lien over such papers and property until their fees are paid (see XII, Commentary, ss.8 and 11).
Chapter III: Advising Clients
Compromise or Settlement
The lawyer should advise and encourage the client to compromise or settle a dispute whenever possible on a reasonable basis and should discourage the client from commencing or continuing useless legal proceedings (III, Commentary, s.6)
Encouraging Settlements and Alternative Dispute Resolution
Whenever the case can be settle reasonably, the lawyer should advise and encourage the client to do so rather than commence or continue legal proceedings. The lawyer should consider the use of ADR for every dispute and, if appropriate, the lawyer should inform the client of the ADR options and, if so instructed, take steps to pursue those options (IX, Commentary, s.8).
Privilege
The leading authority, Pritchard v Ontario (Human Rights Commission) held that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.