Legal Profession

Three defining features of loyal advocacy (Tim Dare, “Mere-Zeal, Hyper-Zeal…”):

(1) Principle of Neutrality: a lawyer should be neutral towards the client’s goals

(2) Principle of Non-Accountability: a lawyer is not morally accountable for the client’s goals

(3) Principle of Partisanship: a lawyer acts as a partisan to accomplish the client’s goals

• Traditional concept of lawyering about zealous loyalty. Now, that is being critiqued.

Dimensions of loyalty (Neil):

(1) Duty to avoid conflicting interests

(2) Duty of commitment to the client's cause

(3) Duty of candor

Duty of commitment to the client's cause is a principle of fundamental justice [Canada (Attorney General) v. Federation of Law Societies of Canada]

Sometimes, the value of justice supersedes the value of loyalty

• Rule 5.1-1: When acting as an advocate, a lawyer must represent the client resolutely and honorably within the limits of the law

• Rule 5.1-2: When acting as an advocate, a lawyer must not…

• Rule 5.6-1: A lawyer must encourage public respect for and try to improve the administration of justice

  • Commentary [2]: Admission to and continuance in the practice of law implies, on the part of a lawyer, a basic commitment to the concept of equal justice for all within an open, ordered, and impartial system.

• Rule 3.3-3, Commentary [1]: However, in some very exceptional situations identified in this rule, disclosure without the client’s permission might be warranted because the lawyer is satisfied that truly serious harm of the types identified is imminent and cannot otherwise be prevented. These situations will be extremely rare.

• Rule 5.1-2A: A lawyer must not counsel or participate in the concealment, destruction or alteration of incriminating physical evidence or otherwise act to obstruct or attempt to obstruct the course of justice.

  • R v Murray: a lawyer who focuses exclusively on the interests of their client may improperly lose sight of other moral values, including the obligations imposed by the lawyer’s legal duty to protect the fair administration of justice.

• Rule 2.1-1: A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honorably and with integrity.

  • Commentary [1]: Integrity is the fundamental quality of any person who seeks to practice as a member of the legal profession.

·       Rule 2.1-2: A lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations, and institutions

• Rule 7.3-1: A lawyer who engages in another profession, business, or occupation concurrently with the practice of law must not allow such outside interest to jeopardize the lawyer’s professional integrity, independence, or competence.

• Rule 1.1-1: “client” means a person who:

  • (a) Consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or

  • (b) Having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on his or her behalf.

and includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client’s work.

• Commentary [1]: A lawyer-client relationship may be established without formality

• Rule 4.1-1: “A lawyer must make legal services available to the public efficiently and conveniently and, subject to rule 4.1-2 [restrictions], may offer legal services to a prospective client by any means.

  • Commentary [4]: A lawyer must make legal services available to the public efficiently and conveniently; however, a lawyer has a general right to decline a particular representation, but it is a right to be exercised prudently, particularly if the probable result would be to make it difficult for a person to obtain legal advice or representation

• Rule 6.3, Commentary [1]: Despite the existence of a general right to decline representation, lawyers are subject to anti-discrimination norms and have a special responsibility to respect the requirements of and obligations enumerated in human rights laws in Canada

• Rule 4.1-2: In offering legal services, a lawyer must not use means that:

  • (a)    are false or misleading;

  • (b)   amount to coercion, duress, or harassment;

  • (c)    take advantage of a person who is vulnerable or who has suffered a traumatic experience and has not yet recovered; or

  • (d)   otherwise bring the profession or the administration of justice into disrepute

• Rule 7.5-1: “Provided that there is no infringement of the lawyer’s obligations to the client, the profession, the courts, or the administration of justice, a lawyer may communicate information to the media and may make public appearances and statements.”

  • Commentary [1]: “Lawyers ...should conduct themselves in the same manner as they do with their clients, their fellow practitioners, the courts, and tribunals. Dealings with the media are simply an extension of the lawyer’s conduct in a professional capacity ...”

  • Commentary [2]: “... lawyer must first be satisfied that any communication is in the best interests of the client and within the scope of the retainer.”

  • Commentary [3]: “Public communications about a client’s affairs should not be used for the purpose of publicizing the lawyer and should be free from any suggestion that a lawyer’s real purpose is self-promotion or self-aggrandizement.

• Stewart v. CBC: In the context of public media attention directed at a former client or case, lawyers must not engage in behaviour that is motivated by self-promotion or self-aggrandizement.

• Client selection is important: "once a client is taken on, the lawyer has become committed to a whole host of ethical and moral obligations" including a limited ability to end the relationship (Hutchinson, 2006)

• There is ethical consensus that a lawyer should refuse to take a client if: there is a conflict of interest; the lawyer lacks competence in the matter; there is a continuing retainer with a previous lawyer; the lawyer has the potential to be a witness in a case; or there is an illegal purpose.

• First Dealings Doctrine (Descôteaux v. Mierzwinski)

  • The solicitor-client relationship arises as soon as the potential client has their first dealings with the lawyer's office to obtain legal advice (even before the retainer is confirmed)

  • Even if the lawyer does not agree to advise the person seeking their services, communications made by the person to the lawyer or their staff for that purpose are nonetheless privileged

• Retainer Letter

  • Clear, written explanation of key terms of the lawyer-client relationship (scope of work, fees, billing, confidentiality and privacy, termination right)

  • Will govern the terms of your contractual relationship with your client, subject to overriding laws

  • Lawyers have a duty to establish their retainers with clarity and to reduce the contract to writing. Where there is no written retainer, and there is a conflict in the evidence of the lawyer and the client as to a term of the retention, weight will be given to the version advanced by the client rather than that of the lawyer (Ross, Barrett & Scott v. Simanic).

• Rule 3.1-1(a)-(k): "Competent lawyer" means a lawyer who has and applies the knowledge, skills, and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer's engagement

• Rule 3.1-2: A lawyer must perform all legal services undertaken on a client's behalf to the standard of a competent lawyer

  • Commentary [1]: the client is entitled to assume that the lawyer has the ability and capacity to deal adequately with all legal matters to be undertaken on the client’s behalf

  • Commentary [2]: competence involves more than an understanding of legal principles: it involves an adequate knowledge of the practice and procedures by which such principles can be effectively applied

  • Commentary [15]: This rule does not require a standard of perfection. An error or omission, even though it might be actionable for damages in negligence or contract, will not necessarily constitute a failure to maintain the standard of professional competence described by the rule

• Central Trust Co v. Rafuse: SCC held appropriate standard of care is that “of the reasonably competent solicitor”

• Rule 3.2-1: A lawyer has a duty to provide courteous, thorough, and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient, and civil

• Rule 2.1: A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honorably and with integrity

• Rule 6.3: discrimination --> currently being amended to address sexual harassment but not that cultural competence

• Rule 5.6-1, Commentary [1]: imposes obligation on lawyers to speak out against injustice

• Cultural Competence involves dimensions of knowledge, skills, & attitude; the intersection of marginalized identities may also lead to additional legal challenges (Rose Voyvodic)

• Treating cultural competence as a critical skill requires lawyers to have a deeper understanding of culture and difference and an ability to recognize the consequences of being seen as culturally different for many (Pooja Parmar)

• Samuel Singer, “Trans Competent Lawyering”: Respecting a client’s privacy regarding their legal name and legal sex and, whenever possible, using the client’s chosen name and true gender on documents.

• TRC Call to Action 27 calls upon the Federation of Law Societies to ensure lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools; UNDRIP; treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. The task is that of treating Indigenous legal principles seriously and rethinking ethical practice and professionalism by drawing on more than one legal system

• The duty of candor supports the lawyer's long-established fiduciary duty to their clients, and allows the lawyer to disagree with the client in the interest of honest advice. Commentators have grouped the types of information subject to candor into three categories:

  • (1) Information on the lawyer-client relationship, such as conflicts of interest, errors, or negligence relating to the client's matter;

  • (2) Information directly relating to the legal work for which the lawyer was retained;

  • (3) Information that is relevant to the client's interests and relevant to the matter for which the lawyer was retained, but not directly related to the work which the lawyer was retained to perform

• Rule 3.2-2: When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter

• When lawyers provide advice, they must always act in their clients' best interests and meet the standard of the competent, prudent, and diligent lawyer in the same circumstances (Solomon v. Matte-Thompson)

• Rule 3.7-1, Commentary [1]: Client can terminate the lawyer-client relationship anytime without cause. However, the lawyer does not enjoy the same freedom of action.

• Relationship can end naturally when the retainer is completed

  • Final reporting letter informs client that the retainer is over. In practice, simple. In theory, generally reluctancy -- lawyers want to keep the relationship active, but this can cause challenges (i.e. conflicts with new clients)

• Rule 3.7-1: A lawyer must not withdraw from representation of a client except for good cause and on reasonable notice to the client.

  • Commentary [1]: The lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship. It is inappropriate for a lawyer to withdraw on capricious or arbitrary grounds

  • Commentary [2]: An essential element of reasonable notice is notifying the client ... with sufficient time to retain and instruct replacement counsel.

• [Optional Withdrawal] Rule 3.7-2: If there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.

  • Commentary [1]: A lawyer may have a justifiable cause for withdrawal in circumstances indicating a loss of confidence, for example, if a lawyer is deceived by his client, the client refuses to accept and act upon the lawyer’s advice on a significant point, a client is persistently unreasonable or uncooperative in a material respect, or the lawyer is facing difficulty in obtaining adequate instructions from the client.

• [Obligatory Withdrawal] Rule 3.7-7: A lawyer must withdraw if:

  • (a) discharged by a client;

  • (b) a client persists in instructing the lawyer to act contrary to professional ethics; or

  • (c) the lawyer is not competent to continue to handle a matter.

• Rule 3.7-7A When a lawyer leaves a law firm, the lawyer and the law firm must:

  • (a) ensure that clients who have current matters for which the departing lawyer has conduct or substantial involvement are given reasonable notice that the lawyer is departing and are advised of their options for retaining counsel; and

  • (b)  take reasonable steps to obtain the instructions of each affected client as to who they will retain.

• [Non-Payment of Fees] Rule 3.7-3: If, after reasonable notice, the client fails to provide a retainer or funds on account of disbursements or fees, a lawyer may withdraw unless serious prejudice to the client would result

  • Commentary [1]: When the lawyer withdraws because the client has not paid the lawyer’s fee, the lawyer should ensure that there is sufficient time for the client to obtain the services of another lawyer and for that other lawyer to prepare adequately for trial.

• [Withdrawal from Criminal Proceedings] Rule 3.7-4: If a lawyer has agreed to act in a criminal case and the interval between a withdrawal and the trial of the case is sufficient to enable the client to obtain another lawyer and to allow such other lawyer adequate time for preparation, the lawyer who has agreed to act may withdraw because the client has not paid the agreed fee or for other adequate cause provided that the lawyer:

  • (a)    notifies the client, in writing, that the lawyer is withdrawing because the fees have not been paid or for other adequate cause;

  • (b)   accounts to the client for any monies received on account of fees and disbursements;

  • (c)    notifies Crown counsel in writing that the lawyer is no longer acting;

  • (d)   in a case when the lawyer’s name appears on the records of the court as acting for the accused, notifies the clerk or registrar of the appropriate court in writing that the lawyer is no longer acting; and

  • (e)   complies with the applicable rules of court.

• Rule 3.7-5: If a lawyer has agreed to act in a criminal case and the date set for trial is not such as to enable the client to obtain another lawyer or to enable another lawyer to prepare adequately for trial and an adjournment of the trial date cannot be obtained without adversely affecting the client’s interests, the lawyer who agreed to act must not withdraw because of non-payment of fees.

• Rule 3.7-6: If a lawyer is justified in withdrawing from a criminal case for reasons other than non-payment of fees and there is not a sufficient interval between a notice to the client of the lawyer’s intention to withdraw and the date on which the case is to be tried to enable the client to obtain another lawyer and to enable such lawyer to prepare adequately for trial, the first lawyer, unless instructed otherwise by the client, should attempt to have the trial date adjourned and may withdraw from the case only with the permission of the court before which the case is to be tried.

·       Rule 3.7-8: When a lawyer withdraws, the lawyer must try to minimize expense and avoid prejudice to the client and must do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor lawyer

·       Rule 3.7-9: On discharge or withdrawal, a lawyer must:

(a)   notify the client in writing, stating: (i) the fact that the lawyer has withdrawn; (ii) the reasons, if any, for the withdrawal; and (iii) in the case of litigation, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should retain new counsel promptly;

(b)   subject to the lawyer’s right to a lien, deliver to or to the order of the client all papers and property to which the client is entitled;

(c)    subject to any applicable trust conditions, give the client all relevant information in connection with the case or matter;

(d)   account for all funds of the client then held or previously dealt with, including the refunding of any remuneration not earned during the representation;

(e)   promptly render an account for outstanding fees and disbursements;

(f)    co-operate with the successor lawyer in the transfer of the file so as to minimize expense and avoid prejudice to the client; and

(g)   comply with the applicable rules of court.

·       Rule 3.5-2, Commentary [3]: Subject to any rights of lien, the lawyer should promptly return a client’s property (Rule 3.5-1:“property” includes wills, deeds, minute books, files, reports, invoices, jewellery, etc.) to the client on request or at the conclusion of the lawyer’s retainer.

o   Commentary [4]: If the lawyer withdraws from representing a client, the lawyer is required to comply with Rule 3.7-1 (Withdrawal from Representation).

·       Rule 3.5-6: A lawyer must account promptly for clients’ property that is in the lawyer’s custody and deliver it to the order of the client on request or, if appropriate, at the conclusion of the retainer.

·       Rule 3.3-1, Commentary [3]: Duty of confidentiality survives indefinitely

·       In some circumstances, the need for the lawyer to withdraw from the representation can create challenges for the lawyer's ability to protect the client's confidentiality. The lawyer must withdraw, but must do so in a way that does not jeopardize the client's right to confidentiality

o   Cunningham  non-payment of fees was not linked to the merits of the matters and would not cause prejudice to the accused, but, in a spousal support dispute, it would be relevant to the merits and cause prejudice

A lawyer's obligation not to disclose client confidences is grounded in both the common law doctrine of solicitor-client privilege and the duty of confidentiality (ethical rule) found in lawyer codes of professional conduct.

Nature of the Communication:

• Solicitor-Client Privilege: To be privileged, a lawyer-client communication must be made for the purpose of providing legal advice.

• Duty of Confidentiality: All information concerning the business and affairs of a client acquired during the professional relationship attracts the lawyer's professional duty of confidentiality.

Source of Information:

• Solicitor-Client Privilege: attaches only to information that comes from the client or, in some cases, an agent of the client.

• Duty of Confidentiality: the lawyer's obligation of confidentiality applies irrespective of where the information came from.

• Rule 3.3-1: A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:

  • (a)    expressly or impliedly authorized by the client;

  • (b)   required by law or a court to do so;

  • (c)    required to deliver the information to the Society, or

  • (d)   otherwise permitted by this rule

  • Commentary [2]: This rule must be distinguished from the evidentiary rule of lawyer and client privilege, which is also a constitutionally protected right, concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge

  • Commentary [3]: the duty survives the relationship

  • Commentary [4]: the duty applies to potential clients (remember Descouteaux)

  • Commentary [5]: the fact that you have been retained or consulted by someone is confidential

• Rule 3.3-2: A lawyer must not use or disclose a client’s or former client’s confidential information to the disadvantage of the client or former client, or for the benefit of the lawyer or a third person without the consent of the client or former client

  • Commentary [1]: The fiduciary relationship between a lawyer and a client forbids the lawyer or a third person from benefiting from the lawyer’s use of a client’s confidential information. If a lawyer engages in literary works, such as a memoir or autobiography, the lawyer is required to obtain the client’s or former client’s consent before disclosing confidential information.

• Non-Legal Advice exclusion (applies to privilege): not all communications are protected; advice given by lawyers on matters outside the solicitor-client relationship is not protected. (R v. Campbell)

• Criminal Communications exclusion (crime-fraud exclusion): communications in furtherance of a crime or fraud do not form part of the legal professional relationship and hence no privilege can apply. The exclusion applies to: (1) Communications that can be considered, in and of themselves, to be criminal (i.e. Descouteaux) and (2) Communications that were made in order to facilitate a crime (i.e. advice given by a lawyer to an individual about how to launder money)

• Statutory Exceptions (applies to privilege): Any statutory abrogation of solicitor-client privilege must be expressly authorized (Canada v. Blood Tribe). Substantive Rule: a judge must not interfere with the confidentiality of communications between solicitor and client "except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation" (Descôteaux; Goodis). Determined by:

  • (a)    Whether the requester has the authority to demand the production of records subject to solicitor-client privilege (Merchant); and

  • (b)   If so, whether that authority has been exercised so as not to interfere with privilege except to the extent absolutely necessary (Merchant).

• The "Public Safety" Exception (applies to both) Rule 3.3-3: A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm. There are three factors to be considered when determining whether public safety outweighs solicitor-client privilege  (Smith v. Jones) :

  • (a)    Clarity: There must be a clear risk to an identifiable group or person;

  • (b)   Seriousness: The threat must be such that the intended victim is in danger of being killed or of suffering serious bodily harm. Serious psychological harm may constitute serious bodily harm, so long as it substantially interferes with the health and well-being of the complainant (McGraw);

  • (c)    Imminence: The risk of serious bodily harm or death must be imminent. That is, the nature of the threat must be such that it creates a sense of urgency.

• Law Society Investigations & Disciplinary Proceedings (applies to both): Law societies have explicit statutory authority (NS CPA, s.35A) and implicit authority (Merchant) to require a lawyer to provide information or produce documents in the context of a law society investigation or proceeding notwithstanding that confidentiality or solicitor-client privilege may attach to such documents. This does "not negate or constitute a waiver of any privilege" and affirms that "privilege continues for all other purposes"

  • Morris; Rule 3.3-4(d): If it is alleged that a lawyer or the lawyer’s associates or employees have engaged in acts of professional misconduct or conduct unbecoming a lawyer, the lawyer may disclose confidential information in order to defend against the allegations, but must not disclose more information than is required.

• Lawyers’ Exceptions (applies to confidentiality)

  • Lawyer Defending Self (Rule 3.3-4): If it is alleged that a lawyer or the lawyer’s associates or employees:

    • (a)    have committed a criminal offence involving a client’s affairs;

    • (b)   are civilly liable with respect to a matter involving a client’s affairs;

    • (c)    have committed acts of professional negligence [...]

  • the lawyer may disclose confidential information in order to defend against the allegations but must not disclose more information than is required.

• Collect Legal Fees (Rule 3.3-5): A lawyer may disclose confidential information in order to establish or collect the lawyer’s fees, but must not disclose more information than is required

• Lawyer Seek Advice (Rule 3.3-6): A lawyer may disclose confidential information to another lawyer to secure legal or ethical advice about the lawyer’s proposed conduct

• Direct Conflicts of Interest (Rule 3.3-7): A lawyer may disclose confidential information to the extent reasonably necessary to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a law firm, but only if the information disclosed does not compromise solicitor-client privilege or otherwise prejudice the client

• Court Exceptions (applies to confidentiality)

• Conflicts with Juror (Rule 5.5-2): Unless the judge and opposing counsel have previously been made aware of the information, a lawyer acting as an advocate must disclose to them any information of which the lawyer is aware that a juror or prospective juror:

  • (a)    has or may have an interest, direct or indirect, in the outcome of the case;

  • (b)   is acquainted with or connected in any manner with the presiding judge, any counsel or any litigant;

  • (c)    is acquainted with or connected in any manner with any person who has appeared or who is expected to appear as a witness.

• Improper Conduct by Juror Rule 5.5-3: A lawyer must promptly disclose to the court any information that the lawyer reasonably believes discloses improper conduct by a member of a jury panel or by a juror.

• Security of Court Facilities (Rule 5.6-3): A lawyer who has reasonable grounds for believing that a dangerous situation is likely to develop at a court facility must inform the persons having responsibility for security at the facility and give particulars.

• Solicitor-client privilege belongs to the client, not the lawyer. The common law recognizes that a client can instruct their lawyer to waive privilege in respect of a communication.

• Rule 3.3-1: Lawyers are permitted to disclose confidential client communication "if expressly or impliedly authorized by the client"

• Rule 7.2-10: Inadvertent disclosure does not automatically constitute waiver. A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.

• Rule 1.1-1: “conflict of interest” means the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person

• Rule 3.4-1: A lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code

Analysis

1. Who is your “client”?

2. What has your client retained you to do?

3. Identify potential sources of conflict

4. If conflict identified, can it be addressed through “reasonable measure” or appropriate consent?