Legal Profession

by Christian A.

How might you define cultural competence? (It isn’t defined in the Code)

  • 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

Can a client terminate the lawyer-client relationship? Can a lawyer? If so, how?

  • 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.

What obligations does a lawyer face when withdrawing? How long does the duty of confidentiality last?

·       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

Explain the duty of confidentiality.

  • 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.

Are there any exclusions to the duty of confidentiality?

  • 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.


Christian A.


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