Ethics Exam Guide:
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State the issue (based on the facts)
state the applicable law (Consider any governing law that may bear on the problem)
Look to the rules and commentaries
Decide if your duties are permissive or mandatory
give one quick argument for the application of the law in this instance
give one quick argument against the application of the law in this instance.
Make a brief policy analysis (usually rooted in the NC model, or perhaps the duty of loyalty for COI
problems)
Consider how to balance competing duties.
call it a day  focus on providing the right legal advice – once you’ve provided enough info to advise the client
correctly, move on to the next issue]
CBA I – Integrity
Rule: “The lawyer must discharge with INTEGRITY all duties owed to clients, the court, other members of
the profession and the public.”
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Comm 1  fundamental quality of any lawyer  cornerstone of the profession. Without it the lawyer is
useless no matter how competent he is.
Comm 2  Integrity is a KEY ELEMENT in every rule of the code  ATTACHES TO ALL RULES!
Comm 3 questionable conduct in private/professional life that taints legal profession/person is
sanctionable
Comm 4  purely private matters are excluded.
Comm 5  examples of infringements * see materials.
NOTES  not normally a stand alone offence. Typically attached to another breach of the rules if the conduct is
especially heinous. However, could still be used as a stand alone, even though it has not been done in past decade.
RULES OF PROFESSIONAL CONDUCT
1.03(1)(f) – carry out the practice of law with integrity (standard of the legal profession) and observe the rules in the letter
and the spirit of the law(SMELL TEST)
3.01 – make legal services available in a way compatible with integrity of the profession
6.01.1 – conduct themselves with integrity (general responsibility to the profession)
6.03 – responsibility to lawyers and others  (1) courtesy and good faith – be nice to everyone.
(3) avoid SHARP PRACTICE  don’t take advantage of slips or mistakes of others.
EXAM!!!!! = the smell test says that even if your behavior does not technically violate the rules that have been set out in the rules
and regulations of the RPC…the Law Society can still USE the smell test in order to determine whether your behaviour should be
sanctioned, not withstanding on has not technically violated any of the enumerated rules.
IMPLICATIONS – this means that even though one has not violated the letter of the law – the LS and RPC say that if you have
violated the SPIRIT of the law = you may still be penalized. So you can’t be tricky and use loophole. If the conduct STINKS of
lacking integrity and there is no rule to cover what you have done, the law society can chose to sanction you, notwithstanding that
you might not have technically violated any of the rules set out in the letter/language of the law.
With the integrity rule – the LS is concerned with what your conduct has done to the reputation of the legal profession. If your
conduct can in some way make the public think that the legal profession is bad – the conduct is likely not done with integrity!
If your behavior taints the legal profession or hurts its reputation - your behavior lacks integrity!!!
EXAM: when considering any other offense of the rule in the ORPC – look to see if the violation is so nasty or bad that it could
ALSO be a violation of integrity!
Because the trend for the LS is that integrity is not a stand-alone offense – but rather a supplementary offence attached/grounded in
a “real charge” to elevate the punishment that one would normally get, but for this lack of integrity. However technically the LS
hasn’t done this in past decade.
Cases:
ADAMS v. LAW SOCIETY OF ALBERTA - Sex with 16 yr old client, disbarred  Regulators try to impose penalties
that outweigh perceived benefit of unethical conduct  punishment to deter!
LAW SOCIETY OF BC V. A LAWYER (2000) Lawyer negotiating about case and marriage, not disbarred  Rules
imposed are implicit prices on certain behaviors - specific and general deterrence is goal of punishment.
LSUC V (Bruce) CLARK  reprimand for insulting the court. Duty to act resolutely for the client trumps the duty to
the court, so long as the actions of the advocate are WITHIN THE LIMITS OF THE LAW!
LSUC V MURRAY  evidence classes for hiding evidence showing that the client was guilty. Again, here was a
conflicting duty to the client and the courts. Behavior can be explained by the economic analysis  he had an interest in
winning the case. He was acting resolutely for his client, which is a requirement under the CBA. However, he could not
rely on the neutral conduit argument as one of the requirements one asks themselves is whether the activity is illegal?? 
in this case it was not. So although it was in the best interests of his client, since the act was not legal  not caught
under the ambit of the NC argument.
LSUC v Ryan  SCC reinstated the holding of disbarment. SCC said it was certainly within reason for the Law Society
to hold that Ryan lacked personal integrity. It appears that truthfulness is part of integrity, so lying to your client seems
to be an indication of lack of integrity (Ryan). Again though, the SCC didn’t define what integrity actually is. Advancing
an argument you don’t believe in isnt a violation of integrity. Belief in if argument is true seems to be relevant (Bruce
Clark). Subjectivity of courts seems to be very relevant (Bruce Clark).
Law Society Act (LSA) s.27(2) - Good Character requirement:
“It is a requirement for the issuance of every licence under this Act that the applicant be of good character.”
TAKE AWAY – When LS deciding admittance to BAR, they assess ones character at present! (not character in the past or
what they think your character will be in the future) Although one’s past used as indicator of what your character is NOW.
OWN UP TO YOUR PAST MISTAKES – convince the LS that you are a good person now, notwithstanding your past
conduct and the LS is likely to admit you.
ALSO Note – the good character requirement only needs to be met at that time, which is at the time of admittance to the bar. After
that – one never needs to pass the good character requirement again – and conduct will instead be gauged upon integrity.
POINT: the LS looks at the character that you HAVE NOW….not the character that you had in the past – although the
past is used as an indicator of who you are now...but pretty much if you admit that behaviour was wrong and that you feel bad for it
– LS will likely admit you because though you are of bad character in the past, your present character is good – and that is what
matters to the LS.
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**BURDEN OF PROOF IS ON YOU to assert that you are currently a person of good character on BALANCE
OF PROBABILITIES
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*Good character requirement is only relevant at time of call—after you’re called, integrity is what’s
relevant
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Cases
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People who had committed election fraud in the past, stabbed mother in throat (although she was swinging a
baseball bat at him), etc. were found to be ppl of good character
Current assessment of current character based on your current assessment of your past events
What’s relevant is your present attitude to things you’ve done in the past (if you admit you did bad shit, but say
you knew what was wrong, you’ll probably be accepted)
o *CONTRITION is a core element of being called to the bar
I) re DMP —U of T PEDOPHILE—pg 130--- he said his conduct was done in a loving manner;
didn’t seem remorseful, didn’t make eye contact = not accepted bc eww (and LSUC wants to protect
reputation of lawyers)
II) LSUC v D’Souza 2008—U of T Transcript—she didn’t own up to lying-- = not allowed --LSUC used this to deter ppl from cheating in law school/modifying their marks
III) Law Society v Burgess 2006 – Queen’s Plagiarism (downloaded from internet)—she didn’t
express remorse or own up to her behaviour = still a liar so NOT admitted —her `sudden
epiphany`after the hearing had started that what she had done was wrong was insufficient
IV) Law Society v Shore – Osgoode, Crim-evidence (NEW)—Devon’s mom—hid evidence relevant to a
crim prosecution prior to law school (went against Admin of Justice = awful); but she admitted what she did
was wrong and felt terrible = ADMITTED to Bar; **CREDIBILITY AT YOUR HEARING IS THE KEY
FACTOR THAT THE LSUC USES TO DETERMINE IF YOU ARE A PERSON OF GOOD CHARACTER
(LSUC v Shore)
CBA XIX – Avoiding Questionable Conduct
Rule: “The lawyer should observe the rules of professional conduct set out in the Code in the spirit as well as
in the letter”
Rule  its not just what is written that is important, rather follow what the rules are trying to set out as principles as to
how lawyers should act. Read the CBA in a PURPOSIVE WAY!!!  CBA’s Smell test! (rpc 1.03(1)(f))
“JUSTICE MUST NOT ONLY BE DONE, IT MUST BE SEEN TO BE DONE”
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Comm 1  avoid behavior that erodes the reputation of the profession  even the appearance of
impropriety should be avoided (MacDonald v. Martin)
Comm 2  statements or conduct that makes it seem like one is trying to circumvent the law  puts the
system into disrepute!  AVOID. (justice system is very wary and self conscious about appearance)
Comm 8  do not undertake to advise an unrepresented person, urge them to get independent counsel.
Comm 10  STANDARD OF CONDUCT  observe at ALL times a standard of conduct that reflects
honor, credibility and confidence in the legal system and profession. Must EARN and KEEP trust and respect
of community and clients.
From MacDonald:
Legal system is very wary and self-conscious of how it looks in the eyes of the public. It never wants to look as if there is any
form of impropriety or even an appearance of such. It is imperative that the officers of justice (lawyers) conduct themselves in a
manner that upholds integrity of the system – or else the system will not work. Suspicion in the mind of the public towards
whether information revealed to their lawyer will be disclosed to others against their best interest is crippling to our filed, since
confidentiality is something which is required in order for us to do our job properly. As a result – where a situation arises and
there is a potential for such impropriety, the court will hold those accused of such conflict of interest to a very high standard
when attempting to disprove that there is no risk....tainting the sanctity of the profession is a big deal and courts want to do all
they can to avoid this situation. They always want the public to see that they are pure and true – with no hint of indecency.
“JUSTICE MUST NOT ONLY BE DONE, IT MUST BE SEEN TO BE DONE”
Cases:
RULE VIOLATED  ADAMS, MacDONALD, A LAWYER, CHODOS, Murray, Zwicker, Meek, Ryan
RULE VIOLATED FOR THE GOOD  BC v CLARK.
CBA IV – CONFIDENTIALITY
Rule 1: “The lawyer has a duty to hold in strict confidence all information concerning the business and affairs of the client
acquired in the course of the professional relationship, and should not divulge such information unless disclosure is expressly
or impliedly authorized by the client, required by law or otherwise permitted or required by this Code.”—same wording in
RPC 2.03(1) see below
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Rule Sub 1  see rule above.
* Rule Sub 2  Public safety exception (Mandatory) CL - Smith - permissive (ROPC 2.03(3) is permissive) p
300.  this is a future harm exception, not a past harm. If it’s a past harm you cannot disclose!  duties as an
advocate kick in and you are know required to act resolutely, without judgement and within limits of law!!!
* RuleSub 3  if lawyer has suspicion that shit is about to go down  warn somebody but don’t breach rule.
* Rule Sub 4  Self interest – to collect fees and defend (R. v. Dunbar)
Comm 1  Rationale – must be complete disclosure to do job properly – client comfortable tell all
Comm 2 SC privilege  oral and written between client and lawyer is privileged.—SEE BELOW
Comm 3 SC privilege is an evidence rule. Confidentiality is much broader.—SEE S-C Priv BELOW
Comm 4  non disclosure of retainer or consultation – Brad Pitt rule
Comm 5  Continuation of confidentiality forever** (Geffen)- SEE BELOW
Comm 6  take care to avoid disclosure about confidential info  decline employment that might require discl
Comm 7  avoid indiscreet convos, even with spouse/family/friends  don’t gossip
*Comm 8  Public Knowledge exception
*Comm 9  Authorized disclosure from client  CONSENT TO DISCLOSE
Comm 10  no USE of information (Szarfer v. Chodos)  for lawyer, third party OR disadvantage of
client.—SEE BELOW
*Comm 11  disclosure required by law
Comm 12  Whistleblowing – DON’T do it…unless it’s a public safety exception (SUB 2)
*exceptions to confidentiality and SC privilege only reveal as much as necessary – NEVER MORE than needed! (sub
2 and comm. 10.)
**wills exception from Geffen.
***Innocence at stake (recognized by common law in Dunbar and Smith) but outright rejected by Derby Magistrates
 not recognized in the CBA as an exception.
***Promoting Justice – JACK  not recognized under CBA.
Rules of Professional Conduct Rule 2.03(1):
(i) hold in strict confidence all information
(ii) won’t divulge any information unless expressly / impliedly required to do so by law
CBA Code Chapter 4: exactly the same wording
S-C privilege (see commentaries 2/3):
SC privilege is the most important/highest privilege recognized by the courts! Confidentiality makes the system work – you cannot
get all the information you need form the client- you cannot act as a proper conduit
Comm 2/3 SCP only an exception to rule of evidence  Not as broad as C. SC-P is a small set of C.
Solicitor client Privelege – right and duty of the lawyer to assert P if called upon to testify against the client in court!
Basic rule: Once communication is privileged, always privileged. That privilege stays in place after legal matter ends, death,
etc.(Geffen v Goodman estate + CBA IV comm. 5.)
3 core components to ascertaining whether info is privileged:
1. Information must be sought from a professional legal advisor. Privilege extends to those assisting lawyer in connection with
this case (secretary, articling students, paralegals)
2. The information has to be for the purpose of obtaining legal advice.
3. Communication has to have been made in confidence (act as if you intend to keep it confidential).
Scope of SC privilege:
1)
2)
3)
4)
Encompasses both oral and written communications that was sought for legal advice.
Does not cover documents that exist before the solicitor-client relationship.
Does not extend to physical objects or evidence (still may be caught by broader confidentiality).
Eg: In Murray, videotapes were not privileged.
Exceptions to Solicitor-Client Privilege
1.
Innocence of the Accused: Where maintaining the privilege might screen from the jury information which would assist the
accused – the privilege is waived  courts interpretation of rule, but not in CBA/ROPC, if you break the rule for this reason,
LS will likely NOT sanction you.
2. Criminal Communications: Communications that are criminal themselves or that are intended to obtain legal advice to
facilitate criminal activities are not privileged.
3. Information that is divulged in front of a lawyer but with a person who is not necessary to the proceedings…(see
commentary 2 under Confidentiality in Appendix)
4. The Public Safety Exception: (CBA Chap IV, sub 2 p. 523 - Mandatory) In certain circumstances, where safety of public is
at risk, privilege must be set aside. This exception developed in Smith now embodied in Ontario Rule 2.03(3) (permissive) (p.
300).
Extent of Disclosure: limited as much as possible Only reveal as much information is needed to meet the end, not more. (comm.
2 under public safety)
PROMOTING JUSTICE (as an exception to SC privilege – not recognized in CBA)
R. v. JACK - Lawyer giving evidence re: missing wife who was client  SC Privilege can be invoked by the
client themselves, but can also be invoked or waived in the “interest of justice” so long as the waiver benefits
the client who’s information is otherwise privileged + third parties CANNOT attempt to uphold privilege, as it
is not their benefit to claim.
RATIO:
General rule: Solicitor-client privilege is of the power of the client alone to invoke. However there is an Exception in extraordinary
circumstances (like here where client is unavailable and a 3 rd party can claims that privilege should be upheld). Courts tending to
allow evidence to be introduced in “the interests of justice” where this benefit clearly outweighs importance of any public interest
that might be protected by upholding privilege. Not recognized in CBA Code.
Privilege is to only protect the client who has disclosed information, not to protect others. Thus privilege can only be
invoked by the client themselves and not by a third party. However, where it could be viewed as in the best interests of
the client, as well as in the “interests of justice” privilege can be waived by the courts.
Comm 5: CONTINUATION OF THE DUTY OF CONFIDENTIALITY
CONTINUATION OF DUTY OF CONFIDENTIALITY
CBA Chapter IV Commentary 5 (p. 522):
“The lawyer owes a duty of secrecy to every client without exception, regardless of whether it be a continuing or casual client. The
duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether
or not differences have arisen between them.”
(Geffen v. Goodman Rule!)
Wills Exception: In the case of wills, the information provided to the lawyer is meant to be confidential during the client’s life, but
not necessarily after death as those seeking to breach privilege have a joint interest with the client and the cliet’s interest are
promoted by the breach. (Geffen)
Two most compelling reasons that SC privilege can be breached in the Wills cases: (Geffen)
1) Those seeking to breach privilege (living) have a joint interest with the client.
2) Client’s interests are promoted by the breach + dead client no longer has an interest in keeping the information privileged.
GEFFEN v. GOODMAN ESTATE - Lawyer providing evidence re: will of deceased  Duty of secrecy
continues after death + Wills Exception
RATIO:
In certain circumstances – especially with a dead person – interests of justice can override the privilege that a client is protected by
when: it’s in the best interests of society and further if the person can no longer receive the benefits of the privilege!!!
Comm 10: USE OF INFORMATION
CONFIDENTIAL INFORMATION NOT TO BE USED
CBA chapter IV commentary 10: (pg 301)
“The fiduciary relationship between the lawyer and the client forbids the lawyer to use any confidential information covered by
the ethical rule for the benefit of the lawyer or a third person, or to the disadvantage of the client.”
(Szarfer v Chodos RULE!)
SZARFER v. CHODOS (1986, Ont. CA) (p. 302) Lawyer having affair with wife of P  Can’t divulge or USE
confidential info  this will result in tort or K damages + a potential sanction from LS.
The doctrine of confidentiality not only covers the disclosure of information but also extends to the use of such secret information.
Use that is either detrimental to the client OR beneficial to the lawyer is STRICTLY prohibited. The use of such information, even if
not disclosed to any person can result in tort damages and sanction from the Law Society.
Cases:
SMITH V JONES  Public safety exception (Mandatory in CBA sub 2) 3 requirements + future harm, not past +
only as much as needed
R. v JACK  Interests of justice exception not recognized by CBA
GEFFEN ESTATE V. GOODMAN  wills exception at CL of comm. 5 (continuing duty)  this was because it was
in the interests of the client as well as others for the breach and there was no reason for the privilege to continue to
operate, as they were dead….(situation might be different if it would NOT be in their interests, even if they were dead.
Erodes the confidence of clients, makes lawyers less able to perform neutral conduit function as they may not be
equipped fully with information. Clients may be reluctant to disclose everything, for fear that if they die, this stuff would
be revealed.
***R V. DERBY MAGISTRATES  explicitly denouncing the innocence at stake exception/interests of justice—
House of Lords Case
R. V. DUNBAR  CL affirmation of Sub 4  exception to confidentiality for self interests of lawyer.
SZARFER V. CHODOS  no use of information, as this is considered breach of confidentiality  43k + 6 mths
EXCEPTIONS TO CONFIDENTIALITY
1. FUTURE HARM/PROTECTING PUBLIC SAFETY (CBA IV, sub 2)
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For purposes of exam  CBA IV, sub 2 is to be used which is a MANDATORY RULE!  lawyer must disclose where
there is a public safety risk!
SMITH v. JONES (1999, SCC) (p. 285) Psychiatrist assessed potential murderer  Public Safety Exception to
SC privilege  CBA IV sub 2
3 factors to determine when public safety outweighs SC privilege:
1. Clarity – is there a clear risk to an identifiable person or group of persons?
2. Seriousness - Is there a risk of serious bodily harm or death?
3. Imminence of harm - is the danger imminent?
RATIO:
Solicitor-client privilege is a principle central to the administration of justice, but when public safety is involved and the laywer
believes on reasonable grounds that a clear risk of death or serious bodily harm is imminent to a particular person or
group, the privilege should be set aside (see exceptions below).
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If a public safety exception applies to solicitor-client privilege, it applies to all classifications of privileges and duties of
confidentiality
Exception developed in Smith now embodied in Ontario Rule 2.03(3) and CBA IV (2)
EXAM NOTE:
While the wording in the ROPC is Permissive [ie no penalty in tort or K or LSA], the CBA which is now binding is
MANDATORY!  so if you don’t tell you can’t be sued in contract or tort by the person who is injured from you not telling
BUT the LSUC can sanction you!
Implication  The other wording (in the CBA chapter IV sub 2) says that in the interests of PUBLIC SAFETY the lawyer
“SHALL” ie MUST disclose….doesnt give you the option. THIS WILL BE BINDING LAW ON EXAM!!!
EXAM NOTE: It’s a “future harm” exception = not a past harm exception – meaning that if the harm has already
passed, ie the client has already done the crime – this exception might not apply. It ONLY applies to acts that the future
WILL do, not the stuff that he has already done.
Always seek your client’s authorization to disclose FIRST!, maybe they will allow you to tell….this will thus make
you fall under the authorization to tell exception. (authorized disclosure – CBA IV, comm. 9) – this makes things easier,
as it avoids you having to be looked at LSUC and have to rely on future harm exception.
2. LAWYER SELF-INTEREST (CBA IV, sub 4)
CBA Code Chapter IV, sub 4 (p. 365):
[Binding for purposes of Exam]
“Disclosure [of a client’s confidential information] may also be justified in order to establish or collect a fee, or to defend the
lawyer or the lawyer’s associates or employees against any allegation of malpractice or misconduct, but only to the extent necessary for
such purposes.”
Practical Tip:
If a third party (crown or cop) is alleging misconduct on your part = go to your client and ask for authorization (CBA
IV, comm. 9) from them to disclose enough as you can to defend yourself. This saves you the headache of getting
charged from the client/LS for breaching confidentiality, because you have received explicit authorization to disclose this
confidential information.
R. v. DUNBAR - Rats out co-accused  Accusation on lawyer = Where there is partial disclosure than
impugns the lawyer’s reputation – the entire cloak of privilege is raised and the conversation/information is no
longer privileged and can be used by third parties since there is no longer any privilege protecting the
information.
Where a former client alleges that a lawyer has committed some form of misconduct, normally the SC privilege is waived
insofar as to allow the lawyer to defend himself – however the information divulged must only be as much as needed
and not more. (CBA IV, sub 4) However in this case the court said that once a client discloses a part of convo between
client and laywer, the whole cloak of privilege is raised, and therefore the privilege info can be used by third parties 
NOTE however that this is a common law rule and NOT an ROPC/CBA rule.
3. PUBLIC KNOWLEDGE (CBA IV, comm. 8)
CBA Code, chapter IV, commentary 8 (p. 392):
“Although the rule (confidentiality) may not apply to facts that are public knowledge, the lawyer should guard against participating
in or commenting upon speculation concerning the client’s affairs or business.”
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Note that not all jurisdictions support this exception (eg: Alberta).
Where lawyers are permitted to disclose, questions arising:
1) How widely known must info be?
2) Must it actually be known, or just accessible?
4. AUTHORIZED USE OR DISCLOSURE (CBA IV comm. 9)
CBA Code Chapter IV Commentary 9 (p. 392):
“Confidential info may be divulged with the express authority of the client concerned and, in some situations, the authority of the
client to divulge may be implied.”
Eg of Implied consent = “for example, some disclosure may be necessary in a pleading or other document delivered in litigation
being conducted for the client. Again, the lawyer may (unless the client directs otherwise) disclose the cleint’s affairs to partners and
associated in the firm and, to the extent necessary, to non-legal stff such as secretaries and filing clerks. This authority to disclose,
whether express or implied, places on the lawyer a duty to impress upon partners, associate, students and employees the importance
of nondisclosure (both during employment and afterwards) and requires the layer to take reasonable care to prevent their disclosing
or using information that the lawyer is bound to keep in confidence.”
Ontario Rule 2.03(1) (p. 392): Where client authorizes lawyer to disclose info, ROPC uniformly permit lawyer to do so.
Rationale: Duty of confidentiality is for benefit of client, and original justification for maintaining confidentiality disappears where
client permits disclosure.
5. DISCLOSURE REQUIRED BY LAW (CBA IV, comm. 11)
CBA Code Chapter IV Commentary 11 (p. 390):
“When disclosure is required by law or by order of a court of competent jurisdiction, the lawyer should always be careful not to
divulge more information than is required. Legislation in certain jurisdictions imposes a duty on persons to report sexual or
physical abuse in specifid circumstances. Careful consideration of the wording of such legislation is necessary to determine whether,
in such circumstance, communications that are subject to solicitor-client privilege must be disclosed.”—Mirrored in Ontario Rule
2.03(2)
6. FACILITATING A CRIMINAL PURPOSE
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Can’t argue info is confidential when facilitating a criminal purpose.
Smith (289, 90): Rule is that communications that are criminal in themselves or communication made for the purpose of
facilitating a criminal offence are not protected by solicitor-client privilege.
Maybe not an exception  Could just say that privilege doesn’t extend to these communications and therefore its not
protected by privilege in the first place.
7. THE INNOCENCE AT STAKE EXCEPTION**
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Lawyer in possession of info that could secure an acquittal for an innocent accused – may in some cases provide for an
exception to the doctrine of confidentiality  but only in court against a contract or tort charge  not against immunity from
the LS, since this exception does not appear in the CBA or ROPC.
TEST:
Innocence at stake exception to the doctrine of confidentiality operates where:
1) Privileged client no longer has an interest in keeping the relevant information confidential, and;
2) Disclosure of info necessary for an accused to make full answer and defence to a criminal charge.
This view was affirmed in R. v. Dunbar in obiter and also endorsed in obiter at the SCC level in the case of Smith v. Jones.
However,
Just because he is dead, doesn’t necessarily mean that there is no longer an interest in keeping this stuff secret, because
what if other people hear that this is the new rule, and are genuinely concerned about what people think about them
after they are dead? Disclosure, even after death could have ripple effects on the family of the accused  stigmatizes
them to some degree, doesn’t it?  if it does than people may lose faith in justice system, erodes the trust clients have
with lawyers, in effect diminishing lawyer’s ability to serve public if they are scared to reveal everything, since after dead
this stuff can be told to anyone...people might not like that, maybe not just for their own sake, but sake of family
members, after they are gone.
Implications of the Innocence at stake exception on confidentiality:
Implications of the Innocence at Stake exception:
If lawyer is able to disclose things about you after you die – are you going to tell your lawyer EVERYTHING that is
critical to your case?
The doctrine of confidentiality is to protect you forever (CBA IV, comm. 5) – it’s supposed to make you feel
comfortable in telling your lawyer EVERYTHING!  is the fact that this information may be used against you after
you are dead, effect this comfort?
Implications If you know that what you tell your lawyer could be disclosed, after you’re dead...you might be
concerned about your reputation and don’t want people to think bad things about you after your death
Maybe you are concerned that your family will be affected by the revealing of this information…
These are systemic arguments!  Even though you might be dead, this does not mean that you necessarily no longer
have any interests in keeping the information you discussed and passed along to your lawyer confidential….
UNFORTUNATELY/FORTUNATELY, the court in Canada does not see it this way…possibly why LS/CBA
does not recognize this rule?
R v. Derby Magistrates’ Court (1995) All ER 526 – HL explicitly rejects the innocence at stake exception to
doctrine of confidentiality – *Derby IS NOT the rule in Ontario.
IN CANADA – the there is an innocence at stake exception – but only at CL. (R. v. Dunbar and at SCC in obiter in Smith
v. Jones)
8. A GENERAL EXCEPTION: UTILITY MAXIMIZATION (INTERESTS OF JUSTICE)
ISSUE: Should we abandon pigeonhole approach to exceptions in favour of a broader general exception where disclosure would
maximize social utility?
It seems that SCC moving in this direction: see Smith v. Jones; R. v. Jack; R. v. Dunbar; Geffen v. Goodman estate.
Smith: Protecting public safety
Jack: Missing woman presumed dead. Disclosure (waiver of privilege) furthers both client’s interest and promotes justice more
broadly.
Dunbar: Innocence at stake.
Geffen: Client has died. Dispute re: validity of will. Lawyer allowed to reveal communication with deceased client to ascertain true
intent of client in making will. Thought is that the client wouldn’t have been negatively deterred had lawyer informed client in
advance that communication could be disclosed in event of dispute, if she was alive.
General exception would permit disclosure in some cases not covered by pigeonhole exceptions, but might also prohibit disclosure in
cases where pigeonholes would otherwise permit a lawyer to disclose information.
Lawyers Ethical Decisions/Justifications
The following concepts attempt to explain why what may seem like an unethical behavior on a lawyer’s part is
actually a-o-k.
Justificatory Context: While seemingly immoral in normal life, you are insulated from ordinary moral implications in
this environment (e.g. punching someone in a boxing ring, lying in poker, law school, etc.)  dont hate me, hate the
game. Im just doing my job, and the legal system should act as my buffer – insulating me moral judgement.
Role Differentiated Morality: (falls within a justificatory context)  Says that when occupying a different role, the
rules that might normally apply to you don’t.
Neutral Agent Theory: Lawyers often seek refuge in belief that the institution of the legal system bears moral
responsibility for lawyer’s ethically questionable behavior.  Lawyer has only two concerns: 1) limits of the law; 2)
Client’s interest  It is not a lawyers place to question a client’s moral values or to assess the ethical worth of a client’s
goals.  But where is the moral accountability??
“CAB-RANKED RULE”; cabbies don’t care who they work for and therefore why should lawyers?  cabs must pick
up any person that gets into their cab regardless of race, ethnicity, SES, destination etc....So if a client arrives at your
office, tenders your requested fee = you must take them on, regardless of any characteristics that the client might hold.
(RONDEL v. WORSLEY – must act resolutely for client regardless!!)
Systemic Complexity Argument: We take as granted that any action that the lawyer takes on behalf of the client must
at a minimum be arguably legal  Our law’s are supposed to reflect public morality at large, if this is true then what’s the
problemo.
Neutral Conduit Argument: By helping client cross barrier of complexity that surrounds the legal system, lawyers act
as morally neutral conduit through which an untrained client can gain access to the full benefit of the law  Lawyer’s
shouldn’t be impairing a client’s access to legal system by questioning the client’s morals.
Counter-attitudinal advocacy: Making arguments that contradict with your personal beliefs  If you accept the
Neutral Conduit Argument then occasionally having to do this is part of a Lawyers job.
Cognitive Dissonance: An internal conflict that takes place when 2 parts of your brain hold opposing beliefs (e.g.
personally held beliefs vs. what is your job)  Study has found that majority of lawyers who engaged in counterattitudinal advocacy are not negatively affected at all  There advocacy doesn’t suffer  But, over time this can change
one’s personally held beliefs.
Response to notion that legal system is an ethically sterile wasteland
-
Lawyers are making ethical choices all the time
Lawyers not only should, but they have to be aware of their ethical obligations
If not, they will face penal sanction
The above concepts justify a lot of a lawyer’s behavior BUT, relying on the “justificatory framework” is in itself is a
moral decision.
WHAT ETHONOMICS (OR ANY ECONOMIC THEORY)IS GOOD FOR IS EVALUATING LAWYERS DECISIONS TO
ADHERE TO (OR DEPART FROM) THE ETHICAL STRUCTURES FOUND
IN THE APPLICABLE CODES/OATHS THAT APPLY TO LEGAL PROFESSIONALISM.
IN OUR CASE: ADHERING TO ONTARIO’S ROPC AND IN GENERAL, THE CBA
Advantages of Economic Theory:
-
Economic theory is capable of evaluating the following decisions in terms of self-interest and utility maximization:
The decision to adhere to (or depart from) ethical structures found in oaths and codes of ethics that apply to legal
professionals
Barristers Oath:
“YOU SHALL NOT REFUSE CAUSES OF COMPLAINT REASONABLY FOUNDED”
In other words  You will not refuse to take on a case that is on reasonable grounds.
“Reasonable”  you cannot refuse clients by your moral assessment of their cause, also boredom defence will not work.
“UNREASONABLY FOUNDED:” [2 reasons that can be used to refuse]
a) CLIENT’S INABIILTY TO TENDER:
This section of the oath has been interpreted to include refusing a client based on that they can’t pay you or afford you.
BUT if a client cannot tender you, you should at least help them find someone cheaper.
b) OWN LACK OF EXPERTISE:
 if your expertise on the issue is not up to par - you can refuse – but you need to help them find someone that can
help them with their cause.
EXAM NOTE: You cannot turn someone down because of the reasons they want to hire you – his is not a reasonable
ground under the barrister’s oath. [as long as they can tender your fee and it is in your jurisdiction of expertise = you are
obliged to take their case on]
TURNING DOWN CLIENT’S BASED ON OWN MORALITY  PROBLEMATIC!
-
The downside of allowing lawyers to pick and choose = this places another hurdle on poor/disadvantaged
people that need lawyer.
Think about back in the day – if lawyers were able to pick and choose – where would we be today? would
black/gays have made the amount of progress they have??
The law and rules governing the legal profession is still in line with the CAB-RANK rule  you cannot refuse to act for
a client on moral grounds, you cannot refuse to act for a client because you disagree with their morals or the cause that
they are trying to advance. (RONDEL v. WORSLEY) [only avenues for refusal  are inability to tender and lack of
expertise in the area]
Benefits of the Cab-Rank rule:
-
-
Cab ranked rule has been the rule for forever – what is the benefit of this rule?  MORAL INSULATION =
you can’t blame me for defending my evil client, because I am simply doing my job  NEUTRAL AGENT
ARGUMENT.
THIS RULE allows us to insulate us from client’s acts when defending them in court. It allows us to say – listen,
DONT BLAME ME, I HAVE TO TAKE THIS CLIENT ON!!!
A bad person is just as entitled to the benefit as good person = this is captured in case law and LSA 4.2(2).
Allowing all people (with good or bad goals) allows justice to be served equally and fairly  it ensures that
people receive the same access to justice, which is in the benefit of whole society.
-
-
The system provides everyone with a remedy  neutral conduit and neutral agent theories collide when
proponents say that everyone is entitled to legal advocacy and that if the system were not so complex, lawyers
would not be in this situation...
But the fact is the legal system is complex and therefore people need lawyers to guide them through
the maze.
In acting in this capacity, lawyers say  DONT paint me the lawyer with the same brush as my client - I am just doing
my job (neutral agent) and the complicated system (systematic complexity) makes me have to do this (neutral conduit) =
In turn  I am providing a service that everyone benefits from, by ensuring all people have equal access to justice.
RONDEL v. WORSLEY (1969, HL) - The definitive statement of the role of lawyers who appear before the
courts  Lawyers have immunity + Lawyer must take on client regardless of how he feels morally about the
case – no picking and choosing!
Further, you as a lawyer enjoy immunity from being sued for negligence. As a lawyer you do have a duty to client, but you get to
decide what the best way to proceed with the case is. It is in the public interest to retain the existing immunity of barristers from
action by clients for professional negligence, at least so far as it relates to their work in conducting litigation
EXAM NOTE - (Pg 94)  no counsel can refuse client where he has necessary expertise and is paid his fee, for
reasons relating to a disagreement with a client’s cause or opinions. It is essential that the duty continues regardless of
any ill feelings a lawyer has against client – justice cannot be done otherwise. If a lawyer acts for a despicable client,
people wont think any less of lawyer because of client – but if allowed to pick and choose the lawyer makes it harder for
the client – and he might have great difficulty obtaining legal assistance.
Every counsel has duty to client to act fearlessly, raise any question or issue, advance every argument however distasteful
in pursuit of client’ s case. BUT – lawyer has an overriding duty to the court not to mislead the court or do anything
illegal or deceitful in attempts to advance clients case. (CBA IX rule 1 qualified by comm.2)
Lawyer is not allowed to turn against his client, despite his belief that client may be guilty. Lawyer must always act in the
client’s best interests and secure for them the most favourable result – this is the duty of a lawyer (Tuckiar)
Lawyer cannot set himself up as the judge of his client  this is the judge’s job. Lawyer’s job is to act
resolutely for client within the legal limits of the law. (Delisle)
*lawyers should act resolutely for a client regardless of the lawyer’s opinion regarding the merits of the client’s claim or
the “moral worth” of the client’s ultimate goals.
Ethical Decisions under the Neutral-Conduit Model
TAKEAWAY  The costs of taking on a matter or client that they find distasteful is outweighed by the benefit they gain
(economic) = thus they do it. This is utility maximizing decision!
A Lawyer’s Ethics
Valuation of Choices:
Question to ask when looking at a cases  what costs and benefits did the relevant lawyers consider when deciding to
undertake the actions that gave rise to the proceedings against them?
ADAMS v. LAW SOCIETY OF ALBERTA - Sex with 16 yr old client, disbarred  Regulators try to impose
penalties that outweigh perceived benefit of unethical conduct  punishment to deter!
If people engage in an unethical act, regulators may impose a penalty that outweighs the benefit that the actor was seeking in
order to deter others from partaking in such unethical acts. Make the punishment so severe that it is not worth risking it.
LAW SOCIETY OF BC V. A LAWYER (2000) Lawyer negotiating about case and marriage, not disbarred 
Rules imposed are implicit prices on certain behaviors - specific and general deterrence is goal of
punishment.
When to disbar? Disbarment remains reserved for those instances of misconduct at which it can be said that prohibition from
practice is the only means by which the public can be protected from further acts of misconduct from this lawyer.
Economics of Decision making:
-
We all make decision to maximize our OWN self interests (most of the time)
The 2 Complicating Factors:
1) The Lowly Associate  still have a choice = LEAVE!
2) Self-Interest vs. Client Interest (R. v. Murray)
R. v. MURRAY (2000, Sup. Ct. J.) Bernardo Defence tapes  Ethical obligations do not automatically result in
legal obligations
- Despicable thing to do  hiding tapes that made his clients guilty beyond a doubt, however still hid them
- Why> he was self interested, HE WANTED TO WIN THE CASE!
- Eventually found not guilty of obstructing justice by courts
- LS gave him a slap on the wrist  made him go learn about evidence.
-
***DISCUSS INTEGRITY AND LOYALTY***
CBA V – CONFLICT OF INTERESTS BETWEEN CLIENTS
Rule: “The lawyer shall not advise or represent both sides of a dispute and, save 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 where there is or is likely to be a
conflicting interest:”
Rule  Lawyer cannot act for both sides, unless you get permission from the other client that there is LIKELY
to be a conflict with. (Zwicker)—NEED CONSENT FROM BOTH PARTIES
-
-
Comm 12  Acting against a former client – AIR of impropriety  successive representation -- should not act
against a former client or take a position where she would be tempted OR appear to be tempted to breach the
rule regarding confidential information. However  if the matter is new and totally unrelated, and lawyer has no
confidential information  its okay. (MacDonald v. Martin)
Comm 12  Lateral moves  NO! – Justice must not only be done, it must be seen to be done (R.v J(GP))
Comm 20  conflicts arising out of law firms/Transferring Lawyers (MacDonald v. Martin  2 step test)
“JUSTICE MUST NOT ONLY BE DONE, IT MUST BE SEEN TO BE DONE”
Notes – AIR OF IMPROPRIETY, Justice must not only be done, it must be seen to be done.
(A) NOTION OF CONFLICT
Rules of Professional Conduct Rule 2.04(1):
Conflict of interest – something that would affect a lawyer’s judgment on behalf of, or loyalty to a client, or something that they
might prefer to the interests of the client
ALSO CBA Code Chapter 5 Commentary 1
(B) BASIC RULES
Rules of Professional Conduct Rule 2.04(2) – can’t represent more than one side in a dispute (absolute rule – but permissive with
consent in the CBA)
Rules of Professional Conduct Rule 2.04(3) – cannot continue to act where there is a conflict of interest unless the client consents
ALSO CBA Code Chapter 5
(C) ACTING AGAINST OWN CLIENT
Rules of Professional Conduct Rule 2.04(4) – cannot act against the client in the same matter, a related matter, or a new matter where you
have relevant confidential information, unless there is consent
Rule is concerned on impropriety as it appears – doesn’t hinge on revealing information (Zwicker)
ALSO CBA Code Chapter 5 Commentary 8
Rules of Professional Conduct Rule 2.04(5) – partners can’t act unless there is (i) consent (ii) show it is in the interests of justice (list of
factors in the rule)
ALSO CBA Code Chapter 5 Commentary 9
TRANSFERRING LAWYERS (CBA V comm. 12 + 23/24)
CBA Chap V, Comm. 12 (p. 525):
Don’t act against former client, or enter position where you might be tempted or appear to be tempted to breach confidentiality. It is
not, however, improper for the lawyer to act against a former client in a fresh and independent matter wholly unrelated to any work
the lawyer has previously done for that person.
So this section is subject has two parts:
1) lawyer shouldn’t act against former client or get into position where appears to be tempted.
2) However, if matter is new and wholly unrelated  OK.
Two step Martin Test to determine if there is a disqualifying COI when transferring lawyers:
Test to determine if there’s a disqualifying interest (MacDonald Estate v. Martin)
(1) Did the lawyer receive confidential information attributable to a S-C
relationship relevant to the matter at hand?
 Once it is shown by the client that there existed a previous relationship which is

sufficiently related to the retainer from which it is sought to remove to solicitor, the
court should infer that confidential information was imparted unless the solicitor
satisfies the court that no information was imparted which could be relevant
But the solicitor’s burden must be discharged without revealing specifics of the
privileged communication
(2) Is there a risk that it will be used to the prejudice of the client?
 A lawyer who has relevant confidential information cannot act against his client or


former client. In such a case the disqualification is automatic
The answer is less clear with respect to partners or associates in the firm.
There is a strong inference that lawyers who work together share confidence
REBUTTABLE BURDEN:
-
If someone did work on file and then switches, there is an assumption that they shared info with the new firm. This is up
to the new firm to refute this assumption and it is a high standard.(Martin)
-
The opposite is also true - Simply because you were a member of the old firm, this gives rise to an assumption that you
would have acquired confidential information that the firm had.
Knowledge of the firm is knowledge of the lawyer and knowledge of the lawyer is knowledge of the firm.
IMPUTED KNOWLEDGE! (unless there is evidence to prove otherwise and the standard of evidence is very
high!)
Common Law vs LS/CBA rules
Always remember that the Common Law and the Rules of Professional Conduct are separate regulatory regimes: one created by the
judiciary and the other created by a regulatory body (the Law Society of Upper Canada, in Ontario). Compliance with one of these
regulatory regimes does not necessarily allow you to escape the other: you may comply with the law society regulations but
nevertheless be held to have violated common law norms (or vice versa). The Common Law position on transferring lawyers is set
out in McDonald Estate v. Martin, at page 410 of the text.
MACDONALD ESTATE v. MARTIN (1990, SCC) (p. 410) Appellant’s lawyer switched to respondent’s firm 
2 step inquiry for COI - Court must be satisfied that no disclosure will occur; rebuttable presumption that
lawyer will disclose – this rule is almost absolute though, Its very hard to prove that there will no
contamination...chinese walls and cones of silence are almost never enough! Justice must not only be done,
must seen to be done!
Legal system is very wary and self-conscious of how it looks in the eyes of the public. It never wants to look as if there is any form of
impropriety or even an appearance of such. It is imperative that the officers of justice (lawyers) conduct themselves in a manner that
upholds integrity of the system – or else the system will not work. Suspicion in the mind of the public towards whether information
revealed to their lawyer will be disclosed to others against their best interest is crippling to our field, since confidentiality is something
which is required in order for us to do our job properly. As a result – where a situation arises and there is a potential for such
impropriety, the court will hold those accused of such conflict of interest to a very high standard when attempting to disprove that
there is no risk....tainting the sanctity of the profession is a big deal and courts want to do all they can to avoid this situation. They
always want the public to see that they are pure and true – with no hint of indecency.
It is only when the lawyer with the potential COI is handling a case that is so separate and distinct that there is no problem of COI
being an actual issue. In these cases the 2 step inquiry can be passed and there should be no problems, assuming the proper steps are
taken to ensure there is no tainting...
If the lawyer/firm is able to convince the court that although he has confidential info – that it WILL NOT BE use to a
high enough standard and further that all reasonable measures have been taken to prevent the tainted lawyer from
tainting others = this should be enough to balance the values/interests...
Basic principle  Justice must not only be done, but it must be seen to be done.
1) Cones of silence – signed affidavits that say that you don’t have/do have confidential info = but I swear that I
will not discuss this case with the person who might have this COI.
o Breach of affidavits – perjury = penalty is 14yrs max.
2) Chinese walls or FIREWALL – not a reference to Great wall of china – it’s a wall of paper…notion of a tiny
paper screen that you can’t go beyond.
o Set up in firm procedures that prevent contact between lawyers
o KD works on 2nd floor and potential COI with other lawyers – on some other floor…
HELD: SCC – disqualified the FIRM! – agreed with the Plague mary argument that KD infected the entire firm…even
though the barriers/precautions were put into place.
Reasons for Disqualification:
a) Maintain Integrity of the System
o Look at the situation from party A position – he is totally being screwed!
o Yeah they have put up these barriers, but A doesn’t believe them….and hes entitled not to.
o Party A is justifiably afraid:
 Human nature- people are going to talk.
o This does not look good for the integrity of the profession – justice must be done, but also seen!
Reasons against Disqualification:
a) Limits ability of a Party to attain counsel of choice
o Party B is getting screwed out of his counsel of choicehe can’t use the lawyer and firm that he
wants…
o He now has to go out and get a new lawyer – spend more money and time to get these new lawyers up
to speed…
o B is very prejudiced in this matter – he has to now settle for a firm that he does not want and might not
get best representation cause these lawyers might not be as good or don’t know his matter as well as the
old lawyers.
b) Lawyer mobility
o COI puts a serious cap on this…prevents certain lawyers from moving to different positions if there is
such a rigid rule against this…
Further – using this COI rule as an edge – you can use this COI rule to conflict people out/disqualify others from
working for the other side….a tactical manner in disputes.
Acting against a Former Client:
Successive Representation (CBA V comm. 12)
CBA Chapter V, Comm. 12:
Don’t act against former client, or enter position where he might be tempted or appear to be tempted to breach confidentiality.
However, if matter is fresh and independent matter wholly unrelated to any previous work done than  its a-O-K
CBA does not mention if consent is given it would be okay or not...
A problem of “successive representation” arises where counsel has previously acted for an individual who is now connected to a new
matter in which counsel now represents someone else.
Why is this a problem? – Because you might know certain information that can change your strategy to use info you have against that
client.
3 exceptions to rule of not being able to act against former clients:
1) Consent from former client (unlikely, other 2 more significant)
2) If you haven’t obtained any confidential information from the client that is relevant
to the (wholly) new matter, you are entitled to act.
3) Even if you can’t act, your partner or associate can act even if relevant information
was obtained, as long as you can show that this arrangement is in the interests of
justice.
R. v. ZWICKER (1995, NB)Lawyer rep both sides  not only a COI (violation of CBA V) but also s. 7 violation
since it is a PFJ that an accused has counsel that is unconflicted and independent.
TAKEAWAY – there obviously exists a COI. Defence attorney cannot act for the crown in the SAME MATTER!!!! (see
CBA V and rule 2.04(4) which says you cannot ever work for both sides!. However in addition to this violation Zwicker’s
Charter right violated (section 7) = it is a PFJ that an accused has an unconflicted and independent counsel!
This clearly violated Rule V of the CBA Code and rule 2.04(4) ORPC, in addition to breaching the charter. Recall the Rule
V/2.04(4) provides as follows:
“The lawyer shall not advise or represent both sides of a dispute and, save 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.”
Lateral Moves
-
More difficult ethical question when lawyer performs a lateral move – withdraws from representation of one
client, only to start representing a different client on the same side.
Lateral move doesn’t require lawyer to act against former client  So should it be prohibited?
-
Doesn’t happen often. Most conflicts arise when lawyers act in new proceedings bearing little relationship to
original proceedings.
R. v. J. (G.P.) (2001) - Represented complainant, then Crown  LATERAL MOVES considered COI Conflict from lateral move because goal as counsel for victim goal is conviction, whereas the goal for a crown
is seeking the truth  in the rare circumstance that a victim needs a lawyer – the lawyer that the victim uses
MUST be a different lawyer from the Crown counsel!
“AIR OF IMPROPRIETY”
Since this lawyer was once aligned with the victim and now he’s the crown – it looks to the public that the crown is now out to get
this guy, when this is NOT the Crown’s job! Crown’s job is to be neutral and impartial, but this lawyer clearly is conflicted since once
wanted to seek conviction – but now job is to seek truth….hard to separate these two things and looks bad from the public’s point
of view. Therefore the crown was removed and replaced  Justice need not only be done, but seen to be done!!
Cases:
R. v. ZWICKER (1995, NB)Lawyer rep both sides  not only a COI (violation of CBA V) but also Charter s. 7
violation since it is a PFJ that an accused has counsel that is unconflicted and independent.
R. v. J. (G.P.) (2001) - Represented complainant, then Crown  LATERAL MOVES considered COI - Conflict from
lateral move because goal as counsel for victim goal is conviction, whereas the goal for a crown is seeking the truth  in
the rare circumstance that a victim needs a lawyer – the lawyer that the victim uses MUST be a different lawyer from the
Crown counsel!
MACDONALD ESTATE v. MARTIN (1990, SCC) (p. 410) Appellant’s lawyer switched to respondent’s firm  2 step
inquiry for COI - Court must be satisfied that no disclosure will occur; rebuttable presumption that lawyer will disclose –
this rule is almost absolute though, Its very hard to prove that there will no contamination...chinese walls and cones of
silence are almost never enough! Justice must not only be done, must seen to be done!
***DISCUSS INTEGRITY AND LOYALTY***
CBA VI – CONFLICT OF INTEREST BETWEEN LAWYER AND CLIENT
Rule: Except after adequate disclosure to and with the consent of the client, preferably after receiving independent legal
advice, the lawyer shall not act for the client where the personal interests of the lawyer, or a partner or associate
of the lawyer, give rise to a substantial risk of material and adverse effect on representation of the client by the
lawyer.
-
Sub 1  No business transactions or pecuniary interest relationships unless* see materials
Sub 2  don’t enter into business transactions/continue with if * see materials
Sub 3  Payment of fees – lawyer is loyal to the client, not the person who pays the bills. (R. v. Stork v. Toews)
Note – Young People, contingency fees - COI (not for family or criminal matters)
Ontario Rule 2.04:
2.04(1): Conflict of interest means an interest:
(a) that would be likely to affect adversely a lawyer’s judgment or loyalty to client or prospective client.
(b) that a lawyer might prefer to interests of client.
2.04 (2): A lawyer shall not advise or represent more than one side of a dispute.
2.04(3) at p. 206: Lawyer cannot act where there is or is likely to be a COI = unless parties consent!
ROPC make it clear that rules are not absolute  some level of conflicting interests is inevitable and acceptable
ROPC Rule 2.04 Commentary: “lawyer’s judgment and freedom of action are as free as possible from COI.”
-
Rule specifies that even where COI unacceptable, can continue if client consents.
Demonstrates that the rule is NOT absolute!
Client may prefer conflicted lawyer to choosing another lawyer or going without legal representation (A-B=X)
The Duty of Loyalty and Conflicts of Interest



Lawyers have overriding duty of loyalty to clients - where loyalty compromised there is a COI.
This is based on the “neutral agent” and “systemic complexity” models of the Legal Profession.
The lawyer is said to owe “fiduciary duties” to the client: this is, in essence, a duty of loyalty: the duty to act in the
client’s interests even where the lawyer might otherwise be tempted to subordinate those interests to something else
(such as the lawyers interests or those of someone else).

Duty of Loyalty: As self-interested economic actors, lawyers can generally be expected to promote their client’s
interests.
Conflict of Interest – the lawyer’s personal interests conflict with those of the client, despite the general expectation
that lawyers’ interests will coincide with the interests of their client
Economic rationale: If the lawyer continues to act for the client without disclosing the relevant conflict of interest,
the likely result is market failure (due to “informational asymmetry”)


PAYMENT OF FEES: CBA VI sub 3
-
Legal fees ensure that advancing client’s interest also advances lawyer’s interest.
Legal fees can cause interests of lawyer and client to diverge.
Lawyer owes a duty to client first and foremost  NOT TO THE PERSON PAYING BILLS!!!
Third Party Fee Payments
-
-
One potentially relevant rule is Rule VI, sub 3, found on page 13 supplementary, which provides as follows: “The lawyer shall
not act for the client where the lawyer’s duty to the client and the personal interests of the lawyer or an associate are in
conflict.”
It is clear that the “personal interests of the lawyer” include ‘financial interests’, so your interest in pleasing the holder of the
purse-strings is a source of potential conflict.
Young People
In any case where it appears to a youth court judge or a justice that the interests of a young person and his parents are in conflict or
that it would be in the best interest of the young person to be represented by his own counsel, the judge or justice shall ensure that
the young person is represented by counsel independent of his parents.
-
Client’s best interest is paramount – it does not matter who is paying you….even if the payer says if you don’t do something I
won’t pay you….counsel is independent from payers and in that circumstance has got to say, then find a new lawyer pal. (CBA
VI sub 3)
Payments among multiple accused:
R. v. STORK AND TOEWS (1975, BCCA)  Represented fee payer and 2 others  COI – lawyer owes equal
duty to all clients regardless who is paying the bill – each client’s best interest is paramount, none should
trump the other.
Lawyer owes equal duty and loyalty to all clients – regardless of who is paying. Lawyer should not play favourites with
who is paying the bills.
NOTE: 3rd party payers must know up front and be advised that loyalties always lay with the client. – must tell the
clients this up front. – tell the parents that I don’t care what you want to do- im gonna do what is best for my client…
eff you if you don’t like this. In ideal situations – give the money to the client and have the client pay you!
Concluding Recommendations re third party payments

It IS proper to accept third party payment for client fees: this increases access to justice.
However, the lawyer should ensure that ALL parties know where the lawyer’s loyalties lie. The client MUST be told who is paying
the fees, the payor MUST be told that his or her interests will be ignored, and (in a perfect world) the lawyer should receive the
client’s written consent to act in that manner (this should NOT, however, be worded as a waiver of the right to be free of conflicted
interests).
Contingency Fees – COI  CBA VI

One area in which the lawyer’s financial interest may come into conflict with those of the client involves the payment of
“contingency fees”.
NOTE: contingency fees prohibited in family law and criminal cases
Concerns:
-
Lawyer would become an interested party and would try to win at all costs, at the expense of ethics.
Client doesn’t know law enough to be able to argue that case is easy/difficult, easy for lawyer to use against client and say
contingency.
-
If lawyer in immediate need of cash, would have interest in securing early (and perhaps inadequate) settlement, rather than
fighting for higher amount in long-term litigation.
Client may want to settle, but lawyer may push it to trial because he thinks he can win.
Why COI with contingency fees?
-
Because now you are attached to winning!
You are after a payment!
Winning becomes paramount to you…why is this a problem or COI?
a) Class actions usually take a very long time.
b) If you have a lot of class actions going on, you might be tempted to be disloyal – you may take settlements prematurely just to get paid now, as opposed to later…
c) This creates a conflict of interest, in that you may be tempted to act in your own self-interest as opposed to your
clients. (contrary to CBA VI sub 3)
Benefit of contingency fees?
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Poor people get access to justice.
Lawyers perform their best to ensure best results.
Aligns lawyer’s and client’s interests.
Where client has a meritorious claim but lacks funds to hire counsel, the lawyer can help vindicate the impoverished client’s rights by
agreeing to receive payment only if the client succeeds = contingency fee benefit  its in the interests of justice to have a payment
plan such as this.
***DISCUSS INTEGRITY AND LOYALTY***
Cases:
R. v. Stork v. Toews  payments among multiple accused  lawyer owes duty to all clients equally regardless of who is
pickin up the tab.
CBA IX – DUTIES AS AN ADVOCATE
Rule: When acting as an advocate the lawyer must treat the tribunal with courtesy and respect and must represent
the client resolutely, honourably, and within the limits of the law.
Rule  lawyer has a duty to act resolutely for client (Bruce Clark) within the limits of the law (Meek v Fleming; Li;
Jenkins)
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Resolute representation must be balanced against i) limits of the law; ii) limits of honour; and iii) limits
imposes by our duty to respect the tribunal (to treat them with respect, candor, fairness, and courtesy)
To be guilty of a breach, the Lawyer must participate in the deception KNOWLINGLY—needs MR
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Comm 1  duty to “ fearlessly raise every issue, advance every argument and ask every question,
however distasteful, which he thinks will help client’s case” + obtain every benefit authorized by law –
without illegality and while at the same time treating the court with respect.
Comm 2  lawyer must not….* see materials.
Comm. 3  rectifying wrongs – must do all reasonably can to correct unintentional wrongs.
Comm 4  duty to withdraw as long as it does not prejudice client (Jenkins  discretion of court.)
Comm 10  must defend guilty clients resolutely (Worsley; Tuckier; Deslile), but within the limits of the law
– can’t set up defences you know are false or fraudulent (Li)  use neutral conduit argument here!!!!! See p 25!
Comm 11  if client admits guilt  cannot posit an affirmative defence. This would be perjury and thus not
within the limits of the law (Meek v. Flemming; LI) – NO WOODSHEDDING!
CBA Chapter IX comm. 11  if client admits guilt, lawyer may use technicalities to get the accused off but CANNOT
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assert a positive defence or suggest that someone else did it. Can’t do anything that would put the legal profession at risk of
looking dishonest.
Comm 16  Courtesy – be nice at all times to everyone.
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Rules of Professional Conduct Rule 4.01(1) – treat the tribunal with respect
Defending the Guilty – CBA IX comm. 10
1) Fair functioning of the legal system
a. Institutional role – Neutral conduit argument  if he doesn’t, he is imposing barriers as opposed to
removing them.
b. Defending guilty clients promotes the fundamental rights of ALL citizens. So by defending the guilty we
are protecting the rights of the innocent as well.
2)
3)
Sends a message to police that if they want a conviction, that fair and complete evidence required.
Safeguard against encroachment by the state.
“overprotection of the guilty is a small price to pay to ensure that all people are afforded adequate protection of individual rights
and fair procedure throughout the process” – resolute partisan advocacy on behalf of those accused of crimes is the greatest
safeguard against encroachment by the state.
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If you know that he is guilty- you cannot pose an affirmative defence (comm. 11 – R v Li) – but you can attack
technical errors, evidence admissailbily, or sufficiency of the crowns case.
Benefits of defending the guilty:
1) Protection of the innocent – If lawyers are not permitted to defend guilty clients, then clients who wrongly
believe they are guilty may not be fully candid with the lawyer. This may prevent the lawyer from putting up a
valid defence and the client may be wrongly convicted. This undermines reliability of the judicial system.
2) Enhanced dignity and autonomy for participants in the criminal justice system
3) Enhanced wealth for criminal defence lawyers – lawyer’s client base increases if we allow the defence of
guilty clients.
4) Fewer tax dollars spent on imprisonment – if we assume that defence of guilty clients lowers the number
of convictions, fewer people imprisoned
Costs of defending guilty clients:
1) Increased danger – there is an increased likelihood that dangerous offenders will go free. These offenders
may impose economic costs such as losses of life and property
2) Lost fines – the state loses income from fines when the guilty escape punishment
3) Diminished deterrence – deterrence is measured in part by multiplying the cost of punishment by the
likelihood that punishment is imposed. Defence of guilty lowers the likelihood that punishment is imposed.
So – the lawyer that knows that his or her client is guilty may challenge the sufficiency of the prosecutions case, test the admissibility
of evidence, or rely on technicalities, but the lawyer may NOT raise an affirmative defence. Must continue to act resolutely, BUT
WITHIN THE LIMITS OF THE LAW.
R v. DELISLE (1994, Que. CA)  Lawyer can’t be judge of client
Tuckiar v. The King (1934) (HC Aust) Must act resolutely for CLIENT no matter what impression of client
the lawyer has or other ethical obligation he thinks he might owe to other people – first and foremost is client
(within limits of the law)
R. v. Li, [1993] BCCA – where a client has admitted guilt, you have to tell them you are now conflicted with
duty to them and the court and cannot raise affirmative defence  if they want you to continue you must act
resolutely but within limits – can’t raise positive defence – can only attack sufficiency of prosecution’s case,
admissibility of evidence, technicalities...etc.
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Cannot knowingly deceive tribunal.
Lawyers are entitled and required to act resolutely to attain the outcome that is in the best interests of the client.
But this must done within the legal limits of the law.
Client Perjury – CBA VI and CBA IX
Criminal Code s. 131
Everyone commits perjury who with intent to mislead makes… a false statement under oath or solemn affirmation by
affidavit solemn declaration or deposition or orally knowing that statement to be false.
CBA Code Ch. IX
When acting as an advocate the lawyer must treat the tribunal with courtesy and respect and must represent the
client resolutely honourably and within the limits of the law.
While the lawyer must act in furtherance of their client’s legal objectives, the lawyer’s ability to pursue these
objectives has limitations ( ie not criminal)…Lawyers are prohibited from engaging in the listed activities when
acting as an advocate, whether or not the act in question would promote the client’s objectives. The list is not
exhaustive, they are just examples of prohibited conduct.
What should a lawyer do when client expresses intent to give false evidence?
1)
2)
3)
4)
5)
6)
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Proceed as usual – Allow the client to offer perjured testimony. This would constitute participation by the
lawyer in a deception of the tribunal. This is forbidden by ch. IX of CBA
Free-and-open narrative – Lawyer conducts examination-in-chief concerning issues that the client will not
lie about. End the examination. Ask the client if has anything to add. Client then introduces perjured
evidence without help from the lawyer. Counsel then refrains from relying on the perjured testimony when
summing up the defence.
Refuse to call the client – This prevents the client from offering perjured testimony. May unduly interfere
with client’s right to testify. (Clients have right to testify, not to testify falsely).
Steer the client away from the relevant issues – problem with this is that it may result in unexplained gaps
in the defence and it denies the client the chance to have a change of heart.
***Dissuade or withdraw – Lawyer can privately try to dissuade client from perjury, and threaten to
withdraw if client lies on the stand. Sometimes withdrawal may be barred by the court or ethical rules (CBA
Code ch. XII). In such a case the lawyer must select another option
Expose the client’s intentions – This denies the client a last minute change of heart. More importantly,
exposure may constitute a serious violation of the rules of confidentiality.
 Disclosure represents a huge incursion against the duty of confidentiality normally owed to the client.
Clients may therefore react by refusing to be candid with their lawyers, with the result that the overall
quality of representation suffers – Proulx and Layton
****Dissuade-and-withdraw is the method the most scholars endorse (i.e. Gavin Mackenzie). This option is
endorsed by the CBA’s Code of Professional Conduct.
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If the court is not willing to let lawyer withdraw – GRAHAM says = tell the client that if he plans to lie, that the ROPC
and the CC bars lawyer from helping and that this perjury can be exposed in court. This threat may be persuasive in that it
will put credibility of accused in question, increasing likelihood of conviction and also may be liable for addition 14yrs
prison for perjury!
Once the threat has been made the client can choose to either adopt an appropriate strategy and NOT lie or fire the
counsel and get a new lawyer.
NOTE: when a client admits to you that they are guilty [ ie gives you the impression that he had “the necessary factual and mental
elements” required to commit the crime he is charge with] and you plea not guilty for him – is that not perjury? Academic Beverly
Smith says no – because 1) a person is innocent until proven guilty and 2) one can only be found guilty by a “court of competent
jurisdiction upon legal evidence sufficient to support a conviction” – so until those elements are proved a person is technically NOT
GUILTY -thus it is not perjury!
Options where withdrawal is impossible
CBA IX comm. 3  if lawyer does something unknowingly that is bad, after he discovers it, he must do all that be reasonably can to
rectify the situation.
CBA IX comm. 4  DUTY TO WITHDRAW - if client wants to adopt a route that is a breach the limits of the law = lawyer must
refuse and do everything possible to prevent it. If client persists, lawyer should withdraw or ask court for a leave.
What if lawyer prevented from withdrawing and client still wants to perjure?
(1) Dissuade + Withdraw (see above)
Surprise Perjury
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Because this rule is subject to the rule of confidentiality, disclosure of client perjury would be prohibited because the lawyer
knows its perjury do to the confidential information he has.
Gavin MacKenzie – the lawyer must first attempt to convince the client to correct the false evidence; if client refuses, the lawyer
must disclose the client’s perjury.
Commentary 3 to Chapter IX of the CBA Code seems to deal with this issue.
Most commentators agree that, if the client fails to correct the perjury, the lawyer must disclose the client’s perjury
Meek v. Flemming, HL – “Chief”…where defence counsels conduct misleads court in a way akin to deception
= and the deception appears to be relevant to the case - a victory will not be able to stand and fresh evidence
can be admitted even if such evidence was not decisive in case.
Where a party deliberately misleads the occur in a material matter, and that deception has probably/reasonably tipped the scales in
the favour of the deceiver, it would be wrong to allow him to retain the judgment since it was unfairly procured.
Ratio: victory premised on lies and deception on material matters will not be able to stand.
Jenkins v. the Queen, Ont SCJ – murder trial back out by lawyer…silence can constitute deception of the court
and in these cases – discretion is given to judge to determine whether or not to allow the withdrawal.
Lawyer’s decision to withdraw is subject to the court’s discretion in each case. Lawyer cannot mislead the court by silence. Thus
deception can be positive as well as negative acts – however the way in which the lawyer backs out and the reasons given should only
be as much as necessary...in this case Powell walked a fine line. He basically told the court that his client was lying...probably could’ve
done it in a better way.
The point is – there probably was a better way to do this, then the way that Powell did this…even though powell did not
technically breach any of the rules…
***DISCUSS INTEGRITY AND LOYALTY***
NOTE  Barrister’s Oath, “YOU SHALL NOT REFUSE CAUSES OF COMPLAINT REASONABLY
FOUNDED” – so if they can pay you and you are experienced enough, you must take on the case. (Rondel v.
Worsely – no picking and choosing + immunity from negligence; Delisle – you are not to be the judge of your
client.) – CAB RANK RULE helps to justify taking on morally questionable individuals!
Cases:
Rondel v. Worsely  lawyer must take on any client and act resolutely for that client no matter what his views are.
Tuckier v. King  Lawyer must act resolutely for the client, regardless if he thinks/knows client is guilty.
R. v. Delisle  NOT entitled to pre-judge your client! = you must act in the best interests of your client at all times
regardless of your personal feelings against him/her.
Duty to client trumps duty to court – so long as acts are NOT ILLEGAL
Bruce Clark case duty as an advocate to act resolutely for client trumps respect for court if done in a legal but overly
zealous fashion.
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Chilling effect: If you overpunish for incivility or vigour on behalf of a client, aren’t lawyers going to be wary of resolute
advocacy in fear of professional sanction?
Affirmative Defence – section IX (comm. 10/11)
R. v. Li, [1993] BCCA – where a client has admitted guilt, you have to tell them you are now conflicted with duty to
them and the court and cannot raise affirmative defence  if they want you to continue, you must act resolutely but
within limits – can’t raise positive defence – can only attack sufficiency of prosecution’s case, admissibility of evidence,
technicalities...etc.
Deception/misleading court is perjury – violates I, IX (2e)
Meek v. Flemming, HL – “Chief”…where defence counsels conduct misleads court in a way akin to deception = and the
deception appears to be relevant to the case - a victory will not be able to stand and fresh evidence can be admitted even
if such evidence was not decisive in case.
Tactless Withdrawal - violates IV (confidentiality and SC privilege) and 9  but duty to do so under 9 (comm.
3/4)
Jenkins v. the Queen, Ont SCJ – murder trial back out by lawyer…silence can constitute deception of the court and in
these cases – discretion is given to judge to determine whether or not to allow the withdrawal.
DISCIPLINARY PROCESS (S.33-35 OF LSA)
Objectives:
i) Protection of the public
ii) Protection of the reputation of the legal profession
iii) To a lesser extent, deterrence and rehabilitation
TYPES OF HEARINGS:
Discipline hearings – for violation of a Rule of Professional Conduct
Letter of advice  invitation to attend  order of notice of application  hearing
Lawyer typically retains counsel
Before a panel of 3 benchers
Burden of proof is sui generis – “clear and convincing” (somewhere between criminal and civil burdens)
If they are found guilty proceed to a penalty hearing
PENALTIES:
Admonition – form of discipline that is not publicized but goes on their record
Reprimand – form of discipline that is publicized and goes on their record
Suspension – may be either for a definite or indefinite period (complying with a specification)
Disbarment – right to practice is taken away permanently
OTHER TYPES OF HEARINGS:
Readmission – if disbarment occurred under extenuating circumstances
Capacity – question of illness or addiction
Competency – abilities in the practice of law
Admission – “of good character”
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***MAKE SURE I HAVE ALREADY DISCUSSED THE NEUTRAL CONDUIT RULE
SOMEWHERE SINCE IT’S THE MODEL WE BASE OUR DECISIONS ON
MAKE SURE I ALREADY DISCUSSED THE BARRISTERS OATH
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*You shall not refuse causes of complaints reasonably founded* = most important line of the oath
o If there is an arguable position to be made for this client in court (i.e. not a frivolous or vexaious lawsuit),
then you are NOT allowed to refuse them (according to the oath) – your job is to be a NEUTRAL
CONDUIT
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DISCUSS THE REGULATORY MODEL FOR SENTENCING:
You want to construct a punishment that would deter a lawyer from similar behaviour—discuss
COST/BENEFIT—want to deter people
o Either specific deterrence (to prevent that guy from re-offending) or general deterrence (to prevent
others)
Remedies and Penalties: (for exam)
1st thing to point out for penalties:
COMPENSATORY MODEL OF DAMAGES – CONTRACT AND TORT
Goal of this system is to neutralize the ill gotten gains from the misconduct. To have the person internalize the negative
externalities or costs that has been imposed on others through their actions. This is done through compensation of the
wrong or harm through the private law systems of contract and tort.
1. Is there a contract between the parties?
 if the breach has been one that amounts to breach of contract – What did this client expect to gain from the contract
with the lawyer?
2. Has there been a breach of a fiduciary duty?
If the breach is one of tort  say this was a breach of fiduciary duty…the lawyer, did XYZ – breach of confidentiality
(Chodos)  the remedy based on tort/goal of tort is to put the party that was harmed into the position prior to the tort.
Neutralize  make them feel neutral about the harm that was caused with money. Therefore  the remedy will be…..
APPLY  This case there was a contract….in this case there was a breach of tort…we know from the case law
that…chodis got $43,000 (plus 6 mth suspension from LS)
OPTION 1 : If the person is Judgement proof…
Since X has …. Effectively made himself judgement proof by _________, the compensatory model would be of no use.
Y would likely be unsuccessful in receiving any compensation through private law measures. However, Y may be able to
take some solace in the fact that X, while untouchable by the private law, does not enjoy the same impugnity from public
law or the law society.
OPTION 2: NORMAL ROUTE
While the compensatory model has its benefits, it is not without its problems. Having actors internalize negative
externalities and compensating victims is all well and good, assuming the person gets caught.
SAY FOR EITHER JP OR NORMAL  the LSUC has recognized the issue with simply having a compensatory
model as a way to neutralize these types of behaviors. Simply relying on this model leads to a market failure, as there are
problems that this model is simply unable to address, such as the situation in this case. Therefore this system requires
supplementation.
The LSA has met this end by allowing each province to set up individual law societies with the power to enforce by laws.
Punishment as a supplement to the compensatory model and aids in deterring the behavior, rather than attempting to
compensate for it after the fact. Further, this model allows for those who believe that they are untouchable, to take a
second look at their behavior, since although one may be immune from private law, the same cannot be said about
impunity from the public law. Ie – jail.
Start here if Not JP  “SO, along with these pecuniary damages that might be paid out to compensate
(neutralize feelings) the client, the lawyer may also be subject to sanction by the law society in their respective
province. In this case Ontario.
Continue on with Start here for JP…
Start here for JP  The Law society of Upper Canada is the LS that governs lawyers in Canada. The LSUC has the
power to issue these charges through the power to make and enforce by-laws, granted to them under LSA rule 62.01. As
such, when a person is found to have engaged in activities that are deemed professional misconduct or conduct
unbecoming – this behaviour is contrary to section 33 of the LSA (since for purposes of this exam, CBA violations
count as violations of LSA 33).
IN this case…..(state the misconduct/conduct unbecoming) = which could amount to a violation of CBA _____ and
therefore a prima facie breach of section 33 of LSA. This being the case. the Proceedings Authorization Committee gives
authorization to the LSUC to apply to a Hearing Panel for a determination of whether or not this behaviour was in fact a
violation of section 33 of the Act - a power granted to them under section 34 of the LSA. If the panel decides that the
behavior of X is in fact a contravention of section 33, they are authorized then to mete out an appropriate sanction
under section 35 of the ACT  which is basically the penalty price list for misconduct/conduct unbecoming.
IF THERE IS TIME: It is important to note that in choosing the appropriate punishment, the hearing panel would
ideally keep it proportionate. The goal of the punishment model is to deter acts that are undesirable. However at the
same time, the panel should try to encourage behaviours maximal social utility. It’s a delicate balance, but if the
punishment “does not fit the crime” so to speak, either people will be inclined to breach all the time OR be deterred
from engaging in activity that may be beneficial as a whole, even though it may involves some sort of “professional
misconduct.”
Furthermore since X has made him/herself judgment proof, the punishment imposed should be more severe than it
would be for a person who is liable under the compensatory model. Individuals who are judgment proof are able to
make ethical decisions without factoring in the cost associated with liability under the compensatory model. This affects
the economic analysis because it increases the likelihood that the lawyer will have a positive net utility. Therefore, in
order to balance the economic analysis, LSUC should punish these lawyers more severely. Further, a more severe
punishment for these lawyers could serve to deter lawyers from attempting to escape being held liable to their clients
Given the conduct in this case and the principles mentioned, X would likely receive ___________ as a punishment from
the LSUC pursuant to section 35 (____) of the LSA.
This is because while his violation of the code was worse than X who got Y penalty (suspension, fine etc), it was not
worse than A who got disbarment...therefore the punishment should be in the middle.
INTEGRITY!!!! Tack it on to increase!  typically not used as a stand alone offence anymore.
Was there an integrity violation that would make this case remarkable and therefore in need of a more severe
sanction?
See penalty chart (Adams – disbarment, Chodos – 6 mths, A lawyer – 3 mth suspension, Clark – voice mail, Murray –
educational classes)
This is an appropriate sanction, given the way LS has dealt with matters that have come before it in the past.....
Then go to say  If grounds for an appeal were present, this decision could be reviewed by the convocation
committee, which could then overturn the decision or re-affirm it. However, since this board/tribunal/body that has
been given power by province through the LSUC, by LSA  “statutory decision making power”  this means that the
decision is reviewable by the courts…..(at all levels -> which could overturn or re-affrim decision of convocation as they
saw fit.
OR
OPTION 3  Any exception not recognized by the CBA/LS
Facts…. Then  innocence at stake (Jack)/interests of justice exception to the duty of confidentiality has
been recognized by CL. However the same exception has not recognized by CBA. so X could still be
sanctioned by LS since CL, while persuasive is not binding on sanctions imposed by the LS. The argument
could be made that since X’s conduct was in the interests of justice, X would likely NOT be sanctioned even though
there is not an explicit exception to in the CBA. It is argued by some that the law society should be focused only on
deterring behavior that is does not maximize social utility. Behaviour such as ones taken by X  lead to social utility
maximization  best for all and the law society may take a hit for confidentiality, but since it led to increased benefits
for more people than costs, its tolerable.
However, this argument fails to take into account the importance given to duty of confidentiality in the legal profession.
A strong emphasis has been placed clients need to be secure that their information is protected regardless of any
situation that may arise. In not protecting this right to confidentiality, we are eroding the trust that clients have of
lawyers. Thereby reducing the ability of lawyers to do their jobs properly (as NC) since clients will be reluctant to
disclose all relevant information needed to build a strong case, given their fear of this information getting out “in the
interests of justice”. Given the emphasis that the profession has placed on the importance of this rule  this argument is
very compelling. I would agree that confidentiality is of the utmost importance to the profession.
Therefore, X should be punished, regardless of whether or not the breach was in the interests of justice. If the LS
thought that this exception was important enough, they would have put it in the CBA. They did so with the Public
safety exception after all, didn’t they?
THE REGULATORS:
The Law society of upper Canada is the LS that governs lawyers in Canada. The LSUC has the power to issue these
charges through the power to make and enforce by-laws, granted to them under LSA rule 62.01. As such, when a person
is found to have engaged in activities that is deemed professional misconduct or conduct unbecoming – this behaviour is
contrary to section 33 of the LSA (since for purposes of exam CBA violations count as violations of LSA 33).
IN this case…..(state the misconduct/conduct unbecoming) = which could amount to a violation of CBA _____ and
therefore a prima facie breach of section 33 of LSA. This being the case, the Proceedings Authorization Committee gives
authorization to the LSUC to apply to a Hearing Panel for a determination of whether or not this behaviour was in fact a
violation of section 33 of the Act - a power granted to them under section 34 of the LSA. If the panel decides that the
behavior of X is in fact a contravention of section 33, they are authorized then to mete out an appropriate sanction
under section 35 of the ACT  which is basically the penalty price list for misconduct/conduct unbecoming.
Given the conduct in this case and the aforementioned rationale - the punishment by law society in this case would likely
be _____ pursuant to section 35(____) of the LSA. This is an appropriate punishment given the cases before it since it
was not as serioius as __________ where they only received a _______.
IF THERE IS TIME: It is important to note that in choosing the appropriate punishment, the hearing panel would
ideally keep it proportionate. The goal of the punishment model is to deter acts that are undesirable. However at the
same time should try to encourage behaviours that although at first blush may be unethical, but result in maximal social
utility. It’s a delicate balance, but if the punishment “does not fit the crime” so to speak, either people will be inclined to
breach all the time OR be deterred from engaging in activity that may be beneficial as a whole, even though it may
involves some sort of “professional misconduct.”
Then go to say  If grounds for an appeal were present, this decision could be reviewed by the convocation committee,
which could then overturn the decision or re-affirm it. However, since this board/tribunal/body that has been given
power by province through the LSUC, by LSA  “statutory decision making power”  this means that the decision is
reviewable by the courts…..(at all levels -> which could overturn or re-affrim decision of convocation.
As such, if the sanction lawyer was still displeased with the result, and no doubt he would be if it went against him, if the
unhappy lawyer had the funds available, he could proceed to take the matter to the Ontario courts of justice for judicial
review. This matter could essentially be brought all the way to the SCC, if the lawyer was so inclined.
NEW: **ON EXAM IF YOU`RE DISBARRING SOMEONE: A good answer will say how it violates the RPC, assume
professional misconduct now includes any violation of the CBA CODE. Refer to Cases.
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Point out it amounts to professional misconduct according to S.33 of Law Society Act—so hearing panel
empowered under S.34 to do any penalty under S.35
Compare that person`s behaviour to behavious of other lawyers we`ve looked at to figure out the APPROPRIATE
PENALTY
o Figure out punishment based on reference to cases
o S.35 gives u a lot of misconduct options
 In Adams.. . this penalty (sleeping with client)
 In BC v a lawyer (blackmail)
 Compare that to client on exam to figure out an appropriate penalty
 Bruce Clark (threw book at guy, tried to citizens arrest judge)—only got a reprimand
**NEED TO CITE CASES/ SECTIONS OF THE CBA CODE + LSA THAT ARE RELEVANT
2 Part Exam—must do both questions—they build on each other—can cross-reference the answers in ur analysis
Focuses on CONFIDENTIALITY + CONFLICT OF INTEREST + CASES WE’VE TALKED ABOUT/EASY
PARALLELS
BRING YOUR TEXTBOOK—the CBA Code is in it
ONTARIO’S RULES OF PROFESSIONAL CONDUCT ARE ONLY PERSUASIVE—DISCUSS THEM—
BUT THEY ARENT BINDING* (assume it’s a Federal case, which is why theyre just persuasive)
*YOU COULD INTERPRET THE GOOD CHARACTER CASES IN DEALING WITH THE INTEGRITY
RULE IF U WANT
HE MIGHT SAY: ARGUE THIS PERSON WINS/SHOULD BE ADMITTED (AND YOU MIGHT BE
SUPPORTING THE BAD GUY)—HE WILL TELL US ON THIS EXAM WHICH POSITION TO TAKE
Qu on exam will make it clear: i.e. you might have to deal with a fiduciary duty claim in common law system
(Court—fiduciary duty); and part 2 could be the Law Society now gets involved (regulatory model)
o Or part 1: should he be removed; part 2 assume he has, what punishments should be appropriate
o ESSENTIALLY: He’ll tell you your role (if you’re the court,a lawyer, or the Law Society
“Having found person violated the CBA Code, given the ammendment to S.33, they are now in violation of S.33,
so I will now discuss the remedies”
**If he says “Disbar Bruce Clark” – give him arguments to disbar him—THEN DISCUSS COUNTERARGUMENTS and dismiss them****
Make a chart of: Lawyer/Behaviour/Punishment (to compare our client to the lawyer)
o See if someone has that
o He might say Fine the guy 50k and disbar him-- if he does that ,then you`ll need to compare to other
cases to try to justify that
DISCUSS THE REGULATORY MODEL FOR SENTENCING:
You want to construct a punishment that would deter a lawyer from similar behaviour—discuss
COST/BENEFIT—want to deter people
o Either specific deterrence (to prevent that guy from re-offending) or general deterrence (to prevent
others)
*In Adams: they also argued morality,e tc—not sure where that was going
***DISCUSS THE NEUTRAL CONDUIT RULE SOMEWHERE SINCE IT’S THE MODEL WE
BASE OUR DECISIONS ON
FOR PUNISHMENT SECTION: Also discuss
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1. **Rule 1 of CBA code = integrity
o Any violation of any other rule done intentionally WILL CALL INTO PLAY INTEGRITY
o i.e. not only did you violate confidentiality but u also violated integrity
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but if it wasn’t intentional, then maybe penalty should be lower
2. Rule 19: Violations of spirit of the rule = violation of the rule
o This will be relevant in any case
o i.e.
-----------------
Discuss Oath on exam (pg 73 of text) somewhere
Barristers’ Oath pg. 108 (or apparently p 73 this year?)

*You shall not refuse causes of complaints reasonably founded* = most important line of the oath
If there is an arguable position to be made for this client in court (i.e. not a frivolous or vexaious lawsuit),
then you are NOT allowed to refuse them (according to the oath) – your job is to be a NEUTRAL
CONDUIT
ON exam: Even if the lawyer’s action is not offside Rule 9 (or some other section), what about the rule of
integrity? What about the Smell Test?
o

**OTHER TIPS





1. ADDRESS COUNTER ARGUMENTS TO THE POSITIONS YOU TAKE**MUST DO THIS TO DO
WELL
2. INVOKE ALL RELEVANT RULES--- EXPLAIN THE AUTHORITY (CITE IT FROM CASES/LSA/CBA
CODE)
3. IF THERE IS UNCERTAINTY (I.E. GOOD CHARACTER)—POINT THIS OUT AND SAY THAT SOME
COURTS SAY X AND OTHER COURTS SAY Y—MAKE IT CLEAR THAT THE LAW IS UNCERTAIN—
POINT OUT CASES GOING BOTH WAYS
I.E. CONFLICT OF INTEREST—IF U USE MCDONALD ESTATE V MARTIN—POINT OUT THAT
THIS CASE WAS ONLY DEALING WITH LAWYER’S FIDUCIARY DUTY—IT WASN’T ACTUALLY
POINT OUT THE LAWYER’S DUTY UNDER A PROFESSIONAL CODE OF CONDUCT
o **ATTACK EVEN YOUR OWN ARGUMENTS** AND THEN COUNTER-THEM
4. **ANY LEGAL AUTHORITY (i.e. counsel has the following obligation to do x)… NEEDS TO CITE IT
LEGAL ETHICS – PENALTY CHART
Case
Behavior
Penalty
Notes
INTEGRITY
Adams v. LSA (p. 22)
Sex with 16 year
old client: bad, in
fact worse than
financial breach
Disbarment
LSBC v. A Lawyer (p 25)
Threatened
Perjury: blackmail
relating to legal
matters is
professional
misconduct
3 month
suspension
LSUC v. Clark (p. 112)
Strange Advocacy;
Arrested judges;
Nasty tone.
Reprimand
(“mean
voicemail”)
on 3 of 21
allegations
 Trust relationship with power differential
 Conduct brings dishonor to profession and can lead public
to think that lawyers are prone to abusing their position of
trust
 “The majority [of Benchers] contended that perhaps the
breach of trust involved in a proposed sexual relationship
was even more serious than converting trust funds, for
money can be restored but honour cannot.” p.24 halfway
down
 Yes, penalty of disbarment is more severe than in other
similar cases, but there is nothing in proposition that
disbarment must be reserved for most serious cases by most
serious offender.
 He might have feared penal sanctions from law society, loss
of reputation, loss of future income, STD’s. He hoped to get
sexual gratification. If people engage in an unethical act,
regulators may impose a penalty that outweighs the benefit
that the actor was seeking.
 If it is shown that a solicitor in the pursuit of his profession
has done something with regard to which would reasonably
be regarded as disgraceful or dishonourable by his
professional bretheren of good repute and competency, then
it is open to say that he is guilty of “professional
misconduct”
 Factors to be considered: his age (called to bar 11 years
ago), prior complaints on file, impact on the victim,
advantage gained by the respondent, number of times
offending conduct occurred, whether or not he has
acknowledged the misconduct (he denies it), possibility of
rehabilitating the respondent, impact of criminal sanctions
against the respondent (there were none), need for
specific/general deterrence, and impact of the proposed
penalty (disbarment too severe) AND prior history of
discipline ($21k)
 Manners vs. ethics
 Over-zealous vs. insufficient zeal
 Although there is professional misconduct, panel does not
agree that all charges amount to PM in the unique
circumstances of the case
 His argument is the products of intensive study, and beliefs
that are honestly and sincerely held – and is of great
significance to society
 Advocacy in a court is a crucial aspect of freedom of
expression guaranteed by the Constitution
 Failure to carry out duty of advancing every argument more
prevalent and harmful than overzealousness
 “The Law Society must always be acutely sensitive to the
danger that its disciplinary process may be used to punish
vigorous advocacy.” p.117 bottom third
 Disbarred in subsequent case (declared him
“ungovernable”)
 In his mind, his actions provided a net utility gain.
LSUC v. Murray
(handout)
Hiding evidence of
sexual torture &
murder committed
by client
None: charges
withdrawn
LS(BC) v Ryan--NEW
Forged judgement;
lied to client (lack
of integrity
Disbarred
 Crim case dismissed based on m/r – rec’d acquittal b/c
obstructing justice requires MR – may not have intended
to perm. suppress tapes
 “unclarity” in rules regarding evidence
 “Rosen said he was stunned by what he saw, became very
concerned about being counsel in the case and wondered
what possible defence he would be able to generate in light
of the tapes.” p.141 middle
 While ethics may integrate with the issue of MR for the
offence of obstructing justice, ethical duties do not
automatically translate into legal obligations.
 Does neutral-conduit model relieve Murray of need to make
moral decisions in pursuit of his client’s goals? Only if his
actions were arguably legal, in this case they weren’t.
 Can each of Murray’s decisions be explained in economic
terms? Yes, like most ppl, he valued winning the case and if
he turned over the tapes, they were going to kill any slim
chance he had of winning, so he chose to conceal the tapes,
figuring the costs of concealing them were not as great as
the benefit he would get if they weren’t revealed).
 SCC said it was certainly within reason for the Law


Society to hold that Ryan lacked personal integrity.
It appears that truthfulness is part of integrity, so lying
to your client seems to be an indication of lack of
integrity (Ryan). Again though, the SCC didn’t define
what integrity actually is.
Advancing an argument you don’t believe in isnt a
violation of integrity. Belief in if argument is true
seems to be relevant (Bruce Clark). Subjectivity of
courts seems to be very relevant (Bruce Clark)
CONFIDENTIALITY AND DISCLOSURE
SMITH v. JONES
(1999, SCC) (p. 285)
Psychiatrist
assessed potential
murderer 
Exception:
Breaching SC
privilege to prevent
death or bodily
harm
SC privilege
attaching to
Dr. Smith’s
report must be
set aside.
 Solicitor-client privilege is a principle central to the
administration of justice, but when public safety is involved
and death or serious bodily harm is imminent, the privilege
should be set aside
 Clarity – Yes. Jones clearly identified the group (prostitutes),
described methods in detail, etc.
 Seriousness – Yes. Sexually sadistic murder
 Imminence – Nothing had been said by Jones in this case
suggesting a time frame of when he planned to do this
murder, he hadn’t done anything bad in a year or so. Hard
to determine imminence of threat in this case, but the clarity
and seriousness relax this requirement. So the court said
that the threat of death or serious bodily harm was serious
enough. This is contentious though.
 Extent of Disclosure – Only those aspects relating to
imminent risk of death or serious bodily harm.
 If a public safety exception applies to solicitor-client
privilege, it applies to all classifications of privileges and
duties of confidentiality.
SZARFER v.
CHODOS (1986, Ont.
CA) (p. 302)
Lawyer having
affair with wife of
P  Can’t use
confidential info
Comp.
damages of
$43K (no
punitive)
**note that
after this tort
claim he was
subjected to
disciplinary
proceedings
and suspended
from
practicing law
for 6 months
GEFFEN v.
GOODMAN
ESTATE (1991, SCC)
(p. 312)
Lawyer providing
evidence re: will of
deceased  Duty
continues after
death; Wills
Exception
Lawyer’s
obligations of
confidentiality
continues
even after
client’s death
subject to the
“Wills
Exception”
R. v. JACK (1992,
Man. CA) (p. 319)
Lawyer giving
evidence re:
missing wife who
was client 
SC Privilege
can only be
waived by the
client, except
in
extraordinary
circumstances
– here =
“interests of
justice” –
applied Geffen
rule.
 Lawyer testified as the general nature of their meeting, not
the specific dialogue: This evidence did not constitute a
communication of confidential info: in this context it was
simply a recitation of the lawyer’s advice and opinion as
the the general tenor of the meeting and her conclusion as
to her clients state of mind and future plans.
 In any case, Solicitor-client privilege does not attach to
circumstances of this case (Prof argues that this is wrong,
the wife obtained legal advice from this lawyer, how can
their communication NOT be privileged?!).
 It is in best interests of wife and in the “interests of
justice” that privilege be waived.
 In these situations, a 3rd party can claim that privilege
should be upheld.
 Courts tending to allow evidence to be introduced in “the
interests of justice” where this benefit clearly outweighs
importance of any public interest that might be protected
by upholding privilege.
Rats out coaccused 
Accusation =
waiver of SC
privilege
 Bray’s accusations against Thompson constitute a waiver of
solicitor-client privilege so far as necessary to enable
Thompson to defend himself.
 Innocence at stake exception!
 Must balance interests of Bray and his co-accused.
Removing privilege would have a small effect on the co-
 D acted in his own interest and to P’s detriment. Still, the
injury to P was caused by the use of confidential info
for his own purposes, not by the adultery.
 The fiduciary relationship between a client and a lawyer
forbids a lawyer (fiduciary) from using any confidential
information obtained by him for the benefit of himself or a
third party or to the disadvantage of his client without the
consent of the beneficiary (client) EVEN IF the beneficiary
could not benefit from keeping the info confidential or
would not suffer a loss as a result of what the lawyer does
with the information.
 Once the fiduciary relationship is established, the onus is on
the lawyer to prove that he acted reasonably and made
no personal use whatsoever of the confidential information.
 NOTE: this is private suit for tort damages - framed as
breach of fiduciary duty (why not a K suit) Note that after
lawyer was ordered to compensate his client through
payment of money damages, he was also subjected to
disciplinary proceedings and suspended from practicing law
for six months
 Ordered to pay $43K damages – but did not get punitive
b/c not high-handed enough
 Lawyer did not act contrary to solicitor-client privilege. Note
that this info was prima facie confidential: it was information
a lawyer had about his client. Indeed, it was also privileged: it
was information learned in the course of giving legal advice.
 RATIO:
 Wills Exception: In the case of wills, the information
provided to the lawyer is meant to be confidential during the
client’s life, but not necessarily after death. Evidence of
solicitor is important in determining what testator’s true
intentions were.
EXCEPTIONS TO CONFIDENTIALITY
R. v. DUNBAR (1982,
Ont. CA) (p. 366)
Murder trial of 3
guys. One of them,
Bray, accused his
former lawyer,
Thompson, of
misconduct for
instructing Bray to
lie (blame other 2
accused) to secure
favourable
R. v. Derby
Magistrates’ Court
(1995, H.L.) (p. 376)
16 yo girl was
murdered. A first
admitted guilt then
afterwards changed
story and blamed
stepfather. A was
acquitted, and
stepfather went on
trial. Stepfather’s
lawyer asked A on
stand about his
instructions to his
lawyer at time of
confession. A
refused to waive
privilege but lower
court stated this
would be against
public interest.
Appeal by A
was allowed.
accused.
 The client has to have no real interest in keeping the info
confidential (in this case, Bray had already been acquitted, he
can’t be tried again, so it was okay to disclose the statement).
 Very narrow exception, only going to override privilege if
there are core issues going to the guilt or innocence of the
accused and we run a serious risk of making a wrong
judgment if we don’t hear the privileged information. The
info can’t be peripheral to the defence
 Magistrate at lower court stated that once an appellant has
no recognizable interest in asserting privilege, court can
balance his interest v. public interest (that of a fair trial for
stepfather)
 H.L. says privilege is that of the client, which he alone can
waive and the lawyer’s mouth is shut forever. The rule
should be absolute.
 Rejected idea that communications are confidential only so
long as client has a recognizable interest in preserving
confidentiality because the basis of the confidence would be
destroyed or at least undermined.
 The client is the best judge of his own interests. Confidence
in the system would be eroded if someone else (judge) could
determine when privilege is spent.
DUTY TO AVOID CONFLICTS OF INTEREST
MacDonald Estate v.
Martin (1990, SCC) (p.
410)
KD is lawyer with
firm 1, represents
Martin. KD then
goes to firm 2
which merges with
firm 3, which acts
as counsel for
MacDonald Estate.
She has inside
information re:
Martin but signs
affidavit stating she
will not share it
with other lawyers
at her new firm.
Firm 3 was
removed as
solicitors on
record due to
conflict of
interest.
R. v. Zwicker (1995,
NB) (p. 448)
Wilson, a lawyer,
represented
accused Zwicker
on theft charges
and asked for light
sentence. He later
represented Crown
in the same case
and attended
sentencing hearings
urging a
“significant” jail
sentence for
Zwicker.
s. 7 of the
Charter was
violated.
Remedy under
s. 24(1) was to
reduce the
sentence to
time served.
 There is a rebuttable presumption that when a lawyer has
information about an old client and joins a new firm, she will
disclose it.
 To rebut, firm can show they have: physically segregated
files, circulated memos to all relevant staff re: disclosure of
particular materials (Cone of Silence), move lawyer in
question to a different location, or have paper trail of
affidavits (Chinese Wall)
 Approach is: (1) Did lawyer receive confidential information
attributable to client-solicitor relationship? And (2) Is there
a risk it will prejudice the client?
 Prejudice to that client has to be balanced against: allowing
firms and lawyers professional mobility, allowing the other
litigant to have their choice of firm representing them and
respecting the high integrity of the profession (when
affidavits are available and readily produced)
 The case is an example of a lawyer acting for parties with
opposing interests at various stages of the proceedings
 This amounted to prosecutorial misbehaviour
 Point is that it’s possible for a conflict of interest to arise
even when the representation (for defence or Crown) didn’t
involve becoming privy to any confidential information
 The court stated that access to a non-conflicted counsel is a
principle of fundamental justice.
R. v. J. (G.P.) (2001)
(Man. C.A.) (p. 450)
Lawyer who
represented
complainant
(victim) in sexual
offences criminal
trial, subsequently
appeared for
Crown on appeal.
R. v. Stork and Toews
(1975) (B.C. C.A.) (p.
456)
Lawyer N
represented 3
accused’s (Stork,
Toews, Stenson) in
trafficking charges.
Stenson paid fees
for all 3. N
proposed to
Crown that
Stenson goes free
and other 2 plead
guilty.
Lawyer was
not
sanctioned
b/c judge has
no power to
do so (only
Law Society
can, if they
choose)
Guilty plea of
the 2 accused
was
withdrawn:
new trial
ordered.
 Example of a lateral move: when lawyer withdraws from
representation of one client in a particular
transaction/dispute only to start representing a different
client on the same side of that transaction/dispute
 There is an appearance of impropriety in counsel’s role
which would have the effect of convincing public that the
Crown and victim share a common purpose in seeking the
conviction of the accused. This is not a part of the public
duty of a prosecutor.
 Lawyer was in a hopeless conflict of interest, even though he
acted in good faith.
 Problem is that lawyer can be tempted to show allegiance
only to the payor of the fees
 Example of legal fees having the effect of causing the
interests of a lawyer and a client to diverge.
ETHICS AND RULES OF ADVOCACY (CBA IX)
Rondel v. Worsley
P claiming that the
D (lawyer) did not
make the claims
that the P wanted
him to make.
For the
Defendant.
Tuckiar v. The King
(1934) (Aust. H.C.) (p.
88)
Aboriginal man
accused of murder.
He told different
accounts of what
happened to two
different people; a
confession of guilt
and an act of selfdefence. Counsel
met with judge and
told him that
accused admitted
the first story was
true and the Judge
told him it was ok
to continue
representing him.
Counsel acted
with this in mind
and it appeared to
have affected his
defence of the
accused.
Rookie lawyer did
not believe his
client  judged
him as being guilty.
Guilty verdict
set aside and
replaced with
acquittal
(impossible to
guarantee fair
trial)
R. v. Delisle
New trial
ordered due to
incompetence.
 No picking and Choosing clients
 Justification case for the CAB rank rule.
 Tie into the Justificatory framework, neutral conduit and
systematic arguments.
 Lawyer must act resolute for the client no matter what his
views about the client’s case is - but this must be balanced
against the duty owed to the court.
 Lawyer’s should not be afraid of negligence suits.
 Counsel’s disclosure of privileged communication to the
judge was “wholly indefensible”
 Court held that it was counsel’s duty to fight for a complete
acquittal even where lawyer knows that the client is guilty of
the crimes with which he is charged: a prisoner is entitled to
acquittal from any charge which the evidence fails to
establish that he committed
 Counsel cannot breach confidentiality even after his service
to the client is complete. Here, following trial, counsel also
went to the media, again breaching his duty of confidentiality
and the court ruled that any new trial would be “almost
certainly a futility”
 Potential violation of CBA XI – failed to act resolutely for
client within the limits of the law.
 Lawyer cannt set himself up as judge of client.
 Act resolutely regardless of moral feelings about the clients
aim or views.
R. v. Li (1993) (B.C.
C.A.) (p. 490)
Meek v. Flemming (1961)
(H.L.) (p. 497)
Re Jenkins and The Queen
(2001) (Ont. Sup. Ct. J.)
(p. 505)
Li convicted of
robbery (a bunch
of clerks at the
jewellery store he
robbed saw Li do it
and testified). He
had admitted guilt
to lawyer before
trial. Li argued
lawyer wasn’t able
to provide him
with competent
defence (though
lawyer called
witnesses to testify
that the jewellery
clerks’ description
of Li was wrong.
Counsel for D,
charged with
assault and
wrongful
imprisonment,
allowed court to
proceed on
assumption that D
was a chief
inspector (high
rank) when D had
in fact been
demoted to
sergeant (for
committing perjury
in another case).
Counsel did not
directly mention
client’s rank nor
did they rely on his
rank or status in
their submissions.
8 weeks into trial
Powell, lawyer,
applied to
withdraw because
he received info
that was
confidential, but if
he continued to
represent client he
would be deceiving
the court. Client
found another
lawyer, McArthur
who could
complete the trial.
Lawyer
breached NO
ethical rule.
Appeal
dismissed.
 It is permissible (and perhaps necessary) for lawyer to
challenge evidence offered by Li’s victims (despite the fact
that he knew Li did commit the robbery).
 Court said it is entirely proper to undermine identification
evidence that you know to be correct
 The underlying principle is that through the overprotection
of the guilty, there will be spillover to the innocent as well,
so they will benefit from the behaviour of vigorous defence
lawyers
 Defence lawyer doesn’t have free reign: cannot introduce
affirmative defence if he knows client is guilty, cannot
suggest an alibi, cannot suggest anything in crossexamination that he knows to be untrue, cannot call
evidence he believes to be false
New trial
ordered b/c
lawyers
knowingly
participated in
deception of
court.
 Fresh evidence here did not relate to relevant issue, but to
credibility of important witness. Court will allow it to be
admitted in instances where “the evidence is of such a nature
and the circumstances of the case are such that no
reasonable jury could be expected to act upon the evidence
of the witness whose character had been called in question”
or where the court is satisfied that the evidence must have
led reasonable jury to a different conclusion from that
actually arrived at in the case.
 When counsel takes a deliberate course of deceiving a court,
and that deception has probably tipped the scale in his
favour, it would be wrong to allow him to retain the
judgment thus unfairly procured.
Court
permitted
lawyer to
withdraw
because he
had good
cause and
provided
notice.
 Case deals with lawyer’s right to withdraw in cases that
involve client perjury
 Had the lawyer continued to act for client while maintaining
duty of confidentiality, he would have deceived the court
 If your client is about to commit perjury in court, counsel
has duty to disclose it to the court and withdraw. Staying
silent could also result in a perjury charge against the lawyer.
Ethics Quicksheet
Structured Answer:
Set out relevant facts briefly.
The Law: This is the legal authority. Mention that the Law Society has its power delegated to it from the provincial authority. Can we disbar him?
When looking at the possible penalties (s. 35(1) Law Society Act on pg. 563 text), address other cases and what the penalties imposed were. Is what
this person did worse? Not as bad? S. 33(1) (on pg. 563 text) of Law Society Act states “A member shall not engage in professional misconduct or
conduct unbecoming a barrister or solicitor”, conduct unbecoming includes anything which is contrary to best interest of public or legal profession or
harms standing of legal profession.
Analysis:
1) General Discussion
2) Law that Applies – (case law and statutory authority)
3) Application – On the one hand, it could be read this way. On the other hand, it could be read that way. Graham has complained about
indeterminacy of rules and their ambiguous nature. SO TALK ABOUT THAT.
Law that Applies for analysis:
Lawyers are perceived by clients to have special powers, special relationship based on trust (Adams v. Law Society of Alberta ABCA). Legal counsel
obliged to keep confession confidential (Tuckiar v. The King HC Aust.). No counsel can refuse to act in a sphere in which he practices; every counsel has
duty to a client to raise every issue, advance every argument, and ask every question, however distasteful (Rondel v. Worsley). Lawyer breached duty to
client by not following his instructions (R. v. Delisle).
Barrister’s Oath (pg. 13 summary) – defend rights of citizens that employ you. Neglect no one’s interest or destroy property. Not refuse causes of
complaint reasonably founded, nor shall you promote frivolous suits. Cannot pervert law.
CBA Code (use for exam):
Chapter 4- Defending the Guilty – “When acting as an advocate, the lawyer must treat the tribunal with courtesy and respect and must represent the
client resolutely, honourably and within the limits of the law.” Must fearlessly raise every argument and try to get every benefit or remedy possible for
your client. Lawyers must temper their resolve by reference to (1) the limits of the law; (2) the limits of honour; and (3) the limits imposed by fairness,
courtesy and respect for the tribunal. These ethical limits are largely undefined, at the very least, the argument must be arguably legal. Commentary 1
emphasizes illegality (pg. 481 text). Limits in commentary 2 on pg. 482 are specific examples. Commentary 11 - If accused admits guilt, and lawyer
believes admission was honest and voluntary, there are less options for the defence (CAN object to jurisdiction of court, procedural format,
admissibility of evidence, sufficiency of actual evidence but CANNOT suggest another person committed offence, call evidence lawyer knows if false,
set up affirmative defence inconsistent with client’s admissions). If a client admits guilt, lawyer must tell client this restricts defences; can test the
Crown’s evidence (R. v. Li BCCA). Commentary 10 allows you to take your client aside at the beginning and tell them that if they admit what they did
to you, you cannot assert affirmative defence.
Ontario’s Rules of Professional Conduct (Ontario only)
Rule 1 - citation and interpretation rule. 1.02 – Conduct unbecoming a lawyer. 1.03 1F – Rule can’t address every situation, lawyers must obey letter &
spirit. 1.03(1) – Standards or Integrity for profession ie. Rules interpreted as…pg. 278 text..
Rule 2 – Governs lawyer/client relationship. Competency, responsibility to communicate with client. 2.08 – referral fee. 2.03 – confidentiality, not
divulge info unless implied/express permission of client. 2.03(3) – When disclosure may be permitted, future harm exception from Smith v. Jones SCC:
imminent risk to identifiable person or group of death or serious bodily harm that interferes with well-being, lawyer may disclose confidential info to
prevent it. 2.04 defines conflicts of interest: may not advise more than one side in dispute, cannot act in matter where there is or may be in the future a
conflict (unless client consents), 2.08 – contingency fees.
Rule 3 – 3.01 “lawyers should make legal rules available to the public”.
Rule 4 – Advocacy for Clients – resolute but not over-zealous, duty to know everything, keep everything confidential, but reveal certain info to court.
Duty not to bring frivolous or malicious claims. Duty to administration of justice.
Rule 5 – Obligations to Employees, articling students etc. – 5.03 prohibits sexual harassment. 5.04 prohibits discrimination.
Rule 6 – Duty to Law Society – Must report breaches by other lawyers. Behaviour towards other colleagues. Be courteous and act in good faith with
all persons you have contact with. No abusive communication. Ethical duty of civility. 6.04(1) – Lawyer who engages in another profession outside
practice of law, should not allow it to interfere w/ responsibilities.
Notes: Integrity is an indeterminate word incapable of providing clear guidelines for conduct.
Duty of Confidentiality – RPC 2.03(1) (pg. 280 text) – “A lawyer at all time shall hold in strict confidence all information concerning the business and
affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly
authorized by the client or required by law to do so.” Without this, client would not be candid. Difference between ethical duty of confidentiality v.
legal profession privilege from Smith V. Jones:
1) Privilege applies only in proceedings where lawyer may be a witness or otherwise compelled to produce evidence relating to client. Confidentiality
operates even when no question of attempt to compel disclosure by legal process.
2) Professional privilege encompasses only matters communicated in confidence by client, or by third party for dominant purpose of litigation.
Confidentiality covers all info acquired regardless of source.
3) Privilege applies to communication itself, does not bar adduction of evidence pertaining to facts communicated if gleaned from another source,
often lost where other parties are present during communication. Confidentiality persists despite fact that third parties know information in
question of communication was made in presence of others.
Confidentiality continues even after client’s death; evidence will be allowed if it furthers deceased interests (Geffen v. Goodman Estate SCC)
Solicitor-Client Privilege – confidential communication between solicitor and a client made for purpose of obtaining legal advice is privileged. Client
can waive privilege. It covers both oral and written communications. Extends only to documents created for providing legal advice (can’t hide
evidence by giving to lawyer). Once privileged always privileged even after death. Wigmore Test for privilege:
1) Legal advice must be sought from a professional legal advisor who is acting in that capacity (privilege covers those assisting the lawyer ie.
Paralegals, articling students)
2) The communication must be for the purpose of obtaining legal advice. Eg. Business advice would not be qualified.
3) The communication must be made in confidence eg. Presence or release of info to 3rd parties undermines confidence.
Lawyers must safeguard communications; lawyers duty to protect against possible disclosure by another party. Solicitor must take positive steps to
prevent disclosure of confidential information (Bell v. Smith SCC). Claim of privilege can only be made by the person whose privilege it is (R. v. Jack
MCA). Fiduciary relationship between a lawyer and client forbids lawyer from using any confidential info obtained for benefits of himself or a 3rd
party or to disadvantage of client (Szarfer v. Chodos OCA) supported by CBA Code, rule IV, commentary 5 “The fiduciary relationship between the
lawyer and the client forbids the lawyer to use any confidential information covered by the ethical rule for the benefit of the lawyer or third person, or
to the disadvantage of the client.
Exceptions to Confidentiality
1) Client consent - RPC 2.03(1) – pg. 392 text. Can be express or implied from specific instructions.
2) Disclosure in the Interests of Justice – Lawyers are permitted to testify after death of client about validity of will, intent of client. The court
extended this principle to settling a trust (Geffen v. Goodman Estate SCC pg. 312 text). To further both clients interests and advance cause of justice
(R. v. Jack MCA pg. 319 text)
3) Public Safety – RPC 2.03(3) (p. 390) Rule embodies test from Smith v. Jones SCC: There must be imminent risk of serious bodily harm or death to
an identifiable person or group before court will set aside privilege. 3 factors:
a. Clear risk to identifiable person or group;
b. Serious bodily harm or death; and
c. Imminence of the danger.
Extent of disclosure should be limited to aspects which reveal imminent risk or serious bodily harm or death to an identifiable person or group
(Smith v. Jones SCC)
4) Collecting Fees and Defending against Malpractice Claims – RPC 2.03(3)(5) (pg. 365 text) – Can disclose confidential info to collect fees or to
defend themselves against malpractice claims. By imputing misconduct to former counsel, client waived privilege of confidentiality to extent
necessary to enable counsel to defend themselves (R. v. DunbarOCA)
5) Innocence at Stake – No rule of policy exists which requires continued existence of privilege in criminal cases when person claiming privilege no
longer has interest to protect, and when maintaining privilege must screen from the jury information which would assist an accused (Smith v. Jones
SCC), R. v. Dunbar and Logan OCA).
6) Facilitating a Criminal Purpose – If facilitating a criminal purpose, cannot argue that communication is privileged eg. Communications criminal or
made to facilitate crime (Descoteaux v. Mierzwinski SCC)
Conflicts of Interest – CBA Code, Chapter VI(c) – “The lawyer shall not act for the client where the lawyer’s duty to the client and the personal
interests of the lawyer or an associate are in conflict.” Ontario rule 2.04(1) pg. 406 text defines conflict of interest as an interest that would likely affect
adversely lawyer’s judgment on behalf of client or prospective client. Cannot represent more than one side of dispute (2.04(2). Cannot act or continue
to act where there is or is likely to be a conflicting interest client consents given adequate info (2.04(3). Can’t start as lawyer for one side and switch to
lawyer for other side in same or related matter or if there is relevant confidential info you know of (s. 2.04(4)). Rule for when a lawyer’s partner or
associate may act in a new matter against former client (2.04(5) pg. 33 summary). Lawyer prevented from switching sides in R. v. Zwicker. If disclosure
of confidential info could harm former client cannot work on case unless former client consents or it is in the interest of justice (2.04(4)). If
confidential info cannot harm former client, only transferring lawyer cannot act, but firm can (2.04(5)).
Transferring Lawyers – Safeguards by firm need not be totally foolproof, but firm must show that a reasonable member of the public in possession of
all of the facts would conclude that no unauthorized disclosure of confidential info had occurred or would occur (Davies, Ward & Beck & McKenzie
OCA). SCC Test for CoI from McDonald Estate v. Martin:
1) Did lawyer have relevant confidential information about the case?
2) If so, court presumes that there has been disclosure, thus it is up to firm to refute presumption.
Business Interest Conflicts – Lawyers loyalty to client not just concerned with legal interests of client but also commercial interests (R. v. Neil SCC)
Joint Retainers – Rule 2.04(6) – Before lawyer accepts employment from more than one client in a matter, lawyer must advise client that (a) lawyer has
been asked to act for all of them (b) no info received in connection with matter from one can be treated as confidential so far as others are concerned,
and (c) if conflict arises that cannot be resolved, lawyer cannot continue to act for all of them and may have to withdraw. Requires consent at the
outset. Lawyer cannot advise clients on contentious issue between clients (2.04(9)(a) and must refer clients to other lawyers (2.04(9)(b)) unless (i) no
legal advice is req’d or (ii) clients are sophisticated and resolve dispute between them. Lawyer can at the start tell them at outset that if contentious
issue arises, he will act for only one of them. If they consent, it is fine (2.04(10)).
A lawyer can act for a client even if fees paid by 3rd party so long as client consents (obligation is to client, not 3rd party) (R. v. Stork and Toews BCCA).
Contingency Fees – Where lawyers are paid a % of settlement rather than usual fees is allowed in Ontario (McIntyre Esate v. Ontario (AG)OCA). Debate
over them on pg. 42 of summary, pg 457 of text. Allowed in everything but family and criminal cases.
Lateral Moves – When lawyer stops representing one client to start representing another on same side of transaction. Example: No CoI b/c
complainant had purpose of seeking conviction at trial while acting for Crown on appeal, interested only in seeking the truth (R. v. J(G.P.))
Client Perjury – S. 131 of CC makes it a crime to perjure. Lawyer cannot simply turn a blind eye to it (CBA Rule 9, commentary 2)What should
lawyer do if client intends to perjure?
1) Proceed as Usual – This violates code. Do NOT do this.
2) Free-and-open Narrative – Lawyer begins examination avoiding topic and ends with “do you have anything to add?” and does not mention it in his
closing.
3) Refuse to call client – May unduly interfere with client’s constitutional right to testify.
4) Steer client away from the issue. Problems: leaves things unexplained/suspicious gaps and prevents client from changing his mind.
5) Dissuade and Withdraw – Try to get client not to lie and if he won’t, withdraw from the case. If you are blocked from withdrawing you can either
proceed as usual or rat your client out (law society and prof think you should rat him out – threaten to rat him out first, generally, client will change
his mind)
6) Expose Client’s Intentions
What if your client lies without notice? CBA Code IV Commentary 3 – Duty to court to disclose and do all that you can reasonably do to rectify the
error. Should probably tell client that if he doesn’t tell the truth, the lawyer is obligated to. Where party deliberately misleads court in a MATERIAL
MATTER it would be wrong to leave judgment alone without a new trial (Meek v. Flemming HL). Lawyer may withdraw from case when continuing
would put duty to client in conflict with duty to court b/c client plans to or has committed perjury (Re Jenkins and the Queen OCJ)
Penalties: Disbarred for taking advantage of young prostitute client (Adams v. Law Society of Alberta ABCA). 3 month suspension for threatening not to
testify honestly on ex-wife’s behalf (conduct unbecoming a solicitor) (Law Society of British Columbia v. A Lawyer). Disbarred for falsifying mortgages to
avoid personal bankruptcy (Law Society of Upper Canada v. Ault). Suspended and reprimanded for behaviour in court (Law Society of Upper Canada v. Clark)
Must consider (Law Society of British Columbia v. A Lawyer):
1) Nature and gravity of proven conduct
2) Age and experience of accused
3) Previous character of accused, including details of discipline
4) Impact on victim
5) Advantage gained or to be gained by accused
6) Number of times offending conduct occurred.
7) Whether accused has acknowledged misconduct and taken steps to correct it and other mitigating circumstances
8) Possibility of remediating or rehabilitating accused
9) Impact on accused of criminal or other sanctions
10) Impact of proposed penalty on accused
11) Need for specific and general deterrence
12) Need to ensure public’s confidence in integrity of profession
13) Range of penalties imposed in similar cases.
Morality & Lawyers:
Neutral conduit argument – Lawyer’s institutional role is designed to remedy complexity of law. Lawyers req’d to respect limits of law, any activities
lawyer undertakes must be legal. As legal actions, could have been carried out by client, therefore, no responsibility for lawyer as they just help client
cross barrier of complexity. Lawyer must ignore own morals to act for client’s legitimate interest.
Justificatory Context – Different contexts have different codes of ethics eg. Poker, it is okay to bluff.
Role Differentiated Model – Normal morals don’t apply to lawyers. B/c these actions occur in a specific context (ie. Legal system), different set of
rules apply, lawyers are insulated from normal morality.
Neutral Agency – Lawyers engaged in representing clients, just doing will of client following orders.
Getting Caught Models:
Why regulate? Without regulation there is a mkt failure b/c of information asymmetry (seller knows more about product than buyer. Ie. Unethical
clients conceal unethical conduct. Lawyers may take advantage of unwitting clients.) and negative externalities (external costs will be ignored by rational
decision-maker).
Compensatory Model – In tort and K law. It does not prohibit conduct, ensures individuals bear cost of behaviour. 2 goals:
1) Compensatory – Compensation for whoever is harmed.
2) Cost Internalization
4 Effects of PERFECT compensatory system of regulation:
1) Efficient Incentives – rules that promote efficient choices (efficient breach of K = greater benefit to society with breach)
2) Redressing Wrongs – Quantify victim’s loss and require person who caused loss to pay sum needed to eliminate loss. Perfect compensatory
damages = level of damages where victim is indifferent to no tort/breach or damages.
3) Causes indirect social costs to disappear.
4) Renders rational regulator indifferent to adherence or breach of ethical norm (plus compensation).
Punishment Model – Objective to generate efficient allocation of scarce resources (aims to prevent unethical choices by setting expected cost of illicit
act above benefit). Makes illicit acts so costly that it is not in decision maker’s interest to pursue them. Compensatory model is more efficient
generally, only depart where it fails to:
1) Generate perfect competition;
2) Eliminate the negative externalities;
3) Create efficient incentives for decision makers.
Only punish acts that either give rise to harm in which compensation is impossible in principal or practice or that give rise to enforcement errors (ie.
Can evade detection)
The Adversarial Model of the Legal System – each side acts in partisan manner. By both sides acting as resolutely as possible, the ultimate result
will be truth and individual rights will be protected.
THE CODES  Ontario Rules of Professional Conduct &
The Canadian Bar Association Rules of Professional Conduct.
INTRODUCTION: The CBA is a voluntary, non-binding code unless a province has adopted it as its official code
- Binding Codes: Create binding ethical obligations – the breach which can give rise to professional sanctions.
- Most provinces model their official code after the CBA (Ontario included)
- Where provincial code is lacking in some respect, look to CBA for guidance
ONTARIO’S RULES OF PROFESSIONAL CONDUCT
Rule 1: Citation and Interpretation
 Offers definitions for key terms used throughout the revised rules and guidelines for the
interpretation of the rules.
 “Rules should be observed in the spirit as well as in the letter” (1.03(1)(f))
 “lawyer has a duty to be honourable and have integrity” (1.03)
 Integrity seen as underlying a number of the rules (same with the CBA)
 Includes conduct unbecoming of a solicitor – a number of examples
Rule 2: Relationship to clients
 Rules and commentaries on client-related issues such as lawyer competence, conflicts of interest
(2.04) and confidentiality (2.03 (1))
 Extensive Rules and Commentary on Conflicts of interest and Confidentiality
Rule 3: Practice of Law
 Rules and commentaries on issues related to law practices themselves, such as firm names,
advertising, and interprovincial law firms
Rule 4: Relationship to the Administration of Justice
 Rules and commentaries relating to a lawyer’s responsibilities to the courts, participants in
the legal system and to the overall administration of justice.
 4.01: The Lawyer as an advocate: Lawyers Trifecta – know everything, keep everything
confidential, need to disclose certain things to the court
 4.02  things the lawyer shouldn’t do as an advocate
Rule 5: Relationship to Students, Employees, and Others
 Rules and commentaries governing lawyers conduct toward students, employees and others,
including areas such as sexual harassment and discrimination
Rule 6: Relationship to Society and other Lawyers
 Rules and commentaries covering issues such as a lawyer’s responsibilities toward the Law
Society and involvement in multi-discipline practices and public office
 Refers to other lawyers as “friends” (6.03)
***RULE 2 IS MOST IMPORTANT AND WILL BE IN ISSUE MOST OFTEN***