I. SOURCE AND CONTEXT OF LAWYERS’ ETHICS .......................................................................... 4
Chapter 1 Woolley (1) [A] ................................................................................................................ 4
2. Why Understand Lawyers’ Ethics? (1) .............................................................................................4
3. Sources of Legal and Ethical Duties (3)............................................................................................4
A. The Regulatory Structure: Self-Regulation (4).................................................................................................................. 4
B. Codes of Conduct as a Source of Lawyers’ Legal and Ethics Duties (9) ................................................................. 4
C. Law Society Discipline as a Source (13) ............................................................................................................................... 4
D. Other Sources (13).......................................................................................................................................................................... 4
E. Purpose of the Rules Governing Lawyer Conduct (15) ................................................................................................. 5
F. Integrity Challenge: Professional vs. Personal Morality (17) ..................................................................................... 5
Rachels, Ethical Theories [OPTIONAL – thanks Amanda] .................................................... 5
II. LEGAL PROFESSION AND PROFESSIONAL REGULATION ...................................................... 7
Chapter 2, Woolley & al., Lawyers’ Ethics and Professional Regulation [T] .................. 7
B. The Concept of Self-Regulation ...........................................................................................................7
C. Practice of Self Regulation .....................................................................................................................7
D. Other Regulatory Functions .................................................................................................................9
E. External Regulation ............................................................................................................................... 10
Finney v Barreau du Québec [2004] 2 SCR 17 (SCC) [H] ..................................................... 10
Law Society of Upper Canada v Burgess [2006] L.S.D.D. no 81 [H] ................................ 10
III. LAWYER—CLIENT RELATIONSHIP & PRACTICE OF ADVOCACY ................................... 11
Chapter 3 Woolley “The Lawyer—Client Relationship” [C] (45) .................................... 11
1. Introduction.............................................................................................................................................. 11
2. Client Selection (46) .............................................................................................................................. 11
3. Lawyer—Client Decision Making and Client Counselling (52) ........................................... 13
A. Introduction ..................................................................................................................................................................................... 13
B. Lawyer-Client Decision Making (54) ................................................................................................................................... 13
C. Client Counselling (59)................................................................................................................................................................ 14
D. Counselling and Unlawful Activity (61) ............................................................................................................................. 15
4. Fees (64) ............................................................................................................................................................................................ 15
5. Withdrawal (65) ............................................................................................................................................................................. 15
Chapter 4 Woolley “The Practice of Advocacy” [A] .............................................................. 16
1. Introduction.............................................................................................................................................. 16
2. Lawyer Competence: the Heart of Advocacy (71) .................................................................... 16
3. Restraints on Zeal (75)......................................................................................................................... 17
A. Frivolous arguments (75).......................................................................................................................................................... 17
B. The rule against “sharp practice” (81) ................................................................................................................................ 18
C. Relevant adverse authority (85) ............................................................................................................................................ 19
4. Zeal in Context (87) ............................................................................................................................... 19
A. Discovery (87)................................................................................................................................................................................. 19
B. Ex parte applications (88) ......................................................................................................................................................... 19
C. Investigating a Client’s Case – Covert Investigations and Communicating with Witnesses (90) ........... 19
5. Lawyer Speech (93)............................................................................................................................... 20
A. Introduciton (93) ........................................................................................................................................................................... 20
B. Public Statements (94)................................................................................................................................................................ 20
C. Criticism of Other Lawyers (96) ............................................................................................................................................. 20
D. Criticizing Judges and the Legal System (101)................................................................................................................ 20
6. Conclusion (104) .................................................................................................................................... 21
R v Murray, [2000] OR (3d) 544 (ON SCJ) [N] ......................................................................... 21
IV. LAWYER—CLIENT TRUST AND CONFIDENCE ...................................................................... 22
Chapter 5 Woolley [A] .................................................................................................................... 22
“Le Secret professionnel de l’avocat” Jamal & Lussier [T] ................................................ 32
Secret professionnel de l’avocat ........................................................................................................... 32
Privilège relatif au litige (Litigation priviledge).............................................................................. 34
Smith v Jones, 1999 SCJ No 15 [C] ............................................................................................... 34
Szarfer v Chodos, [1986] OJ No 256 [N] .................................................................................... 38
R v McClure 2001 SCJ 13 [A].......................................................................................................... 38
V. CONFLICTS OF INTEREST .............................................................................................................. 41
Chapter 8 Woolley [H] (215) ....................................................................................................... 41
1. Introduction.............................................................................................................................................. 41
2. Lawyer-Client Conflicts Defined (216) .......................................................................................... 41
A. Violations of Duty to Act in Client’s Best Interests (217) ........................................................................................... 41
B. Who is a Client? (223) ................................................................................................................................................................. 41
C. What constitutes informed consent? (227) ...................................................................................................................... 42
3. Kinds of Conflicts of Interest (231) ................................................................................................. 42
A. Conflicts relating to the lawyer’s own interests (231) ................................................................................................ 42
B. Conflicts between a former client and a new client (232) ......................................................................................... 42
C. Conflicts between current clients (233) ............................................................................................................................. 42
D. Third party and multiple role conflicts (235).................................................................................................................. 43
4. Why are Some Conflicts Forbidden? (236) .................................................................................. 43
5. The Preventative Rationale (238) ................................................................................................... 43
6. The Appearances Rationale (241) ................................................................................................... 43
7. Lawyers’ Specific Duties (242) ......................................................................................................... 43
A. Duties to Former Clients (243) ............................................................................................................................................... 43
B. Duties to Current Clients ............................................................................................................................................................ 45
C. Lawyer-Client Conflicts (272).................................................................................................................................................. 47
MacDonald Estate v Martin [1990] SC J no 41 [N] ................................................................ 47
R v. Neil [2002] SCJ No 72 [N] ....................................................................................................... 48
Strother v 3464920 Canada Inc [2007] SCC 24 [M] ............................................................ 49
VI. ACCESS TO JUSTICE ........................................................................................................................ 51
Chapter 10 Woolley re: Pro Bono (p.327-329) ..................................................................... 51
British Columbia (A.G.) v. Christie [2007] SCC 21 [M] ....................................................... 51
VII. OTHER (PERJURY, WITNESSES, CRIMINAL LAW) .............................................................. 52
Woolley Chapter 6, “The Perjury Trilemma” [T] .................................................................. 52
2. Prohibition of Assisting Clients to Deceive the Court (163) ................................................. 53
3. When Testimony Is (or Will Be) Deceptive (165)..................................................................... 53
4. Lawyer’s Duties Where Client Deceives (or Intends to) a Court (167) ........................... 53
5. Solutions to the Problem of Perjury (173)................................................................................... 53
b. Withdrawal & Limited Disclosure (173) ............................................................................................................................ 53
c. Disclosure (176) ............................................................................................................................................................................. 53
d. Intentional Ignorance (177) ..................................................................................................................................................... 54
e. Narrative Testimony (179) ....................................................................................................................................................... 54
f. Continuing to Represent Client as if Testimony was Truthful (180) ..................................................................... 54
6. Conclusion (182) .................................................................................................................................... 54
Woolley Chapter 7, “Examining Witnesses” [D] (185) ....................................................... 54
1. Introduction (185) ................................................................................................................................. 54
2. Preparing Witnesses (185) ................................................................................................................ 55
A. Introduction ..................................................................................................................................................................................... 55
b. Law Governing Witness Preparation (187) ...................................................................................................................... 55
C. Why is it Difficult to Prepare a Witness without Coaching? (190) ........................................................................ 56
D. Skill of Effective Witness Preparation (197) .................................................................................................................... 56
E. Ethical and Effective Preparation of Witnesses (199) ................................................................................................. 57
3. Cross-Examination (201) .................................................................................................................... 57
A. Introduction (201) ........................................................................................................................................................................ 57
B. The Law of Cross-Examination (204) .................................................................................................................................. 57
C. Ethical Cross-Examination (207) ........................................................................................................................................... 58
Woolley Chapter 9, “Ethics in the Context of Criminal Law” [T] (277) ......................... 59
2. Prosecutorial Ethics (277).................................................................................................................. 59
A. Minister of Justice vs. Zealous Advocate (277) ............................................................................................................... 59
B. Prosecutorial Discretion (284) ............................................................................................................................................... 59
C. Disclosure (297) ............................................................................................................................................................................. 60
3. Defence Counsel Ethics ........................................................................................................................ 60
A. Defending the Guilty (301) ....................................................................................................................................................... 60
B. Plea Bargaining (308).................................................................................................................................................................. 61
4. Conclusion (311) .................................................................................................................................... 61
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All credit for this summary is due to the group that put it together. They did an amazing job, and I was lucky
enough to have had the chance to work with such a smart and diligent group of people.
I. Source and Context of Lawyers’ Ethics
Chapter 1 Woolley [A] (1)
Thesis of book: “the fundamental legal and ethical obligation of lawyers is to assist clients pursue their goals
under and through the law – to be zealous advocates within the constraints of legality.” (p. 1)
2. WHY UNDERSTAND LAWYERS’ ETHICS? (1)
Violation of lawyers’ legal and ethical obligations results in adverse consequence for the lawyer (disciplinary
action, cost sanctions, etc.) and his client.
Lawyers’ ethics of foundational importance (to society, to the practice, to the lawyer him/herself)
Content of lawyers’ ethics



legal rules which determine how lawyers can and must behave.
resolution of moral quandaries faced by a lawyer when she has the freedom within or apart from the
rules of professional conduct to choose between different courses of action.
whether a person who does the things that lawyers do can consider herself to have lived a good life:
Can a good lawyer be a good person? (p. 2)
3. SOURCES OF LEGAL AND ETHICAL DUTIES (3)
A. The Regulatory Structure: Self-Regulation (4)
SELF-REGULATION: statutorily granted regulation power granted to the 14 provincial law societies – the
Barreau in Quebec. Membership in these societies is precondition to practice law.
 Federation of Law Societies: national coordinating body of the 14 Canadian law societies (low profile,
but two recent initiatives: “Approved Law Degrees” and draft of uniform Model Code of Conduct).
 Canadian Bar Association (CBA): adovactes for the interests of lawyers.
Self-regulation a good thing?
 Independence argument: but self-regulation is not what guarantees an independent profession.
 Social contract theory (acting in the public interest in exchange for self-regulation): but law societies
have not regulated well enough to always protect the public interest.
B. Codes of Conduct as a Source of Lawyers’ Legal and Ethics Duties (9)
1920 CBA Canons of Legal Ethics
1987 CBA Model Code of Conduct, revised in 2009 for conflicts of interests: a mix of mandatory guidelines
and exhortatory ethical precepts. Most provinces adopted it with minor modifications, while Alberta adopted
in much more detailed code in 1995.
C. Law Society Discipline as a Source (13)
1. Ethical opinions
2. Disciplinary decisions: show what law societies consider constitutes professional misconduct or “conduct
unbecoming” a lawyer. Relatively few, but a useful source.
D. Other Sources (13)
Codes have limited influence, because (i) they are not uniform and (ii) law societies rarely link their decisions
to specific provisions in the codes.
Major source: judicial decisions which delineate the obligations of lawyers to their clients, the courts, the
legal system, etc.
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Also regulation and legislation dealing with other matters but affecting lawyer’s duties, e.g. rules of
superior courts.
E. Purpose of the Rules Governing Lawyer Conduct (15)
Socio-economic critics: self-regulation is an assertion of lawyer’s own self-interests.
Woolley’s reponse
 public interest in regulating the highly imperfect market for legal services
 regulation based on legal and philosophical underpinning: the principle that laywers must be loyal
advocates for their clients (paramount durty of loyalty) within the bounds of legality (legality).
F. Integrity Challenge: Professional vs. Personal Morality (17)
How to reconcile role morality with ordinary morality?
Acting according to role morality is consistent with integrity.
 lawyer’s role of zealous advocate has a principled justification: it is itself a moral virtue.
 within the lawyer’s role remain significant choices she can make with an eye to integrity, the most
important of which is client selection (see ch. 3).
In the end, lawyers will sometimes have to choose between professional morality and personal morality: they
will simply choose one moral value over another and must take responsibility for that choice.
Rachels, Ethical Theories [OPTIONAL – thanks Amanda]
Utilitarianism
 Ultimate principle of utility
 Policy selection: which choice has the best overall consequence for everyone concerned
 Strive for the “greatest happiness in the greatest number”
 Takes the practical necessities of the world into account
 However, not always commonsensical:
o Unable to account for backward-looking reasons.
o Too demanding: it seems to eliminate the distinction between obligatory action and supererogatory
actions.
o personal relationships: it asks us to be impartial, not placing the interests of loved ones above those
of the rest – clearly impossible, not to say morally repugnant
o Problems with the closely related notions of rights and justice: pursuing the greatest good brings us
into conflict with these values.
o character: the ideal utilitarian would be a rotten friend (no loyalty), cold and calculating.
Intuitionism
 We have prima facie duties with respect to certain people: 1) duties resting on some previous act of our
own, such as the duty to keep our promises and the duty to make restitution for wrongs we have done,
2) the duty of gratitude, 3) the duty of justice, to distribute goods fairly, 4) the duty of selfimprovement, to develop our own talents and abilities 5) the duty of beneficence, to act as to benefit
others; and 6) the duty of non-maleficence, not to injure others.
 Not unified under general principle, not ranked = difficult to solve conflicts.
Rule-utilitarianism (think of as part of utilitarianism)
 You select a set of rules that would be good to follow. You do not apply it to particular actions, you only
identify which of your general rules you must apply to the situation.
Motive-utilitarianism (think of as part of utilitarianism)
 The paradox: asks you to forget about utilitarian calculating, and just do what is best for your loved ones,
be the best parent, child, whatever. This is how the greatest happiness for the greatest number will be
achieved in the long run, despite you probably making “poor” choices at some points.
 The greater good springs from these motives: like honesty, loyalty, faithfulness, love of justice, etc.
The social contract (Rawls)
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
Reflective equilibrium: disqualify all those judgments made out of pressure, stress, hesitation, keep only
the ones made without hesitation. You continue balancing your judgments with your theory until you
reach a ‘reflective equilibrium’ between the two. That theory wil be satisfactory.
The rules of justice should be conceived as whatever rules we would accept in special circumstances
called ‘the original position’ = an imaginary situation in which we are negotiating with other people about
how the basic institutions of society are to be structured. This negotiating takes place when everyone is
ignorant of his or her own person qualities and social position = the veil of ignorance. Therefore everyone
opts for social arrangements in which everyone is as well-off as possible.
Two general principles would be agreed upon in this state:
o Everyone should have the most extensive liberty compatible with a similar liberty for others
o Social or economic inequalities should not be permitted unless they work for everyone’s
advantage and are attached to positions open to everyone.
→ institutions egalitarian and democratic
Rawls did not view his theory as a general moral philosophy, but an explanation for the constitutional
democracy, and only to describe its institutions
To sum it up: the social contract view is that morality is a set of rules that rational people will agree to
adopt to further their own interests.
Morality is a rational enterprise






****
Kant
 Source of morality = the will of the rational, autonomous agent
 Constraint: consistency one must act only on principles that he would be willing to have everyone follow
as ‘a universal law’)
 One must accept absolute views
New Kantians
 Interpret Kant in a way that does not lead to absolutes
What does all this discord mean? Thinking “what must we do” is the wrong starting point; Aristotle and other
ancients started with character. “What traits of character make one a good person?” → theories of virtue, not
rightness and obligation → virtue theory
Virtue theory
 Should say what virtue is, which character traits are virtuous, explanations of what these virtues consist
in, and why is it good for people to have these traits
 Aristotle thought that it was natural for us to form societies, and that these virtues were needed for us to
flourish as human beings
 Ties in with…feminism. There are some virtues that have been ignored by male bias and his strictly
public role on this world. We see the underlying “male” values of impersonal duty, contracts, the
harmonization of competing interests, and the calculation of costs and benefits in those major
philosophies. Value ethics may be able to balance those values which attach to both the public and private
life.
 On its own though, there are problems: it seems incomplete.
o why a certain character trait is better than its opposite.
o If there are two virtues in conflict, which one takes precedence?
There should perhaps be an attempt at combining some of the insights of a virtue theory with the right-action
approaches.
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II. Legal Profession and Professional Regulation
Chapter 2, Woolley & al., Lawyers’ Ethics and Professional Regulation [T]
B. THE CONCEPT OF SELF-REGULATION
Control and direction of an occupational group, lawyers, through rules made by lawyers acting collectively in
the form of autonomous governing bodies: law societies.
Self-regulation is undertaken in the public interest to ensure legal services are provided to the public ethically
and only by persons qualified to do so.
Self-regulation is a dominant trait of a learned profession, along with:
 autonomous governing body
 restricted admission into the profession
 particular responsibility to client
 furtherance of not only an individual but a collective interest
Critical theories regarding professions

Market theory (sociology): self-regulation is not undertaken in the public interest but rather to
exclude certain persons from the market of legal services, ensuring scarcity and higher prices than an
open, free market.
Some economist have taken a similar view: the need to maintain the quality of legal services is not seen as
sufficient to justify the substantial restraints on the market, which drives up prices.

Structural functional approach (more positive): professions is seen as a source of community in an
individualist society (shared education, language, etc.). Professions enjoy great autonomy (relatively
free from state interference), which allows them to act for the general welfare [this is not empirically
substantiated].
Justification for self regulation:
1. Only members in the profession have the knowledge to assess each other’s conduct
2. Only the profession has the necessary autonomy from the state to regulate its members in the public
interest.
C. PRACTICE OF SELF REGULATION
Justifications
I. Autonomy and independence from the state: law, as a self regulating profession, will protect individual
freedoms from the “pervasive threat of the State”.
 Mostly a historical, rhetorical argument: in fact, little evidence to support this.
II. Specialized knowledge required: only lawyers can properly understand the complexity of regulating
lawyers.

However, (i) information assymetry is precisely a result of lawyer’s monopoly over the market for
legal services, and (ii) expertise can always be acquired if it needed to regulate.
III. Social contract with the State (ideological basis): profession regulates itself in the public interest in
return for a monopoly over legal services

Purely fictional — no evidence that such a bargain has even been entered into, or that the profession
regulates in the public interest.
IV. Efficient: administrative costs of regulation covered by members and not taxpayers.

However, total costs to society of having a monopolized market for legal service are far higher than
the savings of administrative costs.
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STRUCTURE
(a) Law societies
They are delegates of provincial and territorial legislatures, constituted and empowered to regulate lawyers
in the public interest.

Significant powers of self-regulation, but limited by the statutory grants (what powers the legislature
has granted).
 Provincial superior courts have supervisory jurisdiction over admissions and discipline decisions.
 Government oversight, e.g. inquiries and non-lawyer appointees to the governing bodies of the
profession.
 Increasing use of legislature to directly regulate lawyerly activity.
(b) Nature and Scope of Self Regulation
 Mainly: entry regulation (c) and conduct regulation (d).
 Also: insurance funds, continuating ed., lawyer support services, etc.
(c) Regulation of Entry to the Profession and Practice
(i) Pre-admission requirements
- University education in law

historic tension between preparation for professional practice (substantive & procedural law) vs.
academic study (indisciplinary study to understand the role of law).
 Law societies exert pressure on curriculum but universities retain control.
 Strict admission to law programs, and high costs, artificially limit entry into the profession.
- Articling: apprenticeship of 10-12 months under an experienced lawyer.
- Bar examination: not a major obstacle – low failure rate (outside Quebec).
(ii) Good character: only persons worthy of trust, with moral strength or integrity are admitted into the
profession and practice.


No established standard: arbitrary and unpredictable
Enforcement is mostly passive, a bit of a simple “formalité”.
(d) Self Regulation of Lawyer Conduct
(i) Codes of Conduct
1920: CBA’s Canons of Ethics: short, mostly commincates a vision of professionalism.
1974: CBA’s Code of Professional Conduct: 17 fundamental principles + commentaries. Mostly aspirational.
1987: substantial revision while retaining aspirational tone.
 serves as basis for provincial codes.
 only Alberta has a very detailed code with much more mandatory language.
Codes have 2 main functions: ideological (beliefs, ideals, values of legal community) and regulatory
(detailed standard of lawyer conduct to serve as the basis for professional discipline — recent increase in
these detailed rules, to the detriment of flexibility).
Criticisms:
 You cannot regulate ethical behaviour through detailed written rules.
 Codes serve the interests of the profession, not the public
 Written rules are an ineffective means of regulation – too much variety in the profession.
(ii) Anatomy of Lawyers’ Codes
A. Duties owed to clients, the courts & other lawyers



Competence
Vigorous defense of client’s interests within the limits of the law
Confidentiality
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 Avoidance of conflicts of interest
B. Duties owed to the profession and society
 Integrity
 Improvement of the legal profession
D. Other: codes reflect growing racial and gender diversity, for example with rules against sexual
harrassment.
(iii) Discipline
Purpose: not to punish the lawyer, but to protect the public (by sanctioning the offending lawyer) and protect
the profession’s reputation.
A. Standards of discipline
Discipline for “professional misconduct”, “conduct unbecoming a barrister and solicitor” or “conduct
deserving of sanction”: vagueness allows for flexibility.
e.g. Law Society of Upper Canada
 (attempted) violation, or assiting another in violation, of a rule of the law society.
 misappropriation of client’s property.
 conduct prejudicial to the administration of justice.
Some element of moral turpitude beyond mere negligence is usually required.
In reality, lawyers are mostly disciplined for a criminal offense (e.g. fraud, theft), violation of a fiduciary
duty, incapacity caused by mental disability or serious addiction, or for failing to respond to an inquiry from
the law society.
Notes


Expansion of discipline to include incompetence in delivering legal services.
Personal or private conduct (“unbecoming” of a lawyer) only gives rise to discipline in cases where it
calls into question the ability of the lawyer to work.
B. Proceedings – 3 stages
1. Complaint/investigation
 Criticism of discipline for failing to properly address complaints of inadequate services.
 Law societies have complaint departments and will try to resolve concerns in informal ways.
 If complaint warrants discipline, investigation is conducted.
 If complaint is dismissed after investigation, complainant has the option to appeal.
2. Hearing
 Adversarial, with legal representation
 Neither criminal nor civil, rather sui generis proceedings.
 “Judicial” or “quasi-judicial”
 Subject to Charter scrutiny and common law judicial review.
3. Penalty/sanction (in order of seriousness)





Reprimand
Fine
Imposition of practice conditions
Suspension from practice
Disbarment (reserved for deliberate, flagrant or unlawful misconduct — reinstatement is possible,
but the standard is high)
Factors to determine sanction: nature and extent of injury to others, blameworthiness of conduct, penalties
imposed on others for similar misconduct, and mitigating or aggravating circumstances.
D. OTHER REGULATORY FUNCTIONS
Unauthorized Practice of Law
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Protecting the legal profession’s monopoly on legal services, justified as maintaining quality legal services.
However, as legal services have become more complex and expensive, an important paralegal market has
developed.



Hard to prosecute: unclear what “legal services” are.
If law societies prosecute too aggresively, they will be viewed as acting in the economic interests of
their members.
Ontario brought independent paralegals under the regulatory reach of the Law Society of Upper
Canada.
E. EXTERNAL REGULATION
1. Legal Liability of Lawyers
Lawyers can be held liable in damages for acts or omissions that cause their clients loss or injury.





Goal is compensation of client.
Client has full control over the action (unlike discipline).
Client may sue in contract or tort, or both concurrently.
Standard of care is exercise of reasonable knowledge, skill and diligence.
Practicing lawyers in Canada are required to participate in insurance schemes to compensate clients
for losses arising for their lawyer’s negligence.
2. Voluntary Professional Associations
Optional membership in professional organisations: Canadian Bar Association (CBA) or smaller specialized
groups.
Finney v Barreau du Québec [2004] 2 SCR 17 (SCC) [H]
Facts
Lawyer B acts in both an incompetent and unacceptable way, lauching a guerrilla against
former clients. Despite the Barreau’s knowledge, it takes them several years to discipline
him. Finney seeks civil liability damages from the Barreau.
Issue
(1) When, if at all, can the Barreau be held liable for failing to protect the public from a rogue
lawyer? (2) Is the Barreau liable in this case?
Holding
(1) When it acts with “bad faith”, i.e. gross fault/recklessness. (2) Yes.
Reasoning
s.23 of the Quebec Professional Code provides that professional orders must protect the
public.
Code provides for monitoring of professional performance through:
1. Inspection (preventive, investigation, etc.)
2. Disciplinary action; syndic decides whether to lodge a complaint with the Committee
on Discipline.
However, s.193 prohibits prosecutions for performance “in good faith” of their functions.
Civil liability apply to Barreau as a state body (1376 CCQ).
Did the Barreau’s handling of Finney’s complaints amount to bad faith within the meaning of
s.193?
Yes: the SCC gives “bad faith” a broad meaning, which encompasses gross fault and
recklessness. Barreau is responsible for Finney’s moral injury.
Ratio
When the Barreau act with recklessness or gross fault in the performance of its duties,
e.g. disciplining a member, it can be held civilly liable.
Law Society of Upper Canada v Burgess [2006] L.S.D.D. no 81 [H]
Facts
Burgess has completed the bar admission cycle and her articles: she seeks admission to the
bar. In the Good Character section of her application, she lies about never receiving an
allegation of academic misconduct, when in fact she did receive such an allegation for
plagiarizing a paper during her B.A. She subsequently misrepresents the nature of the
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misconduct both to the Law Society and to reference-letter writers. She eventually admits
the truth.
Issue
Is an applicant to the bar that misrepresented her academic misconduct of good character,
and fit to be admitted to the bar?
Holding
No.
Reasoning
The lie was not of good character at the time; has she changed?
Good character
 Purpose of requirement: ensure that the Law Society can protect the public and maintain
high ethical standards in lawyers.
 Good character is moral and ethical strength, namely integrity, candour, empathy and
honesty.
Applicant has the onus of proving she has changed and is now of good character: here, her
lies being only 17 months away, she fails to meet that burden. She will only be admitted
when the
Ratio
Dishonesty, e.g. concealing academic misconduct, is inconsistent with the “good
character” requirement; it prevents admission to the bar, until the law society is satisfied
that the applicant has become of good character.
III. Lawyer—Client Relationship & Practice of Advocacy
Chapter 3 Woolley “The Lawyer—Client Relationship” [C] (45)
1. INTRODUCTION



Client selection, decision-making and counselling, fees and withdrawal all raise in some way the
question of how we can ensure that the lawyer fulfills her obligation to help the client execute his
decisions about what to do, and the right way to live, while also recognizing that the lawyer will
inevitably have her own beliefs about what should be done and the right way to live. (p.45)
It is when selecting clients that a lawyer can (and should) protect her own moral values. Proper
client selection helps reduce the moral tension that the lawyer might otherwise experience when
representing a client.” (p.45)
A lawyer must respect the client’s autonomy in both client counselling and lawyer-client decisionmaking. (p.45)
2. CLIENT SELECTION (46)



Canadian lawyers enjoy a general right, however subject to some specific qualifications, to decline
to act in any case unless assigned to do so by a court. (p.46)
A lawyer cannot take on a case where (p.46)
(1) she would be in an impermissible conflict,
(2) she would have to appear as a witness in the matter,
(3) she is not (and cannot affordably become) competent to take on the case,
(4) where the matter is “clearly without merit” or frivolous and vexatious.
 Restriction (2) “does not operate where the lawyer’s testimony is incidental to the action as a
whole” and “applies only to testimony from the lawyer personally, not to testimony from a
member of the lawyer’s firm” (p.47)
No discrimination: Lawyer cannot select clients on a discriminatory basis (may not deny
services/provide inferior services), based on … perceived race, colour, nationality, sexual orientation,
pregnancy, marital or family status, physical characteristics, sex, gender, political creed, etc. (full
enumeration p.46)
o “How these rules apply in practice to lawyers’ selection of client is not clear; there are no
published cases in which lawyers have been disciplined – under codes of conduct or under
human rights statutes – for selecting clients on a discriminatory basis.” (p.48)
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This rule has “the capacity to complicate the ability of the lawyer to incorporate her own
moral values in selecting clients”. Examples p.48.
o “The services the lawyer provides – resolute advocacy – requires her not simply to accept or
accommodate the perspective of the client, but to advocate for it. Requiring the lawyer to do
so in the face of her own conscientious beliefs seems hard to justify; a bona fide occupational
requirement of resolute advocacy may be that the advocate not deeply object to the position
she is being asked to take.” (p.49)
Access to justice: General duty to “make legal services available to the public in an efficient and
convenient way” (p.46)
o This duty is “placed on the profession as a whole, not only individual lawyers” (p.47)
o A lawyer should be slow in declining where doing so would “make it very difficult for a
person to obtain legal advice or representation.” (p.46)
o When declining, a lawyer “should assist the individual in finding representation elsewhere”.
Rule can be satisfied by minimal acts “such as referring the prospective client to law society’s
lawyer referral service.” (p.47)
Two legal arguments preventing the anti-discrimination rules from improperly constraining the
lawyer’s right to decline representation where that representation would run against her own moral
commitments.
(1) “[T]he conflicts rules prevent lawyers from acting in circumstances where there is a conflict
between the lawyer’s personal interests and her duty to the client, which likely includes
circumstances in which the lawyer’s personal beliefs might consciously or unconsciously impair
the effectiveness of her representation.” (p.49)
(2) “[I]f the lawyer is personally uncomfortable, then her advocacy may be compromised, and if it is
compromised, then she is (or may be) in breach of her professional duty of competence”, where
her services are “not equal to that which lawyers generally would expect of a competent lawyer
in a like situation”. (p.49)
How should lawyers exercise their discretion in choosing clients?
o  It must be considered both at the point of individual client selection AND at the point of
choice of practice environment ( where they will practice law, e.g. govt v large firm) (p.50)
o According to the author, "[a] lawyer who acts as a resolute advocate can always assert that
doing so was morally legitimate given the importance of law as a democratic compromise to
the problem of pluralism”. (p.50)
o “[T]he general right to decline representation” creates an “opportunity for the lawyer to
pursue her own moral values and conception of the good within the constraints of resolute
advocacy.” Examples p.50
o In the sense that there’s no “objective standard” of type of clients to choose, but simply
personal disagreements, a lawyer cannot really be subject to criticism for her choice of
clients. “[T]he objective moral standards are satisfied by the argument for the moral validity
of resolute advocacy within and under a system of laws.” (p.50-51)
o A more objective criticism would be that a lawyer has “either failed to recognize, or fail to
engage with, the fact that client selection is a moral choice, and one for which the lawyer
should take some sort of personal responsibility.” (p.51)
“Cab Rank Rule” (where lawyers must accept clients in order that they present themselves)
o 2 arguments FOR the rule (p.51)
(1) it “facilitates access to justice by preventing lawyers from acting as gatekeepers to the
legal system”
(2) “it prevents the lawyer from being overly identified with the client’s cause; it facilitates
the lawyer’s independence of judgment”
o Common Problem: in jurisdiction where the rule is applied), lawyers cite it but circumvent
the rule by, for example, setting their fees at a certain level, specializing in certain areas of
law or working in particular environments (p.51)
Other legitimate factors a lawyer can take into account: “earning a living for oneself and one’s family,
exercising one’s skills and attributes effectively, working in an environment that is congenial, and
achieving the right level of work-family balance” (p.51)
o
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3. LAWYER—CLIENT DECISION MAKING AND CLIENT COUNSELLING (52)
A. Introduction
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M. Morin Case: 1984: 9y.old Christine Jessop sexually assaulted and murdered. Her next door
neighbour, M. Morin, charged and convicted, but exonerated in 1995 by DNA evidence. Many factors
contributed to Morin’s wrongful conviction, enumerated p.52. Throughout the proceedings, his
lawyer maintained that Morin wasn’t guilty but that if he were, he should be acquitted by reason of
mental disorder. “Morin strenuously objected to the offering of the insanity defense, and later swore
an affidavit attesting that he only entered the defence because his lawyer placed him under “mental
duress” by saying he (the lawyer) would withdraw unless Morin agreed to enter it.” (p.52)
o “The Commissioner (…) concluded that the proffering of the insanity defence was indirectly
important in Morin’s wrongful conviction because it contributed significantly to tunnel the
vision of prosecutors that undermined those prosecutors’ handling of the case”. (p.53)
This example raises questions about whether (p.54)
o …the counsel have offered such a defence when the client did not want to
o … who should decide how a matter is conducted: lawyer v client
o … if the client is to decide, what kind of info should the lawyer provide to the client before
the client decides
o Is the lawyer’s role simply to present legal options available or can he engage with the client
on questions of what is “right” given the circumstances?
B. Lawyer-Client Decision Making (54)

Examples of types of decisions in civil litigation, criminal defence cases and when negotiating
agreements p.54, 1st paragraph of B. “In all of these contexts, the decisions to be made relate to what
the client wants to accomplish, both in terms of the final result of the representation and in terms of
how that result is to be achieved”. Lawyers incorporate legal expertise + non-legal elements, like
rlsps between the parties and interests of the clients that are distinct from legal issues. (p.54)
 Codes of conduct give guidance for specific situations but “do not take a position on whether, in
general, those decisions should be driven by the lawyer or the client.” However, they do state certain
rules… (p.54-55)
o A lawyer “may not waive or abandon the client’s legal rights…without the client’s informed
consent” (p.54)
o Lawyers cannot disclose confidential info. without client’s consent (p.55)
o Lawyer cannot enter “into a plea agreement without instruction from the client” (p.55)
o “any proposed settlement [must] be provided to the client for consideration” (p.55)
o When a client = an organization (corporate/govt), lawyer must be certain the instructions
she is given comes from her client itself (coporation/govt) and not the interests of a
person/fraction within the organization (p.55)
o Lawyer cannot accept “any instructions that would result in the lawyer assisting the client in
dishonest, criminal, fraudulent or dishonourable conduct, or would require the lawyer to
violate her legal obligations, including her obligation under the code of conduct itself” (p.55)
 However, case law shows that in both civil and criminal law matters, “judicial proceedings (…)
decisions rest with the lawyer, not the client”, i.e. the general conduct of the litigation (whether to
testify, how to plead, whether to raise certain defences, whether to be tried by a judge or jury). (p.5556)
o “[T]he materials are clearly consistent with the strong support in the case law for the
position that the lawyer is not a “mere mouthpiece” for her client, “is not merely to do the
bidding of the accused” and must exercise independent judgment about how the
representation is to proceed.” (p.56)
o “The courts have not uniformly endorsed the lawyer-centric approach in litigation.” (p.57)
 Lamer CJC (as he then was) in R v. Swain: “the principles of fundamental justice must
also require that an accused person have the right to control his or her own
defence”. (p.57)
 Lawyer-centric approach doesn’t apply universally to lawyer-client rlsps as indicated in some
provisions of the codes of conduct, e.g. settlements, waiver of clients’ rights, where rlsp is
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governed by a retainer (contract). Also, the approach has “no obvious application outside of the
courtroom”, it “does not operate outside of the judicial context. (p.57)
Anti lawyer-centric approach: (p.58)
o In R v. Swain, Lamer CJC noted that it would be strange to argue for the “client’s autonomy
and right to be self-determining under and through the law, but then to allow lawyers to
make decisions without meaningful consideration with their clients.”
o The approach is “misguided paternalism…[that] primarily reflect[s] the relative
powerlessness of most criminal accused…” – Michel Proulx & David Layton
Author argues for “cooperation between client & lawyer that that “[t]he lawyer is subject to the
specific requirements of the codes of conduct (…) but should otherwise “carry out any non-frivolous
and otherwise ethical course of action that is desired by the client”.” (p.58)
o Reflecting on the M. Morin Case (), “is the wrongful impugning of his sanity that much
better than the wrongful questioning of his innocence? Both violate his dignity in profound
ways.” (p.58)
o “Clients, and particularly highly vulnerable clients, should not be put in that position because
lawyers and courts cling to the position that “lawyers know best”.” (p.58)
“[T]he lawyer must approach the representation with an attitude that focuses on the client as a moral
agent, with his own sense of how to proceed, rather than one in which the lawyer “tactfully” lets the
client know that she is “in charge”. This attitude follows necessarily from the lawyer’s role as zealous
advocate, and no exception, even for litigation, can be justified.” (p.59)
C. Client Counselling (59)
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Basic requirements for lawyer counselling: (p.59)
o Advice must be honest and candid, based on “sufficient knowledge of the relevant facts, an
adequate consideration of the applicable law and the lawyer’s own experience and
expertise”. (p.59)
o Lawyer should tell client the facts & info on which the opinion is based + investigate where
necessary (p.59)
o (Alberta) Obligation to ensure “economy and efficiency”  lawyer must obtain wtv info is
necessary to provide proper opinion and, if client cannot afford to pay the lawyer to obtain
that info, the lawyer must withdraw OR provide the info at no cost (p.59)
o Lawyer should explain and advise, i.e. make sure client understands the info provided!
(p.59)
o Lawyer must be honest and mustn’t give advice that would “encourage dishonesty, fraud,
crime, or illegal conduct by the client”. Lawyer mustn’t “instruct the client on how to
violate the law and avoid punishment” (p.60)
o Lawyer must encourage client to settle “where settlement can be done reasonably” (p.60)
o Lawyer must be clear when he gives advice that aren’t law-related (i.e. business, policy,
social implications) (p.60)
On moral counselling
o It “allows the lawyer to be up front and authentic about her own perspective on things”
(p.60)
o Such advice is not precluded by codes of conduct, and “may even be said to contemplate it
given their acknowledgement of the lawyer’s role in advising on non-legal matters” (p.60)
o Such counselling “may be crucial to the lawyer ascertaining what the client wants to do”.
Example of Korean War widow & her young child p.60-61.
o “[I]t is better when counselling clients for the lawyer to be self-aware and up front about her
own perspective on things, rather than having that perspective simply “out there”, silently
influencing the advice provided. Clients need to know what lawyers think, but also why they
might think as they do. Otherwise the clients may overvalue the advice the lawyer provides.”
(.61)
“A lawyer must ensure that the nature of her advice on moral questions is understood to be distinct
from her legal advice (as required by the codes of conduct). She must also ensure that there is
sufficient comfort and trust in the relationship to permit the client to reach his own conclusions
without being improperly pushed towards the lawyer’s own assessment of things.” (p.61)
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D. Counselling and Unlawful Activity (61)

Issue: “[W]here lawyers are asked to provide legal advice to clients and suspect that the legal advice
will be used by the client for unlawful purposes.” Examples p.61-62
o The examples provided are cases where lawyers are asked to share their legal knowledge,
“either with respect to what the law provides or with respect to how the law operates in
practice” (p.62)
o Alberta Code of Conduct: “The mere provision of legal information must be distinguished
from rendering legal advice or providing active assistance to a client. (…) [M]erely providing
legal information that could be used to commit a crime or fraud is not improper since
everyone has a right to know and understand the law. (…) Only if there is reason to believe
beyond a reasonable doubt, based on familiarity with the client or information received
from another reliable source, that a client intends to use legal information to commit a
crime should lawyers decline to provide the information sought.”
o In some cases, information that could be unduly used suggest “that the substantive law
should be changed; it does not suggest that individuals should be kept in ignorance of the
law” (p.62-63)
o “On the other hand, if the point of lawyers is to allow individuals to pursue their own
conception of the good within the bounds of legality, it does not seem logical to allow
lawyers to counsel clients in ways that serve to encourage or permit clients to act outside the
bounds of legality. Where the information in question is not about the content of the law, but
about imperfections in the ability of the state to implement the law (…) it is not clear that the
client has any particular entitlement to that information from the lawyer.” (p.63)
o “[A] lawyer who provides legal advice that facilitates the commission of unlawful act,
particularly [one] that involves harm to third parties,” is incurring risks of legal liability.
“The lawyer could be seen as owing (and as having violated) a standard of care to third
parties harmed by the client’s unlawful activities” (p.63)
o A lawyer shouldn’t provide info when she “can reasonably foresee that the advice would
significantly increase the likelihood of conduct that will result in death or serious injury to
another person, including serious financial injury.” (p.63)
4. Fees (64)
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“Legal services are not like sex: the moral quality of the act does not shift with payment” (p.64)
“The payment of money for legal services corresponds to the lawyer’s promise to provide service to
the client and makes the relationship between the lawyer and client one of mutual obligation.” (p.64)
In setting fees, there’s a risk of lawyers taking advantage of their knowledge of the imperfections in
the market for legal services. This risk is moderated by regulation.
o Lawyer’s fees must be “fair and reasonable”: depends factors like “time and effort spent, the
difficulty and importance of the matter, the results obtained, the experience and ability of
the lawyer, and similar factors” (p.64)
o Hidden fees are prohibited
o (Alberta & Quebec) all fee agreements must be in writing
o (some law societies) fee mediation &arbitration services
o “[L]awyers’ fees are subject to the oversight of the courts, which have the power to “tax”
lawyers’ accounts. The taxation power allows courts to reduce fees where they are not fair
and reasonable (…)”. (p.64)
o “Contingency fee agreements, particularly in the context of class actions, are subject to
specific additional regulation pursuant to the rules of court and other legislations”. (p.65)
Lawyers should adopt “prudent billing practices, including written fee agreements, regular monthly
billing, clear explanations about the basis for fees charged, and ensuring the level of the fees matches
the value of the services provided” (p.65)
5. Withdrawal (65)

Lawyer-client rlsp isn’t terminable by the lawyer at will. “A client may terminate a retainer at any
time, but a lawyer owes an ethical duty not to withdraw from the representation except with good
cause.” (p.65)
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Cause sufficient to permit lawyer to withdraw:
o “serious loss of confidence” between lawyer-client (p.65)
o Deception of lawyer by client (p.66)
o Refusal by client to follow advice (although lawyer can’t use withdraw as a threat to force
client into accepting advice) (p.66)
o Client acting persistently in unreasonable or uncooperative ways (p.66)
o Client not paying fees that are owed (p.66)
 “Where withdrawal is for non-payment of fees, permission to withdraw lies in the
court’s discretion” (67)
 “Requiring counsel to continue without payment should only be used as “last resort”
where doing so is essential to avoiding prejudice to the accused or to the
administration of justice”. In such case, a Rowbotham order can be granted, whereby
the govt stays proceedings until legal aid is given to the accused. (p.68)
 “[T]he issuance of a Rowbotham order [is] not related to a court’s ability to
refuse a counsel’s request to withdraw from representation” (p.68)
Withdrawal is REQUIRED: (p.66)
o Canadian Bar Association (CBA): “where the client persists in instructing the lawyer to
violate her duties to the court; the lawyer’s continued representation of the client would
cause the lawyer to violate the ethical rules (…); or, the client is “guilty of dishonourable
conduct in the proceedings or is taking a position solely to harass or maliciously injure
another”. (p.66)
o FLS Code: ONLY when “the client persists in instructions that would require the lawyer to act
contrary to professional ethics”. “Dishonourable” conduct not sufficient. (p.66)
When lawyer withdraws, she must do so “in a way that minimizes the expense and prejudice to the
client”, and has certain obligations towards the client, examples bottom p.66
Criminal cases: Lawyers acting in such cases “must request permission to withdraw, and that
permission may be denied where the only reason offered is non-payment of fees” (p.67)
R v Cunningham, Supreme Court: Superior Courts have “the right to both remove counsel and to
require them to continue”
“Where timing is at issue, [t]he court must grant a request to withdraw for ethical reasons”,
such as potential violation of ethical obligations / accused’s refusal to accept advice of counsel “on an
important trial issue”. (p.67)
Chapter 4 Woolley “The Practice of Advocacy” [A]
1. INTRODUCTION
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There are limits to lawyer zeal (gives as examples the attempt of a citizen’s arrest on the judiciary,
and instigating a fist fight in the court of law with the opposing counsel).
Resolute advocacy should not be underestimated. As stated in various codes of conduct, lawyers
acting as advocates must: “raise fearlessly every issue, advance every argument, and ask every
question, however distasteful, which the lawyer thinks will help the client’s case and… endeavor to
obtain for the client the benefit of every remedy and defence authorized by law.”
Hesitation by the courts to directly constrain how lawyers represent clients. Constraints are internal
to other concepts, like which types of advocacy are not in the client’s interest.
Zeal operates in context.
2. LAWYER COMPETENCE: THE HEART OF ADVOCACY (71)
Lawyer competence: the heart of resolute advocacy (paramount duty of lawyers to provide competent and
effective representation that furthers their client’s interest)
 Zeal can be quiet as well as flashy
 Failure to be competent = unethical conduct
 This failure is frequent, a foundational breach; more common than pursuing a client’s cause too far
 Competence: having sufficient knowledge of the law, conducting sufficient investigation of the facts,
having the necessary skills to perform legal research and analysis, to apply the law to the facts, to
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write and draft effectively, to negotiate, to undertake alternative dispute resolution, to advocate and
to problem solve.
Conscientious work, diligence.
Code reinforces the “equation” above; a lawyer who does not have the necessary competence must
either not take on a matter or be “able to become competent without undue delay, risk or expense to
the client.”
o Lawyers subject to professional discipline for failure to provide competent representation in
advocacy in Law Society of Alberta v. Syed: lawyer suggested a plea because he was
unprepared to defend his client at trial & it was a criminal case (sexual assault) = serious
allegations, liberty and security of the client in jeopardy  clearly unethical
o Other more recent example in Goldberg v. Law Society of British Columbia: Goldberg, a
lawyer, made unsubstantiated allegations against another lawyer and he himself was
incompetent in his representation of the clients who were wronged by this other lawyer
(what he submitted to the court was repetitive, disorganized, showed a complete lack of
knowledge of the law of evidence). Also criminal cases.
Solicitor negligence cases: “the standard of care to be met by lawyers is that of the ‘reasonable
competent solicitor’ and includes the obligation to advise the client of risks in a course of action, to
research the law and understand the principles applicable to a client’s case, and to provide effective
assistance of counsel.”
o Hagblom v. Henderson: the lawyer failed in his defence of a negligence claim because he
failed to call an expert; although calling in experts can be a matter of judgment, there are
circumstances in which calling an expert is essential; in the case at bar, it was impossible to
defend without expert evidence.  lawyer liable to his client for damages because he did not
fulfill the duty of resolute advocacy (determining the evidence necessary, locating it if
possible)
3. RESTRAINTS ON ZEAL (75)
A. Frivolous arguments (75)
o
o
o
o
= arguments that do not have a reasonable likelihood of success in court, “doomed to
failure”, “impossible to prove”, or “hopeless”. They do not further your client’s interest, but
sometimes it is the client who wants his lawyer to bring forward the frivolous argument.
Canadian lawyers subject to specific constraints in bringing forward frivolous arguments:
1. New Bunswick: prohibits a lawyer from taking a step in a litigation that is “clearly
without merit”
2. Alberta: “clearly without merit” is rigorously defined
3. Quebec: Permits a lawyer to withdraw where a client persists in continuing a “futile
or vexatious proceeding”.
4. Most code though prohibit the lawyer from prosecuting proceedings that are
motivated by malice or brought for the sole purpose of injuring another party.
Precedent:
1. Young v. Young: costs may only be awarded against the lawyer personally where it is
the lawyer who caused the case to be brought forward and where the case meets the
high standard of hopelessness. The court emphasized the importance of not creating
a “chilling effect” on lawyer advocacy and, in particular, the problem for the lawyer
of confidentiality obligations that may make it difficult for him to defend himself
with an argument that the client had directed him to pursue the matter. McLachlin
J.: “A lawyer should not be placed in a situation where his or her fear of an adverse
order of costs may conflict with these fundamental duties of his or her calling.”
2. Young followed: in cases even where the proceedings were wholly unsuccessful,
courts have not awarded costs against the lawyer personally.
Other cases:
1. Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc.: an action was
unsuccessful, but there was no evidence of the lawyer having pursued the litigation
+ rejection of the argument that, where a lawyer advises his/her client that the
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o
o
o
o
o
action is hopeless, but where the client chooses to pursue the litigation anyway, the
lawyer is under an obligation to withdraw.
2. Robertson v. Edmonton (City) Police Service: lawyer showed bad judgment, but there
were no costs awarded because he had a bona fide belief in the merits of litigation 
costs have been awarded in circumstances where the lawyer appears to have acted
in bad faith or with an ulterior motive
 wide latitude to lawyers to implement client instructions with respect to litigation
strategy, but lawyers must advise their clients of the risks and consequences associated with
frivolous litigation (costs in the tens and even hundreds of thousands for the lawyer, and
unsuccessful litigation adds the risk of the client paying costs).
Tort of abuse of process: extreme cases, frivolous and vexatious claim could open that door
for the client. Claim = made for collateral or ulterior purpose. It’s the lawyer’s duty therefore
to advise the client satisfactorily, that he only bring forward borderline cases.
Frivolity in non-litigation context: when a client requests an opinion so that they may say
they “acted on legal advice”. The ethical obligation of the lawyer is to provide the client with
an accurate and reasonable assessment of the law: make the best arguments for the client ≠
frivolous arguments, clearly without merit, in order to shield the client from subsequent
legal consequences.
1. It is the content of the advice itself that creates the legal outcome, unlike arguments
put forward to the court, for the court to decide, which may be frivolous if
performed on the client’s informed instruction. Even if any legal advice can shield
the client, giving bogus advice becomes close to fraud, and may also open the lawyer
to independent legal liability.
2. Wide discretion
3. Limit: lawyer make not make arguments that are frivolous or without merit, and in
which he does not in good faith believe, to provide what is essentially an extra-legal
shield for the legal consequences of his client’s conduct. No :willful, reckless or
wanton disregard of the law” – Income Tax Act
Various codes of conduct prohibit lawyers from threatening to bring or withdraw criminal or
like charges in order to obtain an advantage in civil litigation. The prohibition prevents
abuse of the criminal process, the laying of dubious criminal charges, and allowing
unmeritorious civil claims to get firmer footing through fear of criminal charges.
Problematic: the author would like for the Canadian law societies to eliminate the following
rule: where a client would rather settle than report a crime, it is wrong for the lawyer to
deprive the State of its interest in that respect. The ethical rule is to prevent the lawyer doing
on his client’s behalf that which the client would be permitted to do for himself (there is no
rule on the client to report a crime he/she was subject to).
B. The rule against “sharp practice” (81)
o
o
o
o
o
Sharp practice = “taking advantage of or acting without fair warning upon slips,
irregularities or mistakes on the part of other lawyers not going to the merits or involving
the sacrifice of a client’s rights.”
Sharp practice generally affects the legal situation of the client, not the lawyer
2 essential elements for a finding of sharp practice:
1. The mistake must be clear and obvious (interpretation of a legal rule does not
count)
2. The advantage that the client would receive from the mistake must be one to which
the client has no legal right.
Crosby v. Guardian Insurance Co. of Canada: insurance company and its counsel knew of the
proper procedure, but they did not advise counsel for the children as to what needed to be
done children deprived of postjudgment interest  IF APPLIED BROADLY, this judgment
amounts to requiring lawyers to correct mistakes in law by opposing counsel. It does not
“necessarily warrant” such broad application.
There are safeguards in court that may correct mistakes in law, and proceeding without
revealing the mistake may simply not be in the client’s interest.
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o
Essentially, this requirement of divulgation is a narrow one. Particularly important in
negotiations.
C. Relevant adverse authority (85)
o
o
o
o
o
o
Lawyers must provide the judge with all relevant authority, even where adverse to their
case, and even where the opposing party failed to mention it. Imposed by the codes of
conduct and affirmed in a number of judicial decisions. But it is not so simple.
Lougheed Enterprises v. Armbruster teaches us:
 A decision is “authority” where it is one “decided within the judicial hierarchy” of
the province
 A decision is relevant where it refers to any point of law on which the case in
question might turn; it “means cases which decide a point of law” on which the
current case depends.
 Which regards to discovering the relevant law, a lawyer cannot discharge himself of
the duty to provide relevant law by “not bothering to determine whether there is a
relevant authority”  “ignorance is no excuse”
Codes of conduct have a more relaxed standard. There is an obligation to act competently. A
failure to do so could conceivably lead to a lawyer being ordered to pay costs personally, but
the courts come to this decision reluctantly.
Why this duty benefits clients: There are costs that may be imposed on a client where the
lawyer does not provide all relevant authority. It may be tactically better to address the
cases up front, the obligation is coherent, and the lawyer may persuade the court that the
authority is wrong and misguided.
WHAT THE LAWYER CANNOT DO: PRETEND THE LEGAL AUTHORITY DOES NOT EXIST.
In a nutshell: lawyers are not obliged to make the other side’s case for them; they must make
sure the court has all the relevant authority before it, whether helpful or not.
4. ZEAL IN CONTEXT (87)
A. Discovery (87)
A. Discovery: SORRY, GUYS, I UNDERSTOOD NOTHING OF THIS SECTION. BUT IT IS SUPER SHORT.
REALLY. YOU’LL FIND IT AT PAGES 87-88. IT IS ONE PAGE LONG.
B. Ex parte applications (88)
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Ex parte orders: they allow legal action to be taken against a party without that party being
heard.
Duty on the sole lawyer: to provide full disclosure of all the relevant facts.
United States of America v. Friedland: it is “incumbent on the moving party to make a
balanced presentation of the facts in law. (…) The duty of full and frank disclosure is
required to mitigate the obvious risk of injustice.”
A discovered failure to do so will usually hurt the client more than the lawyer.
C. Investigating a Client’s Case – Covert Investigations and Communicating with Witnesses (90)
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1st issue: covert investigations
i. Conducting investigations in a way that involves dishonesty or material
misrepresentation by the lawyer, either directly or indirectly, is forbidden. All of the
codes have prohibitions against lawyer dishonesty.
ii. MacMillan Bloedel Ltd. v. Freeman and Co.: lawyers went on a “public tour” of a mill,
the opposing party. They disclosed that they were lawyers, not that they were acting
for a party in litigation with the mill. They were not liable because the mill could
have taken steps to protect themselves with the knowledge they did have.  “This
case does suggest that lawyers may investigate. It does not, though, provide any
assurance that a covert investigation would be permissible; the conduct of the
lawyers in taking a public tour was not covert.”
2nd issue: communicating with witnesses
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i. Lawyers may seek information from any potential witnesses, and should if the
witness has information material to the proceeding.
ii. Limits (3): the lawyer may not do so where the witness is represented by counsel on
the matter in question (unless counsel has consented); the lawyer must disclose his
interest in the potential witness; and the lawyer “must not subvert or suppress” the
witness’ s evidence or try to prevent the witness from speaking to other people.
iii. No approaching “a director, officer, or person likely involved in the decision-making
process” of a corporation or organization; although they may contact former
employees (these have an obligation of confidentiality to their former employer)
iv. This is about honesty and transparency.
5. LAWYER SPEECH (93)
A. Introduciton (93)
About public statements. A lawyer is required to make them sometimes, they are necessary to prevent or
minimize harm to their client.
About issues with the conduct of other lawyers or criticisms of judges.
B. Public Statements (94)
a.
b.
c.
d.
Stewart v. Canadian Broadcasting Corp.: media statements made by a lawyer about a former
client which had a negative impact on said former client, statements made to promote the
lawyer, amounted to holding the lawyer liable for a modest quantum of damages.
Statements regulated by CL principles (ex.: tort of defamation)
Statements mustn’t prejudice the legal proceedings about which they were made = sub judice
aspect of the court’s contempt power. There is a real risk of prejudice to the administration
of justice. Codified in various forms under different codes. Narrow application. But some
jurisdictions have unduly broad rules.
Author disagrees that the standard on the speech of a lawyer should be rigid. (Critical of Law
Society of Northwest Territories v. Crawford – single decision by a territorial Law Society).
C. Criticism of Other Lawyers (96)
e.
f.
g.
h.
i.
j.
k.
The codes of conduct impose an obligation on lawyers to report other lawyers’ serious
misconduct, and allow a lawyer to give a second opinion on advice that another lawyer has
provided, but nonetheless prohibit one lawyer from making comments about another lawyer
that are ‘ill-considered or uninformed’.
Duties of civility on counsel.
Observations:
i. In the majority of cases, comments made were not made to a broad audience
ii. In at least some of the cases, the problem with the comments was not what the
lawyer said, but the manner of expression (how they said it).
iii. Comments were made outside of the courtroom, such that a remedy of an action in
defamation is available.
So why discipline lawyers for these three scenarios? The most coherent justification: civility
between lawyers enhances public respect for the legal profession.
Seems hard to maintain according to author: incivility is not really why lawyers have a bad
reputation.
Downside of sanctioning for rudeness:
i. Disincentive to taking the case of another lawyer
ii. It is hard to tell how criticism, the particular words used, will be received by others.
Appropriate where other ethical obligations are violated by the lawyers’ comments (ex.:
making discriminatory comments).
D. Criticizing Judges and the Legal System (101)
l. Courts more hesitant to discipline here.
m. Duty to improve the administration of justice.
n. More like “directions” than rules or duties imposed on the lawyers:
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i. Avoid criticism that “is petty, intemperate or unsupported by a bona fide belief in its
real merit.”
ii. Avoid criticism of cases in which they were involved
o. The judiciary is open to criticism. There are certain parameters of civility and respect.
Lawyers should avoid the use of abusive or offensive statements, partiality, abusive,
offensive or inconsistent communications.
p. R. v. Kopyto is the leading case: courts are properly subject to “comment and criticism”
q. “Unless a lawyer has created a real risk of prejudice to the administration of justice in an
ongoing proceeding, contempt and disciplinary proceedings against the lawyer are
inappropriate.”
6. CONCLUSION (104)
R v Murray, [2000] OR (3d) 544 (ON SCJ) [N]
Facts
Kenneth Murray was retained as Paul Bernardo’s lawyer in the infamous “Scarborough rapes” case. In May
1993, upon written instructions from Bernardo, Murray retrieved from Bernardo’s house six videotapes, two
of which depicted the sexual abuse of four girls.
Murray kept the tapes hidden for 17 months. Afterwards, he gave the tapes to John Rosen, who took on the
Bernardo case in his place.
Murray faces charges for attempting to obstrut justice, pursuant to Part IV of the Criminal Code. Murray
claims the tapes were kept to help his client’s defence, notably to prevent Karla Homolka (co-accused with
Bernardo) from making a deal with the prosecution.
Issue
Does Murray’s concealment of the tapes amount to an obstruction of justice?
Holding
Murray is not guilty.
Reasoning
There is an obligation on the Crown to fully disclose its case; defence counsel have no such obligation.
Communications between the client and the lawyer are also protected by privilege.
The “tendency test” (i.e. “doing of an act which has a tendency to pervert or obstruct the course of justice and
which is done for that purpose”) is established in the jurisprudence as the proper test. Here, Murray’s hiding
of the tapes had the “tendency to obstruct”. It is clear that disclosure of the incriminating tapes would have
radically affected how each party proceeded.
Murray can rebut the charges by giving a legal justification for his actions. Confidentiality of the tapes is not
covered by solicitor-client privilege (they are not communications between them). There is can be no legal
basis for hiding the tapes. It cannot be accepted that they were kept for defence reasons because the tapes
were overwhelmingly inculpatory. He should have (1) turned them over to the prosecution, (2) deposited
them with the trial judge or (3) disclosed their existence to the prosecution then do battle to retain them.
The crown must also prove that it was Murray’s intention to obstruct justice. Many of his actions suggest he
was trying to permanently suppress the tapes. However, it is feasible that he wanted to use the in Bernardo’s
defence. He also believed his conduct was lawful, as the Law Society of Upper Canada rules on disclosure are
unhelpful.
Ratio
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A lawyer is not obstructing justice, even if his acts have the tendency to obstruct justice, where he/she did not
have the intention of obstructing justice, and where he/she reasonably believed there was no obligation to
disclose the incriminating evidence.
IV. Lawyer—Client Trust and Confidence
Chapter 5 Woolley [A]
Introduction
 Right of confidentiality = personal and extra-patrimonial right of the client which places Canadian
lawyers under a near absolute obligation to keep their clients’ secrets
 2 foundations (which grew together) of the lawyer’s obligation of trust and confidence
1. The doctrine of solicitor-client privilege: based in the common law
2. The lawyer’s independent ethical duty of confidentiality: arises from the doctrine of privilege
(solicitor = a professional man and gentleman)
 Nowadays, it is a substantive right of confidentiality held by the client which is necessary for:
1. The lawyer-client relationship itself, which is in turn necessary for…
2. … the administration of justice
 There is a distinction between privileged and confidential information
 The lawyer’s duty is affected by: fiduciary obligations, litigation privilege, obligations arising from
rules of court and various statutes.
 So (1) what is a lawyer supposed to do and (2) can the Canadian approach be justified?
WHEN DO LAWYERS HAVE A DUTY NOT TO DISCLOSE?
A. The General Rule
 “Lawyers have an obligation not to disclose information concerning a client’s business and affairs
acquired ‘in the course of the professional relationship’.”
B. There must be a Lawyer-Client relationship for information to be confidential or privileged
 Necessary for the duty of confidentiality to arise, or for the law of privilege to apply = lawyer-client
relationship
 →Does not mean that the lawyer and client must have a formal retainer:
o the relationship can be more casual and includes prospective clients
o this is set out in the various codes of conduct
o In case law (SCC decision): Descôteaux v. Mierzwinski. The duty of confidentiality arose at the
point the client filled in the application for legal aid, even though no consultation with the
lawyer had yet taken place.
C. If the lawyer-client communication does not relate to the giving or receiving of legal advice, it will not be
privileged, but will still be confidential
 Privileged vs. confidential information:
o Ethical duty of confidentiality applies to any information received by the lawyer during a
lawyer-client relationship
o Solicitor-client privilege only applies to information that relates to the giving or receiving of
legal advice
 Solicitor-client privilege:
o R. v. Campbell: the privilege does not attach where the lawyer is not acting in a legal capacity.
It will depend on the nature of the relationship, the subject matter of the advice and the
circumstances in which the advice was sought and rendered.
o Maranda v. Richer: info on the payment of legal fees could be privileged, but not everything
arising within a lawyer-client relationship is privileged.
o R. v. Cunningham: (SCC) fee information is not privileged unless it is “relevant to the merits
of the case, or disclosure of such information may cause prejudice to the client.”
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Foster Wheeler Power Co. c. Société intermunicipale de gestion et d’élimination des déchets
(SIGED) Inc.: Excludes the ability of clients to use their lawyers to play “hide the pea” with
information that is not actually related to the giving or receiving of legal advice.
o The standard for finding that communications do not relate to giving legal advice will be a
high one. The definition of “legal advice” is likely to be broad. It is likely that all private
communications with a client for lawyers in private practice will be privileged, whether or
not clearly “law” related.
 Rationale for privilege: importance of the client being able to make full and frank disclosure to his
lawyer, which necessarily requires allowing the client some latitude as to what may or may not be
relevant to obtaining that advice.
 THUS, “in addition to not voluntarily disclosing any information arising from the lawyer-client
relationship, a lawyer should resist compelled production of that information, even if it relates only
tangentially to the legal services provided, since it may nonetheless still be privileged.”
D. Criminal communications are not privileged, and are likely excluded from the duty of confidentiality
 IN SUM: “where communications are themselves criminal, or where the lawyer is being used as a
dupe or conspirator to provide active assistance in furtherance of a crime, the information is neither
confidential nor privileged, and may be disclosed.”
 Communications are criminal where:
1. The communication itself is criminal (to distinguish from admission of guilt!)
2. The lawyer’s advice is being or was, sought to further a criminal scheme
 The second possibility is more complicated… Here are some examples:
o NOT criminal, therefore not excluded:
 To consult a lawyer about the legality of your actions
 Where a lawyer has advised a client that their conduct is legal, but in retrospect
turns out to be unlawful
 R. v. Campbell: (on the previous point) The criminal communication exclusion only
arises where the “client is knowingly pursuing a criminal purpose” and the lawyer is
a “dupe” or “conspirator” in the furtherance of that purpose.
 Excluding is “extremely limited”.
 Where a client simply indicates to the lawyer that he intends to commit a crime, but
does not ask the lawyer for advice or assistance in how to do it.
o IS INDEED criminal:
 Where the question posed by the client is facially neutral, but is also the sort of
question that a client is unlikely to pose except to further an unlawful purpose.
 It may be true that the lawyer has no knowledge of the client about to
commit an unlawful act, but he was a dupe. It really depends on the context.
 Where the lawyer discovers that she has been assisting a client to commit an
unlawful act without knowing it, but the client has now admitted to the lawyer that
the conduct was unlawful → tricky! There is a distinction to make:
 The lawyer should disclose the information that assisted the client in
committing the crime
 The lawyer cannot disclose the admission of guilt
 On the ethical duty of confidentiality:
o Ethical codes are silent
o In Woolley’s view: it should be interpreted as excluding criminal communications
o Since the ethical codes allow the lawyer to disclose confidential information to defend
herself from allegations of wrongdoing, it seems logical to assume that she could disclose
information to distance herself from the accomplishment of an unlawful scheme to which
she has, whether wittingly or unwittingly, contributed.
o Fosters the effective administration of justice.
E. Third party knowledge of information usually limits the application of the privilege, but does not normally
limit the ethical duty of confidentiality
 “In sum, information communicated in a lawyer-client relationship that is truly in the public domain
is neither confidential nor privileged. Information communicate in the lawyer-client relationship that
o
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is known to third parties is still confidential, and may be privileged through the application of the
doctrine of limited waiver or litigation privilege.”
 The ethical duty of confidentiality applies even if third parties are also aware of the
communications between the lawyer and the client.
 The privilege usually ceases to apply whenever a third party is aware of the communication. Thus,
the legal advice must only be given to the client; only the lawyer and the client will know the
information.
 Exceptions:
o Limited waiver: it permits third parties in some circumstances to have knowledge of the
advice provided by the lawyer without eliminating the privilege
o Litigation privilege: info not privileged can be kept confidential. Can arise prior to the client
contacting a lawyer. It allows litigants “to prepare their contending positions in private,
without adversarial interference and without fear of premature disclose”. It shields from
disclosure any information prepared for the dominant purpose of preparing for
litigation. It has an expiration date: end of the litigation.
 Neither confidentiality nor privilege will apply to prevent disclosure of information that is truly in
the public domain. Most codes also suggest circumspectly that the duty of confidentiality “may not
apply to facts that are public knowledge”, “public” in the sense of being widely known.
F. The identity of the client is generally confidential, and is sometimes privileged
 Confidentiality: always includes the identity of the client and the fact of the retainer
 Privilege: only where identity would disclose something material about the client
 Difference should not be “overstated” according to Woolley
 Codes emphasize that privilege would be invoked in family or criminal cases
 In other contexts, it is unlikely that a lawyer would be violating confidentiality
 Canadian Bar Association Code says that the duty of confidentiality as to identity “generally” exists –
not always
 Be prudent: get a client’s consent before disclosing
G. If information does not come from a client, it is confidential, but may not be privileged
 Pretty straight forward title…
H. Information that is real property is confidential, but not privileged
 Privileged only that “property” which is memoranda provided to the lawyer for the purpose of
obtaining legal advice
 Both confidentiality and privilege prohibit disclosure of information given to the lawyer about
property
 Example of the client telling his lawyer where he disposed of a gun: the gun would not be privileged,
but the client’s statement to the lawyer about the gun would be (please help me understand what
this means – it is not more specific)
I. When a client is an organization or corporation, the duty of confidentiality is owed to the organization, not
to individuals within the organization
 This is true either ethically or under the law of solicitor-client privilege
 If the lawyer learns of individual wrongdoing, they may not disclose any organizational intention of
wrongdoing unless there is some exception or exclusion.
 Some codes note that the lawyer may have the duty to disclose individual wrongdoing to the
individuals of the organization higher up (technically not disclosing information outside of the
organization)
***No longer on the content of the duty, but how it works, and consequences***
J. Absolute Secrecy is required for information that is confidential or privileged
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
Once the duty is established  no room for indiscretion or casualness with respect to that
information  in the codes, this is set out  in case law, it is said that the confidentiality under
solicitor-client privilege should be as “absolute as possible”
 It may be that a lawyer may discuss the information with her intimate partner. However, if harm
arises, it will be no defense to the lawyer to claim that their indiscretion was de minimis.
K. The duty not to disclose includes the lawyer’s colleagues and staff
 Duty of confidentiality: those who work for you must also keep the info confidential. This is in the
codes of conduct, in the case law. And generally, law firms are restricted from representing a client
acting against another one of their clients, where the retainer for the action between the two parties
is relevant to the retainer between one of them and the firm.
 Solicitor-client privilege: not addressed in the codes or in case law, but the broad scope of the duty
seems to apply. Privilege binds those others privy to the information to the same duty of secrecy.
L. The duty of confidentiality and the privileged status of information lasts indefinitely
 Confidentiality and privilege survive:
o The termination of the retainer
o The death of the client
M. Consequences of breaching the duty
 Range of consequences: civil liability suits brought by the client (for damages resulting from the
breach) (ex.: in Descôteaux v. Mierzwinski and Szarfer v. Chodos which was a claim against a lawyer
for breach of fiduciary duty) to law society discipline (reprimands through fines, all the way to
permission to resign from the law society). It will depend on the circumstances.
 3 “categories of cases”:
o Breach out of anger or frustration (example of a lawyer having to resign)
o Because of some confusion about the nature of their obligations (sanctions tend to be minor,
if any)
o Lawyers who breach obligations of confidentiality to former clients in order to benefit
current clients or themselves (this one is the “most troubling”)
 Law Society of Alberta v. Bissett: the lawyer used the false statutory declaration of a
former client – he was aware it was false – to discredit the credibility of his former
client and to secure an acquittal for his current client.
 Law Society of British Columbia v. MacAdam: even though disclosure may seem to a
lawyer like the “right” thing to do, morally speaking, it can open the lawyer up to
professional consequences. In this case, the lawyer advised the current client that it
would be unwise to give his former clients custody of the children because he had
evidence of their instability, drug trafficking, drug abuse, and violence. The lawyer
was fined, had to apologize, and was reprimanded.
 Hard case to fit with the others
 Woolley: if the lawyer in this case has information that the child would be
endangered by staying with his former clients, the lawyer ought to be
permitted to disclose that information.
 Law Society of Upper Canada v. Ross: a lawyer cannot mislead a court. The lawyer
ought to withdraw from a case, for example, where he knows that his client will be
gone by the time the application they are preparing takes place. He need not,
however, disclose the reasons for his withdrawal.
 A lawyer who discloses that information because legally required to do so cannot be subject to legal
consequences. However, a breach of confidentiality where not required by law can lead to law society
discipline even if the information was not privileged.
N. The implied undertaking rule
 Pre-trial discoveries are an exception: the lawyer may have duties in relation to information of third
parties in these circumstances. Except in the proceedings, the information may not be disclosed
EVEN WHERE there is criminal wrongdoing revealed.
 The exception to this exception: where the information reveals a situation of immediate and serious
danger, then the information may be disclosed to the police or to a non-party.
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WHEN ARE LAWYERS EITHER PERMITTED OR REQUIRED TO DISCLOSE CONFIDENTIAL INFORMATION?
A. This cannot be an exhaustive list.
B. The lawyer’s ability to disclose when information is neither confidential nor privileged, or when the
information is confidential but not privileged
 In principle, a lawyer must not disclose information which is confidential but not privileged unless
there is a legal requirement that she do so, or another applicable exception to the ethical duty of
confidentiality applies. Ex.: client waiver, the prevention of future harm, rules of court, other
legislation or a court order.
 American case Spaulding v. Zimmerman (case discussed in tutorial and class!): the plaintiff sued the
defendant for losses arising from an automobile accident. The defendant obtained a medical
examination of the plaintiff that disclosed that the plaintiff had potentially fatal aortic aneurysm
caused by the accident. The aneurysm had not been caught by the plaintiff’s own physician. The
medical report was produced by a third party, thus was not privileged. It was also producible under
the applicable rules of court if requested by the plaintiff. The medical report was, however,
confidential as information arising from the lawyer-client relationship between the defendant and
his lawyer. The report was not produced. When this was found out, the settlement negotiated
between the plaintiff and the defendant was vacated.  demonstration of an important ethical
principle: where information is confidential but not privileged, that information may not be
produced unless the legal rules requiring production are invoked, or some exception to
confidentiality applies.
C. The general duty to comply with valid legal orders that require or permit disclosure of confidential and
privileged information
 SCC: held that the solicitor-client privilege may be limited by legislation or common law. But the
limitation must be strictly construed, the incursion expressly contemplated by the legislation, and
only those incursions which are “absolutely necessary” to the accomplishment of the legislative
purpose will be permitted.
 The privilege = principle of fundamental justice under s. 7 of the Charter, and so any incursion
must be justified under s. 1
D. Information that is confidential and privileged may be disclosed where the client waives her right to
confidentiality
 The various codes of conduct permit disclosure where the client has expressly or by implication
waived the lawyer’s duty of confidentiality.
 Case law permits disclosure with client consent, either express or implied.
 Express waivers: the lawyer needs to make sure that the client understands what that entails.
 Where a waiver is necessary for the lawyer to fulfill her ethical duties (not misleading the court or
other counsel), if the lawyer cannot obtain the waiver, she is required to withdraw.
 Implied waivers: invoked with caution. Where the waiver seems to flow logically from the fact of the
representation:
o Necessary to make the representation functional (file pleadings, etc.), or
o Where some act communicates waiver by implication (most common: where the client
places the legal advice provided by a lawyer at issue in a proceeding – R. v. Hobbs where the
lawyer was allowed to disclose the communications “to respond to the allegations about his
competence” – allegations of incompetence only, not to rebuke the argument of ineffective
assistance)
o inadvertent disclosure ≠ waiver
o limited disclosure (to a few auditors) ≠ total waiver of the privilege
E. When a lawyer acts for more than one client on a joint retainer, information arising from that retainer is
not confidential or privileged between the clients, but will be confidential and privileged relative to third
parties
 The lawyer has a duty to disclose information received from one to the other  in the codes, and as a
narrow exception recognized in case law (Pritchard v. Ontario (Human Rights Commission))
 Where one client subsequently does not wish to share information with the other client, the lawyer
should withdraw.
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F. Information that is confidential and privileged may be disclosed during Law Society Disciplinary
Proceedings
 Where the lawyer is required to do so:
o For the limited purpose of facilitation the law society’s investigation
o Discipline of the lawyer
 The law society has an obligation to protect the client’s interests; the lawyer cannot invoke the
privilege to prevent the investigation, to avoid testifying either
 Skogstad v. Law Society of British Columbia: case of the lawyer who refused to answer questions on
the basis of the privilege. Too bad! He was required to do so.
 Law Society of Saskatchewan v. Merchant: The court of appeal held that the Law society had sufficient
legislative authority to permit it to pierce the privilege here and that, importantly, it had only sought
to breach the privilege here to the extent absolutely necessary.
G. Confidential and privileged information may be disclosed to another lawyer to obtain legal advice and may
also be disclosed to allow the lawyer to defend herself in litigation
 Without a waiver, lawyers may disclose the information in order to obtain legal advice about their
conduct of a matter. The information still remains confidential and privileged relative to anyone else
other than the new lawyer who has the same duty not to disclose as the first.
 Recognized in various codes of conduct and indirectly in the case law, the lawyer may disclose in
order:
o To defend disputes arising from their representation of the client: R. v. Murray case. Murray,
lawyer of Bernardo, husband of Karla Homolka, was accused of obstructing justice by not
disclosing in a timely fashion videotapes depicting his client assaulting various young
women. To defend himself, he disclosed the instructions that his client had given him with
respect to the videotapes (where they were hidden because he did not want them found),
and this was just assumed acceptable by the court.
o In relation to the collection of fees
 “doctrinally inconsistent” to give lawyers the discretion to disclose whatever confidential
information they see fit simply to collect fees, or because their reputation may be hurt by an
allegation of ineffective assistance of counsel – this is a significant intrusion into the client’s right to
confidentiality. And the whole point of an across the board right to confidentiality is to protect clients
regardless of the circumstances by avoiding the weighing of confidentiality against justice. So
although divulging this information would lead to a just result for lawyers, it is inconsistent with the
rationale behind the right.
H. Where confidential and privileged information is necessary to establish the innocence of an accused, the
court may require the lawyer to disclose it.
 The “innocence at stake” exception: privileged information may be disclosed to a third party where
the accused obtains a court order
 Rarely invoked
 Common law exception which has been officially recognized by the SCC
 Very high threshold: where there is a risk of wrongful conviction (competing claim to fundamental
justice), and the accused can only establish his innocence through information that would otherwise
be privileged and non-disclosure.
 R. v. McClure: before even considering the “innocence at stake” test, the accused must “establish that
the information he is seeking in the solicitor-client file is not available from any other source” AND
that “he is otherwise unable to raise a reasonable doubt as to his guilt.”
 If that is established, then you pass to the 2-step test:
1. The accused must provide some evidentiary basis upon which to conclude that there exists a
communication that could raise a reasonable doubt as to his guilt” which requires more than
“mere speculation” about what the file contains (≠ precise knowledge either) – could be a
“description of a possible communication”.
2. Trial judge, looking at the file, must determine “whether, in fact, there exists a
communication that is likely to raise a reasonable doubt as to the accused’s guilt.” =
something that goes directly to one of the elements of the offence.
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
Test = passed  judge should order the production, “but only of the portion of [the] solicitor-client
file that is necessary to raise the defense claimed.”
 R. v. Brown: Brown accused of murder, gf of Benson says that Benson committed the murder instead,
that he had confessed to her and to his lawyers. Brown sought access to the files. Not granted by the
court: Benson had other ways of getting the information on the confession, it was not obvious that he
would be able to prove his innocence beyond a reasonable doubt either.
 Other observations: a disclosure order could include oral (lawyer would be compelled to testify)+
written communications, disclosure should only be made to the accused (as opposed to the Crown),
and s. 7 of the Charter protects a person whose information is used pursuant to order: “the privilege
holder’s communications and any evidence derived thereof cannot be used in a subsequent case
against the privilege holder.”

This exception demonstrates one of the challenges of the distinction between the duty of
confidentiality and solicitor-client privilege: if a lawyer knows, for a fact, that the accused (not his
client) is innocent because his client is guilty in reality, he cannot disclose this information although
this may be ethical; he must wait for the accused to apply for the “innocence at stake” exception, but
as often as not, the accused will be unaware that this potentially exculpatory information exists.
 What if a lawyer disclosed to counsel for an innocent accused that he had information that might be
producible under the “innocence at stake” exception? This would violate the client’s right to
confidentiality, but in light of what the SCC has said on the exception, it seems more consistent to
allow this sort of limited disclosure than not to do so.
 To put it differently: whatever is appropriate at the level of principle, at the level of doctrinal
consistency it seems incoherent to permit an exception to privilege in order to serve other interests
of fundamental justice, but not to modify the lawyer’s ethical duty of confidentiality so as to actually
ensure that those interests of fundamental justice will be protected.
I. Information that is confidential and privileged may be disclosed to prevent serious, clear and imminent
threats to the safety of an identifiable person or group of people.
 CONFUSED duty in two ways:
o Not clear when this duty arises (what type of threat is necessary?)
o Not clear whether this duty is mandatory or permissive.
 Lack of congruity again between the duty of confidentiality and the solicitor-client privilege:
completely unnecessary as well.
o If a risk to public safety justifies overriding the client’s interest in maintaining secrecy,
shouldn’t that justification operate equally against the privilege and against the ethical duty?
 Clear in case law: where there is a clear, serious and imminent threat to the public safety of an
identifiable person (or group of people) → duty of confidentiality should be set aside
o Smith v. Jones (SCC): psychologist got permission by the court to disclose his report which
revealed that the accused intended (“talked about his plan”) to commit serious and violent
criminal acts against prostitutes, but he agreed to a plea, and there would be no trial. →
solicitor-client privilege set aside.
o Seriousness defined by the Court as: serious physical harm or death, and serious
psychological harm.
o Imminence: not necessarily immediate
o Court did not address whether the person with the information was required or permitted to
disclose it. Creation of a rule of discretion? → uncertainty added to the law
 Ethical Codes: provide no better guidance.
o Smith v. Jones standard is adopted in the CBA Code, makes the duty to disclose mandatory.
o Also adopted in the LSUC Code, but it is optional to disclose there.
o Other codes have not at all responded to the case in question; those maintain the obligation
of mandatory disclosure where a client threatens to commit a crime involving bodily harm
or death; only optional where there is another crime to be committed
o Some jurisdictions have rules that overlap with the case, some other with rules that address
the question of public safety in particular circumstances
o All in all CONFUSION as to when the duty to disclose comes up, and whether it is mandatory
or permissive
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
Smith v. Jones: does not provide any restrictions on how the disclosed information could be used
going forward against the privilege holder. For example, in that case, it was not simply used to take
prophylactic measures to protect the women, but as a basis for withdrawing the plea agreement and
having the accused labeled a dangerous offender.
 For the time being, a lawyer who satisfies the Smith exception should (depending on the nature of the
information and the rules applicable to them):
o If threat = serious and an emergency (ex.: bomb planted) → disclose (911)
o Threat ≠ emergency but = serious and a clear threat to public safety → obtain court order as
to whether disclosure is permitted or required.
o In jurisdiction with a mandatory safety exception based on crime causing violence or other
specific duty of disclosure → disclose (where the Smith criteria are not met, however, they
should seek clarification from the law society)
o In jurisdiction with permissive exception & criteria not met → don’t disclose
J. Physical or “real” evidence of a crime is not privileged, and if inculpatory must be disclosed
 This is the final exception
 Physical evidence: falls outside privilege, but subject to the ethical duty of confidentiality
 Information surrounding the property (where did it come from, what is it?) is both privileged and
confidential
 Nonetheless, lawyers have a duty of disclosure with respect to physical evidence of a crime.
 R. v. Murray (Bernardo-Homolka videotapes case):
o videotapes ≠ privileged;
o communication in relation to the tapes = privileged
o videotapes had to be disclosed because they weren’t exculpatory, but “overwhelmingly
inculpatory”. The lawyer’s options:
 immediately turn over the tapes to the prosecution, either directly or anonymously
 deposit them with the trial judge
 disclose their existence to the prosecution and prepare to do battle to retain them.
o Obligations of counsel suggested: review the material by all means; advise the client o what
is unethical and illegal, of the exculpatory/inculpatory dichotomy, etc.
 The famous American “Lake Pleasant Bodies Case”: accused with murder reveals he committed 2
more murders, the bodies being undiscovered (whereabouts of the bodies deived from the
information they received). The lawyers went and found the bodies, and took pictures which they
used for an insanity plea later on.
o Clearly did not have to disclose the information
o Photographs were privileged
o Information about the location of the bodies, also privileged (it was derived from privileged
information)
o Difficult burden to carry as a lawyer, but that burden is theirs to carry under their
professional duty not to disclose their client’s secrets
 In the event a lawyer is required to disclose physical evidence, she must take steps to protect the
information in relation to the property that remains privileged (whose it is, where it came from, etc.)
WHAT DUTIES DOES A LAWYER HAVE TO PROTECT THE CLIENT’S RIGHT TO CONFIDENTIALITY?
 Duty of confidentiality:
o Obligation to resist incursions into the client’s confidentiality: flows from the duty of loyalty,
and the obligation to implement the client’s instructions in a representation; lawyer may be
asked to examine documents seized to determine whether a claim of privilege should be
asserted
o Provide as little disclosure as possible to the extent disclosure is permitted or required:
comes from the jurisprudence, and some codes
WHAT DUTIES DO LAWYERS HAVE IN RELATION TO THE CONFIDENTIALITY CLAIMS OF OTHERS?
 Other parties have rights to confidentiality
 A lawyer who inadvertently becomes aware of confidential and privileged information has a duty to
return that information to its source without looking at it.
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You look, a court can remove you (Celanese Canada Inc. v. Murray Demolition Corp.)
You use it, you may be disciplined (Law Society of Alberta v. Trawick) – you may pay costs of the
disciplinary proceedings
 Likely that discipline is less harsh where disclosure truly inadvertent, particularly if the information
was confidential but not privileged.
 Interesting case from the States, Jasmine Networks Inc. v. Marvell Semiconductor Inc., wherein the two
companies were negotiating a deal. Marvell left Jasmine a voicemail. Marvell forgot to hang up the
phone when he had finished recording his message, so it went on to record him talking to his lawyer
about how the company was going to steal trade secrets from Jasmine and its best employees.
Because of lack of standing, this case was dismissed at the appeal level. Woolley says that the
production of the phone call by Jasmine in litigation would be appropriate. The lawyer did nothing
inappropriately by listening to the entire voicemail message, and that phone conversation wasn’t
privileged because it was criminal communication.
  Should the lawyer who has inadvertently received disclosure review information and then see if it
is privileged or confidential? Unclear. Only thing that is clear: a lawyer is not permitted to review
information “just in case” it is not as privileged as it first appears.
CAN THE LAWYER’S DUTY OF TRUST AND CONFIDENCE BE JUSTIFIED?
A. Justifying the General duty
 General duty: a lawyer has a strong ethical duty not to disclose information about their client, even
when doing so might be viewed as in some way in the public interest. They need their client’s
consent.
 Is this near-absolute duty of confidentiality justified?
o Frankel’s utilitarian argument that it is not, since the search for truth was the paramount
purpose of the legal system. He argues the duty has a negative impact which outweighs any
benefits which the lawyer’s obligation may give rise.
o Ironically enough, utilitarian arguments are used to justify the duty. For example, the SCC
returns repeatedly to the idea that the duty of confidentiality is justified because that duty
results in good effects or, more negatively, that the absence of the duty would have very bad
ones.
 Without assurance that their secrets will not be disclosed, clients are less likely to
provide full and frank disclosure to their lawyers;
 Without such disclosure, lawyers cannot properly advise their clients;
 Unless lawyers can properly advise their clients, the legal system cannot function;
 The functioning of the legal system outweighs the costs incurred by the duty of
confidentiality.
o Woolley: although SCC to quick to assume all the good, it is more persuasive than the Frankel
argument.
 The utilitarian framing of the debate is insufficient.
 Since confidentiality is a central attribute of the lawyer’s loyal representation of the interests of her
client, it needs to be justified (or critiqued) through consideration of its relationship to why we have
loyal representation in the first place.
UTILITARIAN DEBATE
 2 arguments:
1. Empirical premises (like those of the SCC) are fundamentally flawed.
2. Even if they were correct, the privilege creates consequences that are negative overall.
 Bentham argued that the argument that the duty is necessary for clients to make full and frank
disclosure did not account for the point that if a criminal accused was innocent, they would have
nothing to hide from their lawyer. Only those who have something to hide, those who are guilty, need
this protection, but they do not deserve it.
 Problem 1 with Bentham’s argument: assumption that the client knows they are innocent,
and knows which facts are inculpatory, which are exculpatory. (ex.: of a battered woman
who may not think it would help to say that her husband was abusive because that would
give her motive – she assumes exculpatory evidence is inculpatory).
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Problem 2: the categories of “innocent” and “guilty” seem unduly simplistic.
Problem 3: It takes no account of the operation of confidentiality in circumstances where the
client is not trying to avoid the consequences of illegal action, but is rather trying to
determine whether conduct is, or is not, lawful.
 Dodek argues that there is simply no empirically demonstrable correlation between the obligation
and client disclosure. Clients are unaware of or misunderstand the nature of the duty so they do not
rely on it when they are talking to their lawyers. Also, lawyers on a regular basis present a client’s
case without knowing everything.
 Problem 1: the empirical evidence this guy relies on is too weak to support his conclusion
(only a few, small studies)
 Problem 2: True that lawyers often act without knowing, but it is far from obvious that the
outcomes in those cases are happy.
 Problem 3: saying that “the number of innocent people who would be convicted if the
confidentiality were eliminated would almost certainly be significantly outnumbered by the
increase in convictions of guilt” does not account for the possibility that from a societal
perspective we almost certainly place different weighting on those outcomes, which must be
taken into account in any utilitarian analysis (different weighing of preferences must be
taken into account in determining the appropriate social policy).
  Woolley: the utilitarian analysis provides strong if not irrefutable support for the doctrine. BUT
confidentiality and privilege can, and should, be justified in terms of the underlying rights and
interests that they protect.
HUMAN DIGNITY ALTERNATIVE TO UTILITARIANISM – the most common non-consequentialist justification
 The privilege protects the human dignity of clients.
 Keeping secrets = moral principle, albeit one that can be outweighed by competing moral values
(circumstances in which breaking that promise is the right thing to do).
 Q: Why would we make keeping secrets the paramount moral value, as we do through the lawyer’s
duty of trust and confidence – i.e. a moral value that is not weighed against counter-vailing moral
arguments in each case?
 Luban: argues that keeping secrets follows from other moral values that can clearly be accepted as
paramount. In criminal defence work, for example, the accused’s dignitary interests are protected by
both a right against self-incrimination and a right to counsel. Without a duty of confidentiality, the
client would be forced to choose between these rights (with right to counsel, he would have to say
the truth, but counsel may rat him out; with right against self-incrimination, he would have to deny
counsel).
DEMOCRACY
 Weakness of this non-consequentialist justification: it frames the debate in ordinary moral terms
(what is right? What is wrong?), but the whole point of a system of laws is to allow us to achieve a
democratic compromise point about what we will (or will not) require of each other. Lawyers help
achieve this compromise. Do not asl whether the duty is compatible with ordinary moral institutions,
but whether it fosters the lawyer’s representation of the client within a democratic system of laws,
and whether it in some way undermines the pre-existing determinations of the legal system in
relation to secret-keeping.
 Nature of the duty: it protects three things
1. Protects from disclosure the legal advice provided by the lawyer
2. Protects from disclosure the information provided to the lawyer to obtain that advice in the
form in which it was given to the lawyer
3. Protects from disclosure information given to the lawyer by the client that the client will not
be required to disclose through the operation of the law.
 What lawyers provide: assistance to people to pursue their conceptions of the good within the
system of laws.
 Purpose of confidentiality: to neutralize the difference between figuring out the law for yourself, and
having someone telling you what it means.
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It is an imperfect world, and so you need to ask a lawyer for advice on what the law permits: it is only
reasonable that the law treat that advice when given in the same way it would be treated if the
person gave it to himself – as private and not compellable.
 Efficiency:
o With the duty, the production of information producible in some other way is less efficient,
but not precluded
o To make more efficient, but not limit the client’s right to confidentiality: facilitate other ways
to obtain the evidence.
o With respect to information not producible some other way, the client has a right not to
disclose: if a lawyer’s duty is to allow the client to pursue what their conception of good, it is
perverse to make the cost of going to a lawyer a change in the client’s underlying legal
entitlements, in this case non-disclosure.
 What if no required duty to disclose on the client, but he is in a sense not legally entitled to keep the
information secret, where keeping it secret is wrongful both morally and in terms of the norms
underlying the law? (ex.: wrongful conduct – past and future – or taking advantage of loopholes in the
law.) → this is why there are exceptions
 Moral burden: no matter how well justified the rule that says that confidentiality should not be
breached, lawyers at times (when they have to stand by and watch an innocent person be convicted)
must carry the moral burden.
B. Some specific points
 Recommendations with respect to three particular issues arising from the client’s right to
confidentiality:
1. The public safety exception: currently in a state of confusion. Should be resolved in
accordance with Chapter IV, Rule 2 of the CBA Model Code: lawyers should be required to
disclose any threat that satisfies the test set out in Smith, but should not be permitted to
disclose information on the basis of public safety in other circumstances. No permission to
disclose simply because a client has stated a criminal intention. With respect to “innocence
at stake”, when a lawyer makes disclosure, the privilege holder should normally be entitled
to use and derivative use immunity for that information. Default position should be that
lawyers who are advised of the wicked intentions of other should also not disclose them. But
the law is weakest here, and sometimes discourages silence. The state is allowed to
investigate threats they become aware of. Fundamental point: the duties placed on the
lawyer with respect to confidentiality reflect societal determinations of the answer to the
moral question of when disclosure is justified; generally speaking, the determination of the
appropriate response should not be left with the individual lawyer.
2. The exceptions for lawyer self-interest: unnecessarily broad and unjustifiable in light of the
strong justification for the duty of confidentiality. No sense that the duty can bend uniquely
to lawyers’ own convenience.
3. Confidentiality for organizations and corporations: many argue that they have no dignity, no
moral right to privilege, so nothing to be protected, and they will have to seek legal advice,
like it or not, in order to function. Problems with this: not obvious that they will have to seek
legal advice anyway, the argument made for confidentiality here does not rest on dignity,
and too radical to suggest that they have no personal conception of good (they are vehicles
through which individuals act in furtherance of their conception of good).
“Le Secret professionnel de l’avocat” Jamal & Lussier [T]
Récents développements relatifs au secret professionnel de l’avocat. et le privilège relatif au litige.
SECRET PROFESSIONNEL DE L’AVOCAT
a. Objet et raison d’être
Faciliter une communication complète et franche entre avocat et client, ce qui favorise l'accès à la justice.

Le client doit sentir qu’il peut s’exprimer librement pour que le système de justice fonctionne.
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Rapport de confiance avocat—client est une condition nécessaire et essentielle à l'administration
efficace de la justice.
Documents protégés par le secret professionnels sont inadmissibles en preuve : règle qui reflète
l’importance du principe.
b. Critères
1. « Communication entre un avocat et son client »
Secret professionnel protège les communications mais non les faits sous-jacent qu’ils peuvent
receler : des faits qui pourraient être obtenus d’une autre façon que les communications doivent
pouvoir être admis en preuve.
2. « Qui comporte une consultation ou un avis juridique »
Privilège avocat—client s’applique à toute communication faite dans le cadre de la relation avocat—
client, dès les premières démarches (même avant la formation du mandat) et incluant toute
communication continue au cours de laquelle l’avocat dispense des conseils.
3. « Que les parties considèrent confidentielles. »
Présomption de fait réfragable que les communications sont confidentielles.
c. Évolution et constitutionnalisation
1. Règle de preuve : initialement.
2. Règle de fond : 1982, Descôteaux c. Mierzwinski.
3. Droit constitutionnel :
 Smith v Jones (1999) : Principe de justice fondamentale protégé à l’art 7
 R v McClure (2001) : dans certaines circonstances, le secret professionnel de l'avocat peut être mis de
côté pour permettre à un accusé de présenter une défense pleine et entière face à une accusation
criminelle.
Test :
1. Si les questions fondamentales de l’innocence d’un accusé sont en cause, et
2. S’il y a un risque véritable qu’une déclaration de culpabilité injustifiée soit prononcée.
 Lavallée (2002) : protégé comme droit fondamental à la vie privée (art 8 Charte). Notamment, l’État
ne peut pas avoir accès aux renseignements protégés par le secret professionnel.
 Caractère constitutionnel également au civil.
 Au Québec, seule une disposition expresse de la loi peut faire échec au secret professionnel.
d. Exceptions
Privilège ne s’étend pas aux communications (i) qui n’ont trait ni à la consultation juridique ni à l’avis donné,
(ii) qui ne sont pas censées être confidentielles ou (iii) qui visent à faciliter un acte illégal.
- Ces exceptions sont limitées et spécifiques.
Critère de l’absolue nécessité
Critère très restrictif pour lever le privilège.
Seulement dans des circonstances très rares, par exemple
 risque véritable d’une déclaration de culpabilité à tort (R v McClure)
 réelle crainte qu’une personne ou un groupe soit exposé à un danger imminent de mort ou de
blessures graves (Smith v Jones)
 protéger la sécurité nationale (Smith v Jones)
Exception applicable aux communications de nature criminelle
Communications « elles-mêmes criminelles » ou « qui visent à obtenir un avis juridique pour faciliter la
perpétration d’actes criminels » ne sont pas protégées. (Smith v Jones)
Exception s’applique seulement si « le client poursuit sciemment un dessein criminel ».
e. Renonciation au secret professionnel
 Le privilège appartient au client; seul le client peut y renoncer par consentement éclairé.
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Renonciation implicite lorsqu’une partie intente une poursuite ou présente une défense qui rend
pertinentes son intention et sa connaissance de la loi, par exemple en invoquant certains conseils
reçus comme défense.
Divulgation par inadvertance n’implique pas une renonciation au secret professionnel.
Réception par erreur: Une partie qui reçoit par erreur des documents protégés par le secret
professionnel de l'avocat devrait non seulement les restituer sans délai, mais également informer la
partie adverse de la mesure dans laquelle ces documents ont été examinés.
f. Application du secret professionnel aux avocats internes
Ils sont tenus au même secret professionnel que les avocats externes.
 Avocats d’un entreprise : chaque situation est analysée pour déterminer si le conseil était juridique ou
non.
 Avocats de l’État : même principes — conseils juridique protégés, conseils relatifs à la politique
générale ne sont pas protégés.
g. Vérification
Divulgation de renseignement protégés pour fin de vérifications constitue une « renonciation limitée » pour
les seules fins de cette vérification.
PRIVILÈGE RELATIF AU LITIGE (LITIGATION PRIVILEDGE)
S’applique à toutes les communications et au produit du travail de l’avocat (attorney work product doctrine)
préparé essentiellement aux fins d’un litige réel ou envisagé ou du règlement extrajudiciaire d’un différend.
a. Objectif : assurer l'efficacité du processus contradictoire [adversarial process] (et non de favoriser la
relation entre l'avocat et son client). Pour favoriser ce processus, les parties doivent pouvoir préparer leurs
arguments en privé, sans crainte de communication prématurée.
b. Critère de l’ « objet principal » (peu rigoureux)
 en effet, le privilège relatif au litige est une exception au principe de la communication complète
(contrairement au secret professionnel qui est un concept fondamental renforcé au cours des
dernières années).
c. Documents recueillis mais non créés en vue du litige?
Jurisprudence partagée mais logiquement, le privilège devrait s’étendre aux documents recueillis au moyen de
recherches ou à l’aide d’habiletés.
d. Différences avec le secret professionnel
 Confidentialité n’est pas un élément essentiel du PRL.
 PRL ne s’applique que dans le contexte d’un litige; il prend fin quand le litige prend fin.
 PRL facilite un processus (le processus contradictoire) et non une relation
 Le PRL et le secret professionnel peuvent se chevaucher et poursuivre un but commun.
e. Le PRL survit lors de litiges connexes, du moment que les procédures connexes soient étroitement liées.
f) Exception en cas de conduite donnant ouverture à un recours dans le cadre de la procédure à l'égard de
laquelle le privilège est revendiqué.
g. PRL en cas d’intérêt commun (défense commune – plusieurs personnes ont un intérêt commun dans un
litige).
Smith v Jones, 1999 SCJ No 15 [C]
In RED is the Smith v Jones test, in Blue in the application to the case. The rest is explanations of the solicitorclient privilege and other somewhat interesting things]
[I went quickly on the dissent’s opinion…this text was 27 pages lol]
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Facts [copied from headnote]: The accused was charged with aggravated sexual assault of a prostitute and
consulted a psychiatrist for assessment (for purpose of preparing submissions on sentencing). The
psychiatrist was of the opinion that the accused was a dangerous person as the accused described in
considerable detail his plan for killing prostitutes in a specific district. The psychiatrist informed the
accused's counsel about his concerns, but was advised that his concerns would not be addressed in the
sentencing hearing. The accused pled guilty to the charge and while awaiting sentencing, the accused was at
liberty for 15 months and did not carry out his alleged plan to kill another prostitute. The psychiatrist
brought an action for a declaration that he was entitled to disclose the information he had in his possession in
the interests of public safety. The court file was sealed.
 Trial judge: The public safety exception to the law of solicitor-client privilege and doctor-patient
confidentiality releases the psychiatrist from his duties of confidentiality, and both the accused's
statements made to the psychiatrist and his opinion were to be disclosed.
 Court of Appeal: Allowed the accused's appeal but only to the extent that the mandatory order to
disclose was changed to one permitting the psychiatrist to disclose the information to the Crown and
police. The accused appealed.
Issue: (1) What circumstances and factors should be considered and weighed in determining whether
solicitor-client privilege should be set aside in the interest of protecting the safety of the public? [35] (2) In
this case, should the solicitor-client privilege be set aside for the protection of members of the public?
Holding: (1) see below in red, (2) Yes!
Appeal should be dismissed
Reasoning:
[CORY J – L’Heureux-Dubé, Ghontier, McLachlin, Iacobucci and Bastarache JJ concurring - majority]
 [read paragraph 37-38 if you want to know how he killed the prostitute]
 “Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that
what they say will not be divulged without their consent. It cannot be forgotten that the privilege is
that of the client, not the lawyer. (…) Without this privilege clients could never be candid and
furnish all the relevant information that must be provided to lawyers if they are to properly
advise their clients. It is an element that is both integral and extremely important to the functioning
of the legal system. It is because of the fundamental importance of the privilege that the onus
properly rests upon those seeking to set aside the privilege to justify taking such a significant step.
[46]
 The solicitor-client privilege used to be a rule of evidence simply protecting the solicitor from
having to testify at trial. It has evolved into a substantive rule. Elements: [48]
(1) “The confidentiality of the communications between solicitor and client may be raised in any
circumstances where such communications are likely to be disclosed without the client's
consent.
(2) Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right
would interfere with another person's right to have his communications with his lawyer kept
confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
(3) When the law gives someone the authority to do something which, in the circumstances of the
case, might interfere with that confidentiality, the decision to do so and the choice of means of
exercising that authority should be determined with a view to not interfering with it except to
the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
(4) Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in
paragraph 3 must be interpreted restrictively.”
 The solicitor-client privilege is not absolute and must give way to certain societal values. [51]
o E.g. protection of national security [53]
o Innocence of the Accused: “solicitor-client privilege must yield to the right of accused
persons to fully defend themselves” [52] in the context of criminal accusations against
them. (set out in R v Dunbar)
o Criminal Communications: “communications that are criminal in themselves (…) or that are
intended to obtain legal advice to facilitate criminal activities re not privileged” [55] (set out
in Mierzwinski)
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The Public Safety: Examination of courts in other jurisdiction (US and UK) which
examined the issue of public safety exceptions to the privilege, particularly in doctorpatient relationships to show that other privileges are subject to the public interest
and to consider the issues around privilege. [58-73]
PUBLIC SAFETY 3 PARTS TEST: (different weights will be given to each factor in any particular
case]
(1) Clarity: Is there a clear risk to an identifiable person or group of persons?
o Specific questions to ask will vary with the particular circumstances of the case.
Examples: “Is there evidence of long range planning? Has a method for effecting the specific
attack been suggested? Is there a prior history of violence or threats of violence? Are the
prior assaults or threats of violence similar to that which was planned? If there is a history of
violence, has the violence increased in severity? Is the violence directed to an identifiable
person or group of persons?” [79]
o Most important: a group or person must be ascertainable. “Even if the group if intended
victims is large considerable significance can be given to the threat if the identification of the
group is clear and forceful.” [80]
o “A general threat of death or violence directed to everyone in a city or community, or
anyone with whom the person may come into contact, may be too vague to warrant setting
aside the privilege” [80]
(2) Seriousness: Is there a risk of serious bodily harm or death?
o “The disclosure of planned future crimes without an element of violence would be
insufficient reason to set aside solicitor-client privilege because of fears for public safety.”
The threat must be to occasion serious bodily harm or death. [82]
o Serious ‘bodily harm’ includes ‘psychological harm’, so long as the “psychological harm
substantially interferes with the health or well-being of the complainant”. [83]
(3) Imminence: Is the danger imminent? (if the risk is imminent, the danger is serious!)
o “The nature of the threat must be such that it creates a sense of emergency.” [84]
o “A statement made in a fleeting fit or anger will usually be insufficient to disturb the
solicitor-client privilege.” [84]
o Imminence can occur if “if that threat is made with such chilling intensity and graphic detail
that a reasonable bystander would be convinced that the killing would be carried out”
[84]
 If the “threat to public safety outweighs the need to preserve solicitor-client privilege, then the
privilege must be set aside. When it is, the disclosure should be limited so that it includes only
the information necessary to protect public safety.” [85]
o Disclosure: it should be strictly restricted to “those aspects of the report or document which
indicate that there is an imminent risk of serious bodily harm or death to an identifiable
person or group.” Other criminal activities in the report, e.g. fraud, should not be divulgated!
Application to the case at bar:
(1) Clarity? YES  He planned killing in advance: took a break from his job, wanted to make the
prostitute his ‘sex slave’, took rope and duct tape with him and planned to shoot the victim in the
face to obliterate her identity, knew exactly where he would bring and kill them, etc. He also
suffered a ‘paraphiliac disorder with multiple paraphilias (in particular, sexual sadism). The
group was clearly identifiable: prostitutes on Vancouver’s Downtown Eastside. The fact that he
would be exposed to greater danger in prison doesn’t affect the gravity of the threatened attack
on prostitutes. [89]
(2) Seriousness? YES  a ‘sexually sadistic murder’ is clearly sufficient, and the fact he already
assaulted a prostitute supports the finding of an extremely serious potential harm. [90]
(3) Imminence: YES 
o Dr. Smith waited over 3 months before contacting Mr Jones’s counsel. There’s also no
evidence that Mr. Smith believed Mr. Jones would commit a serious attack in the near future.
However, Mr. Smith found it so dangerous that he commenced this proceeding to make sure
his reports would be heard in the sentencing of Mr. Jones.
o 2 important factors: Mr. Jones breached his bail conditions by continuing to visit the
Downtown Eastside where he knew prostitutes could be found. Also “common sense would
o
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indicate that after Mr. Jones was arrested, and while he was awaiting sentence, he would
have been acutely aware of the consequences of his actions. This is of particular significance
in light of his feat of being attacked while he was in jail.” [93]
o Even if imminence isn’t clear cut here, “the other factors pertaining to clarity, the identifiable
group of victims, and the chilling evidence of careful planning, when taken together, indicate
that the solicitor-client privilege must be set aside for the protection of members of the
public.”
 The solicitor-client privilege must be set aside for the protection of members of the public. The
portions of Dr. Smith’s affidavit which indicate an imminent risk of serious harm or death should
be disclosed.
Appropriate Procedures to Adopt:
o Dr. Smith wants a declaration that he was entitled to disclose the info he had. This is not the
only way to do it, since there’s not always time for such action. [96]
o The precise steps an expert might take prevent the harm to the public must not be
considered here. “It might be appropriate to notify the potential victim or the police or a
Crown prosecutor, depending on the specific circumstances.” [97]
The Lifting of the Publication Ban: “For this Court to seal a file was a highly unusual procedure. It
was required because if solicitor-client privilege did attach to Dr. Smith’s report it could never be
made public. In other words the file could only be unsealed and the documents made public if it was
determined that solicitor-client privilege should not apply to the report because of the existence of
the danger to the public.”
[MAJOR J – LAMER CJC and BINNIE J concurring – DISSENT]
“The point of departure arises in the restriction each of us places on the scope of disclosure”.
 The principles underlying solicitor-client privilege: “If the confidences clients share with counsel
were not protected by privilege, it seems apparent that accused person would hesitate to confide in
their legal advisors, who in turn could not adequately represent them. The starting point of Canadian
justice is that no one, no matter how horrible the alleged offence, be denied a full defence. Nor will
they be prejudiced by retaining counsel and freely discussing the case with him or her.” [6]
o Charter protection: right to full answer & defense, right to counsel, right against selfincrimination and presumption of innocence, ss.7, 10(b), 11(c), 11(d) [7]
 Extension of solicitor-client privilege to experts (for disclosed information)
o Tradition + case law: extension of the privilege to include communications (conversation or
otherwise) between accused and the expert. [11]
 Is the substance of the psychiatrist’s opinion privileged? Yes!
 Purpose and Application of the Public Safety Exception
o Test of ‘clear, serious and imminent’ danger is correct and has been correctly applied by the
majority. However…
o “If defence counsel cannot freely refer clients, particularly dangerous ones, to medical or
other experts without running a serious risk of the privilege being set aside, their response
will be not to refer clients until after trial, if at all. This could result in dangerous
people remaining free on bail for a long period of time, undiagnosed and untreated,
presenting a danger to society.” [20]
o “The chilling effect of completely breaching the privilege would have the undesired effect
of discouraging those individuals in need of treatment for serious and dangerous
conditions from consulting professional help. In this case the interests of the appellant
and more importantly the interests of society would be better served by obtaining
treatment.” [21]
o Lifting the privilege will not promote public safety, only silence. “the Court will have
imposed a veil of secrecy between the criminal accused and their counsel which the
solicitor-client privilege was developed to prevent. Sanctioning a breach of privilege too
hastily erodes the workings of them system of law in exchange for an illusory gain in public
safety.” [23]
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“The danger posed by the accused can be adequately addressed by the expression of that opinion by Dr. Smith
without disclosing the confession.”
 2 principles to guide the scope of disclosure: (1) breach of privilege must be as narrow as possible,
[25] (2) an accused’s right to consult counsel without fear of having his words used against him at
trial [26]
Szarfer v Chodos, [1986] OJ No 256 [N]
Facts
Szafer retained Chodos’s legal services in a wrongful dismissal case related to Szafer’s physical injuries. This
injury and the loss of Szafer’s job caused considerable strain on his relationship with his wife, a legal
secretary. She had worked with Chodos on previous occasions.
On May 12, 1981, Chodos called on Szafer’s wife to help with a written submission. It is then that Chodos and
Szafer’s wife started a six-week affair. When Szafer discovered the affair he developped serious emotional
and mental health problems.
Szafer claims Chodos breached his fiduciary duty by using confidential information regarding his relationship
with his wife to his own advantage.
Issue
Did Chodos breach his fiduciary duty by having an affair with his client’s wife? Can Szafer properly sue for
breach of fiduciary duty?
Holding
Yes, Chodos breached his fiduciary duty. Szafer can claim general, special and exemplary damages.
Reasoning
(1) Chodos was aware that Szafer and his wife were having sexual problems. He was also aware of all the
financial stresses Szafer was under, as well as previous health problems he had had. More importantly, he
knew Mrs. Szafer was vulnerable.
“The fiduciary relationship between a lawyer and his client forbids a laywer from using any confidential
information obtained by him for the benefit of himself or a third person or to the disadvantage of his client.”
(para 29, emphasis in original) There can be no conflict.
Where a fiduciary duty is established (the solicitor-client relationship is always fiduciary), it is to the trustee
(i.e. lawyer) “to prove that he acted reasonably and made no personal use whatsoever of the confidential
information.” (para 29) The facts clearly show confidential information was used to personal benefit.
(2) It is proper to sue under breach of fiduciary duty. Adultery is no longer a tort, but the emotional and
mental damages in this case allegedly stem from Chodos’ breaching of Szafer’s trust by using personal
information for his own purposes, and not from the adulterous relationship per se.
Ratio
(1) Allowing self-interest to conflict with the client’s interests is a breach of the solicitor’s fiduciary obligation.
(2) Though adultery is no longer a tort, it is still possible to sue under breach of fiduciary duty.
R v McClure 2001 SCJ 13 [A]
Facts: Accused was charged with sexual offences against 11 former students of school where he had worked
as a librarian— Complainant read about accused's arrest and gave statement to police alleging incidents of
sexual touching by accused — Complainant also brought civil action against accused — Accused sought
production of complainant's civil litigation file, it was submitted, to determine the nature of the allegations
first made by the appellant to his solicitor and to assess the extent of the appellant's motive to fabricate or
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exaggerate the incidents of abuse — Trial judge ordered production of file to accused — No evidence existed
that information sought by accused could raise reasonable doubt as to his guilt.
Issue: Should the solicitor-client privilege of a third person yield to permit an accused to make full answer
and defence to a criminal charge, and, if so, when?
1. Should the solicitor-client privilege ever give way to an accused's right to full answer and defence and if so
in what circumstances?
2. If solicitor-client privilege should yield, what is the appropriate test?
3. Should the trial judge have ordered the litigation file to be disclosed in the circumstances of this case?
Holding:
1. Yes, in exceptional circumstances → you need evidence that the information sought could raise reasonable
doubt as to guilt, and that there is no other way to raise such doubt.
2.
3. No → trial judge erred in allowing the production of the file
Reasoning:
Per Major J.
A. Evolution of solicitor-client privilege
 History – dates back to the 16th century: Sopinka J. once wrote that “[t]he basis of the early rule was
the oath and honour of the solicitor, as a professional man and a gentleman, to keep his client's
secret.” “Honour theory” contested. What is clear is that it has turned into substantive law in Canada.
 Started off as a rule of evidence (acted as a shield to prevent privileged materials from being
tendered in evidence in a court room), then elevated to a rule in the common law. It has unique status
within the legal system.
B. Types of privilege
 Communications worthy of confidentiality in service of the public interest = privileged
communications
 two recognized categories of privilege:
1. relationships that are protected by a "class privilege": privilege recognized at common law
that comes with a prima facie presumption of inadmissibility, unless one can show that it
should not be protected in that particular instance (overriding policy reason) → solicitorclient privilege falls within this category, most notable example of “class” privilege
2. relationships that are not protected by a class privilege but may still be protected on a "caseby-case" basis: doctor-patient, psychologist-patient, etc.
C. Rationale of solicitor-client privilege
 The solicitor-client relationship is part of the legal system, not ancillary to it. Essential to the effective
operation of the legal system. Communications are inextricably linked with this system. → this
distinctive status within the legal system, protection is available to all.
 It is important to society as a whole
 This privilege is fundamental to the justice system in Canada
 Lawyers have a unique role. Free and candid communication between the lawyer and client protects
the legal rights of the citizen → at the heart of the privilege. It is essential for the lawyer to know
everything. The existence of a fundamental right to privilege between the two encourages disclosure
within the confines of the relationship.
 The danger in eroding solicitor-client privilege = potential to stifle communication between the
lawyer and client → lawyer unable to fully represent the client’s interests
D. Scope of solicitor-client privilege
 Not absolute. (ex.: where public safety is concerned) → it must be as close to absolute as possible to
ensure public confidence and retain relevance → will only yield in certain clearly defined
circumstances, and does not involve a balancing of interests on a case-by-case basis.
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
Communication = privileged where it arose from communications between a lawyer and a client
where the latter seeks lawful legal advice.
 Privilege may only be waived by the client.
E. Full answer and defence
 Privilege clashes with s. 7 Charter right to make full answer and defence (principle of fundamental
justice), also integral to the justice system.
 The innocent should not be convicted (this is intolerable), which is why the right to a fair trial is
recognized at s. 11(d) of the Charter. An essential facet of a fair hearing is the "opportunity
adequately to state [one's] case". The privilege has yielded before to the right to make full answer
and defense where the failure to do so would lead to a wrongful conviction.
F. Solicitor-Client Privilege vs. Full Answer and Defence
 Both equally important, neither can prevail. Solicitor-client privilege is more broad (btw).
G. Existing Tests
 They are insufficient. Here is a brief description:
1. Individual right to privacy (not the broader policy objectives)
2. Innocence at stake exception: another class privilege. Applies to circumstances under which
the identity of an informer might have to be revealed. There is a high standard of showing
that the innocence of the accused is at stake before permitting invasion of the privilege. →
will adopt a high standard here too
H. The Innocence at Stake Test for Solicitor-Client Privilege
 Should be stringent
 The privilege should be infringed only where core issues going to the guilt of the accused are
involved and there is a genuine risk of a wrongful conviction.
 Threshold requirements:
1. information sought in the solicitor-client file is not available from any other source and
2. Otherwise unable to raise a reasonable doubt as to guilt in any other way.
 2 steps, dual nature of the inquiry:
1. the accused must provide some evidentiary basis (mere speculation is insufficient) upon
which to conclude that there exists a communication that could raise a reasonable doubt as
to his guilt (must provide a description of a possible communication to show why it could
raise a reasonable doubt) → will the judge review the evidence? (Juge asks themselves: Is
there some evidentiary basis for the claim that a solicitor-client communication exists that
could raise a reasonable doubt about the guilt of the accused?"). Decision based on all the
evidence before it already.
2. trial judge must examine the solicitor-client file to determine whether, in fact, there is a
communication that is likely to raise a reasonable doubt as to the guilt of the accused (Judge
asks themselves: "Is there something in the solicitor-client communication that is likely to raise
a reasonable doubt about the accused's guilt?")→ In most cases, this means that, unless the
solicitor-client communication goes directly to one of the elements of the offence, it will not
be sufficient to meet this requirement. Looks at the totality of the evidence.
 Test passed: the trial judge should order the production but only of that portion of the solicitor-client
file that is necessary to raise the defence claimed.
 Applied to the case at bar: failed at stage one because the file needn’t be produced to raise the fact
that the sequence of events (lawyer, police, therapist, civil suit) was unusual. Doesn’t prove that a
reasonable doubt could be raised.
Ratio: The occasions when the solicitor-client privilege yields to an accused's right to make full answer and
defence are rare and the test to be met is a stringent one. The first stage of the innocence at stake test for
setting aside solicitor-client privilege was not met. No evidence existed that the information sought by the
accused could raise a reasonable doubt as to his guilt. The accused would be entitled to raise the issue of the
complainant's motive to fabricate events at trial, simply by pointing out the sequence of events and the fact
that a civil action was initiated.
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V. Conflicts of Interest
Chapter 8 Woolley [H] (215)
1. INTRODUCTION
The very first idea in a lawyer-client relationship shows that their interests are not aligned: the lawyer wants
to earn more when the client wants to pay less!
The existence of possible conflicting needs does not mean that one party is likely to act in contravention of
the duties he owes to the other.
However, it may create 1. the potential for improper conflict; 2. The appearance that improper conduct will
occur 3. Lead to improper conduct in fact.
The purpose of this chapter: set out the foundations, principles and rules of the law of conflicts.
2. LAWYER-CLIENT CONFLICTS DEFINED (216)
A conflict of interest arises where a lawyer violates his or her “fundamental duty to act in the best interest of
his or her client to the exclusion of all other adverse interests, except those duly disclosed by the lawyer and
willingly accepted by the client.”
A. Violations of Duty to Act in Client’s Best Interests (217)
Three principles:
i. Substantial risk of material and adverse effect on representation (217)
To establish a conflict, no need to demonstrate that the representation of that client will be adversely
affected; the possibility (more than mere speculation) of an adverse effect is enough  in other words, there
has to be a substantial risk: there is a potential risk; doesn’t even need to be certain or even probable.
Example of cases where the relationship could cause a problem: criminal convictions, breach of contract, torts
Nature of the relationship has to be considered: ex: Strother v # Canada Inc: Strother was found to have
violated his duty of loyal advocacy for his client and to have breached his contract, as a result of his conflicting
financial interest in a competitor of the client. (Majority: lawyer’s fiduciary duties may include obligations
that go beyond what the parties expressly bargained for.
Author’s opinion: while the lawyer’s duty of loyalty to the client exists independently of the lawyer-client
retainer, the nature of the retainer must be taken into account in determining whether a conflict exists.
ii. Misuse of confidential information (220)
Case: MacDonald Estate v. Martin: a lawyer may not act in a matter where he receives confidential
information from a client and the representation creates a risk that information will be used to that client’s
disadvantage.
Even if that information is arguably public in nature, it could be seen as evidence of a possibility of a material
and adverse effect on representation.
iii. Obtaining an improper advantage (221)
In these cases, the conflict of interest leads to an actual breach of the lawyer’s duties to the client.
In these cases, the client ahs a cause of action and the lawyer is subject to professional discipline.
The conflict is relevant but, mostly as a causal or aggravating factor.
Ex: Stewart v. Canadian Broadcasting Corp.: the lawyer violated his fiduciary obligations by participating in a
television show about his former client’s criminal conviction and promoted his own interests.
Ex: Szarfer v. Chodos: lawyer used confidential information obtained to start an affair with a client’s wife!
Ex: Law Society of Upper Canada v. Joseph: lawyer having sex with a client.
B. Who is a Client? (223)
A person can be a client even if never formally retaining the lawyer.
Ex: when individuals have simply phoned a lawyer and received some introductory advice!
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Forysth v Cross: firm disqualified in acting for the wife because the lawyer has had a conversation with the
husband’s mother!
Achakzad v Zemaryalai: the lawyer has had phone conversations with the wife (who couldn’t afford to retain
him) and later was hired by the husband!
Escott v Collision Clinic Ltd: speaking to someone over a Christmas party is not enough!
Dobbin v. Acrohelipro Global Services Inc: near client relationship engages a conflict of interest only where
the information relates to the particular matter at issue between the parties, or involves a situation where the
lawyer might be tempted or appear to be tempted to breach the rule relating to confidential information. A
near client: someone related to the actual client to whom the lawyer can be said to have some duties that may
create an improper conflict.
(rare case: only when there aren’t any steps taken to shield the information)
C. What constitutes informed consent? (227)
Most common and effective way for a lawyer to resist an allegation of possibility of conflict of interest
R v. Neil: after full disclosure, clients consent  no problemo!
Consent has to be written (ex: Booth v. Huxter), voluntary, no need for independent legal advice.
The written requirement is not rigid, could be inferred; in Regular v. Law Society of Newfoundland and
Labrador; the lawyer had an affair with a client for several years, and represented her twice. The court found
that the second time, there was no conflict of interest, the woman had full disclosure and knowledge and had
consented.
The failure to provide proper information to the client or the client’s ignorance of a material fact will vitiate
consent. (ex: R v. Silvini: criminal accused could not waive a conflict arising from joint representation of a coaccused when he did not appreciate that the joint representation would preclude him from calling the coaccused as a witness)
Consent obtained after the conflict has already begun, arguably to prejudice of the client, has no effect (Law
Society of Upper Canada v. Hunter)
Sometimes a subsequent event can vitiate earlier consent (Chiefs of Ontario v. Ontario)
In some circumstances independent legal advice is necessary for consent to be valid (Law Society of Upper
Canada v Logan)
3. KINDS OF CONFLICTS OF INTEREST (231)
Circumstances in which such conflicts of interest tend to arise.
A. Conflicts relating to the lawyer’s own interests (231)
The economic relationship between the lawyer and the client places their interests in conflict
The lawyer’s personal opinions on matters unrelated to the merits of the client’s case (Ex: he doesn’t like the
client, he prefers trials to settling, etc) should not play against the client.  His advice should not be tainted
by motivations other than pursuit of the client’s interest.
B. Conflicts between a former client and a new client (232)
No general rule
When representing a former client a lawyer will have received confidential information in relation to that
client and in relation to the matter on which the lawyer represented her.
If confidential information from the former client is relevant to the current client, then: 1. Lawyer will use the
info  violation of duty of confidentiality or 2. Lawyer will not use it  violation of duty of zealous advocacy
Even if there is not risk of misuse, the lawyer can be prohibited to act if the representation would have the
effect of attacking the legal work (justice has to be done and be seen to be done)
C. Conflicts between current clients (233)
Types of conflicts:
1. They might be in dispute with each other.
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
Even if it is not a direct dispute, sometime the successful achievement of the legal goals of one party
can be achieve that the expense of the other party.
2. Clients have interests in a matter or related matters.
3. A lawyer might represent concurrently two or more clients. (he doesn’t represent them together)
D. Third party and multiple role conflicts (235)
Clients may have multiple roles within the matter on which the lawyer is acting.  situation of joint
representation: the alignment of interest between the client’s dual roles may develop into a conflict or dispute
 lawyer should be aware and discuss to his client.
Ex: client is a shareholder and an employee of a corporation
4. WHY ARE SOME CONFLICTS FORBIDDEN? (236)
Because the defining principle of the legal system is loyalty, essential to the integrity of the administration of
justice and requiring that the lawyer be free from conflicting interests.
5. THE PREVENTATIVE RATIONALE (238)
The main thrust of the law on conflicts of interest is not to remedy a violation of the lawyer’s duties; it is to
prevent a lawyer from violating his duties.
In imposing a legal duty in order to prevent other legal wrongs, the law on conflicts of interest falls within
regulatory norms.
Regulation operates by imposing requirements and restrictions, which are legal duties, but not the point; they
are used to create the desired outcome (regulatory system for substantive ends)
Canadian courts have been emphasizing the prevention of harm to clients, and to be quite rigorous in their
identification of the circumstances in which harm may arise.
The regulations require that lawyers negotiate and communicate properly with clients before acting in
conflict situations.
6. THE APPEARANCES RATIONALE (241)
Significant aspect of the law: ensuring public confidence in the integrity of the administration of justice.
The public is represented by the reasonably informed person.
Significant focus of the conflicts is on the appearance that the lawyer is in an improper conflict and threatens
the integrity of the administration of justice.
7. LAWYERS’ SPECIFIC DUTIES (242)
To clients, in cases of possible conflict
A. Duties to Former Clients (243)
i. The general principles
A lawyer may not act against a former client in a matter that is the same or related to the matter on which the
lawyer was formerly retained for that client.
Where two matters are the same or related, there is a risk of use of confidential information previously
obtained.
There might be a risk that they attack or undermine the benefit that had been obtained by the former client
from the lawyer’s advice.
The same rules apply to people in a law firm. However, to the extent law firm conflicts arise from concerns
about misuse of information, they may be cured by the use of screening devices to ensure that the lawyer who
has the information has no participation whatsoever in the new representation.
There is a rebuttable presumption that where one member of a law firm has confidential information with
respect to a client, all members of the law firm do so.
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This presumption can be rebutted but while doing so, no specifics of that information communicated may be
revealed.
ii. When is a new matter related to a prior retainer? (246)
Sufficiently related but not extremely broad
When there are substantial differences between the matters, to disqualify the firm would not make any sense.
Borderline case: Chapters Inc v Davies, Ward & Beck: Davis had acted for SmithBooks in acquisition of the
Coles book chain, to form Chapters books. It had been retained on competition law matters, and had received
confidential information about the two companies. The retainer ended in 1995. In 2000, Davies was retained
by Trilogy, who was seeking to purchase shares of Chapters in order to merge Chapters and Indigo Books.
Davis established a firewall with the lawyer who had acted in the 1995 matter, but ultimately decided that it
was unnecessary and, in fact, the lawyer who had originally acted on the competititon matter during the
SmithBooks acquisition was now acting directly for Trilogy with respect to the competition issues raised by
the purchase of the shares in Chapters. And chapters brought an application to prevent Davies from acting in
the new matter. (sorry, I copied the whole thing, I thought it was really cool, chapters and all!) The court held
that the matters were sufficiently related. In the original matter significant confidential information was
communicated about the nature of the businesses that subsequently became Chapters.
In Brookville Carriers Flatbed GP v. Blackjack Transport Ltd: related matters: when the subsequent matter
involves the lawyer taking an adversarial position against the former client with respect to the legal work
which the lawyer performed for the former client or a matter central to the earlier retainer.
iii. When will the information obtained in the earlier retainer be confidential enough to be
disqualifying? (249)
You cannot just say that there is a risk of use of confidential information. You should at least give some
information as to the nature of the communication which you seek to protect (Canadian Pacific)
Courts refuse to disqualify counsel in circumstances where the information, even if confidential generally,
was is not confidential relative to the party for whom the lawyer is now acting.
iv. Is the Restriction on misuse of confidential information limited to retainers against the former
client, or does it apply more generally? (251)
Where the information that the lawyer has is confidential relative to a former client, then that information
may prevent the lawyer not only from acting against the former client, but also from acting in a matter where
the lawyer would have to cross-examine the former client.
v. What specific rules apply to transfers of lawyers between firms? (252)
The issues of confidential information on transfers between law firms apply to non-lawyer employees, as well
as to lawyers.
Some of the rules take the position that where a lawyer was at a law firm that acted for a client on a related
matter, but the lawyer did not himself act for the client, then that lawyer does not fall within the restrictions.
Let’s say a lawyer switch firms; a client of his previous firm (he has never event touched his case) comes to
the new firm:
It would be prudent for law firms to implement screening mechanisms in relation to the lawyer. On the other
hand, the courts should be careful not to engage in too many levels of imputation in disqualifying law firms
from acting for clients.
The author argues that an affidavit and plausible supporting circumstances- for example, having worked in a
department of the firm unrelated to the matter of the retainer- should be sufficient to rebut the presumption
of shared confidential information where a transferring lawyer did not work on the file.
vi. The problem of tactical applications to disqualify (253)
Usually a disqualification application has some strategic aspect to it, but that strategic aspect should not
change the impropriety of the conflict raised.
When the application is primarily strategic, there is a risk of abuse; the courts try to make distinctions by
taking into consideration factors like: timing of the application; whether the party is registered its objection
to the conflict immediately; other reasons that show that the party does not truly object to the conflict of
interest.
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Ex: Chapates v Petro Canada (inconsistent judgment with MacDonald Estate): in the circumstances the case,
the administration of would be brought into greater disrepute by the removal of the plaintiff’s counsel in a
case which has been ongoing for almost 12 years. Also it seemed that “ a reasonably informed member of the
public viewing this application might conclude that removal of the plaintiff’s solicitor was simply an attempt
to dissuade the other party from continuing with his action.
vii. When screening devices will be sufficient (254)
Screening devices may be sufficient to cure a conflict of interest that arises where one lawyer in a firm
possesses confidential information from a prior retainer relevant to another lawyer in the firm’s current
retainer.
Courts believe that the screening devices are efficient.
viii. When acting against a former client is prohibited even though confidential information from that
client will not be used to his disadvantage (255)
prohibition of acting against a former client is not limited to the potential for misuse of confidential
information, but can also apply where the representation implicates the lawyer’s general duty to be a loyal
advocate.
It is improper to act in a subsequent proceeding that attacks or undermines the legal work which the lawyer
did for the former client. (two examples: Brockville and Melville)
B. Duties to Current Clients
i. General
1. A lawyer may not simultaneously represent opposing sides to a dispute
2. A lawyer may not simultaneously represent parties in a single matter or related matters, where the
interests of those parties conflict, or potentially conflict, unless parties give consent.
3. Unless all parties give informed consent, a lawyer may not act concurrently for one client in a matter that is
directly adverse to the immediate interests of another current client even if the matters on which the clients
are represented are unrelated.
ii. Simultaneous representation of clients in a dispute (258)
mostly happens in cases where the lawyer acts for multiples parties in a corporate action and does not realize
that the parties are in a dispute, and not merely in a conflict.
Alberta Code of Conduct: guidance on difference between a mere conflict and a dispute:
1. degree of hostility, aggression and posturing
2. importance of the matters not yet resolved
3. intransigence of one or more of the parties
4. whether one or more of the parties wishes the lawyer to assume the role of advocate with respect to that
party’s position.
“When in doubt, a lawyer should cease acting!”
iii. Simultaneous representation of clients in a conflict (259)
lawyers should be able to:
1. identify when jointly represented clients have a conflict or potential conflict
2. provide those clients with the information necessary to give informed consent to the joint representation,
and to ensure that the clients know the special rules that apply to joint representation
3. make an independent assessment of whether the representation is in the interests of all the clients
4. manage the situation appropriately if the conflict develops into a dispute
5. be cognizant of the types of joint representation most likely to lead to trouble.
a. when is there a conflict?
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Where clients’ interest are misaligned such that there is a substantial risk that the lawyer’s representation of
one or both of them may be materially and adversely affected.
Ex: vendor, purchaser or common guarantors or co-defendants or co-insured!
Conflicts that make joint representation problematic may also arise where the lawyer acts for a single person
but that person occupies multiples roles and the satisfaction of the duties of one role may conflict with the
representation of the interests of the party in its other role.
b. information that must be provided to parties in a joint representation
when jointly representing parties whose interests conflict, lawyers need to provide those clients with the
disclosure sufficient to allow the clients to five informed consent to the conflict, that is, the lawyer must
disclose all facts relevant to the client’s determination of whether the representation in circumstances of a
conflict is desirable.
No information is confidential as between the clients jointly represented: information disclosed by one client
will be disclosed to the other client.
c. the best interests requirement
If lawyers obtain the client’s informed consent to the representation, they must still assess whether the joint
representation is in the interests of the parties. (he has to independently determine whether joint
representation is possible)
Ex: R v Silvini: lawyer acted for co-accused in a joint proceeding where the defence of one accused required
the testimony and cross-examination of the other accused!
d. when a dispute arises
even if joint representation appears possible at the outset, it may cease to be possible during the course of a
representation.
Ex: verma v zimmer: lawyer discovered that one client was taking a secret profit relative to the other client
and did not do anything about it.
Solutions: disclose the information, withdraw from the representation etc
Sometimes, a dispute can be resolved without the lawyer’s intervention: depends on the nature of the dispute
and the parties.
e. high risk joint retainers
Most common cases where there is a conflict in joint representation: borrowers and lenders or multiple
parties in a real estate transaction
These transactions cause problems for lawyers because the nature of the clients involved makes joint
retention for counsel financially attractive and the significant misalignment in interests can make it difficult
to represent all parties effectively.
Ex: Barrett v Reynolds: a lawyer acted for the vendors, purchasers and the bank in a real estate transaction.
the lawyer had not satisfied his disclosure obligations in relation to the transaction and had not recognized
that once a condition of payment was imposed by the bank, there was a conflict between the parties that
made it impossible for him to act for them.
iv. Concurrent Representation of clients (265)
Simultaneous representation is required where the lawyer represents multiple clients on a single or closely
related matter.
In these cases, there is no direct connection between the clients (as in joint) but the matters are related.
The ability of one client to achieve its legal goals may rest on the other client failing to achieve its legal goals.
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Ex: R v Neil: a conflict of interest could arise even if the matters in which the interests of the clients did not
align were unrelated.
o A conflict arises where the interests of one client are directly adverse to the immediate
interests of another current client without apparently requiring that that adversity in
interest create a substantial risk of a material and adverse effect on the lawyer’s
representation of one or both clients. (= bright line rule)
See R v. Neil summary:
It is not clear what the bright line prohibits: the lawyer did not act to advance one client’s interest
(Doblanko); he just acted to injure the legal interests of the other client (Neil)!
The new CBA suggests that a bright line rule conflict should only be disqualifying where it is demonstrated
that there is a substantial risk that the lawyer’s representation of the clients will be materially and adversely
affected.
Case law is all over the place but it suggests:
1. lawyers risk disqualification or other negative consequences if they fail to obtain client consent to act in the
circumstances of bright line rule violations; that is, they are at risk even if the adverse legal effect of a client’s
case is not on the lawyer’s own representation of another client. (De Beers v Shore Gold and Toddglen
Constuction v Concord Adex Developments)
2. The cases also suggest that this are of law will continue to evolve and that courts will not apply the bright
line test rigidly and unthinkingly.
3. Over time the emphasis is likely to be on the effect of the violation of the rule on firm’s ability to represent
both clients effectively. (Wallace v Canadian Pacific Railway) That effect will simply be relatively easy to
demonstrate once a bright line rule violation has occurred.
C. Lawyer-Client Conflicts (272)
Straightforward: if the circumstances of the lawyer-client relationship are such that there is a substantial risk
that the lawyer’s representation will be materially and adversely affected, that the lawyer may misuse
confidential information, or hat the lawyer will take improper advantage of the client, then the lawyer may
not act and will be liable to the client if he has acted unless the client has given informed consent.
Most cases: either the lawyer has a business interest or a sexual interest!
Ex: Strother, Barnett, Moffat v Wetstein, Stewart v Canadian Broadcasting Corp (economical interests)
Ex: Law Society of Upper Canda v Daboll and LS of Alberta v Abbi (sexual relationship)
When entering into a business relationship with a client, it is prudent for the lawyer to ensure that the client
has independent legal advice and is also independently represented with respect to that transaction. (ex:
Biggs v London Loan and Savings: lawyer extracted a commission when he acted for both the mortgagor and
the mortgagee.
MacDonald Estate v Martin [1990] SC J no 41 [N]
Facts
Appellant (Martin) had Twaddle as a lawyer in a case against Respondent (Gray). Twaddle was assisted by
Dangerfield, who was privy to much confidential information about the case. Twaddle became a judge, and
Dangerfield came to work for the law firm Thompson, who represented Gray against Martin. Dangerfield and
Thompson’s lawyers have sworn affidavits that they will not discuss case and share confidential information.
Martin sought to have a “declaration that the Thompson firm was ineligible to continue to act as solicitors”.
Issue
What is “the appropriate standard to be applied in deciding whether a law firm should be disqualified from
continuing to act (due to) conflict of interest”?
Holding
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Appeal allowed; Thompson is ineligible to continue to act in this case due to conflict of interest.
Reasoning
Majority:
The court is concerned with three competing values: (1) maintaining high professional standards and
integrity, (2) a litigant’s right to choose his counsel and (3) the desirability of having mobility in the legal
profession.
The standard to use in this case is whether a reasonably informed member of the public would be satisfied
that no use of confidential information would be used by Thompson. The two questions to ask are (1) did the
lawyer have knowledge of any confidential information related to the case and (2) is there a risk that this will
prejudice the client? If it is so, there is a (big) rebuttable presumption that there will be prejudice.
It should be assumed that lawyers who work together will talk. To prove otherwise, “all reasonable
measures” must be taken. These could include “Chinese Walls” and “cones of silence”. Affidavits are difficult
to prove. There must be independently verifiable steps taken.
Dissent:
There is an irrebuttable presumption in such a case. Justice must be seen to be done; the integrity of the
judicial system is the predominant consideration.
Ratio
The standard to use to determine whether or not there is a conflict of interest is that of a reasonable and wellinformed member of the public. To satisfy this standard there must be independently verifiable ways of
making sure there will be no sharing of confidential information when a lawyer joins a new law firm.
R v. Neil [2002] SCJ No 72 [N]
Facts
Neil is a paralegal who was accused of illegally providing legal advice. The present case involves specifically
charges of (1) fabricating court documents in a divorce action and (2) scheming to defraud Canada Trust. Neil
had Helen Lambert as an assistant, and also often had help from “Pops” Venkatraman. Venkatram’s law firm
employed one Gregory Lazin.
Neil alleges :
(1) That Lazin was wrong to represent Lambert in her personal divorce proceedings because he knew she
would be a co-accused in the Canada Trust fraud case. Lazin planned to represent Lambert in the fraud case
and to defend her by putting the blame on Neil. Neil believes this breached the law firm’s duties towards him,
especially since the firm refused to represent him in the case because it was already representing Lambert.
(2) That Lazin intentionally encouraged one of the parties in the fabricated documents case to report the
forgery to the police – specifically, to the officer in charge of the Canada Trust case – so as to make his
portrayal of Neil as dishonest more convincing.
Issue
“What are the limits of a lawyer’s “duty of loyalty” to a current client in a case where the lawyer did not
receive any confidential information that was (or is) relevant to the matter in which he proposes to act
against the current client’s interest?” (para 1)
Holding
Neil’s appeal should be dismissed; there was no breach of fiduciary duty.
Reasoning
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Lawyers have a duty of loyalty, and their integrity is essential to the administration of justice and the public’s
confidence in the legal system (re McClure and Smith v Jones). Despite some conflicting values (re MacDonald),
the duty of loyalty is part of the solicitor’s fiduciary duty to his clients. In the present case, the duty of loyalty
has three components :
(1) duty to avoid conflicting interests
(2) duty of commitment to the client’s cause
(3) duty of candour
Lazin’s firm had a continuing solicitor-client relationship with Neil “relating to the giving of advice generally
but including specifically advice relating to matters in which Neil [the appelant] was charged.” (para 23)
Solicitors are prohibited from acting
contrary to the interests of their clients, and Neil was particularly
vulnerable.
Lazin and his firm “put themselves in a position where the duties they undertook to other clients conflicted
with the duty of loyalty which they owed to [Neil].” (para 31) One such conflict was trying to act for both Neil
and Lambert in the Canada Trust fraud case. On one occasion, Lazin listened in on a meeting between Neil and
another lawyer from the Venkatraman law firm. The trial judge held that this was solely to get evidence
against Neil. There was also a conflict in the fabricated documents case.
An appropriate remedy is hard to determine. Ordering a new trial is inappropriate: Neil cannot claim his
lawyers were unable to properly represent him since he ended up not retaining Venkatraman’s law firm. The
only appropriate remedy is a stay of proceedings, which should not be granted:
(1) In the fabricated documents case, Venkatraman’s law firm was not involved in exposing the fraud in the
first place. Its subsequent involvement ended with the police. Furthermore, no confidential information
related to this case actually affected the Canada Trust fraud trial. Last, fabrication of court documents is such
a serious charge that it should not be dismissed lightly.
(2) In the Canada Trust fraud case, there will be a new trial anyway since the judge in first instance declared
that there was a mistrial. The fairness of this new trial will not be affected since Venkatraman’s law firm is no
longer representing Mrs. Lambert.
Ratio
A lawyer has a duty not to act against his current client’s interests, even if the affected interests are unrelated
to the matters in which he represents this client.
[ultimately, though, the Supreme Court upheld the Court of Appeal’s decision not to order a new trial on the
basis that there was a conflict of interest – Neil may have won on the law, but it didn’t actually help him]
Strother v 3464920 Canada Inc [2007] SCC 24 [M]
Facts:



Issue:

The plaintiff (Monarch Entertainment) ran a tax shelter investment program in the 1990s, and hired
Strother (employed at Davis) pursuant to a written retainer signed in 1996 that prohibited the firm
from acting for other clients with related tax-shelter programs
They made a lot of money until the gov't closed a loophole
Strother knew how to get around it, and formed a partnership with Darc without informing Monarch
about the possibility of a revival in the film production services business at any time
Was Strother liable for breach of contract and/or breach of fiduciary duty? Was Davis also
vicariously liable?
Holding:
 For Monarch, Strother owed $1 million in damages (which was pocket change considering he made
about $60 million from his breach of fiduciary duty) but Davis was not found vicariously liable
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Reasoning:
 What was the nature of the 2nd retainer?
o In QC, this wold be dealt exclusively as a K matter, although the duty of loyalty does play a
role
o Binnie versus McLachlin
o Binnie:
 Overlaid with duties
 Not “didn’t ask, didn’t tell”  this attitude cheapens the nature of the lawyer-client
relationship to make the lawyer like a used car salesman (he/she is NOT)
 On-going relationship even though written retainer ended in 1997
 Strother was worried Sentinel would ask
 Strother was the competition vs substantial risk principle
o McLachlin:
 Includes duties
 2nd retainer – only on an “if asked” basis
 Duty of loyalty – not a “duty in the air”, rather a duty that is attached to the duties of
the K
 Payment arrangement not our concern, b/c written retained concluded to be owed
 Duty of loyalty lasts beyond retainer – duty not always circumscribed by the object of the mandate
(Côté v Rancourt)

Problem: Strother took personal interest in Sentinel’s business – had to drop
o Do not have to revise if the opinion is good on its date if retainer has been concluded
o Have to revise if the retainer is on-going
o OK to represent competing clients in field (absent exclusivity clause)– the adverse interests
are business, not legal.
 When a lawyer is retained by a client, the scope of the retainer is governed by contract
 The solicitor-client relationship thus created is, however, overlaid with certain fiduciary
responsibilities, which are imposed as a matter of law
 Fiduciary duties provide a framework within which the lawyer performs the work and may include
obligations that go beyond what the parties expressly bargained for
o Fiduciary responsibilities include the duty of loyalty, of which an element is the avoidance of
conflicts of interest
o The subject matter of the 1998 retainer was "tax-assisted business opportunities"
 Subject to confidentiality considerations for other clients, if S knew there was still a way to continue
to syndicate U.S. studio film production expenses to Canadian investors on a tax-efficient basis, the
1998 retainer entitled Monarch to be told that S's previous negative advice was now subject to
reconsideration
 While generally a lawyer does not have a duty to alter a past opinion in light of a subsequent change
of circumstances, there are exceptions to the general rule
o Here, Monarch's written 1997 retainer had come to an end but the solicitor-client
relationship based on a continuing (if more limited) retainer in relation to tax-assisted film
production services carried on into 1998 and 1999
o The issue here was not so much a duty to alter a past opinion, as it was part of S's duty to
provide candid advice on all matters relevant to continuing 1998 retainer
o Moreover, there was no excuse for S not to advise Monarch of the successful tax ruling when
it was made public in October 1998
o Accordingly, the firm (and S) failed to provide candid and proper legal advice in breach of
the 1998 retainer
o The firm and S were free to take on D and Sentinel as new clients once the "exclusivity"
arrangement with Monarch expired at the end of 1997
o The retainer by Sentinel was not directly adverse to any immediate interest of Monarch
 Issues of confidentiality are routinely dealt with successfully in law firms
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S could have managed the relationship with the two clients as other specialist practitioners
do, by being candid with their legal advice while protecting from disclosure the confidential
details of the other client's business
o S accepted Sentinel as a new client and the firm was given no reason to think that he and his
colleagues could not provide proper legal advice to both clients
o Commercial conflicts between clients that do not impair a lawyer's ability to properly
represent the legal interests of both clients will not generally present a conflict problem
Whether or not a real risk of impairment exists will be a question of fact
o The risk did not exist here if the necessary even-handed representation had not been
skewed by S's personal undisclosed financial interest
 NB: may be a modification of the bright line test in Neil
o In each case where no issue of potential abuse of confidential information arises, the court
should evaluate whether there is a serious risk that the lawyer's ability to properly
represent the complaining client may be adversely affected, and if so, what steps short of
disqualification (if any) can be taken to provide an adequate remedy to avoid this result
o S was not free to take a personal financial interest in the D/Sentinel venture
o The difficulty is not that Sentinel and Monarch were potential competitors; the difficulty is
that S aligned his personal financial interest with the former's success
o By acquiring a substantial and direct financial interest in one client (Sentinel) seeking to
enter a very restricted market related to film production services in which another client
(Monarch) previously had a major presence, S put his personal financial interest into conflict
with his duty to Monarch
o The conflict compromised S's duty to "zealously" represent Monarch's interest
o Taking a direct and significant interest in the potential profits of Monarch's commercial
competitor created a substantial risk that his representation of Monarch would be materially
and adversely affected by consideration of his own interests
o In time, the risk became a fact
 However, the firm, for its part, did not breach its fiduciary duty to Monarch
 The firm's partners were innocent of S's breach and Strother was simply a “rogue”
partner
 The firm cannot be held to have breached a fiduciary duty on the basis of facts of
which its partners were ignorant
Was majority decision a serious step back? consider the bright line test
o They say problem is not Davis having 2 clients from same industry but Strother’s conflict due
to potential personal profit
o Neil’s bright line test where lawyer/firm can’t act for 2 clients whose interests are adverse
and Strother decision that says lawyer/firm can act for clients competing in same industry
o


Ratio:
A lawyer has no duty to alter a past legal opinion in light of changed circumstances where the retainer has
ended
VI. Access to Justice
Chapter 10 Woolley re: Pro Bono (p.327-329)
This was not assigned in Lamed’s email but it was in the schedule, and we talked about it in class.
British Columbia (A.G.) v. Christie [2007] SCC 21 [M]
Facts:

Legal-services tax (7 %) imposed in BC to help fund legal aid. Christie, a lawyer working with lowincome people, challenged the constitutionality of the legislation, saying it limited the “access to
justice” for low-income people, based on “rule of law” argument.
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
Christie asserts that there is a general right to access to aid by a lawyer when rights & obligations are
at stake before a court.
Judicial History:
 He won the case initially, the Court of Appeal upheld the decision, but the Supreme Court of Canada
struck it down, allowing the appeal of the BC attorney general. The tax was not ruled
unconstitutional.
Issue:
 Is there a constitutional right to legal aid when rights & obligations at stake or as general rule for all?
Holding:
 BC wins, SCC unanimously rejected BC Court of Appeal’s view that access to legal services was a
protected right correlative to unwritten constitutional principle of the rule of law.
Reasoning:
 Supreme Court says that Christie does not prove that the Constitution mandates this form or quality
of access.
 There is only a constitutional right to a lawyer when rights & obligations at stake: either as an
aspect of the rule of law, or a precondition to it” or when the role lawyers play “is so important that
the right to counsel has been given constitutional status”
o Historically, the right to counsel has been a limited right extending “only, if at all to
representation in the criminal context”
o The Charter provides for one circumstance where legal services are a right: s.10(b) “arrest &
detention”.
o Or s.7 can imply a right to counsel as part of “procedural fairness where life, liberty &
security of the person are affected.
 Supreme Court rules that the right to access to justice through legal aid is a very broad right that
would lead to significant costs & procedural overload, especially since people who wouldn't normally
go to court would, and since people regularly represent themselves would then want legal
representation
 Again, the rule of law is based on 3 principles:
o 1. law = supreme over everybody, government officials of private individuals
o 2. “creation & maintenance” of order of positive laws preserving & embodying the “general
principle of normative order”
o 3. relationship between state & individual = regulated by law
Ratio:
 There is a constitutional right to a lawyer when rights & obligations are at stake: either as an aspect
of the rule of law, or a precondition to it” (p. 37) or when the role lawyers play “is so important that
the right to counsel has been given constitutional status” (p. 38)
o It is a limited right restricted to: “only, if at all to representation in the criminal context” (p.
39)
o Charter: legal services are a right only in cases of “arrest & detention” (s.10(b))
 Charter s.7 can imply right to counsel as part of “procedural fairness where life, liberty & security
of the person are affected” (p. 38).
VII. Other (Perjury, Witnesses, Criminal Law)
Woolley Chapter 6, “The Perjury Trilemma” [T]
Lawyer’s duty to a client who intends to lie or has lied to a court or tribunal: lawyer must dissuade the client
to lie or persuade his to correct the mistake. If he cannot, he must withdraw from representation. Lawyer
cannot disclose to anyone information about the client’s testimony.
The Perjury Trilemma – competing and irreconciliable legal principles when a criminal accused wants to lie
1. Right to confidentiality – lawyer’s duty not to disclose the lie
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2.
3.
Right to counsel – the accused’s right to competent representation (no good if counsel withdraws)
Obligation of candour to the court – lawyer must not lie or participate in perjury to the court.
Which of these should be sacrificed?
2. PROHIBITION OF ASSISTING CLIENTS TO DECEIVE THE COURT (163)
Codes of conduct prohibit laywers from deceiving the court or assisting a client to do so (dishonesty, fraud or
illegal conduct).
Criminal cases: lawyer may not participate in the presentation of perjurious testimony.
3. WHEN TESTIMONY IS (OR WILL BE) DECEPTIVE (165)
What if client’s stories are inconsistent or seem made up?
High standard of certainty before the lawyer views testimony as false; mere inconsistence is insufficient.
“[U]nless the conclusion that the testimony is false “irresistible”, the lawyer may participate in the
presentation of that testimony to court.”
4. LAWYER’S DUTIES WHERE CLIENT DECEIVES (OR INTENDS TO) A COURT (167)
Once lawyer has come to the irrestible conclusion that client has or will deceive the court…
1.
Future perjury - Obligation to try to dissuade the client (lying, in addition to illegal and unethical, is bad
strategy anyway – list of arguments at pp. 167-168)
Completed perjury – Obligation to try to persuade the client to correct the deception.
if this fails…
2. Duty to withdraw. (give “ethical reasons” as justification)
3. Disclosure of perjury prohibited by duty of confidentiality
 Falls within solicitor—client privilege & lawyer’s duty of confidentiality
 “Criminal communications” exception does not apply – very limited (see ch.5)
 “Public safety” exception does not apply unless imminent threat to safety.
 Reasons for withdrawal, beyond “ethical reasons”, fall within duty of confidentialy (R v Cunningham)
This duty applies not only to the court but also to successor counsel.
a. Civil context – rule is appropriate: Civil litigant has no constitutional right to counsel & withdrawal has
less impact.
b. Criminal context – unsatisfactory: “the singular circumstance of an accused testifying falsely in a criminal
trial, [should the lawyer’s] duty of candour to the court be outweighed by other considerations”?
(addressed in following sections)
5. SOLUTIONS TO THE PROBLEM OF PERJURY (173)
How to reconcile candour, confidentiality and accused’s right to counsel if client persists in lying? Some of
these principles will be sacrificed, but which ones should?
b. Withdrawal & Limited Disclosure (173)
- Counsel’s withdrawal for “ethical reasons” will incline judge to be skeptical of testimony.
- Problem: does not encourage clients to be candid with lawyers
“The requirement that lawyers withdraw for “ethical reasons” in situations of intended or completely perjury
[the general rule in Canada] (1) undermines the ability of the lawyer to establish a relationship of trust with
his client; (2) it requires the lawyer to compromise duty of confidentiality; and, (3) it impedes the client’s
representation by counsel”. In favour of candour to the court.
c. Disclosure (176)
New Brunswick rule: require or permit disclosure of completed or intended perjury.  rectifies perjury, no
deception of the court by lawyers, etc.
but disclosure obligation is unjustifiable considering other duties
- violates right to confidentiality
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- violates right to counsel
- indirectly violates the right against self-incrimination
d. Intentional Ignorance (177)
e.g. telling client “there is some information the lawyer does not want to know”.
Problems:
- candour to the court less likely since lawyer cannot advise client against deceptive testimony
- disrupts relationship of trust and confidence, already shaking in criminal cases.
Example: in R. v. I.B.B., lawyer’s intentional ignorance led to ignorance of his client’s innocence and a push for
an ill-advised guilty plea.
Conclusion: intentional ignorance is no legitimate solution to perjury – just obscures the moral problem.
e. Narrative Testimony (179)
Telling the client to simply tell his story without asking questions.
i. If the court view the testimony narrative as unreliable…
- candour to the court is increased
- but client’s duty of confidentiality is violated as if there had been full disclosure (see b.)
ii. If the court views it as reliable…
- does nothing to increase candour to the court (see d.)
Conclusion: unsatisfactory.
f. Continuing to Represent Client as if Testimony was Truthful (180)
If convincing the client not to commit perjury fails, the lawyer continues to represent the client and treat his
testimony as truthful.

- encourages relationship of trust and confidence with lawyer — might be used to convince client to
not commit perjury
- duty of confidentiality fully respected
- while it does not increase candour to the court, there are still usual safeguards against dishonest
testimony: effective cross-examination by the Crown & the ability of the court to assess the
credibility of the witness.

- does not increase candour to the court.
- involves lawyer in client’s deception: his hands are dirty.
Conclusion: Not unsatisfactory – may or may not be more reasonable than current Canadian rule (see a.). In
Woolley’s opinion, it is more consistent with lawyer’s duties and protects the paramount value in
criminal representation: that the client receive fair and effective representation and that his
confidences be respected.
6. CONCLUSION (182)
In civil cases, client’s lie is clearly morally wrong: he should not benefit from it.
In criminal cases, provided the lawyer has done everything possible to prevent perjury, the lawyer’s own
deception is justifiable: the lie protects other principles of fundamental justice (trust & confidence, right
to counsel, etc.). Not ideal, but it’s the best alternative (the least bad of bad options).
Woolley Chapter 7, “Examining Witnesses” [D] (185)
1. INTRODUCTION (185)
-
In adjudicative proceedings, considers ethical issues when a lawyer is presenting a witness to
support their client’s case.
o How to prepare witness to be effective without “coaching” them to improperly influence
what they say.
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Ethical issues of cross-examination. E.g. should a lawyer cross-examine a truthful witness to make
testimony appear unworthy of belief.
2. PREPARING WITNESSES (185)
A. Introduction
-
-
-
-
A lawyer does not need to provide all relevant information, but he must ensure the evidence
presented is truthful and not misleading.
He must act as a competent advocate to ensure evidence is presented in a effective manner in order
to prevent his client’s case from being undermined.
o E.g. Because witness fails to disclose relevant info, is inarticulate, misunderstands questions,
tends to ramble or volunteer unhelpful info, is bullied by opposing counsel or presents in a
way that is not compelling or credible.
Witnesses are people with motivations, weaknesses, biases, feelings, intelligence (or not) and the
tendency to respond to the circumstance in which they find themselves.
o They are capable of misperception and confusion about what they see or know, particularly
where motivated to see the world in different ways.
The ethical challenge for a lawyer is to ensure he has found out everything he needs to know to
present the case competently, and has provided the witness with enough direction so that the
witness can present the evidence effectively, without perceptual distortion.
The inaccuracy and malleability of human perception is matched or exceeded only by the inaccuracy
and malleability of human memory, and the capacity for people to subjectively believe things that, it
turns out, are objectively false.
b. Law Governing Witness Preparation (187)
-
-
A lawyer does not have an obligation to provide all information, but which ever is provided must be
truthful and not misleading. It is reasonable in our adversarial system for a lawyer to present only
evidence favourable to their client.
Lawyer has a duty to competently prepare a case, investigate the facts, interview potential witnesses
and prepare them to testify. Failure to do so amounts to negligence and incompetence.
Codes and case law require that a lawyer not “coach a witness”
o 1- Lawyers must not have conversations with witnesses in circumstances in which coaching
will be hard to avoid
 This includes conversations during cross-examination, but may also include
concersations during other types of examinations.
 However, in R. v. Lawlor The court permitted a lawyer to talk to a witness
between cross-examination because the rule against discussion with
witnesses are direct at ensuring that witnesses are not coached about how
to respond to cross-examination, whereas in this situation the discussion
post cross-examination was really just intended to find out if reexamination is necessary or a good strategy.
o 2- Lawyers must not be too directive in preparing witnesses for certain types of crossexamination. In Polani: a lawyer may indicate to the witness the type of questions that are
likely to be asked during cross-examination, but should not suggest to the witness specific
responses to those questions.
o 3- Lawyers should not place pressure, either directly or indirectly on a witness to give
certain types of testimony (e.g. pressure through contact with other witnesses)
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o
-
Misc:
o
o
o
4-Lawyer should not tell the witness what to say in answer to a question. The lawyer must
not give the witness a script or provide the witness with the substantive content to the
answer.
Judges generally will not interfere ex ante with counsel’s preparation of witnesses
The Court has held that it could rely on the Crown not to coach or improperly prepare its
witnesses: “ […] would rely on the Crown, acting neutrally as he is bound to do in his role as
Crown, and by the Canons of Legal Ethics to serve the cause of justice, not to coach or lead
the witness in areas he knows will be canvassed by the defence through notices provided.
Courts have been willing to allow lawyers to provide witnesses with copies of evidence given
in prior proceedings so long as the lawyer does not give the evidence to the witness in order
to coach him.
C. Why is it Difficult to Prepare a Witness without Coaching? (190)
-
Drawing the line between coaching and preparation is very difficult.
Reasons why it challenging to avoid coaching a witness
o Often the “facts” that the lawyer needs to elicit are difficult to distinguish from legal
concepts, so that it is hard to provide the witness with enough information to find out what
the lawyer needs to know, while at the same time not prompting the witness simply to
provide the answer that best suits the legal case the client is trying to make.
o Witnesses have varying level of sophistication, intelligence, speaking ability, confidence and
willingness to testify. What will be necessary to ensure preparation but not coaching in one
case might be quite different in another.
o The psychology of human memory and perception is complicated and malleable; in every
case, there is a risk that the acts of preparation may in fact manipulate the witness’s
recollection.
 Distortion in memory can also result from interest and prejudice.
 Also, because of its relationship to the subjectivity of our experiences, memory can
be manipulated, both by direct suggestion and through playing on our desires,
wishes and weaknesses. Simply changing the words used when asking a question
will affect how an experience is recalled in response to that question.
D. Skill of Effective Witness Preparation (197)
-
-
-
In Adair’s On Trial: Advocacy Skills, Law and Pratice : 4 basic stages
1- Witness should do some “preliminary preparation”. Involves reviewing independently all
documents or prior statements that relate to his testimony.  But should not be given every possible
document as it may encourage the witness to “tailor his or her evidence to fit the existing
documentation”.
2-Meeting with counsel. Information should be elicited using 2 techniques
o 1-The witness should be examined using questions similar to those that would be used in a
an examination-in-chief.
o 2- The witness should be examined using questions similar to those that would be used
during cross-examination
3- “Polishing witness”: making the witness’s presentation as effective as possible, and reducing some
of the intimidation of the adversarial process. Witness should be told of the ethical responsabilities of
witness and counsel, which are identifiable as counsel not speaking to the witness, and the witness
not speaking to anyone, while the testimony is ongoing.
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-
4- Preparing the witness for cross-exmination. Instructing the witness in such basic crossexamination strategy as only answering questions as they are asked. Suggest to witness that the best
way to preserve credibility is to answer all questions truthfully without regard to how the answer
may make them look. Witness should also be made aware of documentary evidence that contradicts
the witness’s. Witness should be told to stand firm upon his evidence if that is the truth.
E. Ethical and Effective Preparation of Witnesses (199)
-
-
-
-
1 A lawyer should be sure to avoid the more egregious forms of coaching captured in the rules and
case law
o Conversations at high risk times such as during cross-examination, excessively directive
explanation, pressuring witness to give particular testimony or scripting what the witness
says.
2 Lawyer should be cautious in his expectation of what a witness is capable of remembering. Pusing
the witness to remember more in those circumstances increases the likelihood of created memory.
3 Lawyer must be cautious not to shift to asking leading questions too soon during preparation.
Leading questions are more likely to lead the witness to shift to what the questions suggest was true,
rather than what the witness independently recalls to be the case
4- Putting some time into the preparation prior to meeting the witness, particularly with respect to
the questions that will be asked, is worth doing. Ensuring that questions do not inadvertently employ
trigger words (e.g. using “smashed” instead of “collided” for a car accident).
5- Reliance on contemporaneous information increases the likelihood of accurate information being
provided by the witness later.
6 Lawyers need to independently investigate where appropriate, so that they can help avoid errors
clients may make through the vagaries of memory.
3. CROSS-EXAMINATION (201)
A. Introduction (201)
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Central ethical problem arises from human frailty not of witnesses but rather of the triers of fact who
assess those witnesses’ credibility.
They tend to assess credibility based on their general impression of the witness. Triers of fact can be
misled and make significant errors
Judges and juries do not of course simply watch a film of a person speaking; they are given many
“special aids” for lie detection, including the benefit of cross-examination that may identify
inaccuracies or lies in witness testimony.
When a lawyer cross-examines a witness, he has the capacity to make a trier of fact disbelieve a
witness who is truthful. Is it ethical to do so?
B. The Law of Cross-Examination (204)
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Cross-examination can be loosely identified as comprising two types : “process” and “substantive”
cross-examination
o Process: lawyer challenges the credibility of the witness’s testimony by focusing on the
manner of the witness’s testimony – its consistency, the witness’s narrative ability or the
witness’s confidence.
o Substantive: lawyer focuses on the substance of what the witness has done or s aid, or on
what other people have done or said, in order to challenge the witness’s character and
credibility, to suggest that the witness’s version of events is incomplete or inaccurate, or to
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confim additional facts that the witness had not mentioned during the examination. (e.g.
inquiry into the witness’s past criminal record or character, facts that contradict the
evidence the witness has provided, etc.)
The law of evidence and the codes place constraints on both types of cross examination.
o Lawyers are prohibited from “sarcastic, personally abusive and derisive” behavior. They
cannot demean or belittle the witnesses.
Constraints on type of questions:
o May only raise evidentiary points that are relevant and admissible
o May not ask question unless the lawyer has good faith basis for doing so.
o May not “put suggestions to the witness recklessly or that he or she knows to be false”
o May not be examined on their knowledge of s.13 of the Charter. (p.207)
o Cross-examination of complainants in sexual assault cases with respect to their sexual
history is generally prohibited by s.276 of the criminal Code. Only admissible if the accused
satisfies the judge in a voir dire that the evidence is relevant, relates to a specific instance of
sexual activity, has a probative effect that outweighs its prejudicial value, and is relevant to a
specific issue in the trial.
o This list is not exhaustive.
C. Ethical Cross-Examination (207)
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The conduct of cross-examination must be done in a way that respects the dignity of the witness no
matter what the lawyer thinks.
Not all improper cross-examination can be easily controlled by the trial judge given the “widelatitude” which lawyers have to ask questions. (e.g. relevancy can be established through a line of
questions)
Author then addresses a critique of the ad hominem-like method of discrediting witnesses.
o People deeply believe that character does predict behavior, and that dishonesty in one
situation does indicate a likelihood of dishonesty in another situation.
Can a lawyer who has reason to believe that a witness is testifying truthfully bring up evidence of
past cimrinal activity in order to invite the false inference that the witness is lying?
o In circumstances where the lawyer does not know whether or not the witness is truthful,
and thus does not know that cross-examination will produce inaccurate adjudication by the
trier of fact, the answer is yes, the lawyer may cross-examine in that way, even if inaccurate
adjudication results. In that instance the lawyer has no intention to mislead or abuse the
system.
o What if the lawyer believes the witness is testing truthfully and accurately? Is it ethical to
make the witness appear dishonest?
 Many arguments that support the position that it is ethical to make a truthful
witness appear honest when the lawyer does not know whether the witness is
truthful apply here as well.
 When the lawyer knows that his action appear on their face to be lawful and moral,
but that these appearances are deceiving, and that the truth-seeking function of the
adjudicative system is being undermined by cross-examination.  Not acting
ethically. + The lawyer also knows that he is inflicting an injury to the witness
(injury of being disbelieved despite being truthful). A lawyer who knowingly inflicts
that cost on another person in a different position, ethically speaking, than the
lawyer who does not know that his cross-examination will have that effect.
o Most of the time, lawyers do not have certain knowledge of the truthfulness of a witness
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What is the ethical course of action?
 Should speak to their client, because discrediting the witness may be the only
way for the client to succeed. But it may also be the client’s wish not to do so
because he becomes involved in the ethical problem. If the client does want to
proceed though, it is the lawyer’s role to undertake cross-examination.
Woolley Chapter 9, “Ethics in the Context of Criminal Law” [T] (277)
2. PROSECUTORIAL ETHICS (277)
A. Minister of Justice vs. Zealous Advocate (277)
Unlike in private matters, the goal of the Crown is not “victory” (convinction): it is justice, even if that
means failing to convict an accused.
- he is both an advocate and a minister of justice.
- he must only exercise “controlled zeal” – or else appellate court may demand new trial.
- must be open to defence’s point of view.
- in general, this requires scrupulous observation of ethical obligations, e.g. correcting
misapprehensions to the court — see R. v. Ahluwaia and Law Society of Alberta v Piragoff.
Crown prosecutor requires commitment ot fairness, open mind & scrupulous observances of ethicas duties:
vigorous advocacy + dignity, moderation, pursuit of justice, etc.
B. Prosecutorial Discretion (284)
i. What it is
(Unique duty, delegated from the Attorney General.) Prosecutorial discretion (PD) is the discretion whether
to proceed with, continue, or stay a criminal prosecution.
- Krieger decides that trial tactics (in that case, non-disclosure of evidence) are not within PD.
- R v. Felderhof decides that the trial judge’s decisions as to the conduct of the proceeding do not interfere
with PD.
- In R. v. Nixon, the Alta CA decides that withdrawing a plea argument is within prosecutorial discretion.
ii. How it is exercised (288)
Fed. Prosecution Service Deskbook: decision on whether to prosecute are based on
1. whether there is sufficient evidence to justify “the institution or continuation of proceedings”, [reasonable
prospect of conviction, taking into account witnesses] and
2. whether “the public interest require[s] a prosecution to be pursued”.
 seriousness or triviality of alleged offence
 mitigating or aggravating circumstances
 age, intelligence, physical, mental health or infirmity of accused.
 see full list at pp.288-289.
Cases
 R. v. K.(M.): Manitoba CA criticized Crown for prosecuting a parent who had used excessive force to
discipline his child “instead of going after real criminals”.
 R. v. Latimer: criticism from dissenting Sask CA judge and public for bringing a charge (murder
instead of manslaughter) that precluded judicial discretion, considering Latimer’s belief he had acted
out of mercy in killing his disabled daughter.
iii. Oversight of PD (291)
SCC allows review of PD by courts, law societies and the executive only in highly limited circumstances:
Judicial review
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abuse of process (prosecutor’s act “violates the conscience of the community”, “unfair and
indecent”): extremely rare.
 tort of malicious prosecution: onerous burden to show actual malfeasance. Recklessness is
insufficient (according to Woolley, this high standard is unduly restrictive – too protective of
prosecutors.)
Factors laid down by SCC in Miazaga at pp. 292-293.
a) defendant prosecutor responsible for prosecution
b) legal proceedings ultimately resolved in favour of plaintiff
c) defendant had no reasonable and probable grounds for prosecution, objectively
d) defendant acted for some improper purpose in prosecuting, i.e. “deliberately intented to subvert
or abuse … the process of criminal justice”.
Review by law societies
Can sanction prosecutors for egregious violations of ethical obligations with respect to PD, e.g. by laying
charges “as a result of bribery or racism or revenge”.
Review by the executive branch
Office of the Attorney General itself can inquire into PD decision, e.g. a Commission to inquire into whether a
prosecutor should have laid charges onto police officers responsible for death of a drunk (Paul-Davies case).
C. Disclosure (297)
Duty to disclose: prosecutors must disclose to the accused all relevant information they know, whether
inculpatory or exculpatory, and whether the Crown intends to rely on the evidence in prosecuting its case.
 Duty to make reasonable inquiries to other Crown agencies (e.g. the police) to obtain evidence about
the case.
 Duty to disclose does not extend to information that is privileged, “clearly irrelevant” or or
“otherwise governed by law”.

If the Crown fails to disclose,
 the accused may be entitled to a legal remedy such as adjounrment of trial, new trial or stay of
proceedings (exceptional – in R. v. Nome).
 law societies may discipline, e.g. in Krieger the prosecutor hid from the defence DNA results that
implicated someone other than the accused; he was disciplined by the Law Society of Alberta.
3. DEFENCE COUNSEL ETHICS
A. Defending the Guilty (301)
A person who is morally culpable may escape legal sanction because of the lawyer’s representation. This is
not an ethical problem because the zealous advocacy of lawyers permits law to fulfill its social function.
Criminal defence lawyer’s role is to ensure that legal sanctions will only be brought against his client in
accordance with the law’s substantive content, and the procedure the law requires.
 An accused is not guilty until he has been found guilty with regard to substanstive in accordance with
procedure.
 Most important thing in defending a “guilty” client is precisely NOT forming opinions whether he is
guilty or not. For example, in R. v. Delisle, the accused lawyer did not believe his client’s claim of
innocence, prevented him from testifying, and only discovered after the conviction that his client’s
story was true. Lawyer must not set himself up as the client’s judge.
(Thomas’ note: for another example of why to not make this mistake, remember the criminal trial in Legally
Blonde!)
Where counsel draws an irrestible conclusion of guilt from available information, it restrains advocacy
 If client admits and the admission is considered true and voluntary, or if DNA evidence, for example
 Lawyer should still remain open-minded; this applies only if he cannot help but conclude his client is
culpable.
R. v. Li rule: lawyer may introduce truthful evidence, even if it leads to a misleading impression of innocence
(it is the Crown’s burden to disprove these inferences). However, he may not mount an affirmative defence.
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Fine line: he may put a possibility to the jury, but he cannot assert that this possibility is in fact true.
Summary: lawyer should make the best case possible regardless of admission of guilt.
 should present all available evidence and invite the court to draw exculpatory inferences from that
evidence.
 should NOT present evidence that he knows is false given the admission.
 should NOT assert that exculpatory inferences are true if client’s admission indicates they are false.
B. Plea Bargaining (308)
Whether and when to enter into a guilty plea?
Lawyer must ensure that client only enters in a guilty plea where warranted by facts and law – any available
defences?
Failure to do so is unethical. In Syed, cousel was unprepared and suggested a guilty plea without determining
whether complainants were minors, did not look at wintess statements in detailed fashion etc.
Lawyer must not pressure the accused to enter into a guilty plea because of his own motivations, e.g. staying
on good terms with the Crown.
Lawyer should not pressure client into accepting a plea and should always respect his freedom of choice, but
“may advise against the decision in strong terms” if client is acting irrationally or imprudently.
If client maintains his innocence but wishes to enter a guilty plea (“plea of convenience”): lawyer must try to
make such a plea unnecessary through diligent and competent representation; if all else fails, must help the
client make and informed decision.
4. CONCLUSION (311)
All about competent zealous representation.
 For prosecutors, a material shift in what “zealous” advocacy means.
 For defence counsel, unique challenges to make zealous advocacy remain within the bounds of
legality.