Ethics
Introductory Information ............................................................................................ 2
Importance of Legal Ethics .............................................................................................................. 2
Jabour .......................................................................................................................................... 2
Regulation of Lawyers ..................................................................................................................... 2
Finney v Barreau du Quebec ....................................................................................................... 2
Law Society of BC............................................................................................................................. 2
Federation of Law Societies............................................................................................................. 3
Canadian Bar Association ................................................................................................................ 3
General Duties of Lawyers ............................................................................................................... 3
Lawyer-Client Relationship.......................................................................................... 4
General Provisions ........................................................................................................................... 4
Who is the Client ............................................................................................................................. 4
Deciding to Act ................................................................................................................................ 4
Limited Scope Retainer ................................................................................................................ 5
Termination of Relationship ............................................................................................................ 5
Duty of Confidentiality ................................................................................................ 6
Confidentiality ................................................................................................................................. 6
Exceptions ....................................................................................................................................... 6
Innocence at Stake ...................................................................................................................... 6
Criminal Communication ............................................................................................................. 7
Public Harm ................................................................................................................................. 7
Conflicts of Interest ..................................................................................................... 8
Definition ......................................................................................................................................... 8
Bright Line Rule................................................................................................................................ 9
Client-Client Conflicts .................................................................................................................. 9
Lawyer-Client Conflicts - Strother .............................................................................................. 10
Firm Transfer, Space Sharing ......................................................................................................... 10
Lawyer Conduct ........................................................................................................ 11
Professional Misconduct ............................................................................................................... 11
Re Martin - TEST ........................................................................................................................ 11
Conduct Unbecoming .................................................................................................................... 11
Berge ......................................................................................................................................... 11
Competence .................................................................................................................................. 11
Complaints and Discipline ......................................................................................... 12
Complaints ..................................................................................................................................... 12
Unauthorized Practice ................................................................................................................... 12
Discipline Hearings ........................................................................................................................ 12

Ethics
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Rules principles and legal obligations as well as moral or ethical aspirations of the lawyer
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Morality standards of how to act – set standards, not everyone’s personal moral codes line up with the professional code, need a standardized code
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Resolution of problem and decisions about what to do
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Canons 2.1 – Canons of legal ethics o To the state o To courts and tribunals o To the client o To other lawyers o To oneself
 Senior partner at a firm and advertised services in the paper and with an illuminated sign over the door of the office – guilty of conduct unbecoming a member of LS
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Held: LS isn’t restricted to matters about competency and integrity – anything that is in the best interest of the public or the profession would be prohibited o Prohibited commercial advertising – granted by the broad power of the act
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Self regulation by Law Society – regulation of lawyers by lawyers o One of the last places that has this – many other jurisdictions are governed by provincial legislation now
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Interest of self-regulation – public perception is very important ( Finney ) o If the public don’t feel that we are properly policing ourselves, may call for it to be government regulated
 Can lose right if you lose sight of the main point of the self-regulation: protection of the public
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Why we have strict codes of professionalism – high standards and discipline so the public has faith in lawyers governing themselves
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Finney was making complaints to LS repeatedly about competence of lawyer but they failed to do anything for years – sued for negligence and failing duty to the public
 Public perception is very important in self-regulation – must be satisfied that the lawyers are properly policing themselves
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Regulating body for lawyers – do not represent the interests of lawyers, protection of the public defines everything they do o Help lawyers – would rather prevent issues or remediate rather than discipline o Set standards for lawyers and have disciplinary measures if there is a breach – all to protect the public
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LSR 3-18.3
– Required to have 12 hours/year of continuing professional development and 2 hours must be in ethics (or professional management – no requirement) o Late fee of 500 if not complied with by December 31 st of that year o Late fee of 200 if you don’t report the hours on time o If you don’t complete by April 1 st of the following year you will be suspended until you comply (60 days notice of suspension)

Ethics
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Federation has 21 standards to ensure high standards in complaints and discipline process o No society meets them all but has improved results
 Current Issues o Regulating entities: law firms, multi-disciplinary practices o A2J: working group but concern about unauthorized practice o Aging of the profession o Unauthorized practice: paralegals
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Coordinating body for the provinces – bound to act in the public interest o Voluntary association and national voice for regulation and all law societies
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Requires all lawyers to be a member of a law society
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Interest in increasing mobility across provinces – mobility agreement (meet certain standards to move to different provinces
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Mandate to develop competency and good character standards o Mandated that ethics was a required course to get admission to any law society
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Created a model code for other law societies to work off of o Initially, it was everything except conflicts of interest and then later it was included
 Advocacy body for lawyers to look out for their interests o Worked to keep tuition low and keep diversity in schools and profession
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Voluntary, non-profit organization formed in 1896 o Represents 39,000 lawyers and professionals across Canada
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Purpose: enhance professional and commercial interests of its members and protect the independence of the judiciary and the bar o Provide personal and professional development and support to members o Promote fair justice systems and facilitate law reform o Promote equality in legal profession
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Has sections determined by interest – can meet people working in your area o Designed to meet educational, advocacy and professional needs of lawyers
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Advocacy: o Agenda for Justice – hire experts with the aim of improving A2J o Legal Aid – did a report on legal aid to see how effective it was, underfunded and under resourced o Legislation and Law Reform – makes submissions on new legislation and other government initiatives
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Loyal Advocacy – place interests of clients above that of others and their own interests o BC Code 5.1-1 – Must represent the client within the limits of the law
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Lawyer as moral agent in pursuit of justice – cannot escape claims that ordinary moral principles make against all of us o Cannot focus solely on client’s interests – Bernardo case: dangers of focusing solely on the client without regard to the duty to protect the administration of justice
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Integrity – should avoid circumstances where personal and professional morality are likely to conflict and must be fully cognizant/responsible for choices
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BC Code 5.1-5 – must act in good faith, be civil and be courteous

Ethics
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Code 1.1-1 – client is person who consults a lawyer and on whose behalf the lawyer agrees to render legal services OR after consulting a lawyer reasonably concludes the lawyer has agreed
to render legal services o If obligation of confidentiality has arisen, client relationship has been formed o Relationship can be triggered without the actual signing of a retainer or formal relationship
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Code 2.1-5 – duty to oneself: make legal services available to the public in an efficient and convenient manner that will command respect and confidence
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Code 4.2-5 – any marketing must NOT be false, inaccurate, unverifiable, reasonably capable of misleading, contrary to best interests of the public
 Code 3.1-1 – competent lawyer: applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of the client o 3.1-2 – must perform all legal services on client’s behalf to standard of a competent lawyer – consider lawyers experience, training in the field, complexity of the matter o Lawyer shouldn’t undertake a matter without feeling competent to handle it
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Issues: o Is the client the corporation or the officer coming to see you? o Is the client the child or the parent of the child paying you? o If the lawyer is a government lawyer, the client is the AG
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Must know who you are taking instructions from and who the duties are owed to
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Model Code 4.1-1 – lawyer has a right to decline representation (unless you are court appointed), must be exercised prudently especially if it is difficult for the client to find a lawyer
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Not allowed to decline to represent a client on discriminatory grounds but discernment is allowed (fine line) o Have to be competent to act
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Client selection is up to the lawyer: o Detached approach – represent everyone and anyone o Moral approach – only represent client’s whose case you support
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Retainer: important to define exactly what is being done – especially if it is limited scope retainer
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Conduct of litigation rests solely on the lawyer, NOT the client – the trial runs on your judgment based on what is in the best interests of the client o Must tell the client how this will work
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Situations where you MUST refuse to act: o BC Code: 3.4-1 – Must refuse to act if there is a conflict of interests, where there is a substantial risk that a lawyer’s loyalty or representation would be materially and adversely affected by lawyers own interests or duties to another client, former client or
3 rd person – risk must be serious o BC Code 3.1-2 – Must refuse if the lawyer cannot provide services to the standard of a
competent lawyer o BC Code 5.2-1 – must refuse if lawyer is potential witness for client’s case o BC Code 3.2-7 – must refuse if the lawyer knows or ought to know that he is assisting
client in a crime, should make reasonable inquiries to ascertain

Ethics
 Determine if it is a hypothetical situation or actually asking for how a crime could be committed
 BARD is required to refuse giving information based on familiarity with client or information from reliable sources that they intend to use the information for a crime – if you believe BARD, then refuse advice
 If the lawyer will not be doing everything – advise client about the exact nature, extent and scope of the services they are providing o Attempt to control liability by stating exactly what you will doc
 BC Code 3.2-1.1
– before undertaking a limited scope retainer, lawyer must inform client about the nature and extent of services they can provide
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BC Code 3.2-2 – must be honest and candid about everything that may affect the client
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Consider competence when giving limited scope!
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Limited circumstances to fire a client: o Contract provision in retainer o Non-payment of fees – apply to withdraw to the court and court must agree
 If there is an ethical reason or serious loss of confidence, court must accept the reason and allow termination (Cunningham) – cannot force you into a situation where you cannot fulfil your ethical undertaking
 Non-payment is more difficult – ask for adjournment first, monitor you payment (part of professionalism – working for money, not friendship) o Serious loss of confidence in relationship – deception by the client , refusal of client to follow instructions on a significant point so it is impossible to properly represent them, unreasonably or uncooperative to the point that it interferes with doing your job, material breakdown in communication o Legal Aid – if you don’t like what you are being paid through legal aid, there is a professional obligation to withdraw
 Court has ability to allow lawyer to withdraw, not increase fees
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Note: for litigation, the closer it is to the trial, the harder it is to terminate o Always put termination in writing

Ethics
 Canon 2.1
– duty of loyalty to client gives rise to confidentiality – being loyal to client means keeping information confidential o Be faithful to client – heart of the relationship
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3 elements of the duty of loyalty ( Neil ) o The duty to avoid conflicting interests o The duty of commitment to the client’s cause (zealous representation) o The duty of candour
 BC Code 3.3-1 – confidentiality: must hold in strict confidence at all times, all information concerning the business and affairs of a client acquired in the course of the professional relationship confidential and must NOT divulge an information UNLESS o If it expressly or impliedly authorized by client o It is required by law or court o It is required to deliver the information to LSBC o It is otherwise permitted by the rules
 Extends to situations where anyone is seeking advice even if there is no retainer or agrees to
represent the person or renders an account – “tire kicking” o Could conflict you out of an issue o Not required to have a formal agreement for there to be confidentiality
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Can disclose the information to other lawyers in the firm – implied consent, unless directed otherwise by the client o This is why there is an issue of firm transfer…
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BC Code 2.1-3 – court has power to appoint you to act for someone unrepresented
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3.3-2 – must not use or disclose a client’s or former client’s confidential information to the disadvantage of the client or for the benefit of the lawyer or 3 rd person without consent
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Confidentiality vs. Privilege o Confidentiality is an ethical principle , applies to all client information acquired by the lawyer and the obligation continues even where the information comes to be known by
3 rd parties – all lawyer-client relationships o Privilege is a legal duty , applies only to private communications made for the purpose
of obtaining legal advice and the obligation ends when the information is communicated to a 3 rd party – law of evidence
 Rationale: encourage full disclosure, must have full information to give proper legal advice and have a system in place to protect it – makes client feel safe and confidence that the legal system preserves the confidence
 Exception: risk of harm must be disclosed
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SCP can be overridden if accused shows that the privileged information cannot be obtained from any other source and he is unable to raise a reasonable doubt any other way ( McClure ) o Privilege gives way if there is a danger a person may be wrongfully convicted

Ethics
 Confidential communication lose their confidential character if they were made for the purpose of obtaining advice to facilitate the commission of a crime ( Descoteaux ) o Don’t want to protect illegal communications
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Can breach confidentiality to prevent a crime where there is a clear risk to an identifiable group of people or person, there is risk of serious bodily injury or death and it is imminent ( Smith v
Jones ) – must meet this test in order to disclose o Clear risk to identifiable person or group of persons
 Evidence of long range planning, method for crime, prior history of violence, increased in violence o Risk of serious bodily harm or death
 Cannot just be assault, must be more than that
 Psychological harm can constitute bodily harm o Imminent danger
 Must be urgent
 High threshold because confidence is so important – discuss with colleagues
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BC Code 3.3-3 – can disclose information if lawyer believes on reasonable grounds there is imminent risk of death or serious bodily harm and disclosure is necessary to prevent it o Limits disclosure only to what is necessary to prevent harm

Ethics
 Definition: the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or their duties to another client, former client or 3 rd party ( BC Code 3.4-1 , Neil ) o Exception: if client allows the conflict and the lawyer reasonable believes that they are able to represent both clients without having a material adverse affect on the other o Lawyer must not represent one client whose legal interests are directly adverse to immediate legal interests of another client without consent ( Neil, Strother )
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Duty not to act if there is a conflict of interests: o Between lawyer and client o Between clients
 BC Code 3.2-2 – honesty and candour: inform client of all the information known to the lawyer that may affect the interests of the client o This includes any information about acting for a client with adverse interests
 Based on: o Duty of loyalty ( Neil )
 Duty to avoid conflicting interests
 Duty of commitment to the client’s cause – should not summarily drop a client simply to avoid conflicts with existing or future clients ( McKercher )
 Duty of candour with client on matter relevant to the retainer – should advise existing client before accepting retainer that would require lawyer to act against that client even on an unrelated matter, outside bright line rule
( McKercher ) o Duty of confidentiality – must obtain consent of new client to disclose the existence, nature and scope of the new retainer to the existing client ( McKercher )
 If client refuses consent, then cannot accept new retainer o Duty to subordinate personal interest o Duty to act ethically and honestly
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Fiduciary Duty: scope of the retainer contains fiduciary duty (duty of loyalty ) ( Strother )
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Doing business with the client: lawyer must NOT enter into a transaction with a client unless the transaction is fair and reasonable to the client, the client consents and the client has independent legal advice ( BC Code 3.4-28 ) o Must advice client to get independent legal advice
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BC Code 3.4-1 – must refuse to act if there is a conflict of interest unless permitted by the code o 3.4-3 – must not represent opposing parties in a dispute EVEN IF there is consent
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BC Code 3.4-2 – if there is a conflict, the lawyer can only act if they have (1) express or implied consent and (2) the actual ability to act for clients without compromising their interests o Express: must be fully informed and voluntary after disclosure o Implied: matters are unrelated, no relevant confidential info, client commonly consents
 If unable to provide disclosure about the conflict because of confidentiality, must not take client
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BC Code 3.4-10 – unless the client consents, lawyer MUST NOT act against a former client in: o The same matter o Any related matter o Any other matter if the lawyer has confidential information that could affect the client

Ethics
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Canon 2.1-3 – duty to client includes the duty to disclose all circumstances of the lawyers
relations and interests that would conflict
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Commercial conflicts between clients that do not impair the lawyer’s ability to properly represent legal interest of both clients will not generally present a conflict problem ( Strother ) o Retainer agreement is overlaid by fiduciary duty to the client – cannot make personal investment in venture, conflict between contractual duty to client and own personal financial interests
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Bright Line Test: a lawyer must not represent one client whose interests are directly adverse to the immediate interests of another current client, even if the 2 retainers are unrelated, UNLESS:
( Neil , BC Code 3.4-2 , affirmed in McKercher ) o Both clients consent AFTER receiving full disclosure ; AND o The lawyer believes he can represent both clients competently
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IF it applies, prohibition of concurrent representation
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Rule: rebuttable presumption of disclosure between lawyer’s at the same firm ( MacDonald
Estate ) – ensure there is not conflict AND no appearance of conflict
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If considering concurrent representation: ( McKercher )
1.
Are the immediate legal interests of the new client directly adverse to those of an existing client? a.
In most cases of legal matters, this will breach the bright line rule
2.
Is the existing client seeking to exploit the bright lint rule in a tactical manner? a.
If client uses it in this way to prevent a client their choice in counsel, the client loses the benefit of the conflict rule
3.
Are the circumstances such that it is unreasonable to expect that the firm will NOT act concurrently for them and an adverse party in an unrelated matter? a.
Consider: b.
Nature of the firm (mega-firm) c.
Nature of the client d.
Terms of the retainer e.
Types of matters involved
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Considerations of modern reality of law firms – mega firms
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Test: when a lawyer transfers to another firm that represents the other side in a case
( MacDonald Estate, Martin ) o Onus is on the transferring lawyer to satisfy a reasonably informed member of the public that no inappropriate use of confidential information will occur
 Rebut presumption that confidential information could be imported to the other side by showing structures in place to insulate the lawyer from the new clients file material ( Martin ) o Stage 1: did the lawyer receive any confidential information?
 If yes, there is rebuttable presumption that there is a risk of misuse of confidential information and therefore disqualification is automatic o Stage 2: is there a risk that confidential information will be used to the prejudice of the client?

Ethics
 Where there is conflict between the client’s interests and the lawyers personal or commercial interests ( Strother ) o Bright line includes consideration of the scope of the retainer BUT must take a broader view because of the fiduciary nature of the relationship o If lawyer’s personal profit were enhance by keeping client away from the issue and in the dark, there is impermissible conflict
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McLachlin: saw the case as involving commercial interests, not legal interests, so the bright line test wouldn’t apply
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Conflicts can arise when a lawyer who practices in one firm/government transfers to another o To avoid disqualification from future cases: get consent of former client, take measures to ensure the confidentiality of information, undertakings by transferring lawyer that they will not participate in a matter that would give rise to a conflict o Transfer within the government does NOT apply – same client = the Queen
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Rule: rebuttable presumption of disclosure between lawyer’s at the same firm ( MacDonald
Estate ) – ensure there is not conflict AND no appearance of conflict o Infer that the new firm has received confidential information UNLESS satisfied on the basis of clear and convincing evidence that all reasonable measures have been take to ensure that no disclosure will occur ( MacDonald )
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Test: when a lawyer transfers to another firm that represents the other side in a case
( MacDonald Estate, Martin ) o Onus is on the transferring lawyer to satisfy a reasonably informed member of the public that no inappropriate use of confidential information will occur
 Rebut presumption that confidential information could be imported to the other side by showing structures in place to insulate the lawyer from the new clients file material ( Martin ) o Stage 1: did the lawyer receive any confidential information?
 If yes, there is rebuttable presumption that there is a risk of misuse of confidential information and therefore disqualification is automatic o Stage 2: is there a risk that confidential information will be used to the prejudice of the client?
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Values at stake: high standards and integrity of the profession, litigant should have choice of counsel and allow for reasonable mobility in legal profession
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BC Code 3.4-20 – if the lawyer cannot meet the test, the firm must cease representation UNLESS the old client consents or the new firm can establish that representation is reasonable and take reasonable steps to ensure the information will not be shared o Reasonable steps – must have system in place ( MacDonald Estate )
 BC Code 3.4-43 – In the case of space sharing, lawyer must disclose that they are in a space sharing arrangement, the ID of other lawyers in the space and that the other lawyers in the space may act for other clients with conflicting interests o Take reasonable measures to ensure confidentiality

Ethics
 Definition: Model Code 7.1-3 o Misappropriation of trust funds o Abandonment of law practice o Participation in crimination activity related to the practice o Mental instability of lawyer such that clients would be prejudice o Conduct that raises a substantial question as to the lawyers honest, trustworthiness or competency o Any other situation in which the clients are likely to be materially prejudiced
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Purpose of reporting misconduct is to prevent loss or damage to client and protect the public perception of the legal profession
 Notable cases: o Martin Wirick – trust fund defalcation, real estate scheme o Laurel Hudson – work for legal aid, tried to charge for paralegals time but unsuccessful so found a way around it and charged more hours to make up for it, serious dishonesty
 Do the facts made out disclose a marked departure from that conduct the LSBC expects from its members?
– if so, professional misconduct
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Definition: LPA s.1
– activity that is contrary to the best interests of the public or profession and harms the standing of the profession o Test – any conduct that will seriously compromise the body of the profession in the public estimation ( Berge ) o Doesn’t have to be specifically prohibited – benchers can determine what conduct is acceptable in and out of practice ( Jabour )
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Should LSBC regulate private conduct of lawyers? – may impact the public perception of the profession so LSBC would have an interest
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Cannot leave status of lawyer at the door – high standard of social responsibility
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Notable cases o Brian Rea – viewing child pron, didn’t deal with minors in practice, got therapist, had mental health issues o Robert Palkowski – accident on Lionsgate and injured someone while driving under the influence (over 3x legal limit) o Howard Berge – pulled over and found to be driving under the influence, but tried to hide it by using mouth wash and hiding beer can, was president of LSBC at the time
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Includes obvious examples of criminal conduct and dishonestly but also “any act of any member that will seriously compromise the body of the profession in the public estimation”
 BC Code 3.1-1 – competent lawyer: has and applies relevant knowledge, skills and attributes o 3.1-2 – “reasonably competent solicitor” standard
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BC Code 3.2-1 – duty to provide courteous, thorough and prompt service

Ethics o Effective communication with client and understanding of their particular needs o Ensure advice is given within a reasonable timeframe and if there is undue delay, must inform client
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Typically every lawyer will get 1 every 4 years – important to respond appropriately and give
LSBC the information they need o If you know you did something wrong, self-report o LSR 3-5 – Duty to fully cooperate with LSBC in an investigation
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Sources of Complaints: o Opposing parties, other lawyers o Courts, AG BC, 3 rd parties, LSBC, Media, Clients
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Test for complaints: marked departure from what LSBC expects from the profession
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Why there are complaints: o Poor communication – not listening to clients, don’t prepare clients expectations, failure to report regularly o Service issues – delay or inactivity, don’t manage practice well
 Competency in managing the practice – reporting is important, diarize o Billing disputes o Conflicts of Interest o Dishonestly o Trust Accounts, Breach of Undertakings, Breach of privilege/confidentiality, Rudeness,
Withholding client files or funds, Incompetence, Theft, Personal life issues
 Covers paralegals or others who have knowledge of the law but are not actually lawyers
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BC Code 7.6-1 – lawyer must assist in preventing the unauthorized practice of law o May have the ability (paralegals) must are immune from control, regulation and discipline and also are not subject to the duties lawyers are
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LSR 2-10 – lawyer must not knowingly facilitate the practice of law by any person who is not a practicing lawyer
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Complaint is made – goes to intake group to determine what it is and how serious o LSR 4-3 – must hear any complaint referred to it o If it isn’t serious, it does to service complaints o If it is serious, it goes to a group to investigate – essentially a policing unit who then writes up an opinion about what should happen
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LSR 4-4 – after hearing, committee can decide: o No further action o Letter from the chair – least serious, most common result for cases closed at service complaints stage o Conduct meeting – discuss with the benchers, possibly personal life issues o Conduct review – meet with 2 people, goes on record and will be used in later discipline hearings (if any) o Citation – more serious
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LPA s.38
– panel must determine the finding and the result