Bass-Meldrum, Bishouty, David, Emery, Gibbs, Lavoie, Tambay, Soliman, Tufo
Legal Ethics and Advocacy – Fall 2010 – Me. Lamed
ALICE WOOLEY ET AL., LAWYERS’ ETHICS AND PROFESSIONAL REGULATION” CHAPTER 1:
INTRODUCTION TO LEGAL ETHICS PP 7-47. ......................................................................................................................... 1
B. WHAT ARE LAWYER’S ETHICS AND PROFESSIONAL REGULATION? ........................................................................ 1
C. SOURCES................................................................................................................................................................................... 1
D. SOME WAYS OF THINKING ABOUT “NORMAL” ETHICS ................................................................................................ 1
E. WHAT DOES IT MEAN TO BE AN ETHICAL LAWYER....................................................................................................... 1
FINNEY V. BARREAU DU QUÉBEC, [2004] SCC ....................................................................................................................... 2
ALICE WOOLEY ET AL., LAWYERS’ ETHICS AND PROFESSIONAL REGULATION” CHAPTER 2: THE LEGAL
PROFESSION AND LAWYER REGULATION IN CANADA PP 49-91. ................................................................................... 3
B. THE CONCEPT OF SELF REGULATION................................................................................................................................ 3
C. THE PRACTICE OF SELF REGULATION .............................................................................................................................. 3
D. OTHER REGULATORY FUNCTIONS .................................................................................................................................... 4
E. EXTERNAL REGULATION OF THE LEGAL PROFESSION................................................................................................. 5
ALICE WOOLEY ET AL., LAWYERS’ ETHICS AND PROFESSIONAL REGULATION” CHAPTER 11: PP 485-517:
ACCESS TO JUSTICE ..................................................................................................................................................................... 5
A. CONSTITUTIONAL RIGHT OF ACCESS TO JUSTICE?: ...................................................................................................... 5
B. WHAT IS THE “ACCESS TO JUSTICE” POBLEM? ............................................................................................................... 5
C. WHOSE PROBLEM IS IT? ........................................................................................................................................................ 6
D. LAWYERS SPECIAL OBLIGATION TO FOSTER ACCESS TO JUSTICE ........................................................................... 6
E. INITIATIVES TO FOSTER ACCESS TO JUSTICE.................................................................................................................. 7
ALICE WOOLEY ET AL., LAWYERS’ ETHICS AND PROFESSIONAL REGULATION” CHAPTER 4: PP 131-201:
THE LAWYER CLIENT RELATIONSHIP ................................................................................................................................... 7
A. FORMATION OF THE LAWYER-CLIENT RELATIONSHIP ................................................................................................ 7
B. COMPETENCE AND QUALITY OF SERVICE ....................................................................................................................... 9
C. TERMINATION OF THE LAWYER-CLIENT RELATIONSHIP .......................................................................................... 10
ALICE WOOLEY ET AL., LAWYERS’ ETHICS AND PROFESSIONAL REGULATION” CHAPTER 6: PP 241-288:
CONFIDENTIALITY/PRIVILEGE .............................................................................................................................................. 10
B. OVERVIEW ............................................................................................................................................................................. 11
C. THE PRINCIPLE AND SOME EXCEPTIONS........................................................................................................................ 11
D. ANOTHER EXCEPTION: INNOCENCE AT STAKE ............................................................................................................ 12
E. THE PRINCIPLES REASSERTED .......................................................................................................................................... 12
MAHMUD JAMAL ET SYLVAIN LUSSIER : LE SECRET PROFESSIONNEL DE L'AVOCAT : CE QUE TOUT
AVOCAT DOIT SAVOIR SELON LA COUR SUPREME DU CANADA. ............................................................................... 14
A. INTRODUCTION .................................................................................................................................................................... 14
B. SECRET PROFESSIONNEL DE L'AVOCAT ......................................................................................................................... 14
C. PRIVILÈGE RELATIF AU LITIGE ......................................................................................................................................... 16
CHAPTER 7: THE DUTY OF LOYALTY AND CONFLICTS OF INTEREST ...................................................................... 17
I. CLIENT-CLIENT CONFLICTS ....................................................................................................................................................... 17
II. LAWYER-CLIENT CONFLICTS..................................................................................................................................................... 21
CHAPTER 8 : ETHICS AND CRIMINAL LAW PRACTICE ................................................................................................... 21
Alice Wooley et al., Lawyers’ Ethics and Professional Regulation” Chapter 1:
Introduction to Legal Ethics Pp 7-47.
B. WHAT ARE LAWYER’S ETHICS AND PROFESSIONAL REGULATION?
Lawyers’ ethics addresses the constraints on lawyer conduct: Two dimensions of ethics:
(1) ethics as a series of rules which strain human behaviour; and (2) ethics as a set of moral aspirations.
C. SOURCES




Case law and legislation
Rules of Professional Conduct
The principles or “norms” of lawyering; and,
Personal morality.
D. SOME WAYS OF THINKING ABOUT “NORMAL” ETHICS
1. Virtue Ethics
Aristotelian virtue ethics: individual both possesses the virtues essential for action (e.g. loyalty, honesty, care, compassion, justice and
integrity) and has he practical judgment essential for applying those virtues in a situation.
2. Utilitarianism
The greatest good for the greatest number”.
Indirect (rule) utilitarianism: while the application of a particular rule does not maximize utility in a single instance, provided that the
rule in general has that effect, then the rule is justified on utilitarian grounds.
Utilitarianism requires “agent neutrality”
3. Kantian/Deontological Theories of Right Action
Strongly rule based: possibility and necessity of having universal rules that articulate what morality requires. The rules, once established,
must be applied regardless of the consequences of doing so in a particular case.
Humans have the capacity for reasoning: freedom of choice and action which will not be determined by personal desires. Any moral rule
or duty must comply with the Categorical Imperative: the only principles which should guide actions are those which could also hold as
universal law.
4. Postmodernism: a method of intellectual criticism not a new way of ethical reasoning.
Ethical decisions must be made through individual judgment and moral intuitions. Ethical individual will take responsibility for a
decision, but he or she will not be aided in making it by abstract or objectively oriented attempts to follow a rule, or to assess the
decision’s consequences.
5. Pluralism
Weighing and measuring of different – and occasionally conflicting – values in different circumstances.
E. WHAT DOES IT MEAN TO BE AN ETHICAL LAWYER
1. Loyalty
(1) Lawyer to place interests of client above those of other individuals, despite consequences to others
(2) Lawyer to place interest of the client above his own.
Why does a lawyer have a duty of loyalty to a client?
(1) Giving the client a loyal advocate within the legal system benefits individual and society
(2) Every person has a right to access the justice system, which occurs through lawyers
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Lawyers should be zealous advocates for their clients / not morally accountable foe the aims of their clients.
R. v. Neil [2002] SCC
Facts: The appellant brought an application for a stay of proceedings in his criminal trail on the basis that there had been an abuse of
process, arising from a conflict of interest of the law firm that initially represented him, ultimately represented a co-accused.
Ratio: The duty of loyalty is intertwined with the fiduciary nature (based on trust) of the lawyer-client relationship, and includes: (1) the
duty to avoid conflicting interests; (2) the duty of commitment to a client’s cause (sometimes referred to as “zealous representation”);
and (3) a duty of candour.
Szarfer v. Chodos [1986] O.J.
Facts: Mr. Szarfer approached Mr. Chodos in respect of a wrongful dismissal action. Revealed to Mr. Chodos his marital problems.
Mr. Chodos knew Ms. Szarfer and initiated an affair with her.
Disposition: lawyer ordered to pay $43,000 damages to client for using confidential information to initiate an affair with the client’s
spouse; received only a reprimand from the Law Society for his professional negligence.
Ratio: A lawyer who uses confidential client information to their benefit is acting in his own interest, thereby vitiating trust, the
essential element of a solicitor-client relationship (breach of the conflict-of-interest rule).
2. Justice
The lawyer should take those actions that, considering the relevant circumstances of the particular case, seem most likely to promote
justice.
R. v. Murray [2000] O.J.
Facts: On written instructions from Bernardo, lawyer Murray suppressed for a period of time videotapes showing his client, Paul
Bernardo, and Karla Homolka committing sexual violence against a young woman.
Disposition: Murray was acquitted of the charges on the basis that he did not have the necessary mens rea to be convicted of
obstruction of justice by concealment of the videotapes.
3. Integrity
Lawyer’s overarching ethical obligation is one of “fidelity to law”, which requires that a lawyer exercise his or her practical judgment to
interpret, apply and act consistently with a variety of values and norms embedded in the legal system.
Alice Woolley, “Integrity in Zealousness” (1996) Can. J.L. & Juris.
CBA Code (C.1): The lawyer must discharge with integrity (“soundness of moral principles”) all duties owed to clients, the court, other
members of the profession and the public.
Spaulding v. Zimmerman [1962] Supreme Court of the State Minn.
Facts: The defendants had reached a settlement with the plaintiff for injuries he had suffered in an automobile accident. Defendants
learned plaintiff was suffering from an aneurysm and did not tell him. The plaintiff later discovered and sought to set aside settlement.
Ratio: While no canon of ethics or legal obligations may have required the defendant’s counsel to inform the plaintiff or his counsel
with respect thereto, this fact opened the way for the court to later exercise its discretion in vacating the settlement.
Comments: highlights the ethical and moral tensions that can occur when a lawyer acts according to professional norms of zealous
advocacy on behalf of a client.
Finney v. Barreau du Québec, [2004] SCC
Judicial History: The Superior Court dismissed the action. The Court of Appeal allowed the respondent’s appeal in part and ordered
the Barreau to pay her $25,000 for the moral injury she had suffered.
Facts:
Lawyer B was found guilty several times by the Barreau’s Committee on Discipline and the Professions Tribunal and was declared
incompetent. The respondent’s difficulties with B began in 1990. She filed several complaints against B but it took the Barreau forever
to react. In 1996, the respondent launched an action in damages against the Barreau for breach of its obligation to protect the public.
Issue: Whether the Barreau can claim immunity set out in the Professional Code — Concept of good faith — Professional Code, R.S.Q —
Civil Code of Québec, S.Q. 1991, art. 1376.
Disposition: The appeal should be dismissed. The respondent is awarded her costs in this Court on a solicitor and client basis.
Analysis:
Section 23 of the Code expressly provides that professional orders are created primarily to protect the public. The Code establishes
two mechanisms for monitoring the professional competence of the members: professional inspection and disciplinary action. On
s. 193 of the Code prohibits prosecutions of professional orders and their officers and staff for acts engaged in “in good faith in the
performance of their duties” or functions. Respondent must show that Barreau acted in bad faith. It would be contrary to the
fundamental objective of protecting the public set if this immunity provision were interpreted as requiring evidence of malice or intent
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to harm in order to rebut the presumption of good faith. The concept of bad faith must be given a broader meaning that encompasses
serious carelessness or recklessness. The conduct of the Barreau, when considered in its entirety, constitutes a fault for which it cannot
claim the immunity set out in s. 193.
Ratio:
(1) Even where a public official/authority is immune from suit for negligent acts, that immunity may not be absolute.
(2) The fundamental objective of self-governing bodies is “… not to provide services to their members or represent their
collective interests. They are created to protect the public…”
Alice Wooley et al., Lawyers’ Ethics and Professional Regulation” Chapter 2: The Legal
Profession and Lawyer Regulation in Canada Pp 49-91.
B. THE CONCEPT OF SELF REGULATION
Self regulation: control, direction, or governance of an identifiable group by rules and regulations determined by members of group
 Undertaken in the public interest to ensure that legal services are provided to the public ethically and competently by those
qualified to do so.
 Self regulation is seen as a bargain or social contract with the state
 Economic view (negative): excludes persons from participation in the market for legal services, to ensure the scarcity of
legal services and to dampen competition in order to keep prices for services higher than would otherwise be
 Structural functional approach (positive): professions enjoy broad autonomy which enables their members to use their
specialized experience and knowledge in the general welfare. Free from outside interference, professionals will put the
interests of both their clients and the public ahead of their own interests.
C. THE PRACTICE OF SELF REGULATION
Historical Argument:
 The independence of law as a self regulating profession / protection of individual rights and liberties from the pervasive threat
posed by the state / rule of law Canada (A.G.) v. Law Society of B.C.
Practicality Argument: Law Society of Manitoba v. Savino.
 Professions must be self governing because they alone understand what the members need to know and do.
Rhetorical Argument: self regulation as part of social contract with the state: profession regulates itself in exchange for monopoly
Efficiency/Cost Effective Argument: self regulation is more efficient and cost effective than external regulation
1. The Structure of Self Regulation
(a) Law Societies: corporations created and empowered by provincial legislation – delegates of the legislatures, not private bodies.
Admission, conduct and discipline of lawyers.
 The powers of self regulation vested in the governing bodies of law societies are significant but not unlimited. Their
discretionary authority is limited by statute and jurisprudence and is susceptible to Charter challenge.
(b) Nature and Scope of Self Regulation
Entry regulation concerns the admission of qualified persons to the profession and practice
Conduct regulation involves the articulation and enforcement of practice standards and norms.
Self regulation also involves control of insurance, lawyer’s accounts, continuing education programs, etcetera.
(c) Regulation of Entry to the Profession and Practice
Admission to the law society of a particular jurisdiction involves two matters:
(i) the satisfaction of pre-admission education requirements
ii) the satisfaction of the good character and reputation requirement
(d) Self Regulation of Lawyer Conduct
- Articulation of standards of professional practice
- Enforcement of those norms by means of professional discipline
(i)



Codes of Conduct
In 1974 CBA adopts Code of Professional Conduct: 17 rules or fundamental principles
In 1987, CBA adopts revised version of the Code: retains aspirational language
NOTE: many of the rules in the codes are not actually enforced; codes serve symbolic, rather than regulatory purpose.
(ii) The Anatomy of Lawyers’ Codes
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 Obligations in codes can be loosely categorized under two headings:
(1) duties owed to clients, the courts, and other lawyers
(2) duties owed to the profession and society.
(A) DUTIES OWED TO CLIENTS, THE COURTS, AND OTHER LAWYERS

A number of special obligations arise from the fiduciary nature of the lawyer-client relationship

Act honourably and with integrity + duty to be competent

Duty to act resolutely and vigorously in the assertion of clients’ rights/claims

Duty to be candid and honest with clients

As negotiators, duty to obtain the best results

Duty of confidentiality and a duty to avoid conflicts of interest
- The obligation of confidentiality is designed to facilitate free and open communication between lawyer and client
/ necessary to effective representation. Duty of confidentiality is broad but not absolute.
- The duty to avoid conflicts of interest includes: acting against a former client, acting for more than one client in
the same matter, or acting for a client in a matter where lawyer’s personal interests are at stake.

Act with care and prudence when dealing with clients’ property.
(B) DUTIES OWED TO THE PROFESSION AND SOCIETY

“A lawyer’s conduct should reflect credit on the legal profession

Lawyers have a duty to ensure that the administration of justice is conducted in an open, impartial and fair
manner.
(iii) Discipline
 Discipline, one of the primary functions of the law societies, is not conducted for punitive purposes but to protect the public
and the profession’s reputation.
(A) STANDARDS OF DICIPLINE
Canadian law societies are empowered by legislation to discipline their members for:
- professional misconduct
- conduct unbecoming of a barrister or solicitor
- conduct deserving of sanction
(B) DISCIPLINE PROCEEDINGS
Three stages:
(1) complaints and investigation
(2) hearing
(3) the penalty/sanction

Sanctions include: a reprimand, which may or may not be public, a fine, suspension from practice or an area
of practice, the imposition of practice conditions, to disbarment (and in the case of incompetence can
include remedial training and education).

In determining the appropriate penalty or sanction, the hearing panel will look into matters such as the
nature and extent of injury to others, the blameworthiness of the offending lawyer’s conduct, and penalties
imposed on others for similar misconduct.
D. OTHER REGULATORY FUNCTIONS
(a) The protection of the profession’s monopoly or dominance over the market for legal services
(b) the operation of insurance and assurance schemes to compensate clients who have suffered loss or damage as the result of the
negligent or deliberate misconduct of lawyers in their representation of clients.
1. Unauthorized Practice of Law
 Prohibited by provincial legislation, constitutes offence punishable by fine and possibly a term of imprisonment
 Exceptions:
(1) individuals representing themselves
(2) persons authorized by statute to appear as the agent of another
(3) persons enrolled as articling students.
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E. EXTERNAL REGULATION OF THE LEGAL PROFESSION
(1) legally by the courts through malpractice and professional liability actions
(2) informally through voluntary membership in professional organizations and groups
1. Legal Liability of Lawyers
 Unlike self regulation, damage liability compensates a client for the loss or injury suffered
 Lawyers’ conduct judged according to the reasonable standards of the profession
2. Voluntary Professional Associations
 Enforced largely through peer approval or disapproval.
Alice Wooley et al., Lawyers’ Ethics and Professional Regulation” Chapter 11: Pp 485517: ACCESS TO JUSTICE
A. CONSTITUTIONAL RIGHT OF ACCESS TO JUSTICE?:
British Columbia (attorney General) v. Christie [2007] S.C.C, McLachlin C.J, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
& Rothstein J.J)  case addressing the constitutional obligation to foster access to justice.
Facts:
 Christie, a lawyer, provided legal services at low or little cost. B.C implemented a 7% tax on legal services, which Christie
could not pay.
Issue:
 Is access to justice an abosulte constitutional right?
Analysis:
 What is sought is a huge change that would alter the legal landscape and impose a considerable burden on taxpayers
1st argument: Access to justice is a fundamental constitutional right that embraces the right to have a lawyer in relation to court and
tribunal proceedings
 Based on B.C.G.E.U v. British Columbia (Attorney General) where the court affirmed a constitutional right to access the
courts, which was breached by pickets and impeded access.
 Right affirmed in B.C.G.E.U is not absolute. S. 92(14) of the Constitution Act 1867 implies power of province to impose
some conditions on how and when people have a right to access the courts.
2nd argument: The right to have a lawyer in cases before the courts and tribunals dealing with rights and obligations is constitutionally
protected, either as an aspect of the rule of law or a precondition to it.
 Rule of law embraces three principles: 1. law is supreme over officials of the government as well as private individuals and
thereby preclusive of arbitrary power 2. creation and maintenance of an actual order of positive laws which preserve and
embodies the more general principle of normative order 3. the relationship between the state and the individual be regulated
by law
 General access to legal services is not a currently recognized aspect of the rule of law.
 In s.10 (b)[the Charter] provides that everyone has the right to retain and instruct counsel, and to be informed of that right… If
the reference to the rule of law implied the right to counsel in relation to all proceedings where rights and obligations are at
stake, s. 10(b) would be redundant
 S.7 has been held to imply a right to counsel as an aspect of procedural fairness where life, liberty and security of the person
are affected…but this does not support a general right to legal assistance.
Ratio:
 Apart from fundamental rights, there is no general constitutional right to counsel
B. WHAT IS THE “ACCESS TO JUSTICE” POBLEM?
There are individuals in society who need a lawyer to exercise and/or protect their legal rights but who cannot afford one.
When we state that there is a problem we make a number of assumptions: 1st. That accessing the justice system is important; 2nd. To
access the justice system effectively individuals need the assistance of legal counsel; 3rd. Lawyers are not accessible to everyone.
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C. WHOSE PROBLEM IS IT?
LEGAL AID IN CANADA: DESCRIPTION OF OPERATIONS
Legal aid in Manitoba:
Coverage



Summary conviction and provincial offenses are only covered when there is a danger of imprisonment or loss of livelihood.
Following a cost-benefit analysis, coverage is available in family law matters if the case has merit
There is also limited coverage for other civil matters if the case has merit and no private lawyer will accept it on contingency.


Family income and family size are used to establish the income guidelines
Persons earning more than the Financial Eligibility Guidelines may still be eligible for legal aid; consider whether or not the
applicant can retain counsel without having to dispose of their livelihood and whether or not a reasonable person who had to
pay a lawyer would spend the money to advance the case will also be considered.
Eligibility
Tariffs (fees paid to the lawyers)

The program is aimed at the working poor
D. LAWYERS SPECIAL OBLIGATION TO FOSTER ACCESS TO JUSTICE
Legal aid still creates gaps—it is only designed for those with very limited resources but does not cover those who still cannot afford to
retain counsel.
Richard Devlin, “Breach of Contract?: The New Economy, Access to Justice and the Ethical Responsibilities of the Legal Profession”
(2002) Dal. L.J.  Whether lawyers should be required to perform pro bono work]
Arguments for mandatory pro- bono work:
1. Rights-based Argument (Monopoly and the Juridical Contract):
 There is an unmet right to legal assistance. Contractually, the legal profession is obliged to respond because of its privileged
monopoly situation.
Building on Locke’s social contract theory: (3) potential contracts:
 1st : Citizens agree to leave the state of nature to pursue mutual self interest
 2nd : Contract exists between the state and citizens where the state agrees to protect the rights of citizens and enforce the rule
of law
 3rd : Juridical contract – in exchange for their monopoly , autonomy and independence there is a corresponding
obligation on the legal profession to ensure that there is equal access to law for all members if the community.
 The education of most Canadian lawyers has been subsidized by the state.
 Lawyers as public servants: shoulder the burden of bridging the gap between needs and services; or lawyers as business people:
yield their monopoly of the legal services market
 NOTE: Lawyers are the gatekeepers to providing equal access to the law.
2. Utilitarian Argument (Distributive and Instrumental Benefit):
 Quality of lives can be improved
 Morale can be boosted
 Legal skills can be developed and enhanced
 Networks created
 Social capital increased
Arguments Against Mandatory pro bono:
Eight (8) possible objections:
1.
Autonomy:
2.
Necessity:
3.



Lawyers have rights too / Devlin: Autonomy is always relational
It is easier for large firms and wealthier lawyers to absorb the cost of pro bono than for smaller firms and solos
Devlin: My approach will not add to their burdens.
Unfairness/Competence:

Two main arguments: 1. Same as Necessity; 2. The costs of pro bono not borne by lawyers but redistributed to
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paying clients / Devlin: On a ‘redistributive’ justice basis, this disadvantage will be offset by the benefits reaped
4.
Competence:
5.
Inefficiency/Impracticality:
6.
7.
8.


Not all lawyers have the specialized skills required / Devlin: Limited competency preferable to no representation
Lawyers who lack expertise and motivation will not provide cost effective representation + Administratively
impractical to coordinate the provision of pro bono services, and monitor their quality / Devlin: see above
Inherently Contradictory:

Scope:

‘Mandatory’ takes away from the volunteer aspect inherent to the very notion of pro bono / Devlin: US evidence:
volunteer efforts systematically fail
Some lawyers do not fit with the monopoly analysis / Devlin: In house and government lawyers still give legal
advice or have skills that are directly related
Soup Kitchen Argument: Why Legal Services?:

Why cannot other socially positive contributions be adequate / Devlin: Pro bono is a duty that emerges from special
privileges given to lawyers.
Alice Woolley, “Imperfect Duty: Lawyers’ Obligation to Foster Access to Justice” [2008] Alta. L. Rev.
Woolley rejects Devlin’s argument. She says that the justification for the imposition of a special obligation on lawyers to foster access to
justice is based on the imperfections in the market for legal services.
Imperfections in the Market for Legal Services:
1. Product homogeneity
2. Information Insufficiency and Asymmetry
Conceptual consequences of market imperfections:
1. Consumers may follow price rather than quality, in an unregulated race to the bottom. They purchase cheapest legal services
and are vulnerable to them being low-quality and insufficient to meet their legal needs
2. Price escalation and the extraction of economic rent by the profession.
Author argues that there is no evidence for the conceptual consequences mentioned, thus a public policy response giving effect to
lawyers special obligation to foster access to justice should be modest in scope.
E. INITIATIVES TO FOSTER ACCESS TO JUSTICE
Canadian Law Societies have generally accepted that lawyers have a special obligation to foster access to justice. No Canadian law
society has taken the position that such activities should be mandatory.
“Pro Bono Publico – For the Public Good”
Reasons to promote the provision of pro bono services:
 Ensure access to legal representation for those who require it
 Pro bono services achieve moral satisfaction derived from helping others
 Method of training articling students and junior associates
 Improves the reputation of the legal profession and those who participate in it
Alice Wooley et al., Lawyers’ Ethics and Professional Regulation” Chapter 4: Pp 131201: THE LAWYER CLIENT RELATIONSHIP
A. FORMATION OF THE LAWYER-CLIENT RELATIONSHIP
CBA Code, Ch. XIV: Lawyers should make legal services available to the public in an efficient and convenient manner that will
command respect and confidence, and by means that are compatible with the integrity, independence and effectiveness of the
profession.
1.
Code of Professional Conduct, Ch XIV, commentaries 1, 2, 3 and 8.
Advertising
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1.
2.
3.
4.
It is essential that a person requiring legal services be able to find a qualified lawyer with a minimum of difficulty.
The governing body must have freedom of action in determining the nature and content of advertising that will be best
Advertising must comply with rules prescribed by the governing body, must be consistent with the public interest
The lawyer should adhere to rules made by the governing body with respect to making services available and advertising
2.
Solicitation
Solicitation can take lawyers quite close to some ethical lines: lawyers may invade people’s privacy, take advantage of vulnerable persons,
engage in over-reaching, succumb to opportunistic ambulance-chasing or stir up unnecessary litigation. On the other hand, people do
not always know their rights, and do not always have a sense of the services that lawyers can provide.
Law Society of Saskatchewan v. Merchant [2000]
Facts: Merchant Law Group, a law firm, wrote letters to survivors of residential schools concerning their potential claim against the
Federal Government.
Analysis: Letters were misleading in violation of Sask. Code of Professional Conduct. Failed to explain length and complexity of litigation
process, including preparation, interviews, expert examinations, discoveries, pre-trial hearings and the trial itself. Littered with
“legalese,” and stated that possible claimants had “nothing to lose”. Letters were “undignified, in bad taste and otherwise offensive” in
violation of the CBA Code.
Disposition: Mr. Merchant is guilty of conduct unbecoming of a lawyer and is ordered to pay a fine and costs to the claimants.
Courts have also been concerned about lawyers who use the media to engage in self-promotion:
Stewart v. Canadian Broadcasting Corp. [1997] O.J.
Facts: The plaintiff Stewart ran over Judy Jordan with his automobile dragging her to her death. With Edward Greenspan as his
counsel Stewart was convicted of criminal negligence causing death. Following his sentence the defendant Canadian Broadcasting Corp.
televised a reenactment of the crime and trial using Greenspan as the host and narrator. The plaintiff instated actions.
Issues: (1) Did Mr. Greenspan owe a duty of loyalty to his former client Mr. Stewart? (2) If yes, did he breach this duty?
Analysis: The duty of loyalty that Mr. Greenspan owed Mr. Stewart was alive but inoperative through the years that they were
independent of one another. Mr. Greenspan, however, brought himself back within the sphere of that duty when he chose to involve
himself in public aspects of Mr. Stewart’s case yet again. Thus Mr. Greenspan had a duty of loyalty and breached it:
 He favoured his financial interests over the plaintiff’s interests
 He put his own self-promotion before the plaintiff’s interests
 By the way he publicized his former client’s case, he undercut the benefits and protections he had provided as counsel
Disposition: Mr. Greenspan owed a duty of loyalty to Mr. Stewart, and he breached it.
Ratio: Counsel has the discretion to publicize information in the public domain respecting the case of a former client, barring
contractual constraint upon such conduct; however this does not relieve counsel of their fiduciary duty of loyalty.
3.
(a) Moral Non-Accountability v. “Taking it Personally”
Choice of Client
There is an ethical consensus that a lawyer should refuse to take a client if:
- There is a conflict of interest
- The lawyer lacks competence in the matter
- There is a continuing retainer with a previous lawyer
- The lawyer has a potential to be a witness in the case
- There is an illegal purpose
There is disagreement on the ethics of accepting or refusing clients. Two views:

Moral non-accountability: It is the task of the judge, not the lawyer, to decide the legal entitlements of parties; the lawyer is a
neutral agent whose obligation is to represent the client’s interest without regard to the morality of that client’s conduct
 Taking it personally: Lawyers must take responsibility for their choice of clients and strategies they deploy on their behalf.
 Proulx and Layton’s middleground: Lawyers should enjoy some discretion in deciding whether or not to take on the case
of an unpopular client. Where the lawyer rejects a potential client, reasonable assistance should be provided, free of charge, in
finding another competent advocate.
Code of Professional Conduct, Ch XIV, commentaries 6.
The lawyer has a general right to decline particular employment (except when assigned as counsel by a court) but it is a
right the lawyer should be slow to exercise if the probable result would be to make it very difficult for a person to obtain legal
advice or representation.
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(b) Client Selection and Discrimination
Many lawyers are tempted to reject clients simply because that client cannot afford to pay, or pay enough.
Code of Professional Conduct, Ch XX, “Non-Discrimination”, Rule
Except where differential treatment is permitted by law, the lawyer shall not discriminate with respect to, an individual’s
ancestry, colour, perceived race, nationality, national origin, ethnic background or origin, language, religion, creed or
religious belief, religious association or activities, age, sex, gender, physical characteristics, pregnancy, sexual orientation,
marital or family status, source of income, political belief, association or activity, or physical or mental disability.
4. Accessibility of Legal Services
Once lawyers are given the right to choose clients based on personal judgment, ability of clients to access legal services becomes issue.
(a) The Lawyer and the Administration of Justice
Code of Professional Conduct, Ch XIII
The admission to and continuance in the practice of law imply a basic commitment by the lawyer to the concept of equal
access to justice for all within an open, ordered, and impartial system.
(b) Pro Bono
See CBA Code, Ch XIV
B. COMPETENCE AND QUALITY OF SERVICE
1. Introduction
Once the lawyer-client relationship is formed, its essence is that the lawyer owes the client a duty of loyalty.
Code of Professional Conduct, Ch. II
1. The lawyer owes the client a duty to be competent to perform any legal services undertaken on the client’s behalf.
2. The lawyer should serve the client in a conscientious, diligent and efficient manner so as to provide a quality of service at least equal to that which lawyers
generally would expect of a competent lawyer in a like situation.
2. Competence
There are two possible legal angles to address the issue of lawyers’ incompetence:
- The law of lawyer malpractice (primarily negligence)
- Codes of professional conduct
 The leading Canadian case on lawyers’ negligence is Central Trust Co. v. Rafuse where the SCC held that the appropriate standard
of care is that “of the reasonably competent solicitor, ordinary solicitor, and the ordinary prudent solicitor.”
 The CBA Code of Professional Conduct provides provisions outlining the expectations with regards to: knowledge and skill,
seeking assistance, quality of service, promptness, and consequences of incompetence.
Nova Scotia Barrister’s Society v. Richey [2002] L.S.D.D.
Mr. Richey is a senior and experienced member of the litigation bar. The disciplinary panel finds that David Richey failed to serve his
clients in a conscientious, diligent, and efficient manner, so as to provide a quality of service at least equal to that which lawyers
generally expect of a competent lawyer in like situations, and further that he failed to advance clients’ cases and expedite litigation
and/or settle matters in an expeditious manner for clients. Mr. Richey is guilty of both professional incompetence and professional
misconduct.
3. Cultural Competence
There is nothing explicit in the CBA code about lawyers being culturally competent. Voyvodic argues that lawyers should be required to
demonstrate some degree of cultural competence, which has three dimensions:
Knowledge: about how “cultural differences affect client experiences of the legal process/lawyers.
Skills: to lessen the effect of any stereotypes that may be operational.
Attitude: about the powers, privilege, and the potential effect lawyers can have on their clients
4. Continuing Legal Education
Because competence includes an element of performative sufficiency it is presumed that this can be achieved through continuing legal
education (CLE). There is no mandatory requirement to engage in professional development, you are required to report any self-study
and CLE activities in which you participate to the governing Law Society.
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C. TERMINATION OF THE LAWYER-CLIENT RELATIONSHIP
1. The Retainer
The lawyer-client relationship, although saturated with fiduciary obligations is primarily contractual in nature. The parties can anticipate
the demise of the relationship. Termination can be implicit or explicit.
2. Withdrawal
CBA Code, Ch. XII: Although the client has a right to terminate the lawyer-client relationship at will, the lawyer does not
enjoy the same freedom of action…and can only terminate the relationship before performance if he/she has a justifiable
cause. The CBA Code distinguishes between mandatory and permissive withdrawal.
 Mandatory
- If the lawyer is requested by their client to do something contrary to the lawyer’s duty to court/justice
- If the client is guilty of dishonourable conduct
- If sustaining the lawyer-client relationship will lead to breach of the codal rules. (e.g. conflict of interest)

-
Optional (when there has been a serious loss of confidence between the lawyer and client):
Lawyer being deceived by the client
Refusal of the client to accept and act upon the lawyer’s advice on a significant point
Inability to obtain instructions from a client
Failure on the part of the client after reasonable notice to provide funds on account of disbursements or fees.
Court Approval of Withdrawal
Pursuant to the Code, the courts might have to approve of a withdrawal of legal services.
Whistle-blowing, Up-the-Ladder Reporting and Noisy Withdrawal (CBA Code, Ch. IV)
Concerns lawyer employed to act for an organization. Although Code makes clear that the lawyer shall not knowingly assist or
encourage any dishonesty, fraud, crime, or illegal conduct (Chapter III, commentary 7), it does not follow that he should disclose an
employer’s or client’s proposed misconduct. The lawyer’s duties are owed to the organization and not to its officers, employees, or
agents. The lawyer should ask that the matter be reconsidered, and should bring the proposed misconduct to the attention of a higher
authority in the organization. If these measures fail, it may be appropriate for lawyer to resign (Chapter XII).
Alice Wooley et al., Lawyers’ Ethics and Professional Regulation” Chapter 6: Pp 241288: CONFIDENTIALITY/PRIVILEGE
A. INTRODUCTION
A lawyer’s duty to preserve the confidences of his or her client is at the heart of the lawyer-client relationship.  solicitor-client
privilege
 From the lawyer’s point of view: comprehensive information about the client’s situation is critical to the lawyer’s ability to
advise the client and provide appropriate representation
 From the perspective of the client: difficult to share without confidence that information will be closely guarded
 From the perspective of the legal profession: essential that public know that information shared with lawyers will be
vigorously protected
The CBA Code’s applicable rule states:
The lawyer has a duty to hold in strict confidence all information concerning the business and affairs of the
client acquired in the course of the professional relationship, and should not divulge such information
unless disclosure is expressly or impliedly authorized by the client, required by law or otherwise permitted
or required by this Code.
1. Why impose the duty of confidentiality?
- client can reveal all info, allowing the lawyer to represent the client
- furthering the client’s legal rights
- preserving autonomy and dignity of client
- the duty of confidentiality is closely connected to the overarching duty of loyalty owed by a lawyer to the client
- lawyer should not cause adverse impact on client
2. What are the rules of professional conduct?
10
They are many. See cases.
3. Distinctions between confidentiality and legal-professional privilege
a) confidentiality:
- not necessarily procedural (broader)
- includes all information
- is not annulled if other parties know the info. in question
b) legal-professional privilege:
- procedural
- includes the more general idea of confidentiality
- includes only matters communicated in confidence (client, third party)
- is cancelled out if other parties know the info. in question
B. OVERVIEW
Descoteaux v. Mierzwinski [1982] SCC
Facts: Marcellein Ledoux falsified information regarding his financial status in order to obtain legal aid; the police seized documents
from a legal interview regarding this falsification. The clinic from where the documents were seized claims that these documents are
protected by solicitor-client privilege.
Issue: Were the documents protected by solicitor-client privilege at that time?
Holding: Yes.
Ratio: The solicitor-client relationship, and thus the substantive right to confidentiality, arises as soon as the potential client
has his first dealings with the lawyer’s office in order to obtain legal advice.
Reasoning: Laskin J.: There is a substantive right to confidentiality which, even when the client/lawyer privilege disappears, still stands.
(Solsky v. The Queen) Laskin spells out the rule here:
1. confidentiality should be raised in circumstances where it is in danger of being violated
2. when there is conflict between another right and right to confidentiality, should be resolved in favor of confidentiality
3. law may give authority for interference with the right to confidentiality; this should only be effected to the extent absolutely
necessary in order to achieve the ends sought by the enabling legislation (247)
4. acts providing otherwise in situations under para. 2 and enabling legislation referred to in para. 3 must be interpreted
restrictively (247).
The effects:
(A) that a lawyer who communicates confidential client information to others can be sued for damages
(B) that a third party who has accidentally seen the contents of a lawyer’s file could be prohibited by injunction from disclosing them.
Confidential communications, whether they relate to financial means or to the legal problem itself, lose that character if and to the
extent that they were made for the purpose of obtaining legal advice to facilitate the commission of a crime” (248).
C. THE PRINCIPLE AND SOME EXCEPTIONS
The following case deals with the one of the most sensational exceptions to solicitor-client confidentiality, that is the “future crime”
exception.
Smith v. Jones [1999] SCC
Facts: The accused was charged with the assault of a prostitute. Confessed to shrink his plans of kidnapping, sexually assaulting and
murdering a prostitute (and, in the future, of possibly doing the same to a number of prostitutes) to the shrink. The psychiatrist sought
to break the doctor-patient confidentiality based on the public safety exception.
Issue: Is the public safety exception applicable in this case?
Holding: Yes.
Test: Determining when public safety outweighs solicitor-client privilege
(1) Is there a clear risk to an identifiable person or group of persons?
(2) Is there a risk of serious bodily harm or death?
(3) Is the danger imminent, i.e. is it a serious risk of serious harm?
Reasoning: Cory J. – “When public safety is involved and death or serious bodily harm is imminent, the privilege should be set aside”
(249).
Protecting confidentiality is important but no right is absolute and, under certain circumstances, societal values may be more important.
Examples of such societal values are: innocence of the accused; criminal communications; the public safety exception (here).
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Only a compelling reason may constitute breaching of confidentiality: “[A]n imminent[or clear] risk of serious bodily harm
or death to an identifiable person or group” (253).
a) Clarity: Established on basis of circumstances.
b) Seriousness: Usually killing or serious bodily harm but serious psychological harm also
c) Imminence: Creates a sense of urgency(255)
When privileged information is disclosed, this disclosure should still be limited, so that it pertains only to revealing the “risk of serious
bodily harm or death to an identifiable person or group.”
Cory J. also applies the reasonable person standard. “Would a reasonable observer, given all the facts for which solicitor-client privilege
is sought, consider the potential danger posed by Mr. Jones to be clear, serious, and imminent?” He answers “yes.”
On application of the test to the situation at hand, Cory J. finds that the three-step test is met. (a) prostitutes are a clear group of people
whom he had extensively planned to attack; (b) the sexual assault was intended to proceed murder; and (c) the fact that he had assaulted
prostitutes specifically in the past demonstrates a sense of urgency.
Major J. (dissenting) – He believes that people with mental problems will be deterred from going to the doctors and presenting their
situations, when they can no longer count on the confidentiality privilege.
Notes:
Limitations on the Solicitor-Client Privilege
(1) Innocence of the accused
(2) Criminal Communications
(3) The public safety exception  see the Test outlined above
The extent disclosure of the privileged communication should generally be limited as much as possible.
Children & Solicitor-Client Privilege: All citizens are under a positive duty to report situations of child abuse or neglect.
D. ANOTHER EXCEPTION: INNOCENCE AT STAKE
R. v. McClure [2001] SCC
Facts: After a teacher/librarian at a school is accused of sexual offences against students, J.C., another student, comes forth with
further allegations. The accused (McClure) asks to see the accuser’s litigation file so that he can make a full answer and defence.
Issue: Should J.C.’s solicitor-client privilege be set aside to permit the accused his right to full answer and defence by permitting him
access to the complainant’s civil litigation file?
Holding: No. Appeal allowed.
Reasoning: The solicitor-client communications fall within a privileged category which protect confidentiality. There are two categories
of privilege: a) the class privilege (including the solicitor-client relationship) and the case-by-case privilege.
The “innocence at stake test”:
Preliminary: whether the information sought by solicitor cannot be otherwise obtained.
1. Is there some evidentiary basis for the claim that the solicitor-client communication exists that could raise a reasonable
doubt about the guilt of the accused?. At this stage the judge has to decide whether or not to review this evidence.
2. Is there something in the solicitor-client communication that is likely to raise a reasonable doubt about the accused’s guilt?
If the second stage is met, the judge should order the production of only that information that raises the doubt.
Application of the “innocence at stake test” to the case at bar:
The case at hand fails at the first stage of the test.
E. THE PRINCIPLES REASSERTED
Goodis v. Ontario (Ministry of Correctional Services) [2006] SCC
Facts: Journalist wants records of sexual abuse allegations, pursuant to the Ontario Freedom of Information and Protection of Privacy Act.
Issue: Can the records in issue be disclosed to counsel for the requester notwithstanding the Ministry’s claim of solicitor-clientprivilege? (273)
12
Held: No.
Test: “absolute necessity test”  Absent absolute necessity in order to achieve the end sought by the enabling legislation.
* see previous class for full discussion of this case
R. v. Murray
On the disclosure of physical evidence:
a) should it be made? The courts are unclear on this, though Murray seems to suggest that it should.
R. v. Fink
Facts: Section 488.1 of the Criminal Code, R.S.C. 1985, c. C-46, sets out procedures for determining claims of solicitor-client privilege in
circumstances where documents are seized from lawyer’s offices pursuant to search warrants (277).
Issue: Does this section of the Criminal Code infringe ss. 7 and 8 of the Canadian Charter? If so, is the infringement saved by s. 1?
Holding: Yes, and no it is not saved by s. 1. S. 488.1 of the Criminal Code more than minimally impairs solicitor-client privilege and
amounts to an unreasonable search and seizure contrary to s. 8 of the Charter.
Reasoning: Where s. 488 errs:
1. The solicitor-client privilege may be lost through the absence/inaction of solicitor / The privilege belongs to the client and can only
be waived by client, but if the client is not present at the search, the privilege disappears without any consent on his part.
2. The name of the client must be disclosed, thus violating that privilege.
3. There is no notice of the search warrant and so, if the solicitor is absent at the search, he will lose the privilege altogether. The lawyer
may raise the issue of the privilege on behalf of the client, but it cannot be assumed that the lawyer is the alter ego of the client (284).
The client may not even be aware that his rights are threatened.
4. There are strict time limits, requiring that the privilege should be raised at the time of the search and also that the solicitor should
specify, within 14 days of search, the time and place for the determination of whether the document should be disclosed / if the
procedure is not followed, the privilege can no longer be protected
6. The Attorney General is allowed to inspect the documents, to determine if there should be a privilege / the courts can inspect those
documents and are in a better position to do so than the State; the court should retain the discretion to decide whether the State should
have access to seized documents, thus protecting the solicitor-client privilege.
Because of these problems inherent in s.488, it is Arbour J.’s opinion here that s.488.1 more than minimally impairs the privilege.
Societe d’energie Foster Wheeler c. Societe intermunicipale de gestion
(from online)
Facts: Following an action for damages brought by Foster Wheeler (appellant) against the City of Montreal for the cancellation of a
project for the construction of a solid waste recycling centre, the appellant asked questions related to information obtained from lawyers
of the City, on the matter of the project.
Issue: Do these questions violate professional secrecy (“le secret professionnel”)?
Holding: No.
Reason: The relationship between client and lawyer is not confidential on all points. Those questions which are outside the sphere of
confidentiality cannot violate professional secrecy.
The importance of professional secrecy is confirmed, and codified extensively in Quebec and in Canada. The Charter, s.9: “Every
person has a right to non-disclosure of confidential information.” The Professional Code, R.S.Q., c.C-26 requires members of
professional orders to adhere to professional secrecy. S. 131 of the Act respecting the Bareau du Quebec, addresses this. The issue is also
raised in the CCQ, art. 2858.
This obligation to silence should be distinguished from the invoked privilege. It creates a positive right, which in turn leads to immunity
from disclosure. It is this positive right that is codified. Professional secrecy is the foundation of the right to confidentiality, creating this
positive right; as such, it is much broader, and it comprises all sub-categories. The privilege, however, may be invoked in only some
cases (though, admittedly, the limitation of its application should be close to non-existent).
When should the privilege be invoked?
1. The client should establish that the lawyer was given a mandate establishing a relationship based on confidentiality.
2. The party seeking the information would then have to prove that the information sought does not impinge on this area of
confidentiality.
It is concluded here that this test is passed at the second stage.
Le secret professionnel del'avocat
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Trois critères permettent d’établir l’existence du secret professionnel de l’avocat:
i) « une communication entre un avocat et son client ;
ii) qui comporte une consultation ou un avis juridiques ; et
iii) que les parties considèrent de nature confidentielle ».
Le secret professionnel de l’avocat s’applique à toute consultation juridique sur une question litigieuse ou non.
Le caractère constitutionnel du secret professionnel de l'avocat se trouve à l'article 7 de la Charte canadienne des droits et libertés et plus
particulièrement à l'article 9 de la Charte des droits et liberté de la personne.
Une exception au principe de la confidentialité des communications avocat-client existe dans les cas où ces communications sont de
nature criminelle ou qu’elles visent à obtenir un avis juridique pour faciliter la perpétration d’un crime.
Dans tous les autres cas, le critères pour déterminer si une communication est privilégiée, exige:
(1) que les communications aient été transmises confidentiellement avec l'assurance qu'elles ne seraient pas divulguées,
(2) que le caractère confidentiel soit un élément essentiel au maintien complet et satisfaisant des rapports entre les parties,
(3) que les rapports soient de la nature de ceux qui, selon l'opinion de la collectivité, doivent être entretenus assidûment, et
(4) que le préjudice permanent que subiraient les rapports par la divulgation des communications soit plus considérable que l'avantage à
retirer d'une juste décision.
La Cour suprême a reconnu dans l’arrêt Campbell, l’existence d’une relation avocat-client entre les policiers et les avocats de la
Couronne.
Mahmud JAMAL et Sylvain LUSSIER : Le secret professionnel de l'avocat : ce que tout
avocat doit savoir selon la Cour suprême du Canada.
A. INTRODUCTION

Alors que le secret professionnel de l’avocat fait partie de la common law depuis 1500, la Cour Suprême du Canada lui a donné
un statut constitutionnel (protection par la Charte) lors des 7 dernières années.
B. SECRET PROFESSIONNEL DE L'AVOCAT
a) Objet et raison d'être
 Vise à faciliter une communication complète, libre et franche entre le client et son avocat
 Le rapport de confiance qui s'établit alors entre l'avocat et son client est une condition nécessaire et essentielle à
l'administration efficace de la justice. Cela favorise l’accès à la justice.
 Les documents protégés par le secret professionnel de l'avocat ne peuvent être divulgués et sont inadmissibles en preuve
même s'ils pourraient être probants et fiables à l'égard d'une question en litige. Raisons de ce principe : politique publique
explicité au point a).
b) Critères
Trois critères permettent d'établir l'existence du secret professionnel de l'avocat, qui s’applique à toute consultation juridique:
i) une communication entre un avocat et son client
ii) qui comporte une consultation ou un avis juridiques
iii) que les parties considèrent de nature confidentielle
c) Évolution et constitutionnalisation du secret professionnel de l'avocat
i) Règle de preuve : Avant 1975 – cela était une règle de preuve. En 1979 – déclaré un droit civil fondamental.
ii) Règle de fond : Dans Descôteaux (1982), la Cour suprême déclare :
1. Confidentiality should be raised in those circumstances where it is in danger of being violated
2. When there is a conflict between another right and a client’s right to confidentiality, the conflict should be resolved in favor of
the right to confidentiality
3. Law may give authority for interference with the right to confidentiality; this interference should only be effected to the extent
absolutely necessary in order to achieve the ends sought by the enabling legislation (247)
4. Acts providing otherwise in situations under para. 2 and enabling legislation referred to in para. 3 must be interpreted
restrictively” (247).
iii) Droit constitutionnel : À compter de 1999, la Cour a « constitutionnalisé » le secret professionnel de l'avocat : l'article 7 et 8 de la Charte.
14




Arrêt Smith c. Jones (1999) : Dans cet arrêt qui reconnaît une exception au SC pour des raisons de sécurité publique, Lamer
déclare que le SC est lié au droit à une défense pleine et entière, au droit à l'assistance d'un avocat, au droit de l'accusé de ne
pas s'incriminer et de la présomption d'innocence – droits qui sont prévus à l' article 7 et aux al. 10 b), 11 c) et 11 d) de la
Charte.
R. c. McLure (2001) : Reconnaissance que le SC est un « principe de justice fondamental » en vertu de l’article 7 de la Charte.
Reconnaissance d’une exception au SC si la défense pleine et entière face à une accusation criminelle est en jeu. Test en 2
étapes : voir p. 6 (début).
Lavallée (2002) : Le secret professionnel est garanti par l’article 8 de la Charte (droit à la vie privée du client).
o Tout renseignement protégé par le secret professionnel est « un renseignement auquel l'État n'a pas droit » en vertu
de l'article 7 de la Charte.
Même si la Charte ne s’applique pas directement aux affaires civiles en l’absence d’une action gouvernementale, et même si
Cour n’a pas arrêté définitivement sa position quant au SC dans les affaires autres que criminelles, plusieurs signes indiquent que le
SC s’applique aussi dans toutes affaires civiles (déclarations de la Cour suprême, utilisation de cas criminels par le Cour suprême pour
soutenir le SC dans des affaires civiles, etc.).
d) Exceptions
Le 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.
i) Les exceptions sont limitées et spécifiques et il n'est pas nécessaire de faire une évaluation des intérêts dans chaque cas
ii) Critère de l'absolue nécessité (origine jurisprudentielles)
iii) Exemples : circonstances exceptionnelles
 Culpabilité sera prononcée à tort (ou toute question fondamentale touchant la culpabilité), sécurité publique
atteinte, sécurité nationale, groupe identifié menacé de manière imminente de blessures graves ou de mort.
iv) Exceptions applicables aux communications de nature criminelle : toute communication qui 1) est criminelle en elle-même ou 2) vise la
perpétration d’un acte criminel n’est pas protégée (raison : ne sert pas la relation avocat-client)
 Exception à cette exception : lorsque le client ne poursuit pas sciemment un objectif criminel, même lorsque l’acte est jugé illicite
par la suite.
 Exemple ou l’exception au SC a été appliquée : un avocat qui produit de fausses déclarations à l’encontre de la Société du
Barreau dans le but d’entraver la justice.
v) Exception relative à une faute extracontractuelle : il est suggéré que la même exception quant aux actes criminels s’applique à la faute ou au
tort, mais rien n’a été statué encore.
e) Renonciation au secret professionnel de l'avocat
i) Le secret professionnel de l’avocat appartient au client
ii) Le consentement éclairé du client est requis afin qu'il puisse renoncer au secret professionnel de l'avocat
iii) Renonciations implicites : Valides lorsque : le client divulgue une partie des communications avec son avocat, lorsque sont soulevées des
défenses qui repose sur la connaissance de la loi du client ou sur son état mental, lors de toute conduite incompatible avec le SC.
 Ces renonciations implicites reposent sur le principe d’équité : injuste de se défendre en invoquant le SC et de ne pas laisser à
l’autre partie la possibilité de répliquer adéquatement
 Seule présence d’un tiers lors de divulgation de communications n’implique pas renonciation au SC nécessairement
iv) Divulgation par inadvertance : n’implique pas une renonciation au SC.
v) Devoirs des avocats lors de la réception par erreur de documents protégés par le secret professionnel de l'avocat : Dans ces cas, il y a présomption de
préjudice pouvant aller jusqu’à déclaration d’inhabilité de l’avocat. On peut réfuter cette présomption en restituant sans délai les
documents.
f) Application du secret professionnel aux avocats internes
i) Les avocats internes sont tenus au même secret professionnel que les avocats externes:
ii) Avocats internes d’une entreprise : ils fournissent souvent des conseils d’affaires qui ne sont pas des avis juridiques. Ne sont pas protégés
par le SC, mais cela est très relatif. Facteurs à considérer – la nature de la relation, l'objet de l'avis et les circonstances
iii) Avocats internes de l’État : le SC s’applique, mais non pas quant aux conseils concernant les questions de politique générale qui n’ont
rien à voir avec leur compétence juridique (Campbell). L’identification du « client » dans un Ministère peut parfois être ardue.
g) Vérificateurs et « renonciation limitée » au secret professionnel de l'avocat (lorsqu’une entreprise divulgue des renseignements
à ses vérificateurs externes). Interprovincial Pipeline Inc. mentionne qu’un vérificateur ne peut être forcé à produire un avis juridique
fourni par une compagnie dans le cadre d’une vérification. Une entreprise qui fait suite à une telle demande ne renonce pas au SC et
cette pratique est conforme avec la Loi sur les compagnies. La Cour recommande à l’entreprise/le client du vérificateur de mettre par
écrit ses intentions de renonciation limitée. Philip Services Corp. c. Ontario Securities Commission précise que même s’il n’y a pas d’entente
officielle, le SC prévaut.
h) Privilège lié aux transactions d'intérêt commun
15
Définition du principe : Lorsqu'une question présente un intérêt pour deux personnes ou plus qui consultent de concert un avocat, leurs
communications confidentielles avec l'avocat, même si elles leur sont connues mutuellement, bénéficient du privilège du SC vis-à-vis
des tiers.
 Cela s’applique quand les parties recherchent le même résultat ou poursuivent des objectifs communs
 Exemples où ce privilège s’applique : relation fiduciaire-bénéficiaire et autres relations apparentées, couronne et autochtones,
relations où il y a un mandat.
 Toutefois, si une controverse/différend a lieu entre les parties visées par le privilège de l’intérêt commun, le privilège du SC ne
s’applique pas entre elles.
 Exemples où ce privilège s’applique dans les relations contractuelles :
o 3312402 Canada inc. c. Accounts Payable Chexs Inc. (CS, Qué) : on ne peut exiger la divulgation des échanges entre deux
procureurs ayant des intérêts communs, même en l'absence d'entente écrite à cet effet.
o Maximum Ventures Inc. c. De Graaf 117 (CA, Colombie-B.) : le privilège lié à l’intérêt commun s'étend à celui qui, sans
être partie à une transaction, a intérêt à ce que la transaction se réalise et travaille de concert avec les parties à la
transaction.
o Archéens Industries Ltd. c. Minister of National Revenue : des avis juridiques remis à des parties à une même transaction
commerciale ne peuvent être obtenus par le Ministère du Revenu, les communications entre les parties ne sont pas
une renonciation au SC.
o Almecon Industries Ltd. c. Anchortek : le privilège lié à l'intérêt commun peut exister même si les parties ne sont pas
représentées par le même avocat.
o Anderson Exploration Ltd. c. Pan-Alberta Gas : les compagnies peuvent se divulguer des renseignements dans un
contexte de fusion, et ce afin de protéger les actionnaires des 2 compagnies – cela n’équivaut pas à renonciation au
SC et en est ainsi pour d’importances raisons de politique publique (paralysie des négociations). Pour plus de
précisions quant à cette affaire : p.17-18.
C. PRIVILÈGE RELATIF AU LITIGE
a) Objet et raison d'être : Il vise non seulement les communications avocat-client, mais aussi les communications entre avocats et
tiers, entre tiers et parties non représentées. Cherche à assurer l’efficacité du processus contradictoire et non d’assurer une confiance
dans la relation avocat-client. Principal arrêt en la matière : Blank c. Canada.
 Pour atteindre cet objectif, les parties au litige, représentées ou non, doivent avoir la possibilité de préparer leurs arguments en privé,
sans ingérence de la partie adverse et sans crainte d'une communication prématurée.
b) Critère : Pour que le privilège s’applique au litige, le critère est celui de « l’objet principal » plutôt du « seul objet » ou de « l’objet
important » - ce dernier conférerait une protection plus large.
 Blank : La tendance contemporaine favorise divulgation accrue et le privilège relatif au litige devrait être considéré comme une
exception limitée à la communication complète.
c) Documents recueillis mais non créés en vue du litige
Le privilège relatif au litige s'attache probablement aux documents du simple fait qu'il réside dans les dossiers de litige de l'avocat et il
s'attache probablement aussi aux documents recueillis mais non créés en vue du litige.
d) Différences entre le privilège relatif au litige et le secret professionnel de l'avocat : 2 principes différents avec conséquences
juridiques différentes.
Privilège relatif au litige
Secret professionnel de l’avocat
La confidentialité
est-t-elle un
élément essentiel?
NON
OUI
Objet?
Communications à caractère non confidentiel entre l'avocat et
des tiers, documents qui ne sont pas de la nature d'une
communication.
Communications confidentielles entre le
client et l’avocat.
Le principe
s’applique à quel
moment?
- Contexte du litige seulement.
- Chaque fois qu’un client consulte un avocat.
- S’applique sans distinction à toutes les parties au litige.
- S’applique à l’avocat et aux clients
seulement.
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Objectif?
Faciliter un processus (système contradictoire).
Faciliter une relation (de confiance, entre
l’avocat et son client).
Temporalité
Temporaire : le privilège prend fin lorsque le litige qui lui a
donné lieu est terminé.
Permanent : les documents visés par le SC
sont protégés à jamais
Points communs
- Ces 2 principes sont complémentaires : ils servent l’administration sûre et efficace de la justice.
- Parfois, ils se chevauchent : ce qui n’est pas plus protégé par le privilège relation au litige peut l’être par le SC.
e) Le privilège relatif au litige survit lors de litiges connexes
Critère pour savoir s’il s’agit d’un litige connexe : si ce dernier litige est « étroitement lié » au premier litige, c.-à-d. :
 Ils soulèvent des questions communes, ils ont une même cause d’action, ou une même source
 Ils ne sont pas obligés d’avoir des procédures similaires
 Ce raisonnement s’applique à tous les litiges subséquents
 Durée et portée du privilège relatif au litige sont circonscrites par son objet sous-jacent, soit la protection essentielle au bon
fonctionnement du processus contradictoire.
 Exemple : Poursuite du gouvernement fédéral en dommages-intérêts pour fraude, complot, parjure et exercice abusif des
pouvoirs de la poursuite. Est-ce que le privilège s’applique à tous les documents relatifs à la façon dont le ministère public a
mené les poursuites intentées contre la compagnie intimée? La source de ces poursuites était la pollution alléguée, mais l'action
de l'intimé vise l'obtention d'une réparation civile pour la manière dont le gouvernement a mené ces poursuites – Source
juridique différente – privilège ne s’applique plus.
 Exemple : entreprise manufacturière qui fait face à des demandes connexes, fondées sur la responsabilité du fabricant. Une
fois que la totalité des demandes qui ont rapport à ce litige sont tranchées, le privilège expire.
 Pour plus de détails : voir la page 23.
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
 Blank : le privilège relatif au litige ne protège pas contre la divulgation d'éléments de preuve démontrant un abus de procédure
ou une conduite répréhensible similaire de la part de la partie qui le revendique.
 Même lorsque des documents seraient autrement protégés par le privilège relatif au litige, l'auteur d'une demande d'accès peut
en obtenir la divulgation, s'il démontre prima facie que l'autre partie a eu une conduite donnant ouverture à action dans le
cadre de la procédure à l'égard de laquelle elle revendique le privilège.
g) Privilège relatif au litige en cas d'intérêt commun (défense commune)
 Définition: privilège visant à aider les litiges anticipés dans lesquels plusieurs personnes (certaines ne participant pas à la
poursuite) ont un intérêt commun. Pour des motifs d'économie ou de simplicité, ou pour un autre motif, toutes ces personnes
s'échangent les avis reçus des avocats et seront affectées de la même façon par l’issue du litige.
 Exemples: (1) Propriétaires de maisons contiguës qui se plaignent de la même nuisance et seul l'un d'entre eux est un
demandeur ou (2) Un auteur écrit un livre qu'il fait publier, on dit que son livre est diffamatoire ou qu'il enfreint un droit
d'auteur. L'auteur et l'éditeur demandent des conseils à un avocat, mais seulement l'un d'entre eux devient un défendeur.
 Dans ces exemples, toutes les parties devraient être traitées comme si elles faisaient partie d’une même entreprise et chaque
partie devrait pouvoir se prévaloir du privilège afin qu'il l'aide dans le litige (même si une seule d’entre elle fait partie de la
poursuite) : chaque partie devrait pouvoir recueillir des renseignements pour son conseiller juridique ou l'autre conseiller
juridique et devrait pouvoir détenir des originaux et faire des copies, etc.
Chapter 7: The Duty of Loyalty and Conflicts of Interest
Introduction
- Conflicts arising from clients’ interests
- Conflicts arising due to a potential conflict between the lawyer’s interests and those of his client
I. Client-Client Conflicts
Over the past 15 years, the SCC has rendered three major judgments in conflict of interest cases: the “conflicts trilogy.”
17
a) Duties to Former Clients
MacDonald Estate v. Martin [1990] SCR 1235
Jurisdiction
Facts
Issue
Held
Reasoning
SCC
Dangerfield, a lawyer in the Twaddle law firm in Winnipeg had represented Martin, the plaintiff in a lawsuit related
to the MacDonald estate. The firm dissolved and she joined another firm which eventually merged with
Thompson Dorfman Sweatman which happened to be representing the defendant in the lawsuit initiated by
Martin. That litigation was still going on when Dangerfield joined Thompson. Dangerfield was not assigned to
the case. When Martin learned of her presence at Thompson, however, he freaked out and made an application to
have Thompson disqualified from continuing to represent the defendant in the litigation. Dangerfield and
Thompson provided sworn statements that Dangerfield had not shared any relevant info with the firm.
What is the appropriate standard to be applied in determining whether Thompson is disqualified from continuing
to act in the litigation due to a conflict of interest?
Thompson cannot continue to represent the defendant absent any institutional mechanisms assuring
confidentiality, such mechanisms being subject to the approval of the relevant law society.
Sopinka J:

The Court is concerned with three competing values:
- Maintaining high standards of legal profession and integrity of system of justice
- Not depriving litigant of his choice of counsel
- Permitting mobility within legal profession
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

The Law
The law in Canada has adopted one of two basic approaches in determining whether a disqualifying
conflict of interest exists: (1) the probability of real mischief (2) the possibility of real mischief.
The term “mischief” refers to the misuse of confidential information by a lawyer against a former client.
The first approach requires proof that the lawyer was possessed of confidential information and that
there is a probability of its disclosure to the detriment of the client. The second is based on the principle
that justice must not only be done but must be seen to be done. If it appears that disclosure might
occur, the test for determining the presence of a disqualifying conflict of interest is satisfied.
In Canada, the trend is to apply the stricter test, as we are dealing with matters not susceptible of proof.
These cases pose two questions: (1) Did the lawyer receive confidential information (2) Is there a risk
that it will be used to the prejudice of the client?
(1) Once it is shown by the client that there existed a previous relationship sufficiently related to the
retainer from which it is sought to remove the solicitor, the court should infer that confidential
information was imparted unless the solicitor satisfies the court otherwise. This will be a difficult burden
to discharge.
(2) A lawyer who has relevant confidential information cannot act against his client or former client. The
answer is less clear with respect to the partners or associates in the firm.
The court should draw the inference that information was imparted unless satisfied on the basis of clear and
convincing evidence, that all reasonable measures have been taken to ensure no disclosure by the "tainted"
lawyer. Such measures would include institutional mechanisms such as Chinese Walls and cones of silence.
A court will generally not accept these devices until the governing bodies have approved them
A fortiori undertakings and conclusory statements in affidavits without more are not acceptable.
Application to This Case
(1) Dangerfield is in possession of relevant confidential information. (2) There is nothing beyond the sworn statements
of Thompson and Dangerfield that no discussions of the case have occurred. This is not sufficient.
Cory J. (Concurring in result but not in reasoning):
Comments
Neither the merger of law firms nor the mobility of lawyers can be permitted to affect adversely the public's confidence
in the judicial system. There should thus be an irrebuttable presumption that lawyers who work together share each
other's confidences. It is the appearance of fairness in the eyes of the public that is important.
Canadian Bar Society Code of Professional Conduct (1974)
18
Commentaries:
11. A lawyer who has acted for a client in a matter should not thereafter act against him (or against persons who were
involved in or associated with him in that matter) in the same or any related matter, or place himself in a position
where he might be tempted or appear to be tempted to breach the Rule relating to Confidential Information. It is
not, however, improper for the lawyer to act against a former client in a fresh and independent matter wholly
unrelated to any work he has previously done for that person.
b) Duties to Current Clients
R. v. Neil [2002] SCR 631
Jurisdiction
Facts
SCC
Neil was accused of having committed certain criminal offenses. He claimed that his lawyer had failed to
adequately represent him and had sold him out to the interests of another client of the firm. He argued that the
case against him should therefore be stayed.
Neil was an independent paralegal with an office in Edmonton. He had an assistant, Lambert. He sometimes
referred clients to the law firm Venkatraman where Lazin was a lawyer. Neil did some work that the Law Society
of Alberta regarded as the practice of law (without a license). A complaint led to a police investigation.
In one indictment, the Canada Trust matter, Neil and Lambert were alleged to have defrauded Canada Trust. Lazin
took on the representation of Lambert, while Venkatraman took on the representation of Neil in this matter. Lazin
attended some consultations with Neil with the aim of obtaining information that would help him defend Lambert.
Some time later, Venkatraman withdrew from the representation of Neil due to Lazin’s representation of Lambert.
Issue
Held
Reasoning
In the second indictment, Doblanko, Lazin learned through the representation of one of his clients, Mr. Doblanko,
that Ms. Doblanko had obtained a divorce with Neil’s assistance, allegedly on the basis of false affidavits that he
had prepared. Lazin arranged for Doblanko to report this information to the police investigating Neil on the
Canada Trust matter. This was done to multiply the allegations of dishonesty against Neil and so help in the
defense of Lambert. Ultimately, the charges against Lambert were dropped in exchange for her testimony against
Neil
What are the proper 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?
The law firm did owe a duty of loyalty to the appellant at the material time, and the law firm ought not to have
taken up the cause of one of the appellant’s alleged victims (Darren Doblanko) in proceedings before a civil court
at the same time as it maintained a solicitor-client relationship with the appellant in respect of other matters
simultaneously pending before the criminal court (the “Canada Trust” matters). The Doblanko mandate, though
factually and legally unrelated to the Canada Trust matters, was adverse to the appellant’s interest. The law firm, as
fiduciary, could not serve two masters at the same time.
The Lawyer’s Duty of Loyalty / More Than Just Confidential Information
The duty of loyalty is intertwined with the fiduciary nature of the client-lawyer relationship. Aspects of the duty of
loyalty relevant to this appeal include issues of confidentiality, but engage more particularly three other dimensions:
i) Duty to avoid conflict of interest
ii) Duty of commitment to the client’s cause from the time counsel is retained
iii) Duty of candor with the client on relevant matters
Venkatraman’s Breach of Professional Obligations
(1) Did a Solicitor-Client Relationship Exist at the Relevant Time?
The relationship predated the events in question (Doblanko) and continued throughout the events in question.
(2) The Duty of Loyalty to an Existing Client
 Loyalty required Venkatraman to focus on the interest of the appellant without being distracted by other
interests.
 It is the firm and not just the individual lawyer that owes a fiduciary duty to its clients.
(3) Breaches of the Duty of Loyalty
19

Venkatraman and Lazin put themselves in a position where the duties they undertook to other clients
conflicted with the duty of loyalty which they owed to the appellant.

The initial conflict was to attempt to act simultaneously for both the appellant and his eventual coaccused in the Canada Trust charges, Helen Lambert. They were clearly adverse in interest.

The second conflict relates to the Doblanko charges. Both Doblanko and his former wife needed their
earlier divorce to be regularized. Venkatraman breached their duty to the appellant in accepting a
retainer that required them to put before the divorce court evidence of the illegal conduct of their client,
the appellant, at a time when they knew he was facing other criminal charges in which their firm had had
an involvement.
(4) Remedies for Breach of the Duty of Loyalty
A client whose lawyer is in breach of his or her fiduciary duty has various avenues of redress. A complaint to the
relevant governing body, in this case the Law Society of Alberta, may result in disciplinary action. A conflict of
interest may also be the subject matter of an action against the lawyer for compensation, as in Szarfer v. Chodos,
supra. Breach of the ethical rules that could raise concerns at the Law Society does not necessarily give grounds in a
malpractice action or justify a constitutional remedy.
Note: Even if the duty of loyalty permits a lawyer to act against a former client, the duty of confidentiality may prevent the lawyer from
doing so.
Strother v. 3464920 Canada Inc. [2007] 2 SCR 177
Jurisdiction
Facts
Issue
Held
Reasoning
SCC
Monarch Entertainment (3464920 Canada Inc.) was a film company. It retained Davis, a Vancouver law firm, to
handle its film financing arrangements. Strother was a senior tax partner at Davis and was responsible for most of
the tax advice provided to Monarch. For 1996 and 1997 Davis and Monarch entered into an agreement whereby
Davis would represent Monarch exclusively on matters related to movie financing. During this time, the
government of Canada eliminated the tax reduction regime that had made Moarch’s business profitable.
Additional work was done for Monarch by Davis in 1998 but no longer under the exclusive representation
agreement. In late 1997, Darc, a former senior employee of Monarch approached Strother (oh-oh!) to discuss a
new submission to the tax department seeking an advance tax ruling that, if successful, would result in certain
dimensions of the former tax loophole remaining open. Strother agreed to prepare the submission on the
understanding that, if it was successful, he would become a partner with Darc in the new business. The
submission was successful. Strother left Davis and joined Darc in the new venture which became very lucrative.
When Monarch learned about this, it commenced proceedings against Darc for violations of his obligations as a
former employee and against Strother and Davis for violations of obligations allegedly owed to Monarch as their
client.
Did Strother and Davis violate their duty to Monarch?
Strother yes, Davis no.
Binnie J:
The source of the duty is not just the retainer itself, but all the circumstances creating a relationship of trust and
confidence from which flow obligations of loyalty and transparency.
a) Scope of the 1998 Retainer: If Strother knew that there was still a way to assist Monarch in its tax-related aims,
the 1998 retainer entitled Monarch to be told that Strother’s previous negative advice was now subject to
reconsideration.
b) Breach of the 1998 Retainer: The written 1997 retainer had come to an end, but the solicitor-client
relationship based on a continuing (if more limited) retainer carried on into 1998 and 1999.
Davis Was Free to Take on Darc and Sentinel as New Clients
Conflict of interest principles do not generally preclude a law firm or lawyer from acting concurrently for
different clients who are in the same line of business or who compete with each other for business. The
retainer with Darc’s firm, Sentinel, was not directly adverse to any immediate interest of Monarch and Davis and
Strother were free to take it on after the exclusivity agreement had expired at the end of 1997. Sentinel had
created a business opportunity which Monarch could have sought to exploit. Strother’s problem arose because
20
despite his duty to an existing client, Monarch, he acquired a major personal financial interest (unknown to
Davis) in another client, Sentinel, in circumstances where his prospects of personal profit were enhanced by
keeping Monarch in the dark. Strother should have sought Monarch’s informed consent. Davis, however, did not
know about Strother’s action and did not thus participate in his conflict of interest.
The Chief Justice (dissenting in part)
Insistence on actual conflicting duties or interests based on what the lawyer has contracted to do in the retainer is
vital. If the duty of loyalty is described as a general, free-floating duty owed by a lawyer or law firm to every client,
the potential for conflicts is vast.
Note: Concurrent representation is intended to permit law firms to act for a number of clients in a matter where the clients’ interests
are not immediately divergent and may conflict, but the clients are not in dispute. The clients are to be fully appraised of and
understand the risks associated with such an arrangement. In some situations, even when they consent, a law firm should refuse
concurrent representation as one of the clients may be more vulnerable and less sophisticated. If a dispute arises during the course of
the concurrent matter, the law firm must withdraw from the representation of all the parties.
II. Lawyer-Client Conflicts
These conflicts have to do with situations that have the potential to undermine the lawyer’s ability to represent the client properly and,
also, to create the perception that the client’s interests have not been properly represented.
Law Society of Upper Canada v. Hunter: Lawyer, Hunter, engaged in a romantic and sexual relationship with a client whom he was
assisting in divorce proceedings. Reported himself to Law Society of Upper Canada which initiated disciplinary proceedings against
him. Given his relationship with the client, he was not seen as having been able to properly represent her. Clients in such situations are
also seen as less likely able to judge or challenge the advice they receive. Nevertheless, given his impeccable previous record and selfreporting of the issue, he received a 60 day suspension and a $2,500 fine.
Chapter 8 : Ethics and Criminal Law Practice




(A. & B.) Introduction. Pgs 345-348
The Crown is expected to be ethical but be adversarial
The Crown / prosecutor has 3 main duties:
o To seek a conviction while making sure that the defendant has a fair trial
o Not to obtain a conviction at any cost but assist the court in eliciting truth without infringing on rights of accused
o Use discretion with objectivity and impartiality
The defence has a duty to be adversarial but has an overriding duty to the court, standards of the profession and to the public.
o These can lead to conflict with his client’s interest
Duty of full disclosure: Crown cannot withhold information that it has gathered even if it helps the defence.
R v Stinchombe, 1991, SCC. P349-351
Facts: Stinchombe (S) is a Calgary lawyer. He is charged with criminal breach of trust (misappropriation of Abrams’ trust fund).
His defence was that they were partners in a business venture and there was no misappropriation. Crown called his former
secretary, Lineham during the pre-trial investigation and her testimony was favourable to S. The police also took 2 statements from
her. Crown decided not to call her as a witness in court, on the grounds that she was not credible. Crown failed to produce the
statements. Defence attempted to get the statements. Crown refused. Trial judge did not order the Crown to produce them.
Issue: Can the Crown withhold information that may provide a valid defence to the accused?
Held: No.
Rule: The Crown has a broad duty of disclosure. Violation of this duty offends s.7 of the Charter.
Ratio (Sopinka, J.):
 Crown provided 5 arguments as to why the withholding of information is permissible:
o There is value in taking an opponent’s witness by surprise in cross-examination
o The absence of reciprocal disclosure from the defence to the Crown means that 1-way disclosure skews the system
o Delays and inefficiencies will result from introducing this new procedural right at the pre-trial stage
21
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o There is a danger that defence witnesses will tailor their evidence to conform to the disclosure
o The witness might be killed.
Only the last argument bears any weight.
The Crown has a broad duty of disclosure.
If not, s7 is violated (fundamental justice).
Anything less than complete disclosure by the Crown falls short of decency and fair play.
But duty to disclose is not absolute.
Crown has discretion
It can withhold information as to the timing
It can protect the identity of informers
But any person with relevant evidence must appear to testify
Crown must err on the side of inclusion
Crown’s discretion is reviewable by the judge and it is the Crown’s duty to justify the refusal to disclose.
Kreiger v Law Society of Alberta, 2002, SCC. P352-354
Facts: K is a crown prosecutor in a murder case. Blood tests from the crime scene implicated a person other than the accused.
K withheld this information. K defended himself saying he was using his discretionary powers. A.-G. reprimanded K and took
him off the case. Both K and A.-G. moved to stop the Law Society from disciplinary actions against K.
Issue: Does the Crown have discretion in producing evidence?
Held: Yes.
Rule: The independence of AG must be respected. Discretion in the production of evidence is example of AGs independence.
Ratio (Iacobucci and Major JJ.):
 A.-G. must be independent of partisanship
 Courts should not interfere with his exercise of executive authority
 The courts acknowledge AGs independence from judicial review in the sphere of prosecutorial discretion
 The quasi-judicial function of the AG cannot be subjected to interference from parties who are not as competent to consider
the various factors involved in making a decision to prosecute.
Notes:

Prosecutorial discretion refers to the use of powers that constitute the core of the AG’s office and which are protected from
the influence of improper political and other vitiating factors by the principle of independence.
 The core elements of prosecutorial discretion are:
o Discretion whether to bring the prosecution of a charge laid by police
o Discretion to enter a stay of proceedings in either a private or public prosecution, as codified under Criminal Code
o The discretion to accept a guilty plea to a lesser charge
o The discretion to withdraw from criminal proceedings altogether
o The discretion to take control of a private prosecution

“Conduct amounting to bad faith or dishonesty is beyond the pale of prosecutorial discretion.”
 A breach of good faith falls within the jurisdiction of the Law Society.
C. The ethical duties of defence counsel p373-376
1. Introduction: The Duty to the Client:
 Must represent the client resolutely
 There is a duty of confidentiality.
2.
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Defending the Guilty Client and the Related Problem of Not Misleading the Court
Crown and council should never express his or her personal opinions as to the accused’s guilt
When defending an accused person, a lawyer’s duty is to protect the client
A lawyer may properly rely on any evidences or defences including so-called technicalities not known to be false or
fraudulent, regardless of the lawyer’s private opinion on credibility or the merits
Counsel can defend a client even though he is convinced that the client is guilty
Counsel can only use certain means of defence (i.e. he cannot knowingly misleading the court) in a case where he knows
his client is guilty
22
R v Tuckiar, 1934, High Court of Australia p376-379
Facts: T, an aboriginal, is accused of killing a police constable. T admits his guilt to his defense council in a private conversation
during the trial and the defense councel discloses it publicly to the court.
Issue: Can defence counsel divulge any incriminating confidential information that the accused has shared with him?
Held: No.
Rule: Even when the defence counsel knows his client is guilty, he has the duty to make rational arguments to acquit his client.
Ratio:
 Counsel had a duty to defend his client
 Should have sought the acquittal of murder or sought to have a lessened the charge to manslaughter.
 Whether the accused is guilty or not does not affect his entitlement to an acquittal.
 It is not incumbent on his counsel to abandon defence.
 Open disclosure of privileged communication is totally indefensible.
 It was his paramount duty to respect the privilege of confidential information.
 A new trial won’t lead to a more equitable process because the trial has been widely publicized by the media.
 Any new trial will lead to the same result.
 Therefore, the accused is acquitted.
Taking custody and control of real evidence, pgs.381-383
 Classic case: a client asks counsel to take possession of real evidence, like a smoking gun or bloody shirt.
 Canadian Rules of Professional Conduct prohibits “knowingly” attempting to “influence the course of justice
by….suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct.”
 The prohibition of suppressing what should be disclosed does not have a reciprocal disclosure obligation place on the
defence.
 Section 139 Criminal code: obstruction, pervert or defeat the course of justice has been held to include hiding and disposing
of real evidence with its actus reus.
 Section 223 CC: “an accessory after the fact” as one who “receives, comforts or assists” a person who has committed an
offence and clear authority holds that hiding or disposing of real evidence also falls within this actus reus.
 The only possible defence for counsel to retain a smoking gun is lack of mens rea. Section 139 states that the accused wilfully
intends to obstruct the course of justice.
 Section 23 requires that the accused’s purpose is to enable the escape of the principal offender.
 So there is a subjective knowledge requirement to be charged under these sections.
R v Murray, 2000, Ontario Superiour Court. Pgs. 383-392
Facts: Bernardo instructs Murray (his lawyer) to locate tape he has hidden and to hold them in his possession. Murray concealed
them for 17 months. He is charged under s.139(2) of the Criminal Code for attempting to obstruct justice.
Issue: Did Murray intend to conceal the tapes? Did he think he was entitled to do so?
Held: No (but he did conceal the tapes). Yes (but in fact he wasn’t).
Rule: Solicitor-client privilege covers communication but not physical objects.
Ratio (Gravely, J.):
 Murray had an ethical duty but that does not automatically translate into a legal obligation and failing to do so does not
necessarily constitute a crime.
 He had 3 options:
o Turn the tapes over immediately to the prosecution, either directly or anonymously;
o Deposit them with the trial judge;
o Disclose their existence to the prosecution and prepare to do battle to retain them.
 MR:
o Did he intend to conceal the tapes?
o If so, did he honestly believed he was entitled to do so?
 Intention:
o Judge ends up believing that Murray did not have the requisite intention because there is a slim chance that they
would have eventually been used.
o Murray all along was claiming that they would be used at the right time to show Homolka was as guilty as Bernardo.
 Murray’s belief:
23
The rules of the Law Society of Upper Canada are vague
 No suppressing what ought to be disclosed…is the only advice offered by LSUC’s handbook.
o Murray made a token effort to find out what his legal duty was.
o But even if he had made a strong effort, he would have still been confused as to the appropriate conduct to follow.
Murray did conceal critical tapes and obstructed justice. AR is proven.
Murray knew that it would be obstructing justice.
He did not have the intention to permanently suppress them. No MR.
He may have believed he had no obligation to disclose them before trial.
Not guilty for there is a reasonable doubt.
o
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4 Negotiating a guilty plea and sentence . p395-397
There are 4 main ethical rules for defence counsel when conducting plea and sentence negotiations:
1. Counsel must not conclude plea and sentence discussions without first completing a thorough analysis of the facts and
law applicable to the case.
2. Having completed the above investigation of the case, the client is entitled to skilled advice from counsel as to the
prospects for an acquittal or finding of guilt if the case proceeds to trial, and as to the implications and possible
consequences of a guilty plea.
3. The decision as to what plea to enter is the client’s decision and it must be made freely and voluntarily.
4. Although the client is entitled to make the ultimate decision to plead guilty, the plea must be based on an admission of
the necessary factual and mental elements of the offence charged. The plea must be sincere.
R v K (S), 1995, Ontario youth court of appeal p.397-400
Facts: Appellant (A) is originally charged with 10 counts of sexual offences against 5 young girls. He claims innocence. His
lawyer suggests that he should enter a guilty plea on lesser offences (4 of them) in order to avoid being charged for the remainder
higher offences.

Issue: Can counsel negotiate a guilty plea on behalf of the accused when the accused claims he is innocent?
Held: No.
Rule: A negotiated settlement (i.e. a guilty plea) must only occur when the accused voluntarily admits that he is guilty.
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