Legal Research Guide
to Ethics
2006
Compiled by Eric B. Appleby
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i
Legal Research Guide to Ethics
Table of Contents
Introduction ................................................................................ Chapter 1
1.1 Scope of this guide
1.2 What is legal ethics or professional responsibility?
1.3 Status of the law society rules and codes
1.4 The study of ethics in law schools
1.5 The scope of legal ethics
The lawyer=s duty to the public or to the state ......................... Chapter 2
2.1 Duty to the state
The lawyer=s duty to the courts .................................................. Chapter 3
3.0 General
3.1 Duty to the court re representation of a client
3.2 Duty to the court to facilitate proceedings
3.3 Duty to the court by a lawyer not to abuse position
3.4 Duty to the court by a lawyer of full disclosure
3.5 Duty to the court of a lawyer not to obstruct justice
3.6 Duty to the court by a lawyer to present all relevant jurisprudence
3.7 Duty to the court by a lawyer where the accused admits to crime
3.8 Duty to the court respecting out-of-court discussions with judges
3.9 Liability of lawyer for costs for improper conduct
3.10 Duty of a lawyer to disclose to the court all relevant documents
3.11 Duty of a lawyer respecting undertakings
The lawyer=s duty to the client ................................................... Chapter 4
4.1 General
4.2 Duty to compromise and settle
4.3 Duty of loyalty
4.4 Duty of competence
4.5 Duty to inform or advise client
4.6 Duty to advise a client re business ethics
4.7 Duty of confidentiality (professional secrecy)
4.8 Duty to a client re conflicts of interest, general principle
ii
4.9 Conflicts of interest arising from lawyers' relations
4.10 Conflict of interests, acting for both sides
4.11 Conflict of interests, lawyer acting for several parties
4.12 Conflicts of interest, acting for a corporation
4.13 Conflict of interest, situations resulting in a conflict
4.14 Compensation to lawyer, general
4.15 Compensation to lawyer, duty to inform client
4.16 Compensation to lawyer, duty to keep time records
4.17 Compensation to lawyer, supervisory role of the courts
4.18 Compensation in estate matters
4.19 Compensation due to a lawyer, measure of, relevant
considerations
4.20 Negligence, general
4.21 Negligence, settlements
4.22 Negligence, basis of liability
4.23 Negligence versus error of judgment
4.24 Negligence, considerations in determining liability
The lawyer=s duty to fellow lawyers .......................................... Chapter 5
5.1 General and notice of default proceedings
5.2 Requirement of courteous conduct
5.3 Duty of successor lawyer to protect an outstanding account of the
former lawyer
5.4 Undertakings to other lawyers, enforcement
The lawyer and the law society .................................................. Chapter 6
6.1 Powers of law societies
6.2 Discipline
6.3 Professional misconduct defined
6.4 Law society rules, guidelines, etc.
The Prosecutor ............................................................................ Chapter 7
7.1 Role of
7.2 Duties of prosecutor
7.3 Standard of conduct
7.4 Conflict of interest
7.5 Duty to call witnesses
The Defence Lawyer ................................................................... Chapter 8
iii
8.1 Extent or limits of duty
8.2 The defence lawyer, termination of relationship
8.3 The defence lawyer, conflict of interest
8.4 The defence lawyer, plea bargaining
Preparation of wills ..................................................................... Chapter 9
9.1 General
9.2 Duty where testator to disinherit a dependant
9.3 Duty of a lawyer to test the capacity of a testator
9.4 Duty of a lawyer to make notes in cases of doubtful capacity
Duty to third parties ................................................................. Chapter 10
10.1 Duty of a lawyer to opposite parties
10.2 Duty arising out of undertaking to third party to pay funds
10.3 Duty of a lawyer to a beneficiary when preparing a will
10.4 Duty of confidentiality to third parties
10.5 Duty owed to the debtor of a client
iv
NOTES
Page 1
Legal Research Guide to Ethics
Chapter 1 - Introduction
1.1 Scope of this guide
Legal research is the process of finding a case, statute, regulation, text,
etc., that is relevant to a legal issue.
How does a lawyer resolve a legal issue? First, the lawyer must
identify the issue. The issue can, in many cases, be resolved by finding a
binding case (a precedent) or a relevant statute or regulation. Case law and
statutes and regulations are referred to as primary sources of the law.
This legal research guide is meant to provide instruction on how to
find cases that are relevant to an issue in the law of ethics or professional
conduct for lawyers. This is not a guide to finding relevant statutes or
regulations or code provisions.
This guide contains some of the first principles of the law of legal
ethics or professional conduct for lawyers. The guide does not contain the
principles that govern the professional conduct of judges.
Each section refers to a principle and to cases that apply the principle.
At the end of each section is one of Maritime Law Book=s key numbers that
can be used to search for additional cases that apply the principle - search in
print law reports or at www.mlb.nb.ca. A key number can be used to do a
computer search of a single province or to search simultaneously every
common law jurisdiction in Canada. The MLB key numbers set out below are
preceded by the words ASearch aid@.
The MLB key numbers are useful because a point of law in a case is
always assigned the same key number by MLB editors. For example, the key
number Barristers and Solicitors Topic 1546 is assigned to all cases that
consider the duty of competence of a lawyer to a client (see chapter 4, para.
4.4). A list of MLB key numbers is found in any recent MLB digest (a digest
covers 10 volumes in any report series) and at www.mlb.nb.ca. To generate a
key number list of cases, at www.mlb.nb.ca click on AKey Number Search@,
click on a title, such as Barristers and Solicitors, and then click on the key
number.
Page 2
See Appendix in this guide for a complete list of all the key numbers
assigned by MLB editors to headings in the topic Barristers and Solicitors.
Appendix also includes under each key number a list of cases that have
been assigned the key number.
The principles or rules stated in this booklet should always be
compared with the relevant codes and statutes (e.g., Canadian Bar Association,
Code of Professional Conduct; Alberta Code of Professional Conduct; Law
Society Act, R.S.O. 1990; Legal Profession Act, R.S.A. 1980, etc).
In addition to the case law and statutes and regulations a researcher
should consult texts on the subject of legal ethics in Canada. For example, see
Professional Conduct for Lawyers and Judges by Beverley G.
Smith (2nd Ed. 2002).
Legal Ethics by Mark M. Orkin (1957).
1.2 What is legal ethics or professional responsibility?
Ethics: the science of morals in human conduct (Canadian Oxford
Dictionary (2nd Ed. 2004))
Legal ethics: That branch of moral science which treats of the duties
which a member of the legal profession owes to the public, to the court, to his
professional brethren, and to his client (Black=s Law Dictionary (6th Ed.) at
page 894).
A study of ethics helps us to understand which actions are right and
which actions are wrong.
The legal ethics of lawyers is governed by the case law and the law
society codes that govern the practice of law.
The courts have for nearly one thousand years set standards of moral
and ethical conduct for legal practitioners. In England a statute in 1274 dealt
with abuses by lawyers by prohibiting, inter alia, a lawyer from being a partner
in a case and from acting for both sides - see Legal Ethics by Mark M. Orkin
(1957) at page 7.
Codes: all Canadian provinces and territories have adopted a code of
Page 3
professional conduct for lawyers plus supportive legislation. The codes set
standards of conduct for lawyers that are designed to benefit the state, its
justice systems and the members of the public - See Professional Conduct for
Lawyers and Judges by Beverley G. Smith (2002) at chapter 1, para. 6.
The codes differ from province to province but they tend to have some
common rules governing matters like conflict of interest. The codes are
enforced by self-governing bar associations which have authority to discipline
members.
The codes and the relevant law society legislation and rulings do not
cover every fact situation that may arise in a legal day, but they do offer
discernable precepts for application to the matter at hand.
1.3 Status of the law society rules and codes
Overview: The law society rules and codes do not have the force of
statutes, regulations or judicial decisions. But the law society rules and codes
do establish a standard of conduct for lawyers.
..........................................................
In the case of Ridge View Development & Holding Co. Ltd. v.
Simper (1989), 95 A.R. 282 (Q.B.), the headnote stated:
The Law Society of Alberta published a professional conduct
handbook - The Alberta Court of Queen's Bench stated that "While I
concede that propositions put forward in a handbook published by the
Law Society do not by themselves have the force of a judicially
accepted legal principle they are, nevertheless, clear and strong
guidelines to all members of the Law Society of Alberta as to what are
acceptable and recognized guidelines to practitioners should they
choose to act in one of these situations. They are also at least one way
of measuring whether a lawyer has lived up to the standard of care
required".
Also the law society rules and codes do not have the force of statutes.
In the case of Enerchem Shipmanagement Inc. v. Ship Coastal (1988), 83
N.R. 256 (F.C.A.), the headnote stated:
The Federal Court of Appeal stated that "neither the Ontario Rules of
Page 4
Professional Conduct nor (and still less) the Commentaries on the
Rules can be treated as legislative texts. Nevertheless, they, and in
particular the Rules themselves, generally embody the principles laid
down by the courts over the years and must be treated with great
respect" - See paragraph 5.
In the case of Rosin v. MacPhail (1997), 85 B.C.A.C. 69; 138 W.A.C.
69 (C.A.), the British Columbia Court of Appeal stated at para. 16:
[16] While the codes may be considered, they should not be applied as
if they were statutory provisions governing the issue before the court.
As Sopinka, J., said in MacDonald Estate v. Martin (1990), 121 N.R.
1 (S.C.C.), at para. 18:
"A code of professional conduct is designed to serve as a
guide to lawyers and typically it is enforced in disciplinary
proceedings ... The courts, which have inherent jurisdiction to
remove from the record solicitors who have a conflict of
interest, are not bound to apply a code of ethics. Their
jurisdiction stems from the fact that lawyers are officers of the
court and their conduct in legal proceedings which may affect
the administration of justice is subject to this supervisory
jurisdiction. None the less, an expression of a professional
standard in a code of ethics relating to a matter before the
court should be considered an important statement of public
policy."
But note that law societies are entitled to apply the codes in
disciplinary proceedings against lawyers. In the case of Shaw v. Law Society
of Prince Edward Island (1992), 101 Nfld. & P.E.I.R. 340; 321 A.P.R. 340
(P.E.I.T.D.), the headnote stated:
The Prince Edward Island Supreme Court, Trial Division, stated that
Law Societies were entitled to use the Code as a guide in disciplinary
proceedings and that the Law Society, in stating that the lawyer's
conduct was contrary to the Code, was merely giving particulars of the
alleged misconduct - See paragraphs 24 to 38.
Further it should be noted that law society rules of conduct do not
affect the rights of clients. In the case of Stewart v. Canadian Broadcasting
Corp. et al. (1997), 32 O.T.C. 321 (Gen. Div.), the court stated at para. 192:
Page 5
[192] In my opinion, the rules and commentaries have two limiting
features which are significant here:
1. The Law Society Act, R.S.O. 1990, c. L-8, gives the Law
Society through Convocation the power to regulate lawyers'
conduct. The Act does not give Convocation the power to
regulate clients or their rights. In any event, in the rules and
commentaries relevant to the issues herein, Convocation has
not attempted to regulate clients or their rights.
2. The rules and commentaries are not an all inclusive code
governing lawyers' conduct in every circumstance which may
arise in professional life. They address only specific issues,
and do so in a variety of ways ranging from mandatory to
advisory.
Search aid - MLB Key No. - Barristers and Solicitors Topic 5104 is
assigned to cases that consider the status of law society rules and codes. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
See also Professional Conduct for Lawyer and Judges by Beverley
G. Smith, chapter 1, para. 26.
1.4 The study of ethics in law schools
There are 16 Canadian common law law schools. Fourteen of these law
schools offer a credit course in legal ethics. A legal ethics course is compulsory
at five of these law schools. Two of these law schools do not offer a credit
course in legal ethics, being the University of Toronto and McGill University.
In the U.S.A., the American Bar Association, which accredits
American law schools, requires that all law students take a course in legal
ethics. The American Bar Association Model Rules of Professional Conduct
has been adopted by 44 states.
1.5 The scope of legal ethics
Overview: The careful lawyer knows that questions of ethics are
present in nearly every aspect of the practice of law.
...........................................................................
Page 6
It is difficult to practice in any area of the law and avoid questions of
legal ethics. For example, conflict of interest questions may arise in any work
that a lawyer does for a client.
Questions of legal ethics are pervasive in the practice of law because of
the diverse and often conflicting duties of a lawyer. Some of these duties
include: a duty to the client, a duty to the public, a duty to the courts, a duty to
third parties, a duty to the law society, etc. And all these duties may exist and
conflict at the same time. And they may arise during any work by a lawyer. For
example, should a lawyer act for both sides in the purchase and sale of real
estate? Should a lawyer act for both the mortgagor and the mortgagee when a
client applies for a mortgage loan? Should a criminal defense lawyer crossexamine a prosecution witness, who the lawyer knows to be accurate and
truthful, in order to make the witness appear to be mistaken or lying? Should a
lawyer give a client, charged with an offense, advice about the law, when the
lawyer knows that the advice may induce the client to commit perjury? Should
a lawyer act for a client against the client=s spouse, where the lawyer=s current
partner was previously a member of a firm that acted for the spouse? Should a
lawyer advise a client, who is under investigation by the police, to make no
statement to the police under any circumstances?
The following chapters consider the various duties owed by lawyers
and how the courts have resolved ethical questions and conflicts that arise
between the duties owed by lawyers.
Page 7
Chapter 2 - The lawyer=s duty to the public or to the
state
Overview: A lawyer is an officer of the court which requires a
standard of conduct that includes a special duty to maintain and uphold the
law.
.......................................................
2.1 Duty to the state
The lawyer=s duty to the state includes the entity, its systems and its
people. The New Brunswick Code of Professional Conduct (2003), chapter 20,
commentary 1, states: AThe paramount duty of the lawyer is to serve the cause
of justice@. The British Columbia Canons of Legal Ethics (1992), chapter 1,
states: AA lawyer owes a duty to the state, to maintain its integrity and its law.
A lawyer should not aid, counsel, or assist any person to act in any way
contrary to the law@.
The lawyer is more than a private citizen. The lawyer has been
considered as being almost a public servant. In Mayor of Norwich v. Berry
(1767), 4 Burr. 2109, Yates, J. stated at page 2115 AThe Court must have
ministers; the attorneys are its ministers@.
A lawyer is duty bound not to subvert the legal system. A lawyer must
not counsel or assist his client to break or subvert the law. Examples of
prohibited conduct are:
- making a false recital in a deed;
- subornation of perjury;
- permitting a client to swear a false affidavit;
- assisting a criminal to escape the country;
- accepting a transfer of property in fraud of the transferor=s creditors;
- the bringing of proceedings for the sole purpose of delay.
In the case of Kelly v. Low (2000), 257 A.R. 279 (Q.B.), a lawyer was
sued for damages for defamation. The Alberta Court of Queen=s Bench allowed
the action and awarded the plaintiff $5,000 punitive damages. At para. 226 the
court stated:
Page 8
[226] .... Ms. McLean referred extensively in her Brief to the Code of
Conduct of the Law Society of Alberta. While in many ways I believe
Mr. Kelly and Mr. Low deserve each other in the way they behaved,
Mr. Low carries special responsibilities as an officer of the court.
Society is entitled to expect members of the Law Society to conform
to a higher standard of conduct. Mr. Low has fallen below that
standard in writing the letter. As a member of the Law Society, it was
incumbent upon him to be more sensitive to the issues raised in his
letter and how he raised them. I am awarding Mr. Kelly $5,000 in
punitive damages to punish Mr. Low for a standard of conduct I feel
falls below that which the public is entitled to expect from a member
of the Law Society.
In the case of R. v. Morrison a lawyer was charged and convicted of
fraud. In considering sentence the Nova Scotia Court of Appeal stated that a
lawyer has a special duty to avoid criminal conduct. See R. v. Morrison
(1975),13 N.S.R.(2d) 98; 9 A.P.R. 98 (C.A.). At para. 13 the Court of Appeal
stated:
[13] Furthermore, even had no client been involved, we must
especially denounce crimes of fraud and forgery committed by a
member of the Bar, a sworn officer of this Court. Such a man has a
special duty. We must deal with a breach of that duty temperately,
mercifully and without undue righteousness, but at the same time
firmly and to warn others.
Search aid - MLB Key No. - Barristers and Solicitors Topic 2041 is
assigned to cases that consider the lawyer=s duty to the public or the state. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
Page 9
Chapter 3 - The lawyer=s duty to the courts
Overview: The lawyer is an officer of the courts. A lawyer when
acting for a client has Aa prior and perpetual retainer on behalf of truth and
justice; and there is no Crown or other licence which in any case, or for any
party or purpose, can discharge him from that primary and paramount retainer@
- see Queen v. O=Connell (1844), 7 I.L.R. 261, at page 313.
......................................................................................
3.0 General
The case law and the codes refer to the duty of courtesy and respect
owed by a lawyer to the courts. One purpose of this duty is to enhance public
confidence in the administration of justice. See Professional Conduct for
Lawyers and Judges by Beverley G. Smith at chapter 1, para. 35 and Legal
Ethics by Mark M. Orkin at page 32. But at the same time a lawyer has a duty
to resist any attempt to influence him in the execution of his duties to the
client. See chapter 4.
3.1 Duty to the court re representation of a client
In the case of R. v. Creasser (D.D.) (1996), 187 A.R. 279; 127
W.A.C. 279 (C.A.), the headnote stated:
An unpaid defence counsel was denied leave to withdraw from the
case on the eve of a scheduled two week trial - The Alberta Court of
Appeal stated that "independent of his obligations to his client, a
lawyer who has accepted a general retainer from an accused and who
has then gone on record for him before the trial court, is obligated to
the court to continue to represent him unless and until, after notice to
the client, the court permits him to withdraw for cause or by reason of
the accused's consent to the termination of his employment. Cause
includes unhappy differences that make it impossible for the lawyer to
defend, but does not include nonpayment of fees." - See paragraph 2.
Search aid - MLB Key No. - Barristers and Solicitors Topic 651 is
assigned to cases that consider the lawyer=s duty to the court re representation
of a client. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
Page 10
3.2 Duty to the court to facilitate proceedings
In the case of Ashmore et al. v. Corporation of Lloyd's (1992), 145
N.R. 344 (H.L.), the headnote stated:
The House of Lords stated that "the parties and particularly their legal
advisers in any litigation are under a duty to co-operate with the court
by chronological, brief and consistent pleadings which define the
issues and leave the judge to draw his own conclusions about the
merits when he hears the case. It is the duty of counsel to assist the
judge by simplification and concentration and not to advance a
multitude of ingenious arguments in the hope that out of ten bad points
the judge will be capable of fashioning a winner." - See paragraph 25.
In the case of Northern Meat Packers Ltd. and Restigouche
Abattoir Ltd. v. Bank of Montreal; Bank of Montreal v. Bourgoin (1984),
52 N.B.R.(2d) 196; 137 A.P.R. 196 (T.D.), the headnote stated:
The New Brunswick Court of Queen's Bench, Trial Division, rejected
the notion that in our adversary system a defendant may wait and
allow a plaintiff to do nothing until sufficient time has lapsed to apply
for dismissal for want of prosecution - The court adopted the view that
litigation and the thrust of the Rules of Court are grounded on a
mutual obligation to expedite trial and decision - See paragraphs 60 to
62.
In the case of Mireau v. Canada et al. (1995), 128 Sask.R. 142; 85
W.A.C. 142 (C.A.), the headnote stated:
Mireau's appeal was dismissed for want of prosecution after failing to
serve and file an appeal book and factum within the time required by
court order - Mireau's solicitor did nothing - He did not file the
documents, nor apply to the court to withdraw as solicitor of record The Saskatchewan Court of Appeal stated that "when counsel goes on
record for an appellant he thereby incurs an obligation to keep the
matter moving by complying with the rules respecting the requisition
of a transcript of the evidence (where applicable) but also any
directions that the court may make. ... Since those directions were
ignored without any application to vary the time limits ... [the
solicitor] failed to fulfil his professional obligation to this court. ...
Page 11
where an appellant decides to take no further steps counsel should
obtain instructions to immediately abandon the appeal, thereby saving
unnecessary applications and consequent costs." - See paragraphs 4 to
5.
Search aid - MLB Key No. - Barristers and Solicitors Topic 652 is
assigned to cases that consider the duty of a lawyer to the court to facilitate
proceedings. See www.mlb.nb.ca and Appendix for a list of cases that dealt
with this issue.
3.3 Duty to the court by a lawyer not to abuse position
In the case of Silver Jack Mines Ltd. v. McCarthy (1983), 51
N.B.R.(2d) 160; 134 A.P.R. 160 (T.D.), the headnote stated:
Two lawyers were shareholders of a company whose assets were being
wrongfully held as security by another shareholder - Under the guise
of claiming a debt owed to the company by the shareholder the
lawyers issued a writ of capias and had the shareholder arrested - The
sole purpose of issuing the writ was to remove the shareholder from
his property to allow the lawyers and others to enter the shareholder's
land and seize the company assets - The New Brunswick Court of
Queen's Bench held that the lawyers' conduct was both distasteful and
an abuse of their position as members of the judiciary - See paragraphs
32, 38.
Search aid - MLB Key No. - Barristers and Solicitors Topic 653 is
assigned to cases that consider the duty of a lawyer to the court not to abuse his
or her position. See www.mlb.nb.ca and Appendix for a list of cases that dealt
with this issue.
3.4 Duty to the court by a lawyer of full disclosure
In the case of Comear, Re (1986), 77 N.S.R.(2d) 57; 191 A.P.R. 57
(T.D.), the headnote stated:
Relevant case law - The Nova Scotia Supreme Court, Trial Division,
referred to the duty of counsel to disclose an appeal decision that
varied a trial decision upon which counsel's proposition or submission
was based, if that decision was known to counsel - See paragraph 44.
Page 12
In the case of Transport Trailer Sales v. Robinson (2001), 147
O.A.C. 268 (Div. Ct.), the headnote stated:
The defendant/appellant subpoenaed two witnesses who did not appear
at trial - Counsel for the plaintiff had spoken to both witnesses asking
them about the conduct money they had received and advising them
that their attendance could not be compelled because they had not
been paid sufficient conduct money - The Ontario Divisional Court
stated that as an officer of the court, plaintiff's counsel had an
obligation to reveal that information to the trial judge - It appeared that
the evidence of the two witnesses could materially corroborate the
defendant's case and if the trial judge had been aware of counsel's
discussion with the witnesses in the context of a self-represented party,
he would likely have afforded the defendant an opportunity to present
that evidence - The court ordered a new trial.
In the case of Myers v. Elman, [1939] All E.R. 484 (H.L.), the House
of Lords stated at p. 491:
If the defendants are guilty of the alleged frauds, it is hardly to be
expected that they will make adequate affidavits without considerable
pressure. However guilty they may be, an honourable solicitor is
perfectly justified in acting for them and doing his very best in their
interests, with, however, the important qualification that he is not
entitled to assist them in any way in dishonourable conduct in the
course of the proceedings. The swearing of an untrue affidavit of
documents is perhaps the most obvious example of conduct which his
solicitor cannot knowingly permit. He must assist and advise his client
as to the latter's bounden duty in that matter, and, if the client should
persist in omitting relevant documents from his affidavit, it seems to
be plain that the solicitor should decline to act for him any further. He
cannot properly, still less can he consistently with his duty to the
court, prepare and place upon the file a perjured affidavit.
Search aid - MLB Key No. - Barristers and Solicitors Topic 654 is
assigned to cases that consider the duty of a lawyer to the court to make full
disclosure. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
3.5 Duty to the court of a lawyer not to obstruct justice
Page 13
In the case of R. v. Goddard (D.) (1995), 206 N.R. 69; 193 A.R. 47;
135 W.A.C. 47 (S.C.C.), the headnote stated:
Goddard was charged with a criminal offence - Goddard asked that the
case be heard and resisted the Crown's application for an adjournment
- Goddard then informed the court that the Crown was not in a
position to produce witnesses and asked for a dismissal Subsequently, the Crown charged Goddard with obstruction and
requested a new trial - The Crown submitted that Goddard knew where
the witnesses were and that they were available - The Crown also
claimed that Goddard had undertaken to inform the police officers
when they would be needed as witnesses - The Supreme Court of
Canada, in affirming Goddard's acquittal, observed that while the
conduct was not criminal, it would have been unethical if engaged in
by a lawyer - See paragraph 2.
In the case of R. v. Sweezey (G.G.) (1987), 63 Nfld. & P.E.I.R. 308;
194 A.P.R. 308 (Nfld. T.D.), the headnote stated:
The Newfoundland Supreme Court, Trial Division, in sentencing the
accused lawyer to 18 months in prison for wilfully attempting to
obstruct justice, stated that a lawyer who attempts to obstruct justice
by wilfully counseling a witness to be forgetful and evasive not only
commits an offence contrary to s. 127 of the Criminal Code but also
breaches his solemn duty as an officer of the court to uphold the
course of justice - See paragraphs 6 to 8.
Search aid - MLB Key No. - Barristers and Solicitors Topic 658 is
assigned to cases that consider the duty of a lawyer to the court not to obstruct
justice. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this
issue.
3.6 Duty to the court by a lawyer to present all relevant jurisprudence
In the case of R. v. Mitchell (W.F.) (1994), 162 A.R. 109; 83 W.A.C.
109 (C.A.), the headnote stated:
In a breathalyzer case, accused's counsel failed to cite relevant
decisions of the Court of Appeal and Supreme Court of Canada which
were against him - The Alberta Court of Appeal stated that "it is
counsel's duty to look for and cite to the court all relevant authority,
whether it is for or against him, as has been well known for 70 years" -
Page 14
See paragraphs 17 to 19
Search aid - MLB Key No. - Barristers and Solicitors Topic 660 is
assigned to cases that consider the duty of a lawyer to the court to disclose all
relevant jurisprudence. See www.mlb.nb.ca and Appendix for a list of cases
that dealt with this issue.
3.7 Duty to the court by a lawyer where the accused admits to crime
In the case of R. v. Li (C.M.) (1993), 36 B.C.A.C. 181; 58 W.A.C.
181 (C.A.), the headnote stated:
An accused charged with robbery admitted to his lawyer that he did it
- The British Columbia Court of Appeal stated that the common
understanding was that the lawyer could not call the accused or any
other person to testify that the accused did not do it - Although the
lawyer could not set up defences inconsistent with the admission, he
could test the proof of the case in every proper way (e.g., challenging
the sufficiency of identification evidence) - See paragraphs 57 to 74.
Search aid - MLB Key No. - Barristers and Solicitors Topic 663 is
assigned to cases that consider the duty of a lawyer to the court where the
accused admits to crime. See www.mlb.nb.ca and Appendix for a list of cases
that dealt with this issue.
3.8 Duty to the court respecting out-of-court discussions with judges
In the case of R. v. Mid Valley Tractor Sales Ltd. and Scott (1993),
140 N.B.R.(2d) 46; 358 A.P.R. 46 (T.D.), the court stated at paras. 13 and 14:
[13] There are a number of cases to the effect that the "practice of
counsel going to see judges is in general an undesirable one". Some of
the cases are referred to in A Book for Judges by The Hon. J.O.
Wilson, published by the Canadian Judicial Council in 1980,
beginning at pages 52 and 64. One of the cases cited in A Book for
Judges includes the following observation:
"It appears that during the course of the trial the learned trial
judge called counsel into his chambers to discuss certain
aspects of the trial as the trial progressed. It appears also that
this was done in the office of the learned trial judge and in the
absence of the respondent. This is a practice that must be
Page 15
discouraged. It is a cardinal principle of our jurisprudence that
a trial, whether with or without a jury, is a public trial except
in certain statutory cases, and that the members of the jury,
the accused and the public are entitled to free access to the
law courts and the trial and to see and to hear the totality of
the full drama of the trial. The jury, accused and the public are
entitled to see and hear the examination and crossexamination of every witness called to testify, all objections
made by counsel and to see and hear the rulings made by the
trial judge. It is of great importance not only that justice
should be done substantially but that it must appear to be
done, and it cannot appear to be done where the learned trial
judge has many conferences with counsel in his chambers.
There may be exceptions but, if so the substance of the
discussion in his chambers should be disclosed in open court
and recorded, and the assent of counsel involved should
likewise appear on the records. Branca, J.A., in R. v.
Johnson, [1977] 1 B.C.L.R. 289, at p. 304."
[14] In my view that quotation applies generally to all court
procedures, not just to the conduct of criminal trials. In short, out-ofcourt discussions between counsel and a judge relating to a case before
that judge are in my opinion usually inappropriate because "justice
should not only be done, but should manifestly and undoubtedly be
seen to be done" and "nothing is to be done which creates even a
suspicion that there has been an improper interference with the course
of justice". R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B.
256; [1923] All E.R. Rep. 233, at p. 234.
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of cases that dealt with this issue.
3.9 Liability of lawyer for costs for improper conduct
In the case of Rahall (Bankrupt), Re (2003), 349 A.R. 263 (Q.B.), the
headnote stated:
A bankrupt's lawyer (Charnock) mislead the court in order to obtain
his client's discharge - After becoming aware of this and after the
former bankruptcy trustee declined to take action, the court appointed
the trustee's former counsel (Tkachuk) as amicus curiae to bring an
Page 16
application to set aside the discharge - The discharge was set aside Tkachuk applied for costs against Charnock - The Alberta Court of
Queen's Bench ordered Charnock to personally pay Tkachuk costs of
$15,000 plus taxable disbursements - Charnock represented that his
client had done all he was required to do to obtain the discharge when
he knew or ought to have known that there were many outstanding
matters yet to be addressed - Further, he told the court hearing the
discharge application that the lead creditor had been given notice,
when that was not the case.
In the case of Firemaster Oilfield Services Ltd. v. Safety Boss
(Canada) (1993) Ltd. et al. (2001), 293 A.R. 366; 257 W.A.C. 366 (C.A.), the
headnote stated:
Campbell was the sole shareholder of the plaintiff company - Tupper,
junior counsel for the defendants, obtained a consent from Campbell's
wife to disclose expert reports exchanged in divorce proceedings
which had "previously been filed in the courts ... and were a matter of
public record" - Mrs. Campbell's solicitor made the divorce action files
available to Tupper - Tupper took copies of three documents and
examinations for discovery, none of which had been filed in the court Tupper and the defendants' senior counsel, Trawick, attempted to use
the wrongfully obtained documents - A Chambers judge held that
Tupper and Trawick were guilty of positive misconduct, but declined
to find them in contempt - The Chambers judge declined to remove the
solicitors from the record, but ordered that Tupper, Trawick and the
defendants were jointly and severally liable to pay the plaintiff costs
fixed at $50,000, plus disbursements - The Alberta Court of Appeal
affirmed the decision.
Search aid - MLB Key No. - Barristers and Solicitors Topic 842 is
assigned to cases that consider the duty of a lawyer to the court and a lawyer=s
liability for costs for improper conduct. See www.mlb.nb.ca and Appendix for
a list of cases that dealt with this issue.
3.10 Duty of a lawyer to disclose to the court all relevant documents
In the case of Harper v. Harper (1979), 27 N.R. 554 (S.C.C.), the
headnote stated:
The Supreme Court of Canada stated that a lawyer must disclose
relevant documents of which he has knowledge (in answer to a notice
Page 17
to produce) or refuse to continue acting for his client.
Search aid - MLB Key No. - Barristers and Solicitors Topic 886 is
assigned to cases that consider the duty of a lawyer to the court to disclose all
relevant documents. See www.mlb.nb.ca and Appendix for a list of cases that
dealt with this issue.
3.11 Duty of a lawyer respecting undertakings
In the case of Bernard v. Elliott (1984), 62 N.S.R.(2d) 287; 136
A.P.R. 287 (Co. Ct.), the court stated at paras. 13 and 14:
[13] Judge Bartlett then asked Mr. Kaiser, of counsel for the appellant,
whether he was prepared to assure the court 'as an officer of the court'
that his client would not permit anyone to use marijuana or have it in
the home while the matter was before the court. Mr. Kaiser very
properly replied that he was able to assure the court 'insofar as any
lawyer can on behalf of his client'. The court pressed the matter and
Mr. Kaiser gave a personal assurance.
[14] It was improper for the court to ask for such an assurance and it
was improper for counsel to give one, although difficult to avoid in the
circumstance. A barrister ought not to have any personal interest in a
case other than his fee and it is better if that is fixed and paid in
advance. That is the argument against contingent fees and although
that rule has been changed in some jurisdictions, because of substantial
countervailing factors, it is still a sound principle. A lawyer ought to
be able to advise his client without any motive for self-deception, and
he ought to be able to act in court without any motive other than to
serve his client and to serve the administration of justice. He is not
permitted to vouch personally either for the facts in support of his
client's case or for the truthfulness and reliability of the witnesses he
puts forward. He is not permitted to vouch for the reliability of his
client or, for example, to go bail for the client personally. All of this is
supported not only by the ethics and tradition of the profession and the
practice of the courts but in many instances it has been laid down by
the courts or by a professional body. See, for example, the Code of
Professional Conduct, of the Canadian Bar Association, Chapter V,
paragraph seven, etc. This document, while flawed, has much to say
on the question.
Page 18
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undertakings. See www.mlb.nb.ca and Appendix for a list of cases that dealt
with this issue.
Page 19
Chapter 4 - The lawyer=s duty to the client
Overview: In the text Legal Ethics by Mark M. Orkin, the author
states at page 73 that until the beginning of the 19th century a lawyer Awas
justified in going to virtually any lengths on behalf of a client@. Today a
lawyer=s support of a client=s cause must be tempered by the lawyer=s
obligations as an officer of the court. Trial tactics that include Atrial by
ambush@ have been discredited. The Manitoba Court of Appeal stated that "...
maximum disclosure in the interest of expeditious, economic and just
resolution of disputes has replaced trial by ambush@. See Jobes v. Zolinski et
al. (1999), 134 Man.R.(2d) 302; 139 W.A.C. 302 (C.A.), at para. 14.
............................................................................
4.1 General
A lawyer=s duty to a client must be tempered by the lawyer=s duty to
the courts and the administration of justice. In Myers v. Elman, [1940] A.C.
282 (H.L.), at page 307 the House of Lords stated that it is the lawyer=s duty to
decline to act in any case where there exists an irreconcilable conflict between
the lawyer=s duty to the court and the duty to the client.
In the case of Couture v. Lamontagne (1996), 151 Sask.R. 283
(Q.B.), the court stated at para. 25:
[25] The decision of Millican v. Tiffin Holdings Ltd. (1965), 50
W.W.R.(N.S.) 673 (Alta. T.D.), at p. 674 is often quoted in regard to
the standard of care required of a lawyer. At p. 674 this statement is
made:
"The obligations of a lawyer are, I think, the following: (1) To
be skillful and careful; (2) To advise his client on all matters
relevant to his retainer, so far as may be reasonably necessary;
(3) To protect the interests of his client; (4) To carry out his
instructions by all proper means; (5) To consult with his client
on all questions of doubt which do not fall within the express
or implied discretion left to him; (6) To keep his client
informed to such an extent as may be reasonably necessary,
according to the same criteria."
Search aid - MLB Key No. - Barristers and Solicitors Topic 1541 is
Page 20
assigned to cases that consider the duties of a lawyer to a client. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
4.2 Duty to compromise and settle
A lawyer has a duty to encourage a client to compromise and settle a
claim. See Professional Conduct for Lawyers and Judges by Beverley G.
Smith, chapter 6, para. 5.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1560 is
assigned to cases that consider the duty of a lawyer to advise settlement. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
4.3 Duty of loyalty
In the case of R. v. Neil (D.L.) (2002), 294 N.R. 201; 317 A.R. 73;
284 W.A.C. 73 (S.C.C.), the headnote stated:
The Supreme Court of Canada discussed a lawyer's duty of loyalty to
an existing client - The court stated that "the general prohibition
[against acting against an existing client] is undoubtedly a major
inconvenience to large law partnerships and especially to national
firms with their proliferating offices in major centres across Canada.
Conflict searches in the firm's records may belatedly turn up files in
another office a lawyer may not have been aware of. Indeed, he or she
may not even be acquainted with the partner on the other side of the
country who is in charge of the file. Conflict search procedures are
often inefficient. Nevertheless it is the firm not just the individual
lawyer, that owes a fiduciary duty to its clients, and a bright line is
required. The bright line is provided by the general rule that a lawyer
may not represent one client whose interests are directly adverse to the
immediate interests of another current client, even if the two mandates
are unrelated, unless both clients consent after receiving full disclosure
(and preferably independent legal advice), and the lawyer reasonably
believes that he or she is able to represent each client without
adversely affecting the other." - See paragraph 29.
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www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
Page 21
4.4 Duty of competence
In the case of Financeamerica Realty Ltd. v. Gillies (1983), 40 Nfld.
& P.E.I.R. 169; 115 A.P.R. 169 (Nfld. C.A.), the headnote stated:
The Newfoundland Court of Appeal stated that a solicitor will be
liable if his error was one that the ordinary competent solicitor would
not have made - See paragraph 5.
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assigned to cases that consider the duty of competence of a lawyer to a client.
See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
4.5 Duty to inform or advise client
In the case of Wong et al. v. 407527 Ont.ario Ltd. et al. (1999), 125
O.A.C. 101 (C.A.), the headnote stated:
The Ontario Court of Appeal stated that "although ordinarily clients
retain lawyers for legal advice not business advice, on some
transactions the two are intermingled and no clear dividing line can be
drawn. Thus, a lawyer may well have a duty to give advice on the
financial or business aspects of a transaction, depending on the client's
instructions and sophistication, and on whether the client is relying on
the lawyer for that kind of advice." - See paragraph 46.
In the case of R. v. Michelin (L.) (1999), 93 O.T.C. 385 (Gen. Div.),
the court stated at paras. 34 and 35:
[34] The Rules of Professional Conduct specifically require a lawyer
to keep his client informed and respond to client communication. Rule
2, commentary 8 gives various examples of conduct that does not meet
the quality of service required of a barrister or solicitor. These include:
commentary 8(a), failure to keep the client reasonably informed;
commentary 8(c) unexplained failure to respond to the client's
telephone calls; and commentary 8(f) failure to answer within a
reasonable time a communication that requires a reply.
[35] In my opinion, where the client faces serious criminal jeopardy
and the client has only one telephone meeting with the lawyer, that
lawyer's failure to respond to the client's telephone calls for two weeks
Page 22
prior to trial represents a breach of the lawyer's professional duties.
In the case of Bank of Nova Scotia v. Omni Construction Ltd.
Telfer Investments Ltd., Schwartz, Bauer and Tufts (1983), 22 Sask.R. 161
(C.A.), the headnote stated:
In the presence of his lawyer a client signed a guarantee - The lawyer
failed to make the client aware of what he was signing and the
significance of the document - The Saskatchewan Court of Appeal
affirmed that the lawyer was liable to the client for the client's liability
under the guarantee.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1554 is
assigned to cases that consider the duty of a lawyer to inform or advise a client.
See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
4.6 Duty to advise a client re business ethics
In the case of Holt, Renfrew & Co. v. Singer (Henry) Ltd.,
Pekarsky and Thompson & Dynes Ltd. (1982), 37 A.R. 90 (C.A.), the Court
of Appeal stated at para. 110:
.... a solicitor has no duty to instruct his client in business ethics. If the
client announces an intention which strikes the solicitor as
dishonourable, the solicitor can do no more than quit the client.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1558 is
assigned to cases that consider the duty of a lawyer to advise a client on
business ethics. See www.mlb.nb.ca and Appendix for a list of cases that dealt
with this issue.
4.7 Duty of confidentiality (professional secrecy)
Overview: A lawyer is required to keep confidential anything arising
out of the client relationship. Exceptions include proposals of crime by a client.
.............................................................
In the case of Cummings et al. v. Anthony-Robinson et al. (1995),
176 A.R. 127 (Q.B.), the headnote stated:
Page 23
The Alberta Court of Queen's Bench stated that "Persons who retain
lawyers have a real expectation of as much confidentiality as is
possible. For some clients, it may well be that the fact that they have
retained a lawyer, and the fact that they have retained a specific law
firm, are as confidential as the subject of the deliberations between
them and their lawyer. Care should be taken by lawyers not to disclose
the names of their clients unnecessarily@- See paragraph 12.
In the case of Colborne Capital Corp. et al. v. 542775 Alberta Ltd.
et al. (1995), 171 A.R. 241 (Q.B.), the headnote stated:
The Alberta Court of Queen's Bench stated that "it is settled law that a
lawyer must not voluntarily disclose confidential information which he
or she receives in a professional capacity without the consent of the
client or a direction of the court" - See paragraph 293.
In the case of Roberts v. Sodhi, [2003] O.T.C. 179 (Sup. Ct.), the
Court of Ontario, Superior Court of Justice, stated at paras. 14 and 15:
[14] Rule 2.03(1) of the Rules of Professional Conduct, Law Society of
Upper Canada, provides that:
AA lawyer shall at all times hold in strict confidence all
information concerning the business and affairs of the client
acquired in the course of the professional relationship and
shall not divulge any such information unless expressly or
impliedly authorized by the client or required by law to do
so@.
[15] The Commentary to Rule 2.03(1) of the Rules of Professional
Conduct further provides that
AThis rule must be distinguished from the evidentiary rule of
lawyer and client privilege concerning oral or documentary
communications passing between the client and the lawyer.
The ethical rule is wider and applies without regard to the
nature or source of the information or the fact that others may
share the knowledge.
AA lawyer owes the duty of confidentiality to every client
without exception and whether or not the client is a
continuing or casual client. The duty survives the professional
Page 24
relationship and continues indefinitely after the lawyer has
ceased to act for the client, whether or not differences have
arisen between them@.
Beverley G. Smith states in chapter 2, para. 31, of Professional
Conduct for Lawyers and Judges:
[31] There appear to be at least six instances where the very high duty
of confidentiality may be abrogated by the lawyer. They are:
(1) where the client expressly or impliedly authorizes the
disclosure;
(2) where the lawyer is seeking to establish or collect a fee;
(3) where the lawyer is defending against an allegation by the
client of malpractice or misconduct;
(4) where the prevention of a crime justifies disclosure by the
lawyer (and where the anticipated crime is one involving
violence, disclosure is mandatory);
(5) where disclosure is authorized by law;
(6) where disclosure is authorized by order of a court of
competent jurisdiction.
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client. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this
issue.
4.8 Duty to a client re conflicts of interest, general principle
For centuries it has been a well settled rule that no one can be an
attorney for both sides even with the consent of the parties. In Masons= Case
(1672), 89 E.R. 55, an attorney was struck from the roll because Ahe had been
an ambidexter, namely, after he was retained by one side he was retained by
the other side@.
Page 25
A leading case that sets the standard for modern conflict of interest
cases is MacDonald Estate v. Martin (1990), 121 N.R. 1; 70 Man.R.(2d) 241
(S.C.C.); in this case the Supreme Court of Canada stated "a lawyer who has
relevant confidential information cannot act against his client or former client.
In such a case the disqualification is automatic. No assurances or undertakings
not to use the information will avail".
The rule against conflicts has been extended to such matters as the
purchase and sale of real estate. In the case of John Burrows Ltd. v.
Subsurface Surveys Ltd. (1967), 62 D.L.R.(2d) 700, the New Brunswick
Court of Appeal stated at page 707:
AAll transactions of purchase and sale include a possibility of
conflicting interests developing. Barristers and solicitors should be
careful to avoid acceptance of any retainer which involves such a
possibility@.
In the case of Lafferty v. N.B. Coal Ltd. (1995), 190 N.B.R.(2d) 1;
484 A.P.R. 1 (C.A.), the Court of Appeal affirmed the removal from the record
a firm of solicitors. The court stated at paras. 4 and 5:
[4] I agree with the decision by Mr. Justice McLellan in ordering the
removal of the firm as solicitors of record. As he held, in some cases,
and this is one of them, it is the perception of conflict that taints the
file. Perhaps the result denies to one of the litigants, in certain
instances, the opportunity to engage the counsel of his or her choice.
Nevertheless it may be necessary, as here, to avoid an adverse public
perception. It is a price that the profession must pay in order to
preserve the integrity of the concept of solicitor and client privilege.
[5] Courts are not bound to apply a code of ethics before determining
whether to remove a firm of solicitors from the record. Courts have
inherent jurisdiction to remove solicitors from the record when they
find a conflict of interest. This also applies to the appearance of
conflict. Even an appearance of impropriety should be avoided. There
is a presumption that lawyers who work together share each others
confidences. This does not come about as a form of legal osmosis, it is
a practical perception. Unless there is clear and convincing evidence
that all reasonable measures have been taken to ensure that no
disclosures will be made to other members of the firm, an inference
should be drawn that the tainted information has been shared.
Page 26
Search aid - MLB Key No. - Barristers and Solicitors Topic 1601 is
assigned to cases that consider the duty of a lawyer to a client re conflicts of
interest. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
4.9 Conflicts of interest arising from lawyers= relations
In the case of Holte v. Macor (1998), 229 A.R. 70 (Q.B.), the
headnote stated:
Macar was the driver of an automobile that collided with a tractor Macar's three passengers sued Macar and the truck driver for damages
for personal injuries - Meanwhile, Macar was convicted under the
Highway Traffic Act of driving without due care and attention - At his
first appearance regarding the Highway Traffic Act offences, he was
represented by K. Tarrabain, as agent for his lawyer - When he
attended for examination for discovery in the personal injury action,
he discovered that the three passengers were represented by
Tarrabain's law firm - Macar applied to have the plaintiffs' solicitor
and law firm removed for conflict of interest - The Alberta Court of
Queen's Bench allowed the application.
In the case of Turner v. Wheatland Baking Co. (1991), 122 A.R. 369
(Q.B.), the headnote stated:
The plaintiff shareholder of the defendant company sued the corporate
and personal defendants respecting the cancellation of some of his
shares - The lawyer now representing the defendants was also a
shareholder and represented both defendants before and after the
cancellation -The plaintiff applied for an order restraining the lawyer
and his firm from acting for the defendants in the present action - The
Alberta Court of Queen's Bench allowed the application on the ground
that the lawyer was in a conflict of interest position.
In the case of Taylor v. Nellist, [2004] O.T.C. 1052 (Sup. Ct.), the
court summarized the law relating to conflicts of interest arising from a
lawyer=s relations at paras. 22 to 24:
[22] The standard for the removal of counsel is an objective one, being
that of a reasonably informed member of the public. See the case of
MacDonald Estate vs. Martin, [1990] 3 S.C.R. 1235. Thus, a solicitor
should be removed as solicitor of record if a fair-minded, reasonably
Page 27
informed member of the public would conclude that the proper
administration of justice required the removal of the solicitor. See the
case of Everingham vs. Ontario, 8 O.R. (3rd) 121, at paragraph 29.
[23] Moreover, there does not need to be a finding of impropriety in
order for the solicitor to be removed, rather it is the appearance of
impropriety that is the test. In MTS International Services Inc. v.
Warnat Corp. Limited, [1981] 31 O.R. 221 at page 224 Justice
Montgomery wrote, "A lawyer should avoid even the appearance of
professional impropriety." This is particularly true when the litigation
involves a family dispute. See the case of Goldberg vs. Goldberg,
(1982) 31 R.F.L. (2nd) 453 at paragraph 8.
[24] The basis for the above-mentioned statement of the law in this
area can be summarized by that well-known quote from the case of R.
vs. Sussex Justices, [1924] 1 K.B. 256 at page 259, "It is of
fundamental importance that justice should not only be done, but
should manifestly and undoubtedly be seen to be done".
Search aid - MLB Key No. - Barristers and Solicitors Topic 1608 is
assigned to cases that consider the duty of a lawyer to a client re conflicts of
interest arising out of the lawyer=s relations. See www.mlb.nb.ca and Appendix
for a list of cases that dealt with this issue.
4.10 Conflict of interests, acting for both sides
In the case of Jeffers v. Calico Compression Systems et al. (2002),
314 A.R. 294 (Q.B.), the headnote stated:
The plaintiff (Jeffers) and defendant (Curtis) agreed to form a
company - The defendant's solicitor (Dawe) acted on behalf of both
parties in incorporating the company, having guarantees signed and
drafting the shareholder's agreement - A dispute as to the division of
shares proceeded to litigation - Dawe represented the defendant - The
plaintiff applied for removal of Dawe as solicitor of record - The
Alberta Court of Queen's Bench held that Dawe was precluded from
acting for the defendant - Although Dawe had never been formally
retained by the plaintiff, no monies were ever paid by the plaintiff to
Dawe and there was no confidential information imparted, the plaintiff
had grounds to reasonably believe a solicitor/client relationship existed
- Dawe acted for both parties on the very issue in dispute - It would be
Page 28
unfair and improper for Dawe to continue to act for the defendant.
In the case of Ridge View Development & Holding Co. Ltd. v.
Simper (1989), 95 A.R. 282 (Q.B.), the headnote stated:
The Alberta Court of Queen's Bench stated that it was not a breach of
fiduciary duty for a lawyer to act for both sides in a real estate
transaction, provided that both sides were fully informed and
consented - The court stated that the lawyer must (1) advise both sides
of their contractual rights and obligations, (2) advise each that if an
actual or potential conflict arises he must step aside and advise each to
seek independent counsel and (3) advise both sides that the usual
solicitor-client privilege did not apply and that relevant information
from one side must be disclosed to the other side - See paragraphs 49
to 61.
In the case of Ferris v. Rusnak (1983), 50 A.R. 297 (Q.B.), the
headnote stated:
A lawyer acted for an unsophisticated lender of $50,000 - The lawyer
also acted for the borrower - The Alberta Court of Queen's Bench
stated that a conflict of interest arises immediately in such
circumstances (see paragraph 30) and the court referred to the lawyer's
duty to advise the lender to seek independent legal advice (see
paragraphs 32 and 33) - The court also referred to the lawyer's duty in
circumstances when such a lender is knowledgable (see paragraph 30).
Search aid - MLB Key No. - Barristers and Solicitors Topic 1604 is
assigned to cases that consider the duty of a lawyer to a client re conflicts of
interest arising out of acting for both sides. See www.mlb.nb.ca and Appendix
for a list of cases that dealt with this issue.
4.11 Conflict of interests, lawyer acting for several parties
In the case of R. v. Doz (1984), 52 A.R. 321 (C.A.), the headnote
stated:
Woitt identified himself as Hutchinson when charged by police with
impaired driving - Woitt told Hutchinson what he did and both sought
Page 29
legal advice from the accused solicitor -The Alberta Court of Appeal
stated that "it was absolutely impossible for one lawyer to act for both
parties, Woitt and Hutchinson, under the circumstances in which there
was such a conflict of their interests" - See paragraph 7.
In the case of Brumer v. Gunn (1982), 18 Man.R.(2d) 155 (Q.B.), the
headnote stated:
The Manitoba Court of Queen's Bench held that a lawyer was in a
conflict of interest situation where he was advising one client to invest
funds in a business which was also a client - The business
subsequently failed and the funds were never recovered - See
paragraph 25.
In the case of MacCulloch Estate and MacLennan v. Corbett
(1982), 49 N.S.R.(2d) 663; 96 A.P.R. 663 (C.A.), the headnote stated:
Several individuals retained a lawyer to incorporate and organize a
company, which the lawyer did negligently - When a dispute arose
among the individuals the lawyer proceeded to act in the interest of
one of them - The Nova Scotia Court of Appeal held that the lawyer
was acting for all of the individuals and acted in a conflict of interest,
in continuing to act after the dispute arose - See paragraphs 31 to 33.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1614 is
assigned to cases that consider the duty of a lawyer to a client where the lawyer
acts for several parties. See www.mlb.nb.ca and Appendix for a list of cases
that dealt with this issue.
4.12 Conflicts of interest, acting for a corporation
Overview: When acting for a corporation, a lawyer should be wary of
the extent of the lawyer=s duty.
When acting for a client corporation a lawyer=s duty may extend to
protecting the interests of the shareholders and the interests of the creditors of
the corporation. See Toronto Globe and Mail, May 17, 2006 where Jacquie
McNish reported that three prominent law firms settled claims against them by
creditors, shareholders and others. The claims arose out of work done by the
law firms for corporations. The three claims were settled for $110 million, $32
million and $30.25 million.
Page 30
4.13 Conflict of interest, situations resulting in a conflict
In the case of Gottschlich v. Gottschlich (2001), 291 A.R. 173 (Q.B.),
the headnote stated:
Mr. Gottschlich retained a lawyer from Cleall Pahl to represent him in
his divorce - The lawyer's legal secretary subsequently left the firm to
work for Emery Jamieson, the firm representing Mrs. Gottschlich - In
fact, the legal secretary became the secretary for the lawyer
representing Mrs. Gottschlich - At issue was whether the legal
secretary's employment at Emery Jamieson created a disqualifying
conflict of interest sufficient to remove Mrs. Gottschlich's lawyer as
solicitor - The Alberta Court of Queen's Bench held that the legal
secretary possessed relevant confidential information and despite
Emery Jamieson's bona fide efforts to isolate her from the file, there
was a sufficient conflict of interest created that Mrs. Gottschlich's
lawyer must remove herself.
In the case of McDonald Crawford v. Morrow (2002), 324 A.R. 8
(Q.B.), the headnote stated:
A law firm applied to have a bill taxed - The firm was still
representing the client on an appeal - The client, while served, failed to
appear on the taxation - The taxing officer allowed the bill in full - The
Alberta Court of Queen's Bench stated that "it was the duty of the Firm
to advise the Client that there was a substantial amount at stake, that
the Taxing Officer was going to make a decision that could be binding
on the Client, and the Client should seek independent legal advice.
Instead, throughout, the Firm continued to act as counsel for the Client
when it was in a clear conflict." - See paragraph 27.
In the case of R. v. Werkman (A.H.) (1977), 198 A.R. 35 (Q.B.), the
headnote stated:
The accused was charged with manslaughter and his trial was pending
- A lawyer from the accused's counsel's law firm had previously
represented an essential Crown witness - The accused's counsel would
have to impeach the Crown witness's credibility at the trial - The
Crown and the accused's counsel applied to the court for directions on
whether the accused's counsel could continue to act - The Alberta
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Court of Queen's Bench disqualified the accused's counsel from acting
- The court referred to the applicable test and stated that there was a
deemed sharing of information between the lawyers from the firm, that
there was a risk that this information would be used to prejudice the
Crown witness and that the proper administration of justice was a
paramount consideration - See paragraphs 9 to 20.
In the case of MacDonald v. Howard Estate et al. (1995), 170 A.R.
376 (Q.B.), the headnote stated:
Defendants applied to remove the plaintiff's counsel (Pipella), arguing
that a conflict of interest arose when Pipella joined with Warren to
form an independent association for the practice of law - Warren had
previously acted in the matter on behalf of one of the defendants and
admitted receiving confidential information which could be prejudicial
if revealed - Warren stated that he had never discussed the litigation
with Pipella and the two undertook not to communicate about the
matter - The Alberta Court of Queen's Bench held that there were not
sufficient safeguards to satisfy a reasonably informed member of the
public that no disclosure would occur - The interests of justice and the
integrity of the legal profession favoured discharging Pipella from the
file.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1619 is
assigned to cases that consider the duty of a lawyer to a client and the
situations that result in a conflict of interest. See www.mlb.nb.ca and Appendix
for a list of cases that dealt with this issue.
4.14 Compensation to lawyer, general
In the case of Cawood v. Mirza (1981), 13 Sask.R. 428 (Dist. Ct.), the
court referred to the relevant factors in determining a fair and reasonable fee.
At para. 7 the court stated:
[7] The Canadian Bar Association Code of Professional Conduct,
which has been adopted as a bylaw of the Law Society of
Saskatchewan, includes the following rule:
"The lawyer should not
(a) stipulate for, charge or accept any fee which is not
fully-disclosed, fair and reasonable;"
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By way of commentary upon the rule it is stated:
"A fair and reasonable fee will depend upon and
reflect such factors as
(a) the time and effort required and spent;
(b) the difficulty and importance of the
matter;
(c) whether special skill or service has been
required and provided;
(d) the customary charges of other lawyers of
equal standing in the locality in like matters
and circumstances;
(e) the amount involved or the value of the
subject matter;
(f) the results obtained;
(g) tariffs or scales authorized by local law;
(h) such special circumstances as loss of
other employment, uncertainty of reward,
and urgency.
"A fee will not be fair and reasonable if it is one which cannot
be justified in the light of all pertinent circumstances,
including the factors mentioned, or is so disproportionate to
the services rendered as to introduce the element of fraud or
dishonesty."
Search aid - MLB Key No. - Barristers and Solicitors Topic 3000 is
assigned to cases that consider the duty of a lawyer to a client and general
principles applicable to compensation to the lawyer. See www.mlb.nb.ca and
Appendix for a list of cases that dealt with this issue.
4.15 Compensation to lawyer, duty to inform client
In the case of Boerrichter v. Robertson (1992), 98 Sask.R. 207
Page 33
(Q.B.), the headnote stated:
A solicitor's accounts were taxed and claims for legal fees and interest
were disallowed - The solicitor applied for a review of the taxation
officer's decision - The Saskatchewan Court of Queen's Bench
dismissed the application - The court held solicitors are not bound by
estimates, however, when the actual cost exceeds the estimate and no
hourly rate for extra work is discussed, the taxation officer must
protect the client - The court also held the solicitor failed to provide
the client with required information about the rate and date of
commencement of the interest charged - See paragraphs 8 to 13.
Search aid - MLB Key No. - Barristers and Solicitors Topic 3003 is
assigned to cases that consider the duty of a lawyer to inform a client
respecting fees. See www.mlb.nb.ca and Appendix for a list of cases that dealt
with this issue.
4.16 Compensation to lawyer, duty to keep time records
In the case of Lindsay v. Stewart, MacKeen & Covert (1988), 82
N.S.R.(2d) 203; 207 A.P.R. 203 (C.A.), the headnote stated:
The Nova Scotia Court of Appeal held that where a lawyer agreed to
charge on an hourly and daily basis, he had a duty to maintain detailed
time records and was not entitled to charge for more than the time
spent - See paragraphs 41 to 46, 51.
Search aid - MLB Key No. - Barristers and Solicitors Topic 3008 is
assigned to cases that consider the duty of a lawyer to a client respecting fees
and the duty to keep time records. See www.mlb.nb.ca and Appendix for a list
of cases that dealt with this issue.
4.17 Compensation to lawyer, supervisory role of the courts
In the case of Plazavest Financial Corp. et al. v. National Bank of
Canada et al. (2000), 133 O.A.C. 100 (C.A.), the Ontario Court of Appeal
stated at paras. 14 and 15:
[14] The rendering of legal services and the determination of
appropriate compensation for those services is not solely a private
matter to be left entirely to the parties. There is a public interest
component relating to the performance of legal services and the
Page 34
compensation paid for them. That public interest component requires
that the court maintain a supervisory role over disputes relating to the
payment of lawyers' fees. I adopt the comments of Adams, J., in
Borden & Elliott v. Barclays Bank of Canada (1993), 15 O.R.(3d)
352, at pp. 357-358 (Gen. Div.), where he said:
"... The Solicitors Act begins with s. 1 reflecting the legal
profession's monopoly status. This beneficial status or
privilege of the profession is coupled with corresponding
obligations set out in the Act and which make clear that the
rendering of legal services is not simply a matter of contract.
This is not to say a contract to pay a specific amount for legal
fees cannot prevail. It may. But even that kind of agreement
can be the subject of review for fairness: see s. 18 of the
Solicitors Act."
[15] The observation of Adams, J., that the rendering and payment of
legal accounts is not "simply a matter of contract" finds support in a
long established line of authority which recognizes, apart entirely from
the Act, that a superior court has an inherent jurisdiction, as part of its
disciplinary authority over lawyers, to direct the assessment of
lawyers' fees: Peel Terminal Warehouses Ltd. v. Wootten, Rinaldo
& Rosenfeld (1978), 21 O.R.(2d) 857, at p. 861 (C.A.); Minkarious
v. Abraham, Duggan (1995), 44 C.P.C.(3d) 210, at p. 242 (Ont. Gen.
Div.).
Search aid - MLB Key No. - Barristers and Solicitors Topic 3015 is
assigned to cases that consider the duty of a lawyer to a client respecting fees
and the supervisory role of the courts. See www.mlb.nb.ca and Appendix for a
list of cases that dealt with this issue.
4.18 Compensation in estate matters
In the case of Proniuk Estate, Re (1984), 59 A.R. 97 (Sur. Ct.), the
headnote stated:
The Alberta Surrogate Court held that in determining the amount of
compensation payable to the solicitor of an estate the court considers
(1) the size of the estate (2) the care and responsibility required and
attendance thereon (3) the time occupied in performing the various
tasks (4) the skill and ability demonstrated in the administration and
(5) the degree of success which has attended the administration - See
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paragraph 14.
In the case of Salmon Estate, Re (2004), 370 A.R. 316 (Q.B.), the
headnote stated:
Wilson acted as the lawyer for the estate of a deceased - The estate,
valued at $685,552.17, had been largely distributed to the beneficiaries
- $128,000 remained to be distributed - Wilson applied for taxation of
her accounts which totalled over $140,000 - Wilson asserted that the
deceased had agreed to being charged 20% of the estate's value - There
was no independent evidence of the agreement - The Alberta Court of
Queen's Bench stated that s. 11 of the Alberta Evidence Act prohibited
Wilson from obtaining judgment on her own evidence where the
evidence was not corroborated by other material evidence - Wilson's
agreement with the deceased should have been confirmed in writing A fee of 20% was excessive on an estate of this size, particularly
where it was not complex - Wilson was entitled to the guideline
amount ($9,130) for the core legal services as described in the
Surrogate Rules and compensation on a quantum meruit basis
($11,449.50) for the non-core legal services - See paragraphs 19 to 28.
Search aid - MLB Key No. - Barristers and Solicitors Topic 3406 is
assigned to cases that consider the compensation due to a lawyer in estate
matters. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
4.19 Compensation due to a lawyer, measure of, relevant considerations
In the case of Sellner Estate v. Pesto (1982), 17 Man.R.(2d) 101
(C.A.), the Court of Appeal stated at paras. 15 to 17:
[15] There appears to have developed in recent years among certain
members of the bar an idea that it is appropriate to charge an hourly
rate for services rendered to clients. No doubt clients have a right to
bargain for hourly rates if they so desire; I see that in the new tariff
there will be a discretion in judges to allow hourly rates in some cases.
However, I am of the opinion that hourly rates are not a normal
method of charging for legal services in the absence of a special
agreement.
[16] Hourly rates favor the slow over the quick; they favor delays and
sideroads and interlocutory proceedings. In my opinion, in an ordinary
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matter, it would be absurd to pay a lawyer by the time he puts in, just
as absurd as it would be to pay a preacher by the length of his sermon.
Time, of course, is a factor to be taken into account but it is only one
factor.
[17] In my opinion, lawyer fees are to be settled in the usual case in
accordance with the principles set out in the Queen's Bench Tariff. The
taxing officer:
"... shall have regard to all of the circumstances, including
(but not in any way restricting the generality of the foregoing)
the nature, importance, or urgency of the matters involved, the
time occupied, the circumstances and interest of the person by
whom the costs are payable, the general conduct of the
proceedings, and the amount, skill, labour, and responsibility
involved, ..."
In the case of Nathanson, Schachter & Thompson v. Albion
Securities Co. et al. (2004), 204 B.C.A.C. 200; 333 W.A.C. 200 (C.A.), the
headnote stated:
During the course of complex litigation, a law firm issued interim
monthly accounts that set fees calculated on hourly rates, albeit
without any reference to the basis of calculation - A settlement
resulted in the clients receiving $11.7 million gross - The firm's final
account included a $250,000 bonus based on the litigation's success The total amount billed was $871,431.88, which included fees of
$741,929 - A registrar reviewed the account and allowed it in full The British Columbia Court of Appeal affirmed the decision - The
court rejected the clients' assertion that their subjective
misapprehension that they would be billed on a straight hourly basis
was sufficient to found an estoppel unless the firm explicitly disabused
them of that misapprehension - The test for a representation sufficient
to found an estoppel was an objective standard - The registrar's
conclusion that the monthly accounts and other circumstances did not
objectively demonstrate a pattern of billing based exclusively on
hourly based charges was a factual inference and was not clearly
wrong.
In the case of Sikora v. Krawchuk (1996), 125 Man.R.(2d) 81 (Q.B.),
the headnote stated:
Page 37
A Master assessed a lawyer's bill for services rendered in connection
with marital matters - The bill totalled $5,395.09, $4,900 of which
represented fees - There was no retainer letter confirming an hourly
rate or the basis on which the lawyer would be charging - There was
insufficient evidence in diary entries and from the file to ascertain the
time spent by the lawyer - The Master held that in these circumstances
the lawyer was entitled to compensation on a quantum meruit basis
and that a fair and reasonable fee for the services rendered was $2,500
($150 per hour) - A total bill of $2,828.49 was allowed - The Master
considered that the matter did not present any particular difficulty and
that the lawyer did not provide any special skill or service - The
Manitoba Court of Queen's Bench arbitrarily added an additional two
hours to the bill and increased the hourly rate from $150 to $175 per
hour - The court noted that if the lawyer spent more time on the file
than allowed, it was his own fault for failing to keep accurate time
records.
Search aid - MLB Key No. - Barristers and Solicitors Topic 3303 is
assigned to cases that consider the compensation due to a lawyer and the
relevant considerations is fixing the bill. See www.mlb.nb.ca and Appendix for
a list of cases that dealt with this issue.
4.20 Negligence, general
In the case of Central Trust Co. v. Rafuse and Cordon (1986), 69
N.R. 321 (S.C.C.), the headnote stated:
The Supreme Court of Canada stated that a solicitor must bring
reasonable care, skill and knowledge to his work - A solicitor is not
required to know all the law applicable to a particular legal task
without need of further research, but he must have a sufficient
knowledge of the fundamental issues or principles of law applicable to
the particular work he has undertaken to enable him to perceive the
need to ascertain the law on relevant points - See paragraphs 58 to 59.
In the case of Workers' Compensation Board (Alta.) v. Riggins et
al. (1992), 131 A.R. 205; 25 W.A.C. 205 (C.A.), the headnote stated:
The Alberta Court of Appeal stated that "a lawyer is required to
exercise the standard of care of the reasonably competent member of
his profession similarly situated in the discharge of his retainer." - See
Page 38
paragraph 12.
Search aid - MLB Key No. - Barristers and Solicitors Topic 2501 is
assigned to cases that consider the standard of care required of a lawyer in a
negligence case. See www.mlb.nb.ca and Appendix for a list of cases that dealt
with this issue.
4.21 Negligence, settlements
In the case of Workers' Compensation Board (Alta.) v. Riggins et
al. (1992), 131 A.R. 205; 25 W.A.C. 205 (C.A.), the headnote stated:
A lawyer acting on behalf of an injured worker and the Workers'
Compensation Board (subrogated claim) recommended settlement of
the claim for $70,000 without reviewing current damage awards and
without considering all heads of damages, including past lost income,
cost of future care and prejudgment interest - The Alberta Court of
Appeal affirmed that the lawyer was negligent.
Search aid - MLB Key No. - Barristers and Solicitors Topic 2587 is
assigned to cases that consider whether a lawyer was negligent respecting a
settlement. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
4.22 Negligence, basis of liability
In the case of Hall v. Bennett Estate et al. (2003), 171 O.A.C. 182
(C.A.), the headnote stated:
The Ontario Court of Appeal stated that Awhile the Rules of
Professional Conduct may inform a court's decision on the questions
of duty and standard of care, they do not, in and of themselves, create
legal duties that found a basis for civil liability. The question of
whether a duty of care arises in a negligence action is one that must be
determined according to general principles of tort law" - See paragraph
62.
In the case of Baldwin v. Chalker (1984), 48 Nfld. & P.E.I.R. 86; 142
A.P.R. 86 (Nfld. C.A.), the headnote stated:
The Newfoundland Court of Appeal affirmed that "where a solicitor is
in breach of a duty to a client by failing to exercise that degree of care
Page 39
and skill expected of a reasonably prudent solicitor an action lies in
both contract and tort" - See paragraph 6.
See MacDonald Estate v. Martin (1990), 121 N.R. 1; 70 Man.R.(2d)
241 (S.C.C.), at para. 52.
See also Central Trust Co. v. Rafuse and Cordon (1986), 69 N.R.
321; 75 N.S.R.(2d) 109; 186 A.P.R. 109 (S.C.C.).
Search aid - MLB Key No. - Barristers and Solicitors Topic 2502 is
assigned to cases that consider the basis of a lawyer=s liability in negligence.
See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
4.23 Negligence versus error of judgment
In the case of Anastasakos v. Allen (1996), 16 O.T.C. 413 (Gen.
Div.), the court stated at para. 7:
[7] These facts cannot support a finding of negligence. The law with
respect to solicitor's negligence in the conduct of a trial is well settled.
While the courts will not go so far as to grant absolute immunity to a
barrister for the conduct of litigation, negligence will not be found on
decisions based on the exercise of judgment, of which there are many
during the course of a trial. There must be "egregious error". I agree
with Mr. Justice Krever that it would be very rare to hold that a
decision made by counsel during a trial was negligence as opposed to
an error in judgment: Demarco v. Ungaro (1979), 21 O.R.(2d) 673
(H.C.). In fact, the decision here seems to be no error in judgment at
all. The only basis for saying otherwise is that at the second trial, the
witnesses were called and the plaintiff was acquitted. However, the
judge's charge was also without the error.
In the case of Grand Anse Contracting Ltd. v. MacKinnon (1993),
121 N.S.R.(2d) 423; 335 A.P.R. 423 (T.D.), the headnote stated:
A client sued a lawyer for damages for failing to properly conduct the
defence of an action - The Nova Scotia Supreme Court, Trial Division,
stated that the lawyer's conduct, to constitute negligence in such
circumstances, must extend appreciably beyond the realm of an error
of judgment and that liability should be imposed only for egregious
errors of judgment (see paragraph 15).
Search aid - MLB Key No. - Barristers and Solicitors Topic 2542 is
Page 40
assigned to cases that consider negligence versus an error of judgment. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
4.24 Negligence, considerations in determining liability
In the case of Duncan v. Cuelenaere (1986), 56 Sask.R. 230 (Q.B.),
the headnote stated:
The Saskatchewan Court of Queen's Bench stated that the
considerations to be applied in determining the negligence of a
solicitor include: "the sophistication of the client; the experience and
training of the solicitor; the form and nature of the client's instructions;
the specificity of those instructions; the nature of the action or legal
assignment; the precautions one would expect a solicitor acting
prudently and competently to take; the course of the proceeding or
assignment; and the influence of other factors beyond the control of
the client and advisor" - See paragraph 7.
Search aid - MLB Key No. - Barristers and Solicitors Topic 2505 is
assigned to cases that consider the considerations in determining liability for
negligence. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
Page 41
Chapter 5 - The lawyer=s duty to other lawyers
Overview: The lawyer=s relation to other lawyers is important to the
administration of justice. This is because most civil claims are settled without a
trial and a substantial number of criminal charges result in a guilty plea without
a trial. Lawyers interacting with other lawyers produce out of court settlements
in both criminal and civil cases.
..........................................................................
5.1 General and notice of default proceedings
In the case of Thomas v. Keddy Motor Inns Ltd. (1992), 117
N.S.R.(2d) 420; 324 A.P.R. 420 (T.D.), the court referred to the duty of
lawyers to act toward other lawyers with courtesy and good faith. The court
stated at paras. 13 and 14:
[13] Counsel for the applicants, has brought to my attention the
provision in the codified standard of ethics and practice, a code which
applies to all members of the legal profession in Nova Scotia. Legal
Ethics and Professional Conduct is the published standard of
conduct adopted by the Nova Scotia Barristers= Society in 1990.
Chapter 13 of that booklet deals with the practitioner's duties to other
lawyers. The general rule is a lawyer has a duty to treat and deal with
other lawyers courteously and in good faith. Some of the commentary
on that rule reads as follows:
"13.3 A lawyer has a duty to accede to a reasonable request
for a trial date, an adjournment, a waiver of procedural
formality and any similar matter that does not prejudice the
rights of the client. A lawyer who knows that another lawyer
has been consulted in a matter has a duty not to proceed by
default in the matter without enquiry and warning."
This standard is consistent with the expectation of the court in these
circumstances.
[14] Due to her earlier waiver of the time to file the defence, plaintiff's
counsel should have issued a warning in these circumstances that she
expected a defence to be filed by a specific date, a date which would
provide defendants' counsel a reasonable opportunity to prepare and
file a defence. Because of that failure, it is appropriate that I exercise
Page 42
my discretion under rule 12.06 and set aside the default judgment. I
also believe that counsel, in a situation where they have had dealings
with opposing counsel, should not proceed with an ex parte default
application without giving notice to opposing counsel.
Search aid - MLB Key No. - Barristers and Solicitors Topic 4009 is
assigned to cases that consider the duty of a lawyer to another lawyer when
signing default judgment. See www.mlb.nb.ca and Appendix for a list of cases
that dealt with this issue.
5.2 Requirement of courteous conduct
In the case of 615231 Saskatchewan Ltd. v. Schulz et al. (2002), 220
Sask.R. 43 (Q.B.), the headnote stated:
An applicant brought an ex parte application for leave to serve a notice
of motion on the respondents requesting a summary order for
possession of a condominium (Recovery of Possession of Land Act
(Sask.), s. 3(1)) - It appeared from the applicant's supporting affidavit
that the respondents were likely represented by counsel - Queen's
Bench Rule 441A(c) required disclosure of legal counsel by an ex
parte applicant - The Saskatchewan Court of Queen's Bench refused to
grant leave without at least some form of short notice to the
respondents' counsel given the spirit and intent of rule 441A Professional courtesy required that counsel for an applicant provide
some form of notice where it appeared that a respondent was
represented by counsel - Counsel should bring an ex parte application
against a party who was known to be represented by another lawyer
only in exceptional circumstances - See paragraphs 2, 9 and 10.
Search aid - MLB Key No. - Barristers and Solicitors Topic 4005 is
assigned to cases that consider the duty of courtesy by a lawyer to another
lawyer. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this
issue.
5.3 Duty of successor lawyer to protect an outstanding account of the
former lawyer
In the case of Franklin Service Co. v. Halifax (1977), 20 N.S.R.(2d)
306; 27 A.P.R. 306 (T.D.), the headnote stated:
The Nova Scotia Supreme Court, Trial Division, stated that it is proper
Page 43
and necessary for a successor lawyer to insist that the client take
reasonable steps to secure an outstanding account of a former lawyer See paragraph 23 - The Trial Division stated that while circumstances
may make it unreasonable for a successor lawyer to insist upon
payment of the outstanding account of a former lawyer, that the
successor lawyer may properly insist that security be given by the
client for payment of the former lawyer's account - See paragraph 25.
Search aid - MLB Key No. - Barristers and Solicitors Topic 4067 is
assigned to cases that consider the duty of a lawyer to protect the outstanding
account of a former lawyer. See www.mlb.nb.ca and Appendix for a list of
cases that dealt with this issue.
5.4 Undertakings to other lawyers, enforcement
In the case of Regatta Investments Ltd. and Thullner v. Haig et al.
(1985), 36 Man.R.(2d) 154 (Q.B.), the court stated at paras. 9 to 11:
[9] There is no question that the court does have inherent jurisdiction
to enforce a solicitor's undertaking. See Raman v. Him, [1980] A.C.
497, a decision of the Privy Council in England.
[10] There is also authority for the proposition that trust conditions
imposed by one solicitor and accepted by the other, will be equated to
an undertaking by the latter to comply with the conditions, unless
those conditions are rejected by the receiving solicitor. See Witten,
Vogel, Binder & Lyons v. Leung, Harwardt and MacPherson
(1983), 46 A.R. 53; 148 D.L.R.(3d) 418 (Q.B.).
[11] Moreover, the performance of a solicitor's undertaking may be
enforced summarily. See Geoffrey Silver v. Baines, [1971] 1 All E.R.
473, per Denning, M.R., at p. 475 as follows:
"This court has from time immemorial exercised a summary
jurisdiction over solicitors. They are officers of the court and
are answerable to the court for anything that goes wrong in
the execution of their office ... This jurisdiction extends so far
that, if a solicitor gives an undertaking in his capacity as a
solicitor, the court may order him straightaway to perform his
undertakings. It need not be an undertaking to the court. Nor
need it be given in connection with legal proceedings. It may
be a simple undertaking to pay money, provided always that it
Page 44
is given 'in his capacity as a solicitor' ... If such an undertaking
is given, the court may summarily make an order on the
solicitor to fulfil his undertaking ... and, if he then fails to do
so, the court may commit him to prison ... This summary
jurisdiction means, however, that the solicitor is deprived of
the advantages which ordinarily avail a defendant on a trial.
There are no pleadings; no discovery; and no oral evidence
save by leave. The jurisdiction should, therefore, only be
exercised in a clear case."
Search aid - MLB Key No. - Barristers and Solicitors Topic 4151 is
assigned to cases that consider the enforcement of undertakings made to other
lawyers. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
Page 45
Chapter 6 - The lawyer and the law society
Overview: The practicing lawyer is required to follow the rules and
guidelines of the law societies. The practicing lawyer must be especially
careful when handling a client=s money. Some law societies have enacted
detailed rules respecting client=s funds in trust accounts and the handling of
large sums received from clients. The law societies are also empowered to
determine what constitutes professional misconduct.
........................................................................
6.1 Powers of law societies
In the case of First Canadian Title Co. v. Law Society of British
Columbia, [2004] B.C.T.C. 197 (S.C.), the court stated at paras. 21 and 22:
[21] In this province, the legal profession is self-governed. In s. 3 of
the Legal Profession Act the Legislature entrusted to the Law Society,
not to the courts, the responsibility of regulating and supervising the
professional conduct of its members. The Law Society fulfills that
mandate by establishing standards and by regulating the practice of
law, and it contends that, as the profession's governing body, it must
insist upon the adherence of its members to a common denominator of
good conduct that satisfies its own standards as well as the demands of
the clients and the community which the profession serves.
[22] In Young v. Young (1990), 50 B.C.L.R. (2d) 1 (C.A.), Cumming
J.A., observed, at p. 68:
"This court has recognized that the benchers are responsible
for determining what is, and what is not, professional
misconduct, and has held that the courts ought to be reluctant
to interfere in that determination."
In the case of Klein and Dvorak v. Law Society of Upper Canada
(1985), 8 O.A.C. 161 (Div. Ct.), the headnote stated:
Lawyer-press relations - The Ontario Divisional Court held that the
Law Society of Upper Canada had no right to prohibit lawyers from
initiating contact with news media, because Rule 13, commentary 18
of the Rules of Professional Conduct was of no force and effect as
Page 46
contravening the right to freedom of expression guaranteed in s. 2(b)
of the Canadian Charter of Rights and Freedoms - See paragraphs 43
to 48.
In the case of Stewart, McKelvey v. Nova Scotia Barristers Society
(2005), 236 N.S.R.(2d) 327; 749 A.P.R. 327 (S.C.), the headnote stated:
The Complaints Investigation Committee (CIC) of the Nova Scotia
Barristers' Society subpoenaed documents from a lawyer - At issue
was whether the CIC was entitled to access documents which were or
might be subject to solicitor-client privilege where the client had
objected to the lawyer, or law firm, disclosing privileged documents to
the CIC - The Nova Scotia Supreme Court held that the lawyer was
obliged to provide the material and in so doing was deemed not to
have breached any privilege of his client (Legal Professions Act, ss.
77(1), 77(3) and 77(4)) - If there were gaps in the legislation, public
policy considerations required that the information requested had to be
provided so as to allow the Society to continue its investigation - The
duty to provide the requested information was inherent in the
solicitor's obligation to self report and provide information necessary
to conduct the type of investigation required to maintain public
confidence and to allow the Society to fulfill its purpose as set out in
the legislation.
Search aid - MLB Key Nos. - Barristers and Solicitors Topic 7641
and Topic 7659 are assigned to cases that consider the powers of the law
societies. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
6.2 Discipline
In the case of Rowenbaum v. Manitoba Law Society (1983), 25
Man.R.(2d) 154 (C.A.), the headnote stated:
Jurisdiction of disciplinary body - The Manitoba Court of Appeal
affirmed that the Law Society of Manitoba had jurisdiction to decide if
a lawyer was guilty of professional misconduct where the lawyer, as a
defendant in another action, lied to the court - See paragraph 1.
In the case of Krieger et al. v. Law Society of Alberta (2002), 293
N.R. 201; 312 A.R. 275; 281 W.A.C. 275 (S.C.C.), the headnote stated:
Page 47
Jurisdiction of disciplinary body - The prosecutor in a murder case
failed to disclose relevant information - The accused filed a complaint
with the Law Society - The prosecutor challenged the Society's
jurisdiction - The Supreme Court of Canada held that the Law Society
had jurisdiction to review an allegation that a prosecutor acted
dishonestly or in bad faith in failing to disclose information - The
province had jurisdiction to regulate the legal profession (Constitution
Act, 1867, s. 92(13) (property and civil rights)) - Since prosecutors
must be members of the Law Society, they were subject to the
Society's Code of Professional Conduct - The court stated that "all
conduct that is not protected by the doctrine of prosecutorial discretion
is subject to the conduct review process. As the disclosure of relevant
evidence is not a matter of prosecutorial discretion but, rather, is a
legal duty, the Law Society possesses the jurisdiction to review an
allegation that a Crown prosecutor acting dishonestly or in bad faith
failed to disclose relevant information" - See paragraphs 1 to 60.
In the case of Pearlman v. Manitoba Law Society Judicial
Committee (1991), 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81 (S.C.C.),
the headnote stated:
Jurisdiction of disciplinary body - A lawyer who owned several houses
in Winnipeg was ordered by the City to make repairs - The lawyer
wrote a number of letters to a city building inspector threatening both
civil and criminal action - He also warned the inspector to stay off his
property - In a related court action the solicitor was ordered to pay
$1,500 in costs to the building inspector, but refused to do so - The
Supreme Court of Canada affirmed that the Law Society had
jurisdiction to determine whether the solicitor's actions constituted
conduct unbecoming a solicitor - See paragraph 25.
In the case of Trumbley and Pugh et al. v. Toronto Police Force et
al. (1986), 15 O.A.C. 279 (C.A.), the headnote stated:
The Ontario Court of Appeal commented that the rights guaranteed by
s. 11 of the Charter did not apply to discipline proceedings under the
Law Society Act (Ont.), because a person charged with a disciplinary
offence is not "charged with an offence" within the meaning of s. 11 of
the Charter - See paragraph 77.
Page 48
Search aid - MLB Key Nos. - Barristers and Solicitors Topic 5101
and Topic 5182 are assigned to cases that consider the discipline of lawyers by
a law society. See www.mlb.nb.ca and Appendix for a list of cases that dealt
with this issue.
6.3 Professional misconduct defined
In the case of Yake v. Law Society of Alberta (1997), 209 A.R. 59;
160 W.A.C. 59 (C.A.), the headnote stated:
Yake represented a client respecting her motor vehicle accident claim His client disagreed with a portion of her doctor's medical/legal report
- Yake removed a paragraph from the report before forwarding it to
the defendant's insurer - The Hearing Committee of the Law Society of
Alberta found Yake guilty of professional misconduct - The Benchers
of the Law Society upheld the finding, but reduced the penalty from a
four month suspension to a two month suspension - Yake appealed the
finding and the sentence - The Alberta Court of Appeal dismissed the
appeal
In the case of Law Society of British Columbia v. Heringa (2004),
195 B.C.A.C. 198; 319 W.A.C. 198 (C.A.), the headnote stated:
A lawyer failed for five years to comply with an undertaking to
discharge a mortgage from the title of property purchased by his
clients - The British Columbia Court of Appeal affirmed that the
lawyer was guilty of professional misconduct - The court affirmed that
undertakings were solemn promises to be accorded the most urgent
and diligent attention - The lawyer's "cavalier" attitude toward the
fulfilment of his undertaking obligation had no place in the practice of
law.
In the case of Law Society of British Columbia v. Ewachniuk
(2003), 181 B.C.A.C. 110; 298 W.A.C. 110 (C.A.), the headnote stated:
A hearing panel appointed by the Discipline Committee of the Law
Society found a lawyer guilty of professional misconduct in (1)
attempting to intimidate and in actually intimidating two American
witnesses from giving evidence at a B.C. trial, and (2) requesting
Crown counsel to lay charges against these witnesses to prevent them
from coming to Canada to give evidence - The British Columbia Court
of Appeal affirmed the finding, stating that the panel's findings were
Page 49
not unreasonable, contrary to the overwhelming weight of the
evidence or based on an erroneous assumption or inference - See
paragraphs 23 to 32.
In the case of Harris v. Nova Scotia Barristers Society (2004), 228
N.S.R.(2d) 153; 723 A.P.R. 153 (C.A.), the headnote stated:
An adjudicative hearing panel of the Discipline Committee of the
Nova Scotia Barristers' Society found Harris guilty of professional
misconduct for (1) failing to prepare monthly trust reconciliations,
maintain adequate books of original entry, maintain a chronological
file of copies of billings and file a required Form 20 on time contrary
to the Society's trust account regulations and (2) demonstrating "a
continued reckless disregard" of the Society's trust account regulations
- The panel reprimanded Harris for professional misconduct - There
was no suggestion that she had misappropriated money from her trust
account - The Nova Scotia Court of Appeal refused to interfere with
the panel's finding - See paragraphs 139 to 161.
In the case of Ayres v. Nova Scotia Barristers' Society (1998), 169
N.S.R.(2d) 315; 508 A.P.R. 315 (C.A.), the headnote stated:
A lawyer was found guilty of professional misconduct by the Nova
Scotia Barristers' Society for (1) making disparaging and abusive
remarks about other lawyers; (2) surreptitiously tape-recording a client
conversation; (3) charging clients unreasonable and excessive fees; (4)
seeking business in a manner contrary to the public interest and
integrity and dignity of the profession; and (5) attempting to dissuade
a client, a material witness under subpoena, from testifying against her
- The penalty imposed was suspension from practice for a minimum of
six months or until the lawyer was adjudged medically and
psychologically fit to practise, payment of $100,000 towards the cost
of the inquiry and the taking of two professional training courses in
skills training and responsibilities - Nonpayment of the costs order
would result in disbarment - The Nova Scotia Court of Appeal
dismissed the lawyer's appeal against the finding of professional
misconduct and the penalty imposed - Absent an error of law on the
face of the record or a breach of the rules of natural justice, the court
could not interfere with the self-governing body's disciplinary
decision.
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In the case of Nova Scotia Barristers' Society v. Saunders (1982), 55
N.S.R.(2d) 1; 114 A.P.R. 1 (C.A.), the headnote stated:
The Nova Scotia Court of Appeal affirmed a decision that a lawyer's
failure to respond to the Barristers' Society's correspondence regarding
complaints against the lawyer, constituted professional misconduct or
conduct unbecoming a barrister - See paragraphs 1 to 3.
In the case of Spring v. Law Society of Upper Canada (1988), 28
O.A.C. 375 (Div. Ct.), the headnote stated:
The Ontario Divisional Court affirmed the disbarment of a lawyer for
professional misconduct and conduct unbecoming a solicitor, where
the lawyer lied to or misled clients, other solicitors and the Law
Society's auditor, misapplied mortgage funds and swore falsely in an
affidavit and in oral testimony - See paragraphs 16 to 17.
In the case of Adams v. Law Society of Alberta (2000), 266 A.R.
157; 228 W.A.C. 157 (C.A.), the headnote stated:
The Hearing Committee of the Law Society of Alberta disbarred
Adams after his conviction for sexual exploitation of his 16-year-old
client - The Benchers of the Law Society affirmed the decision Adams appealed - He argued that the Hearing Committee overemphasized the harm to the reputation of the legal profession; failed to
accord sufficient weight to good character evidence; erred in rejecting
expert evidence as to the risk of Adams' re-offending; erred in relying
on aggravating factors that were not proven; and finally, imposed a
penalty that was a marked departure from penalties imposed on similar
offenders for similar offences, and was manifestly unreasonable - The
Alberta Court of Appeal dismissed the appeal.
In the case of Adams v. Law Society of Alberta (1988), 88 A.R. 313
(C.A.), the headnote stated:
A lawyer was found guilty of four charges of conduct unbecoming a
barrister and solicitor - The Law Society rejected the lawyer's
submission that the misconduct was caused by "incompetence" Therefore, disbarment was a possible disciplinary penalty - The lawyer
deliberately deceived a client by forging a letter, preparing a document
Page 51
purporting to be a Federal Court order, affixing a Federal Court of
Canada seal to the document, and lying to the disciplinary committee
by blaming a secretary - The Alberta Court of Appeal affirmed the
penalty of disbarment, where the misconduct was a serious affront to
the integrity of the profession and the rights of clients.
In the case of Chopra v. Law Society of Alberta (1988), 88 A.R. 312
(C.A.), the headnote stated:
A lawyer swore and filed a false affidavit on an appeal from a taxation
of an account - The Alberta Court of Appeal affirmed the Law
Society's imposition of a 30 day suspension plus an order requiring the
lawyer to pay the $3,500.00 costs of the disciplinary hearing.
In the case of Segal v. Law Society of Saskatchewan (1999), 189
Sask.R. 134; 216 W.A.C. 134 (C.A.), the headnote stated:
The Discipline Committee of the Law Society of Saskatchewan found
Segal guilty of conduct unbecoming a lawyer - The Committee
ordered that Segal be suspended for 45 days with respect to a client
entering into an unfair contingency agreement under duress and
suspended for 15 days for two complaints of intentionally misleading
other persons - The 15 day suspensions were concurrent to each other,
but consecutive to the 45 day suspension - He also received a
reprimand for attempting to have a discipline charge withdrawn Segal was also ordered to pay the costs of the hearing - The
Saskatchewan Court of Appeal affirmed the sanctions, but reduced the
amount of costs that Segal was ordered to pay.
In the case of Wasylyshen v. Law Society of Saskatchewan (1985),
39 Sask.R. 187 (C.A.), the headnote stated:
A lawyer represented to the law society that a client's trust account
which was debited or "overdrawn" had been "corrected" when in fact
such was not done until later - The lawyer could have, but did not,
promptly advise the society of the misinformation - The Saskatchewan Court of Appeal affirmed, inter alia, a two-month suspension
from practice - See paragraphs 11 to 15.
In the case of MacIsaac, Re (1983), 22 Sask.R. 10 (C.A.), the
headnote stated:
Page 52
A lawyer received monies in trust on the condition that he would
immediately pay the arrears owing on a mortgage - He failed to do so,
indirectly because of his interest in the property - The Saskatchewan
Court of Appeal affirmed the lawyer's 30 day suspension from practice
for professional misconduct - See paragraphs 21 to 24.
In the case of Lamontagne v. Law Society of Saskatchewan (1991),
89 Sask.R. 219 (C.A.), the headnote stated:
The discipline committee of the Law Society made 11 allegations of
conduct unbecoming against a lawyer - Allegations included trust
account violations, violation of a trust condition, professional
discourtesy, failure to pay for professional services - Accused admitted
to the allegations - He admitted addiction to drugs and alcohol and
voluntarily entered a rehabilitation program - Nine months' suspension
pending hearing - The discipline committee suspended him for two
years' followed by two years' probation - The Saskatchewan Court of
Appeal reduced suspension to one year and varied conditions of
probation - See paragraphs 4 to 16.
In the case of Hatfield v. Nova Scotia Barrister Society (1978), 30
N.S.R.(2d) 386; 49 A.P.R. 386 (C.A.), the headnote stated:
A lawyer improperly used trust funds in breach of the Barristers and
Solicitors Act Regulations - The Nova Scotia Court of Appeal
affirmed the imposition of a fine of $1,000 - See paragraphs 26, 61
and 69.
Search aid - MLB Key Nos. - Barristers and Solicitors Topic 5106
and Topic 5304 and Topic 5385 and Topic 5486 are assigned to cases that
define professional misconduct. See www.mlb.nb.ca and Appendix for a list of
cases that dealt with this issue.
6.4 Law society rules, guidelines, etc.
In the case of Bank of Monteal v. Dresler (2002), 253 N.B.R.(2d) 37;
660 A.P.R. 37 (C.A.), the headnote stated:
The New Brunswick Court of Appeal stated that "It is important to
recognize that the courts are not bound by the Law Society's rules and
Page 53
guidelines, no matter how clearly worded. It remains the prerogative
of the former to exercise their supervisory (common law) jurisdiction
in a manner inconsistent with a law society standard or rule. ... such
rules do not have the same legal effect as a statute or regulation." However, the court also recognized that the Supreme Court of Canada
had stated that rules set by a professional body are of "guiding
importance in determining the nature of the duties flowing from a
particular professional relationship" - See paragraphs 45 to 47.
Search aid - MLB Key No. - Barristers and Solicitors Topic 7608 is
assigned to cases that consider the law society practice notes, rules, guidelines,
etc. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this
issue.
Page 54
Chapter 7 - The Prosecutor
Overview: The prosecutor represents the people or the Crown and
should have no interest other than to see that justice is done. The prosecutor=s
pre-eminent duty is to the state - see Professional Conduct for Lawyers and
Judges by Beverley G. Smith, at chapter 8, para. 13.
7.1 Role of
In the case of Nelles v. Ontario (1989), 98 N.R. 321; 35 O.A.C. 161
(S.C.C.), the Supreme Court of Canada stated at paras. 38 and 39:
[38] Historically the Attorney General's role was that of legal adviser
to the Crown and to the various departments of government. More
specifically the principal function was and still is the prosecution of
offenders. The appointment of Crown Attorneys as agents of the
Attorney General, arose from the increasing difficulty of the Attorney
General to attend effectively to all of his duties amid increases in
population, and the expansion of settlement.
[39] The office of the Crown Attorney has as its main function the
prosecution of and supervision over indictable and summary
conviction offences. The Crown Attorney is to administer justice at a
local level and in so doing acts as agent for the Attorney General.
Traditionally the Crown Attorney has been described as a "minister of
justice" and "ought to regard himself as part of the court rather than as
an advocate". (Morris Manning, Abuse of Power by Crown
Attorneys, [1979] L.S.U.C. Lectures 571, at p. 580, quoting Henry
Bull, Q.C.) As regards the proper role of the Crown Attorney, perhaps
no more often quoted statement is that of Rand, J., in Boucher v. R.,
[1955] S.C.R. 16, at pp. 23-24:
"It cannot be over-emphasized that the purpose of a criminal
prosecution is not to obtain a conviction, it is to lay before a
jury what the Crown considers to be credible evidence
relevant to what is alleged to be a crime. Counsel have a duty
to see that all available legal proof of the facts is presented: it
should be done firmly and pressed to its legitimate strength
but it must also be done fairly. The role of prosecutor
excludes any notion of winning or losing; his function is a
Page 55
matter of public duty than which in civil life there can be none
charged with greater personal responsibility. It is to be
efficiently performed with an ingrained sense of the dignity,
the seriousness and the justness of judicial proceedings."
Search aid - MLB Key No. - Barristers and Solicitors Topic 1802 is
assigned to cases that consider the role of the prosecutor. See www.mlb.nb.ca
and Appendix for a list of cases that dealt with this issue.
7.2 Duties of prosecutor
In the case of R. v. Hauser (1977), 7 A.R. 89 (C.A.), the Alberta Court
of Appeal stated at paras. 16 and 17:
[16] This function of the Attorney General is considered in a recent
decision of the House of Lords in Attorney General v. Gouriet; Post
Office Engineering Union v. Gouriet; Union of Post Office
Workers v. Gouriet, [1977] 3 W.L.R. 300. The facts were that Mr.
Gouriet as a citizen complained that the Post Office employees were
detaining or delaying postal packets or messages between England and
South Africa, and Gouriet applied for an Injunction to restrain the
employees. The Attorney General had not consented to the
proceedings, and took the position that Mr. Gouriet had no status in
the Court, The Court of Appeal for England, in effect, said that if the
Attorney General would not do his duty and consent to proceedings to
prevent a breach of the nation's law, the Court could, on the
application of a citizen, intervene.
[17] The matter went to the House of Lords, where the decision of the
Court of Appeal was overruled, but in the course of that decision,
some observations which are germane to the matters at hand, and
which relate to the function of the Attorney General are made.
Viscount Dilhorne said that at P. 319:
"The Attorney General has many powers and duties. He may
stop any prosecution on indictment by entering a nolle
prosequi. He merely has to sign a piece of paper saying that
he does not wish the prosecution to continue. He need not
give any reasons. He can direct the institution of a prosecution
and direct the Director of Public Prosecutions to take over the
conduct of any criminal proceedings and he may tell him to
offer no evidence. In the exercise of these powers he is not
subject to direction by his ministerial colleagues or to control
Page 56
and supervision by the Courts."
In the case of R. v. Burns (D.R.) (1993), 136 N.B.R.(2d) 166; 347
A.P.R. 166 (C.A.), the New Brunswick Court of Appeal stated:
[13] The duties of a prosecutor have been repeated time and time
again, but every now and then, they are unfortunately overlooked to
the detriment of a proper and fair administration of criminal justice.
The case of R. v. Boucher, [1954] S.C.R. 16; 110 C.C.C. 263, is still
the leading case which reviews these duties. In the present case, it was
the duty of Crown counsel to assist the judge in seeing that the
evidence, not only of his own witnesses, but those of the defence be
presented before the court in a fair and impartial manner. The
prosecutor is not the advocate of the complainant, but a public officer
whose duty extends to all citizens, including the accused.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1803 is
assigned to cases that consider the duties of the prosecutor. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
7.3 Standard of conduct
In the case of R. v. Chan (A.H.) (2003), 334 A.R. 374 (Q.B.), the
headnote stated:
The Crown preferred a direct indictment against several accused - The
accused intended to seek a stay of proceedings, alleging abuse of
process based on prosecutorial misconduct, or to move to quash the
direct indictment based on an improper exercise of the Attorney
General's discretion in consenting to the indictment - The accused
sought disclosure of correspondence between local Crown counsel and
the Minister of Justice's office and associated internal memoranda
related to the preferment of the indictment - The Alberta Court of
Queen's Bench held that the accused had to meet a threshold
requirement of a credible showing of flagrant impropriety before the
court could enter into an abuse hearing based on prosecutorial
misconduct or judicial review of the Attorney General's preferment of
the indictment - The accused's evidence did not raise a tenable
allegation of mala fides or a credible showing of impropriety on the
part of the Crown or the Attorney General - Therefore, an assessment
of the documents' relevance was premature - See paragraphs 20 to 35.
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In the case of R. v. F.S. (2000), 130 O.A.C. 41 (C.A.), the headnote
stated:
The accused appealed his convictions on several sexual offences
against his stepdaughter - The Ontario Court of Appeal allowed the
appeal and ordered a new trial where Crown counsel's conduct
seriously prejudiced the accused - He personalized his role and
injected his own credibility and belief into the case - His stated goal
was to obtain a conviction and justice for the complainant - He was
inappropriately sarcastic, flippant and disrespectful to the accused His conduct was not moderate and impartial but improper and unfair He also improperly attacked the accused's credibility - He improperly
misrepresented the accused's evidence to the jury and the trial judge
endorsed the misstatement - He invited the accused to explain why the
complainant would make up the allegations then ridiculed the
explanation - He also improperly asked the accused whether the
complainant was a known liar - See paragraphs 10 to 29.
In the case of R. v. Balchand (O.) (2001), 155 O.A.C. 132 (C.A.), the
headnote stated:
The accused was charged with murdering Vickram's wife - Defence
counsel's line of attack was designed to implicate Vickram as the killer
- The Ontario Court of Appeal held that it was wrong for Crown
counsel to focus on this line of attack and use it to portray the accused
as a person without conscience, who would deliberately implicate an
innocent man to save herself - It was also wrong for Crown counsel to
place the accused in the position of having to call the police "liars"
where her evidence differed from their evidence.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1804 is
assigned to cases that consider the standard of conduct of the prosecutor. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
7.4 Conflict of interest
In the case of R. v. Lindskog (K.B.) (1997), 159 Sask.R. 1 (Q.B.), the
headnote stated:
The accused was charged with sexual assault - The Crown prosecutor,
Ritter, had represented the accused on a theft charge in 1993 when
Ritter was a legal aid lawyer - The Saskatchewan Court of Queen's
Page 58
Bench held that Ritter had a disqualifying conflict of interest that
amounted to a breach of the accused's right to a fair trial under ss. 7
and 11(d) of the Charter - However, the court held that the appropriate
remedy was not to order a stay, but rather to remove Ritter as Crown
counsel - Ritter had obtained information about the accused's
background and character and it would be an obvious conflict of
interest for him to cross-examine the accused if the accused elected to
testify - See paragraphs 37 and 38.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1805 is
assigned to cases that consider conflict of interest of the prosecutor. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
7.5 Duty to call witnesses
In the case of R. v. Franks (1991), 4 B.C.A.C. 72; 9 W.A.C. 72
(C.A.), the headnote stated:
The British Columbia Court of Appeal stated that a prosecutor has a
discretion to determine who should be called to testify for the Crown The court added that it should not interfere with that discretion unless
it be shown that the prosecutor has been influenced by some oblique or
improper motive in the exercise of his discretion - See paragraph 13.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1806 is
assigned to cases that consider the duty of the prosecutor to call witnesses. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
Page 59
Chapter 8 - The Defence Lawyer
Overview: Unlike a prosecutor, a criminal defence lawyer has a client.
Such a lawyer-client relationship is subject to the usual rights, duties and
liabilities. The defence lawyer must be aware of the potential conflict between
his duty to his client and the defence lawyer=s duty to the court and the justice
system. Unlike the burden of proof in a civil trial, in a criminal trial the
accused is presumed innocent.
8.1 Extent or limits of duty
In the case of R. v. Dunn (P.I.) (1993), 143 A.R. 238 (Prov. Ct.), the
headnote stated:
Extent or limits of duty - The Alberta Provincial Court discussed the
duty of defence counsel in criminal court - The court stated that an
accused's fundamental freedoms do not prevent counsel from advising
a client to plead guilty once it is clear that the Crown's evidence is
overwhelming - Counsel's duty to a client is balanced against his other
four duties, namely, his duty of integrity to himself, his duty to deal
fairly with opposing counsel and the court, and his duty not to abuse
the trust of society which designed a criminal justice system to give
every possible presumption of innocence and fairness to accused
persons - See paragraph 5.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1544 is
assigned to cases that consider the the extent of the duty owed to a client. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
8.2 The defence lawyer, termination of relationship
In the case of R. v. Huber (E.E.) (2004), 192 B.C.A.C. 75; 315
W.A.C. 75 (C.A.), the headnote stated:
Termination of relationship - Withdrawal by lawyer - General - The
British Columbia Court of Appeal, per Rowles, J.A., stated that absent
a finding that a lawyer's application to withdraw had an ulterior
purpose, a trial judge had no discretion to deny the application Whatever the reasons might be for counsel seeking to withdraw, the
court's scope of inquiry was circumscribed by issues that lay properly
within the domain of counsel and client - Inquiries must end at the
point at which "unhappy differences" or privilege were cited - Once
Page 60
the client consented to the withdrawal or had discharged counsel, the
bench could intervene no further than attempting to urge reconciliation
between counsel and client - See paragraphs 6 to 10, 21 to 25, 56 to
81.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1583 is
assigned to cases that consider the termination of a lawyer=s relationship with
an accused. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
In the case of A.L., Re (2003), 345 A.R. 201 (Q.B.), the headnote
stated:
Withdrawal by lawyer - Criminal cases - The Alberta Court of Queen's
Bench stated that in Alberta, a lawyer of record in criminal
proceedings had to obtain the court's leave to withdraw as counsel The leave application allowed the court to determine any contractual,
ethical, or administrative implications of a late withdrawal - It could
explore whether the situation was one of termination by the client or
by the lawyer - The court might also have a responsibility, within the
strictures imposed by solicitor-client privilege, to address the issue of
whether a lawyer was entitled in the specific circumstances to request
permission to withdraw - Moreover, even if the termination was
clearly by the client, a court appearance allowed the court to inform
the client that the termination of legal services did not necessarily
entitle the client to an adjournment to prepare for self-representation or
obtain a new lawyer - Finally, even if the termination was clearly by
the client and an adjournment was required, the appearance enabled
the court to advise the client of the need to move quickly to obtain a
new lawyer and, if required, provide information about how to contact
Legal Aid or other legal assistance - See paragraphs 20 to 24.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1588 is
assigned to cases that consider the termination of a lawyer=s relationship with
an accused. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
Page 61
8.3 The defence lawyer, conflict of interest
Beverley G. Smith in his text Professional Conduct for Lawyers and
Judges states in chapter 8, para. 63 AThe general rule that the defence lawyer
should represent only one of two or more co-accused is not an absolute one@.
In the case of R. v. Qiang (C.G.), [2001] O.T.C. 114 (Sup. Ct.), the
court stated at para. 58:
[58] It is important to keep in mind, however, that none of this is
problematic in the absence of an actual or potential conflict of interest.
As Doherty J.A. observed in R. v. Widdifield (supra) at 172 "there can
be no absolute bar against the joint representation of co-accused." In
the same case, Doherty J.A. considered the rationale underlying the
conflict of interest rule as follows (at 171-2):
A lawyer can render effective assistance only when that
lawyer gives the accused's cause the undivided loyalty which
is a prerequisite to proper legal representation. Within the
limits imposed by legal and ethical constraints, the lawyer
must champion the accused's cause without regard to counsel's
personal interests or the interests of anyone else. This duty of
undivided loyalty not only serves and protects the client, but
is essential to the maintenance of the overall integrity of the
justice system.
While there can be no absolute bar against the joint
representation of co-accused, joint representation puts
counsel's obligation of undivided loyalty to each client at risk.
In attempting to serve two masters, counsel may do a
disservice to the interests of one or both. Counsel who
undertake the joint representation of co-accused assume the
heavy burden of ensuring that they are not placed in a position
of representing interests which are or may be in conflict.
Where counsel fails to perform that duty and undertakes the
representation of interests which do or may conflict, the court
will order counsel removed from the record.
In the case of R. v. Silvini (1991), 50 O.A.C. 376 (C.A.), the headnote
stated:
Conflict of interests - Acting for jointly tried co-accused - The Ontario
Page 62
Court of Appeal stated that "it is generally recognized that a lawyer
representing more than one accused in a joint criminal trial is
potentially in a position of conflict ... joint representation may lead the
jury to link the co-accused together... In a case of joint representation
of conflicting interests, defence counsel's basic duty of undivided
loyalty and effective assistance is jeopardized and his performance
may be adversely affected. That is, he may refrain from doing certain
things for one client by reason of his concern that his action might
adversely affect his other client." - See paragraphs 11 to 12.
In the case of R. v. Phalen (D.F.) (1997), 160 N.S.R.(2d) 371; 473
A.P.R. 371 (C.A.), the headnote stated:
Conflict of interest - Acting for jointly charged or tried co-accused The accused and a friend came to the assistance of another friend who
was attacked by the complainant - The complainant struck the accused
a slight blow on the chest - The accused smashed the complainant in
the face twice - The accused and his friends were charged with assault
- They were tried together and were represented by the same lawyer The trial judge acquitted the friends and convicted the accused - The
accused alleged conflict of interest by his lawyer representing all three
accused - The Nova Scotia Court of Appeal rejected the ground of
appeal - There was no evidence of actual conflict and the evidence
pointed to a joint position that all three accused acted in self-defence
in reaction to the unprovoked attack of the complainant - See
paragraphs 18 to 23.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1604.1
is assigned to cases that consider a conflict of interest by a lawyer acting for an
accused. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
8.4 The defence lawyer, plea bargaining
The professional conduct of both prosecutor and defence lawyer comes
under scrutiny in the matter of plea bargaining. See Professional Conduct for
Lawyers and Judges by Beverley G. Smith, chapter 8, paras. 64 to 79.
In the case of R. v. Randhile (S.R.) (1997), 209 A.R. 209; 160
W.A.C. 209 (C.A.), the headnote stated:
Plea bargaining - Two accused were charged with second degree
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murder following the death of a homeowner during a late night breakin - They pleaded not guilty - After four days of trial, including 16
witnesses and the entry of 12 exhibits, the accused pleaded guilty (one
to manslaughter, the other to second degree murder) - The trial judge
sentenced the accused to terms of imprisonment one year longer than
jointly recommended - The Alberta Court of Appeal held that a
sentencing judge was not bound by a joint submission, although it
afforded important guidance - The sentencing discretion must be
exercised by the sentencing judge - See paragraphs 11 to 14.
In the case of R. v. Halvorsen (G.O.) (1994), 50 B.C.A.C. 87; 82
W.A.C. 87 (C.A.), the headnote stated:
Plea bargaining - The accused was convicted of robbery and a firearm
offence, on two apparent guilty pleas entered by counsel - He later
contended a plea bargain existed, whereby if bail was denied, he
would plead guilty to robbery if the Crown stayed the firearm charge It was conceded that the accused never intended to plead guilty but for
the "deal" - The British Columbia Court of Appeal held that there was
no valid guilty plea to the firearm charge, as the plea was not an
informed one where the accused was not aware of the plea's effect and
consequences - The court found a miscarriage of justice insofar as a
conviction was entered on the firearm charge and directed an acquittal
on that count.
In the case of R. v. Burlingham (T.W.) (1995), 181 N.R. 1; 58
B.C.A.C. 161; 96 W.A.C. 161 (S.C.C.), the headnote stated:
The Supreme Court of Canada discussed the content of an accused's
right to counsel during the plea bargaining process - See paragraphs 12
to 23 - The court stated, inter alia, that s. 10(b) of the Charter "...
mandates the Crown or police, whenever offering a plea bargain, to
tender that offer either to accused's counsel or to the accused while in
the presence of his or her counsel, unless the accused has expressly
waived the right to counsel. It is consequently a constitutional
infringement to place such an offer directly to an accused, especially
(as in the present appeal) when the police coercively leave it open only
for the short period of time during which they know defence counsel
to be unavailable" - See paragraph 21.
In the case of R. v. Howell (D.M.) (1996), 203 N.R. 247; 155
N.S.R.(2d) 58; 457 A.P.R. 58 (S.C.C.), the headnote stated:
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Plea bargaining - The accused was sentenced to 12 years'
imprisonment for conspiracy to traffic in a narcotic - During without
prejudice plea bargain negotiations, the Crown had offered to make
representations for a sentence of six years' imprisonment if the accused
pleaded guilty - The accused rejected the offer, but now sought to rely
on it to reduce his sentence - The Nova Scotia Court of Appeal stated
that the previous plea bargain offer, once unaccepted, became
irrelevant in sentencing the accused - The trial judge was to sentence
the accused solely on the basis of the facts before the court - The
Supreme Court of Canada dismissed the appeal for the reasons stated
by the Court of Appeal.
In the case of R. v. Pauchay (J.) (2003), 231 Sask.R. 234 (Q.B.), the
headnote stated:
Plea bargaining - The issue arose as to whether a trial judge could
significantly increase a sentence agreed to by the Crown and defence
where that judge had refused to expunge a guilty plea made on the
basis of that sentencing agreement - The Saskatchewan Court of
Queen's Bench stated that, absent exceptional circumstances, the trial
judge must either expunge the plea or uphold in principle the
sentencing agreement - See paragraphs 2 and 3.
Search aid - MLB Key No. - Criminal Law Topic 4231 is assigned
to cases that consider the subject of plea bargaining. See www.mlb.nb.ca and
click on Criminal Law Topic 4231 for a list of cases.
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Chapter 9 - Preparation of wills
Overview: When preparing a will a lawyer has special duties to the
client plus duties to third parties such as dependants of the client and the
beneficiaries under the will.
9.1 General
In preparing a will a lawyer has special duties that include:
- the lawyer must in cases of doubt regarding testamentary capacity
prepare notes regarding observed facts and conditions; and
- where the testator=s capacity is in doubt the lawyer should consider
obtaining an opinion regarding the testator=s capacity; and
- the lawyer should be satisfied that the testator or donor understands
the nature and consequences of the documents being signed; and
- the lawyer should obtain instructions for a will directly from the
testator and if the instructions are received from third parties, the
lawyer should be satisfied that the instructions represent the wishes of
the testator.
- see Legal Ethics by Mark M. Orkin at page 102 and Professional
Conduct for Lawyers and Judges (2nd Ed.) by Beverley G. Smith at
chapter 3, para. 54.
In the case of Mathis Estate, Re (1989), 62 Man.R.(2d) 50 (C.A.), the
headnote stated:
Monnin, C.J.M., of the Manitoba Court of Appeal stated that "a
solicitor who drafts a will is not required to find out to the penny what
a prospective testatrix owns. He must know the nature of the assets but
need not know the exact total. To properly draft a will a solicitor
should know the nature of the assets, namely, whether they are real
estate, bank accounts, stocks, bonds or various other types of
investments" - See paragraph 34.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1681 is
assigned to cases that consider the duty of the lawyer in the preparation of a
will. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this
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issue.
9.2 Duty where testator to disinherit a dependant
In the case of Kuhn v. Kuhn Estate (1992), 112 N.S.R.(2d) 38; 307
A.P.R. 38 (T.D.), the headnote stated:
The Nova Scotia Supreme Court, Trial Division, stated that "it is
incumbent upon solicitors, who take instructions for wills, to keep a
record of their instructions and to advise a testator who plans to
disinherit a spouse or child of the effects of the Testators' Family
Maintenance Act" - See paragraph 42.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1685 is
assigned to cases that consider the duty of the lawyer where a testator is about
to disinherit a dependant. See www.mlb.nb.ca and Appendix for a list of cases
that dealt with this issue.
9.3 Duty of a lawyer to test the capacity of a testator
In the case of Collicutt Estate, Re (1994), 134 N.S.R.(2d) 137; 383
A.P.R. 137 (C.A.), the headnote stated:
An 85 year old testatrix made wills in 1982 and 1985 making specific
bequests to friends and relatives and leaving the residue to charity - In
1988, the testatrix executed a new will, naming a neighbour as sole
beneficiary and executrix - The testatrix did not comprehend the extent
of her property - She had over $200,000 in the bank, yet worried that
she would be thrown out of the nursing home because she could not
pay to be there - The sole beneficiary's involvement in preparing the
new will was suspicious - The lawyer drafting the will did not properly
inquire into the testatrix's mental capacity - The Nova Scotia Probate
Court held that the propounder of the will failed to prove testamentary
capacity - The court was not satisfied that the testatrix knew and
approved of the contents of her will - The Nova Scotia Court of
Appeal affirmed the decision.
In the case of Carvell Estate, Re (1977), 21 N.B.R.(2d) 642; 37
A.P.R. 642 (Prob. Ct.), the headnote stated:
The New Brunswick Probate Court referred to the duties of a lawyer in
drawing a will for an elderly or infirm testator - The Probate Court
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referred to the tests which a lawyer should employ to test the
testamentary capacity of a client - See paragraphs 48 to 57.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1686 is
assigned to cases that consider the duty of the lawyer to test the capacity of a
testator. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
9.4 Duty of a lawyer to make notes in cases of doubtful capacity
In the case of Coughlan Estate, Re (2003), 227 Nfld. & P.E.I.R. 193;
677 A.P.R. 193 (P.E.I.T.D.), the headnote stated:
A 91 year old man (Coughlan) went to see a lawyer first to revoke a
power of attorney and then to make his will - Although Coughlan had
three children he wanted to leave his property to only two of them The lawyer, sensing that the will could be contested, engaged two
psychiatrists to comment on Coughlan's capacity - The lawyer
carefully questioned Coughlan and made detailed notes before
concluding that he had testamentary capacity - The lawyer made sure
that Coughlan's daughter was not present when the instructions were
taken - As the lawyer had sensed, the will was challenged on the basis
of a lack of testamentary capacity - The Prince Edward Island
Supreme Court, Trial Division, in finding that Coughlan had the
requisite capacity, stated that it was impressed by the steps taken by
the lawyer to satisfy himself that Coughlan had testamentary capacity See paragraphs 132 and 133.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1688 is
assigned to cases that consider the duty of the lawyer to prepare notes in cases
of doubtful capacity. See www.mlb.nb.ca and Appendix for a list of cases that
dealt with this issue.
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Chapter 10 - Duty to third parties
Overview: A lawyer when acting for a client may interact with third
parties and this interaction may result in a duty owed by the lawyer to the nonclient third party.
10.1 Duty of a lawyer to opposite parties
In the case of Lubarevich v. Nurgitz (1996), 1 O.T.C. 360 (Gen.
Div.), the court stated at para. 11:
[11] In the absence of special circumstances, of which none are
pleaded in this case, a solicitor owes no duty of care to the opposite
party and no action in negligence lies against the solicitor: Geo.
Cluthe Manufacturing Co. et al. v. ZTW Properties Inc. et al.
(1995), 81 O.A.C. 141; 23 O.R.(3d) 370 (Div. Ct.). While many of the
authorities arose from litigation situations, there is no essential
difference in the solicitor's duty: it is to advance his client's interests
and not to protect those of the opposite party in the negotiations or
dealings that he is engaged in.
Search aid - MLB Key No. - Barristers and Solicitors Topic 4321 is
assigned to cases that consider the duty of the lawyer to an opposite party. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
10.2 Duty arising out of undertaking to third party to pay funds
In the case of Leisure Homes v. Metcalf & Holm (1977), 21
N.S.R.(2d) 703; 28 A.P.R. 703 (C.A.), the headnote stated:
On behalf of his client a solicitor undertook to the plaintiff to pay to
the plaintiff funds from mortgage advances - Out of the first advance
the solicitor paid the contractor who was pressing for payment and
sent only a small portion to the plaintiff - The client ultimately
defaulted and the plaintiff sought recourse against the solicitor on his
undertaking - The Nova Scotia Court of Appeal held that the solicitor
was liable to the plaintiff for the funds not paid out of the advance in
accordance with the undertaking - See paragraphs 1 to 27
Search aid - MLB Key No. - Barristers and Solicitors Topic 4366 is
assigned to cases that consider the duty of the lawyer who undertakes to pay
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funds to a third party. See www.mlb.nb.ca and Appendix for a list of cases that
dealt with this issue.
10.3 Duty of a lawyer to a beneficiary when preparing a will
In the case of Remenda Estate v. Remenda (1998), 171 Sask.R. 300
(Q.B.), the headnote stated:
The Saskatchewan Court of Queen's Bench stated that "although
solicitors drafting wills have a duty of care to beneficiaries, they are
not insurers of all bequests. Negligence must be found; not only in
failing to make proper inquiries of the testator but in failing to draft a
document that accurately embodies the testator's true intention." - See
paragraph 4.
Search aid - MLB Key No. - Barristers and Solicitors Topic 2590.1
is assigned to cases that consider the duty of the lawyer in the preparation of a
will to a beneficiary. See www.mlb.nb.ca and Appendix for a list of cases that
dealt with this issue.
In the case of White v. Jones (1995), 179 N.R. 197 (H.L.), the
headnote stated:
A solicitor delayed the preparation of a will - The testator died before
the will could be executed - The testator's two daughters got nothing
under the original will - They would have received ,9,000 each had
the new will been executed - The daughters sued the solicitor for
negligence - The solicitor submitted that, inter alia, no duty was owed
to the daughters, there could be no recovery for an omission, and the
loss was not recoverable as it was purely economic - The House of
Lords held that the solicitor was liable for the daughters' loss.
Search aid - MLB Key No. - Barristers and Solicitors Topic 1681 is
assigned to cases that consider the duty of the lawyer in the preparation of a
will. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this
issue.
10.4 Duty of confidentiality to third parties
In the case of Escott v. Collision Clinic Ltd. et al. (1996), 141 Nfld.
& P.E.I.R. 16; 443 A.P.R. 16 (Nfld. T.D.), the headnote stated:
The Newfoundland Supreme Court, Trial Division, discussed whether
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a lawyer owed a duty of confidentiality respecting conversations with
a non-client - The court stated that "if the circumstances are such as to
warrant a reasonable expectation of confidentiality, the absence of the
relationship should not automatically exclude a disqualifying conflict
of interest. But in such a case, the person seeking to disqualify the
solicitor must bring forward evidence of all the circumstances, and in
particular those circumstances and facts giving rise to a 'justifiable
belief' in confidentiality. The circumstances would include anything
tending to show that the lawyer shared the individual's expectation of
confidentiality." - See paragraph 22.
Search aid - MLB Key No. - Barristers and Solicitors Topic 4447 is
assigned to cases that consider the duty of confidentiality of the lawyer to third parties.
See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
10.5 Duty owed to the debtor of a client
In the case of Abacus Cities Ltd. (Bankrupt) v. Bank of Montreal et
al. (1986), 74 A.R. 53 (Q.B.), the headnote stated:
The Alberta Court of Queen's Bench held that where a client was a
creditor, the solicitor owed a duty to further the client's interests
against the debtor - The solicitor owed no duty of care to the debtor in
relation to advice given to his client re enforcement of the debt,
because such a duty would impede the solicitor's duty to his client The court stated that to recognize a duty to the debtor "would fetter the
candour and vigour with which the solicitor should be encouraged to
proffer advice to his client. As a matter of policy no such duty of care
should be recognized by our law" - See paragraph 19.
Search aid - MLB Key No. - Barristers and Solicitors Topic 4442 is
assigned to cases that consider the duty owed to the debtor of a client. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
[Note that the Appendix referred to throughout the above research
guide is available in the print version of the guide. For free print copies,
call 1-800-561-0220 or 506-453-9921 to place an order. Fax 506-453-9525
or e-mail: service@mlb.nb.ca. The research guide may be printed or
downloaded free of charge and without obligation by lawyers, students,
professors, researchers, etc. These research guides are meant to provide
instruction on how to find cases that are relevant to wills, ethics or
statutes, etc. and refer to some of the first principles of the law in these
areas].
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