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PROFESSIONAL RESPONSIBILITY – LAW 468A.001
Steve Patterson
University of British Columbia
Prof. Henry Wood
Spring 2010
PART ONE – INTRODUCTION TO LEGAL ETHICS
Introduction……………………………………………………………………………………………………
Jabour v. Law Society of British Columbia (1980 BCCA)………………………………
II. Sources of Lawyers’ Ethics and Professional Regulation………………………………………
III. What Does It Mean To Be An Ethical Lawyer?...........................................................
1. Loyalty……………………………………………………………………………………………………………………………
R. v. Neil (2002 SCC)………………………………………………………………………………………
Szarfer v. Chodos (1986 Ont. HC)………………………………………………………………….
2. Justice……………………………………………………………………………………………………………………………..
R. v. Murray (2000 Ont. SC)……………………………………………………………………………
3. Integrity…………………………………………………………………………………………………………………………
Alice Woolley, “Integrity in Aealousness”……………………………………………………….
Spaulding v. Zimmerman (1962 Minn. SC)……………………………………………………
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PART TWO – THE FORMATION OF THE LAWYER-CLIENT RELATIONSHIP
Introduction……………………………………………………………………………………………………
Advertising…………………………………………….……………………………………………………….
Jabour v. Law Society of British Columbia (1980 BCCA)……………………………….
III. Solicitation…………………………………………….……………………………………………………….
Law Society of Saskatchewan v. Merchant (2000 LSDD)………………………………
Stewart v. Canadian Broadcasting Corp. (1997 Ont. Gen. Div. Ct.)…………….
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PART THREE – CONFIDENTIALITY AND PRIVILEGE
Introduction……………………………………………………………………………………………………
Overview………………………………………………………………………………………………………..
Descoteaux v. Mierzwinski (1982 SCC)………………………………………………………….
III. The Principle and Some Exceptions……………………………………………………………………
1. The “Future Crime” Exception.………………………………………………………………………………………
Smith v. Jones (1999 SCC)…………………………………………………………………………….
2. The “Innocence at Stake” Exception………………………………………………………………………………
R. v. McClure (2001 SCC)……………………………………………………………………………….
IV. The Principle Reasserted………………………………………………………………………………….
1. “Absolutely Necessary……………………………………………………………………………………………………
Goodis v. Ontario (Ministry of Correctional Services) (2006 SCC)……………….
2. Ethics Redux: Physical (Or Real) Evidence of a Crime…………………………………………………
V. Confidentiality, Law Enforcement, and National Security…………………………………….
R. v. Fink (2002 SCC)……………………………………………………………………………………..
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PART FOUR – THE DUTY OF LOYALTY AND CONFLICTS OF INTEREST
Introduction…………..……………………………………………………………………………………….
Duties to Former Clients……………………………………………………………………………………
MacDonald Estate v. Martin (1990 SCC)…………………………………………………………
III. Duties to Current Clients……………………………………………………………………………………
R. v. Neil (2002 SCC) ………………………………………………………………………………………
Strother v. 3464920 Canada Inc. (2007 SCC) ………………………………………………
IV. Lawyer-Client Conflicts……………………………………………………………………………………
Law Society of Upper Canada v. Hunter (2007 LSDD)……………………………………
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PART FIVE – THE LAWYER AS ADVOCATE
Introduction……………………………………………………………………………………………………
Ethics in Pre-Trial Proceedings……………………………………………………………………………
1. Pleadings……………………………………………………………………………………………………………………………
D.C.B. v. Zellers Inc. (1996 Man. QB) ……………………………………………………………
2. Discovery…………………………………………………………………………………………………………………………
Grossman Et. A. v. Toronto General Hospital Et. Al. (1983 Ont. HCJ)……………
3. Negotiation………………………………………………………………………………………………………………………
III. Ethics at Trial……………………………………………………………………………………………………
1. General………………………………………………………………………………………………………………………………
2. Cross-Examination……………………………………………………………………………………………………………
R. v. Lyttle (2004 SCC) ……………………………………………………………………………………
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Representations About the Law………………………………………………………………………………………
General Motors Acceptance Corp. of Canada v. Issac Estate (1992 Alta. QB)
IV. Advocacy and Civility…………………………………………………………………………………………
Schreiber v. Mulroney (2007 FTC) ……………………………………………………………………
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PART SIX – ETHICS AND CRIMINAL LAW
Introduction………………………………………………………………………………………………………
Ethical Duties of Crown Counsel……………………………………………………………………………
1. General………………………………………………………………………………………………………………………………
2. Full Disclosure……………………………………………………………………………………………………………………
R. v. Stinchcombe (1991 SCC) …………………………………………………………………………
Krieger v. Law Society of Alberta (2002 SCC) …………………………………………………
3. The Crown’s Duty to Call All Material Witnesses………………………………………………………………
R. v. Cook (1997 SCC) ………………………………………………………………………………………
4. Overzealous Advocacy By Crown Counsel…………………………………………………………………………
R. v. R. (A. J.) (1994 Ont. CA) ……………………………………………………………………………
III. Ethical Duties of Defence Counsel…………………………………………………………………………
1. General………………………………………………………………………………………………………………………………
2. Defending the Guilty Client………………………………………………………………………………………………
R. v. Tuckiar (1934 Aust. HC) ……………………………………………………………………………
3. Taking Custody and Control of Real Evidence…………………………………………………………………
R. v. Murray (2000 Ont. SC) ………………………………………………………………………………
4. Negotiating a Guilty Plea and Sentence……………………………………………………………………………
R. v. K. (S.) (1995 Ont. CA) ………………………………………………………………………………
5. Client Perjury……………………………………………………………………………………………………………………
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PART SEVEN – OTHER LAWYER DUTIES
Counselling and Negotiation…………………………………………………………………………………
1. General…………………………………………………………………………………………………………………………………
2. Counselling and Illegal Conduct…………………………………………………………………………………………
Law Society of Upper Canada v. Sussman (1995 LSDD) …………………………………
3. Other Issues in Counselling…………………………………………………………………………………………………
II. Transactions with Clients………………………………………………………………………………………
III. Undertakings……………………………………………………………………………………………………..
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PART EIGHT – ACCESS TO JUSTICE
I. Choice of Client……………………………………………………………………………………………………
II. Accessibility of Legal Services………………………………………………………………………………
III. Competence and Quality of Service………………………………………………………………………..
Nova Scotia Barristers’ Society v. Richey (2002 NSLD) ……………………………………
IV. Termination of the Lawyer-Client Relationship………………………………………………………
1. General…………………………………………………………………………………………………………………………………
2. Surprise Perjury……………………………………………………………………………………………………………………
V. Right to Justice? …………………………………………………………………………………………………
British Columbia (AG) v. Christie (2007 SCC) ……………………………………………………
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PART NINE – LAWYER REGULATION: MISCONDUCT AND CONDUCT UNBECOMING
The “Good Character” Requirement………………………………………………………………………
Preyra v. Law Society of Upper Canada (2000 LSDD) ………………………………………
Law Society of Upper Canada v. Burgess (2006 LSDD) ……………………………………
Extra-Professional Misconduct………………………………………………………………………………
Cwinn v. Law Society of Upper Canada (1980 LSDD) ………………………………………
Law Society of Alberta v. Sychuk (1999 LSDD) …………………………………………………
Sanctioning Lawyers for Misconduct………………………………………………………………………
Adams v. Law Society of Alberta (2000 Alta. CA) ………………………………………………
Law Society of Upper Canada v. Hunter (2007 LSUC) ……………………………………..
Regulating the Unauthorized Practice of Law…………………………………………………………
Law Society of Upper Canada v. Boldt (2006 Ont. SC) ……………………………………
Self-Regulation of Lawyer Conduct………………………………………………………………………
Guest Lecture Notes……………………………………………………………………………………………
Miscellaneous Notes……………………………………………………………………………………………
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PART ONE – INTRODUCTION TO LEGAL ETHICS
I. INTRODUCTION
- There are 3 approaches to answering the Q “what is legal ethics”:
a) Morality of the individual lawyer
- ie: social justice, representing the weak against the strong
b) Law of lawyering
- Rules and principles that govern a lawyer’s conduct analogous to the Rules of Court
c) Market regulation
- How the law society regulates the imperfections associated with the market for legal services
- In the next case, a BC lawyer challenged the Law Society’s powers to prohibit lawyer advertising…
Jabour v. Law Society of British Columbia (1980 BCCA)…General power to prohibit most conduct
F: - The Law Society of BC initiated steps to discipline Jabour, a member who had advertised his practice
contrary to the Society's rules, for "conduct unbecoming a member"
- The Law Society's Discipline Committee found Jabour guilty and recommended suspension of his
licence to practice for 6 months
- Ad stated “legal services at prices middle income families can afford”, with sample fees listed
I: - Did the Benchers have the power to prohibit advertising?
J: - Yes, for Law Society…not unlimited power but sufficient here
A: - The Court examines the powers given to the Benchers under the Legal Professions Act
- Powers are very broad: they may prohibit any conduct that is contrary to the best interests of
the public or the profession
- Therefore, whether advertising constitutes conduct amendable to disciplinary proceedings is a
matter for the Benchers, not the Courts, and the Benchers don’t need a specific power
R: - As long as conduct can be found contrary to the best interest of the public or of the legal
profession, or that it tends to harm the standing of the profession, Law Society Benchers
have a general power to determine what conduct is acceptable in the practice of law
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II. SOURCES OF LAWYER’S ETHICS AND PROFESSIONAL REGULATIONS
- In determining what constitutes ethical conduct, a lawyer can look to 4 sources of guidance:
a) Case law and legislation
- There are several areas of the common law placing constraints on lawyers:
i) Negligence – obliges lawyers to meet basic standards of competence
ii) Fiduciary Duties – obliges lawyers to act with a duty of loyalty and avoid conflicts
iii) Contract – sets specific obligations a lawyer has to a client under a retainer
iv) Tax – provides guidance on a lawyer’s ethical obligations when charging clients
v) Rules of Court – lawyer’s ethical obligations in the course of an action
- However, there are relatively few cases on lawyer ethical conduct, and most deal with conflicts
of interest, negligence, and confidentiality/privilege only
- In addition, there is the BC Legal Profession Act
b) Rules of Professional Conduct
- In BC, there is a Professional Conduct Handbook with rules on professional conduct
- However, these are not rigorously enforced by the law society, as they’re too general
c) The Principles or “Norms” of Lawyering
- These are important in the many circumstances beyond the narrow guidance provided by case
law, legislation, and the rules of conduct
- ie: in disclosure, where rules of conduct say a lawyer “may” disclose…what is ethical?
d) Personal Morality
- Two views on whether these hold any value at all:
i) Personal – legal ethics are just an extension of normal ethics
ii) Public – role of lawyer in a democracy is public, so only public values should inform
- Correct view is somewhere in the middle: lawyer’s can’t act merely applying their own personal
moral values, but they also can’t merely park their moral values at the door of their office
- Therefore, to maintain personal integrity, a decision must respect both the lawyer’s personal
values as well as their public commitments
- Example: in the “suicidalal client” situation, while personal values may be subordinate to Law
Society rules on confidentiality, they will also have to consider their personal values on suicide,
their moral obligations to the client’s family, and have to live with the ethical consequences of
any choice whether to advise someone of their client’s intention or not
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III. WHAT DOES IT MEAN TO BE AN ETHICAL LAWYER?
- Q: what is the central quality or “virtue” of the ethical lawyer?
1) LOYALTY
- Loyalty is the core moral requirement/value traditionally associated with the legal practice
- Loyalty brings two central obligations to the lawyer-client relationship:
a) Lawyer must place the interests of the client above all others
- If a decision helps a client but harms others, client comes first
b) Lawyer must place the interests of the client above their own
- Strother: “a fundamental duty of a lawyer is to act in the best interest of his/her client to the
exclusion of all other adverse interests, except those duly disclosed by the lawyer and willingly
accepted by the client”
- A lawyer’s duty to their client trumps their obligations as an officer of the court because:
a) Promotes the greater good
- Utilitarianism: society in which overall human interests are maximized is the best society, and
the general aim of a society should be to achieve “the greatest good for the greatest number”
- Therefore, giving a client a loyal advocate in the legal system benefits not only the individual
but also the rest of society
b) Promotes individual autonomy and justice
- Everybody in society is autonomous and entitled to be free from unwarranted state interference
- For proper access to the justice system, each individual has a right to a loyal lawyer, and the
lawyer who helps a client access justice is an ethical lawyer
- Q: under the second justification, where it is morally legitimate to pursue a client’s ends and commit any
wrong on the client’s behalf that the legal system permits by its rules, is the loyalty concept too broad?
R. v. Neil (2002 SCC)…Lawyers must be zealous advocates for their clients and put their interests first
F: - See chapter 7 on the duty of loyalty and conflicts of interest
- In sum, Neil was accused of a series of criminal charges and retained the legal services of a solicitor
- Neil’s assistant, Lambert, had hired Lazin from same firm to represent her in relation to the charges
- Lazin sat in on an interview with Neil's lawyer in order to gain advantage for his client
- In a second incident, Lazin was approached by an old client of Neil named Doblanko who believed
that Neil had fabricated a divorce document; Lazin referred him to the same police officer who was
investigating Neil's other charges.
I: - Did Lazin create a conflict of interest by assisting in establishing the charges against Neil when he
was a past client?
J: - Yes, for Neil, the the firm owed a duty of loyalty to Neil and should not have communicated with the
other parties
A: - Binnie J., for the majority endorsed the notion of lawyers as “zealous advocates”
- Majority took a strong stance, arguing that the duty of loyalty is essential to the integrity of the
profession and the administration of justice
- Aspects of the duty of loyalty engage three dimensions:
a) A duty to avoid conflicting interests
- Includes the lawyer’s own personal interests
b) A duty of commitment to the client’s cause
- Lawyer must give “zealous representation” to the client and must not “soft peddle” his or
her defence of a client out of concern for another client
c) A duty of candour
- Relates to all matters relevant to the retainer
- Note: see Strother in Chapter 7, where Binnie J. holds that fiduciary duties “may include obligations
that go beyond what the parties expressly bargained for, while McLachlin J. in dissent argued it would
be wrong to “superimpose” a fiduciary duty of loyalty beyond that contracted for between the parties
(ie: the written/oral retainer)
R: - A lawyer’s duty of loyalty to their client requires them to give “zealous representation”
and to not “soft peddle” his or her defence of a client out of concern for another client
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- Note: while Neil promotes the “zealous representation” standard, the BC Professional Conduct Handbook
places an obligation of “resolute” advocacy on lawyers:
a) Chapter 1 – Canons of Legal Ethics
2(1) To courts and tribunals
- “A lawyer's conduct should at all times be characterized by candour and fairness. The
lawyer should maintain toward a court or tribunal a courteous and respectful attitude and
insist on similar conduct on the part of clients, at the same time discharging professional
duties to clients resolutely and with self-respecting independence”
3(4) To the client
- “A lawyer should treat adverse witnesses, litigants, and counsel with fairness and courtesy,
refraining from all offensive personalities. The lawyer must not allow a client's personal
feelings and prejudices to detract from the lawyer's professional duties. At the same time the
lawyer should represent the client's interests resolutely and without fear of judicial disfavour
or public unpopularity”
Szarfer v. Chodos (1986 Ont. HC)…Sleeping with a client’s husband/wife is unethical, esp. if vulnerable
F: - The defendant, a solicitor, in the course of acting for the plaintiff in an action for wrongful dismissal,
learned that P was experiencing marital difficulties and had severe psychological problems
- P’s wife, who was a legal secretary, had worked in D’s law office on a temporary basis
- Of course, a hot affair developed between the plaintiff's wife and the lawyer, the discovery of which
caused further distress to the plaintiff, leading P to sue the lawyer for breach of fiduciary duty
I: - Did sleeping for his client’s wife constitute professional negligence and breach of fiduciary duty?
J: - Yes, for P, P was vulnerable and the lawyer took advantage of confidential info to sleep with his wife
A: - Under the law of fiduciary duty, a lawyer is forbidden from using any confidential info obtained by
him for the benefit of himself or a third person or to the disadvantage of his client
- Test: did the lawyer use confidential info for his own purposes OR to disadvantage his client?
- In solicitor-client relationships, which clearly are fiduciary, the onus is on the fiduciary to prove:
a) They acted reasonably – no
- Here, sex with his client’s wife was both unreasonable and detrimental to his client’s
interests, so can’t be reasonable when he vitiated client’s trust and caused injury to him
- While this is sufficient to hold the lawyer liable in damages, court moves to part two
b) Made no personal use whatsoever of confidential information – no
- Lawyer got knowledge of the couple’s marital and sexual problems through the wrongful
dismissal action and used it to his benefit
- Note: if the lawyer had no confidential knowledge of the vulnerabilities, but merely had an affair
with the wife of a client, may not be breach of fiduciary duty since there was no breach of
confidentiality…however, may still be an unethical act
R: - The highest and clearest duty of a fiduciary is to act to advance the beneficiary’s interest
and avoid acting to his/her detriment, and a failure to adhere to this duty can lead to
misconduct
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2) JUSTICE
- With loyalty, there is an exclusive emphasis on a lawyer’s duty of loyalty to the client
- However, with justice, a lawyer should “make the best effort to achieve the most appropriate
resolution in each case”
- While many emphasize loyalty as the central norm of ethical practice, there are 3 problems with that:
a) De-emphasizes other important values
- There are 5 duties in Chapter 1 of the Canon of Legal Ethics:
i) To the state – minister of justice role
ii) To courts and tribunals – as an officer of the court
iii) To the client – as a zealous advocate
iv) To other lawyers – duty to an ancient, honourable, and learned profession
v) To oneself – not betray one’s personal morality
- ie: more uses of the word “justice” in the Professional Conduct Handbook than “loyalty”
- There may be moral imperatives arising from the lawyer’s role within the justice system in
addition to imperatives arising from the lawyer-client relationship
b) May create moral malaise and unethical conduct
- Many argue that the promotion of justice, not client loyalty, should inform how lawyers choose
which clients to act for and how lawyers represent the clients they have chosen
- Even though there is no universally accepted judgment as to what constitutes justice, as long
as there are competing models individuals will continue to be represented in the legal system
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- The next case dealt with charges on the lawyer representing Paul Bernardo alleging that he attempted to
obstruct justice by concealing videotapes showing all of the acts of which Bernardo was charged…
R. v. Murray (2000 Ont. SC)…Competing duty of promoting justice can supercede duty to the client
F: - Bernardo, acting on the written instructions of his lawyer, removed videotapes from his home
- Some of the tapes showed Bernardo and his wife raping two young girls who they later murdered
- After they plead guilty and agreed to provide evidence to assist the Crown, the lawyer didn’t inform
the Crown of the tapes, and after he passed on the file to another lawyer, he didn’t tell him either
- Instead, he went to the Law Society for advice, who advised him that "certain material" in the
possession of the accused should be delivered to the trial judge in a sealed packet
- The tapes were turned over and demonstrated conclusively that Bernardo and Homolka were guilty
I: - Should the lawyer be guilty of willfully attempting to obstruct justice by concealing the tapes?
J: - No, for the lawyer, not necessary mens rea to be convicted of obstruction of justice
A: - Lawyer argued that it was not in his client's interests to disclose, he received info in solicitor-client
privilege, and acted while in solicitor-client privilege
- However, solicitor-client privilege protects communications between solicitor and client and the
tapes were not communications
- They were, rather, dramatic evidence of crime and pre-existed the solicitor-client relationship
- Therefore, Bernardo’s discussions with the lawyer about the tapes were covered by solicitorclient privilege, but the tapes were not, and hiding them from the police on behalf of B could not
be said to be an aspect of solicitor-client communication
- Once he had discovered the overwhelming significance of the critical tapes, the lawyer was left with
three legally justifiable options
a) Immediately turn over the tapes to the prosecution, either directly or anonymously
b) Deposit them with the trial judge; or
c) Disclose their existence to the prosecution and prepare to do battle to retain them
- Instead, the lawyer’s concealment of the critical tapes was an act that had a tendency to
pervert or obstruct the course of justice and, therefore, there was actus reus of the offence
- However, since the Ontario Professional Conduct Handbook didn’t mention the conduct engaged in
by the lawyer, there was not sufficient mens rea
- He may well have believed that he had no legal duty to disclose the tapes until resolution
discussions or trial
R: - In some situations, particularly in criminal law, an overemphasis on a lawyer’s duty of
loyalty to the client can lead to unethical conduct that does not promote justice
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3) INTEGRITY
- Traditionally, the debate in legal ethics has been between the competing values of loyalty and justice;
however, this may fail to capture to complex emphasis on other competing values by the courts
- Note: breaches of ordinary morality that violate the integrity principle may constitute conduct
unbecoming of a lawyer warranting professional sanction
- Szarfer: lawyer slept with wife of vulnerable client by taking advantage of info provided in
confidence by the client, breaching both precepts of lawyer morality and ordinary morality
- Cwinn: lawyer slept with 14 year old girls by offering them the opportunity to ride his show horses,
which didn’t breach lawyer morality but breached ordinary morality (and was criminal sexual assault)
Alice Woolley, "Integrity in Zealousness: Conceptions of Canadian & American Lawyers
F: - Lawyers do very bad things, let’s figure out why
I: - Do the norms of Canadian legal practice and legal ethics embrace the norms of zealous partisanship
and moral non-accountability? Or do they temper those ideals with norms of personal responsibility
and professionalism?
J: - For Canada, due to comparing model rules of professional responsibility enacted by ABA and CBA
A: - Woolley identifes 2 principles at the centre of American mainstream legal morality that are the main
contributors to the problem of “over-representation” in American legal practice:
a) Zealous partisanship
- Lawyers are justified in doing almost anything in their zealous pursuit of the interests of
their clients
b) Moral non-accountability
- Lawyers can act for the client whose actions and aims are immoral without themselves
being morally tainted by those actions
- Chapter 1 of CBA Code: “The lawyer must discharge with integrity all duties owed to clients, the
court, other members of the profession, and the public”
- In contrast, the ABA Model Rules don’t include any general requirement that the lawyer strive
to maintain his/her personal integrity in their practice
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- W: oversimplifies integrity in Canadian bar in how the standard of ethics in America is lower, as
"moral non-accountability" is well alive in both Canada and the USA
- All lawyers who act in accordance with their obligations under formal rules of
professional responsibility can’t act solely in zealous pursuit of their client’s interests; they
must instead be qualified so as to accord with what is required in order for the lawyer to
maintain their own personal integrity
- The next case demonstrates how a more multi-faceted approach to legal ethics may have changed the
defendant’s counsel’s assessment of their obligations to the plaintiff at the point of settlement…
Spaulding v. Zimmerman (1962 Minn. SC)…No integrity requirement so lawyers get off free
F: - There was a car accident; D’s lawyer ordered P, a minor, to undergo a physical examination
- While the exam revealed that P had an aneurysm, D’s counsel failed to tell P about his potentially
fatal heart condition because P’s counsel didn’t ask for a copy of the exam report
- After a court-approved settlement (as the party was a minor), P later discovered the existence of his
aneurysm and sought to re-open the case, as the accident might have caused the condition
I: - Was there an ethical obligation that required disclosure of the information?
J: - No, but for P, P gets more money but D’s counsel cleared of any wrongdoing
A: - There was no canon of ethics or legal obligation that required D to inform P or his counsel with
respect to the disability
- However, it was obvious to them at the time of the settlement that the settlement didn’t
contemplate or take into consideration the settlement
- Therefore, court had the discretion to overturn it even though there was no explicit breach
R: - While the lawyers had a duty to tell the court about the medical report to evaluate the
fairness of the settlement, they had no duty to warn the other side
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PART TWO – THE FORMATION OF THE LAWYER-CLIENT RELATIONSHIP
I. INTRODUCTION
- Controversies in this area arise because there are often 2 different formulations on being a lawyer:
a) Access to justice interests
- Since lawyers are beneficiaries of a monopoly, as professionals they have an obligation to make
legal services available
b) Business interests
- Lawyers are merely business persons and therefore lawyer-client relations should be governed
by usual market norms
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II. ADVERTISING
- There are mixed views in the legal profession on the question of lawyer advertising:
a) Detracts from professionalism
- Advocacy is a calling and advertising debases it
b) Access to justice
- It is in the public interest not to have an absolute ban
- Ban can become a barrier to entry if there are too many restrictions
c) Free market
- Necessary to allow young lawyers to get established
- In BC’s Professional Conduct Handbook, there are provisions regarding advertising in Chapter 14:
a) Chapter 14 – Marketing of Legal Services
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Content and format of marketing activities
- “Any marketing activity undertaken or authorized by a lawyer must not be:
(a) false,
(b) inaccurate,
(c) unverifiable,
(d) reasonably capable of misleading the recipient or intended recipient, or
(e) contrary to the best interests of the public”
18 Specialization
- “Unless otherwise authorized by the Legal Profession Act, the Rules, or this Handbook or by
the Benchers, a lawyer must:
(a) not use the title "specialist" or any similar designation suggesting a recognized
special status or accreditation in any marketing activity, and
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take all reasonable steps to discourage use, in relation to the lawyer by another
person, of the title "specialist" or any similar designation suggesting a recognized
special status or accreditation in any marketing activity”
- Jabour: see part 1 on an example of how there used to be prohibitions on lawyer advertising
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III. SOLICITATION
- Advertising is only one mechanism that lawyers might choose to promote their services; solicitation is
more wide-ranging, and goes to conduct by lawyers intended to generate interest in legal services
- ie: public letters, offering of rewards, statements to the media, ect…
- CBA Code, Chapter XIV, Commentary 7:
a) Chapter XIV – Advertising, Solicitation, and Making Legal Services Available
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Solicitation
- “Lawyers may offer professional services to prospective clients by any means except:
(a) that are false or misleading
(b) that amount to coercion, duress, or harassment
(c) that take advantage of a person who is vulnerable or who has suffered a traumatic
experience and has not yet had a chance to recover
(d) that are intended to influence a person who has retained another lawyer for a
particular matter to change that person’s lawyer for that matter, unless the change
is initiated by the person or the other lawyer, or
(e) that otherwise bring the profession or administration of justice into disrepute”
- Note: while some provincial codes have chapters on the topic of seeking business, the BC Code does not
Law Society of Saskatchewan v. Merchant (2000 LSDD)…Litigation is never cost-free
F: - Merchant Law Group acted for a number of First Nation clients, and wrote letters to survivors of
residential schools, which included a contingent fee structure, with statements such as:
- “The compensation that we can achieve will be significant and you have nothing to lose”
- “Please write out your reflections on what happened in the school and write to me”
- “If we do not recover anything, then you will pay nothing”
- Some complained to the law society, stating they were distressed that Merchant got their names
and that traumatic feelings came back to them after receiving the letter
I: - Was this class action solicitation conduct unbecoming of a lawyer?
J: - Yes, reprimand, fine, and costs awarded
A: - Statements referred to in the letter about “nothing to lose” are misleading because they:
a) Assume a recipient has a likely valid cause of action
b) Fail to disclose to recipients the rigors, length, uncertainties, and personal toll of litigation
c) If the firm recovers nothing, then they may have to pay costs
R: - Lawyers may solicit their services to prospective clients by any means unless the
solicitation is false or misleading
- Courts have also been concerned about lawyers who use the media to engage in self-promotion…
Stewart v. Canadian Broadcasting Corp. (1997 Ont. Gen. Div. Ct.)…Continuing fiduciary duty exists
F: - Stewart ran over a woman in 1978 and was convicted of criminal negligence causing death
- Eddie Greenspan represented Stewart at his sentencing and on his appeal, which was dismissed
- In 1991, Stewart was the subject of an episode of CBC's "The Scales of Justice", which re-enacted
the crime and trial…Greenspan appeared as host and narrator of the show
- Stewart claimed that Greenspan breached implied K terms of confidentiality and the fiduciary duty
of loyalty owed to him, both of which survived the termination of the K relationship (ie: retainer)
I: - Does the duty of confidentiality survive the termination of the retainer?
J: - Yes, for Stewart, damages against Greenspan for $5,750
A: - Greenspan had no K obligation to keep in confidence info in the public domain, or to act in the best
interests of Stewart after the termination of the retainer
- Also, Greenspan did not breach any duty of confidentiality or disclose secret information
contrary to the Ontario Rules of Professional conduct
- However, the relationship between Stewart and Greenspan was a power-dependency relationship
and was fiduciary in 1991, even the though the client-counsel relationship ended in 1981
- Greenspan unilaterally exercised discretion and made use of power so as to affect Stewart's
legal or practical interests and Stewart was vulnerable to this power
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- Greenspan ought to have recognized Stewart's reliance on him, and getting involved again in
the public aspects of Stewart's crime brought Greenspan within the scope of the fiduciary
obligations which existed during the relationship
- The fiduciary duty of loyalty to the client wasn’t dissolved by termination of the retainer
- Greenspan had a duty to be loyal to Stewart in not taking advantage of him and the information
and issues which had been the subject to his professional services and in not undoing the
benefits and protection provided by those professional services
R: - Lawyers may their fiduciary duty of loyalty to past clients by favouring their own financial
interests and self promotion over the prior client’s interests and by publicizing their former
client's case, undercutting the benefits and protection they provided as counsel
____________________________________________________________________________________
PART THREE – CONFIDENTIALITY AND PRIVILEGE
I. INTRODUCTION
- Q: in what circumstances should a public interest value take precedence over the most foundational
principle of client representation – the preservation of client confidences?
- Confidentiality is impressed on every communication (oral, documents, ect..) a solicitor has with a
"client", whether or not that information is also available through other public sources
- 2 principles with regard to confidentiality:
a) The right of confidentiality belongs to the client, not lawyer; only client can waive
- In absence of client’s instructions, can’t disclose communications
- This holds true even in face of police search warrant or order from CRA, don’t just allow them;
must confirm their authority; turn it over in sealed envelope; client can challenge disclosure; if in
doubt, call Law Society, which may dispatch somebody to help you
- Must be zealous, though not necessarily obstructive, in protecting confidentiality
b) The duty to confidentiality is a permanent and continuing obligation
- Stewart: it survives the end of the retainer, termination of the lawyer-client relationship, death
of the client, ect…
- ie: Public Trustee and B's under a will may ask for information when the client dies
- Must preserve client files, usually for 7 years
- The duty of confidentiality (PCH, c.5, s.1):
- “A lawyer shall hold in strict confidence all information concerning the business and affairs of the
client acquired in the course of the professional relationship, regardless of the nature or source of the
information or of the fact that others may share the knowledge, and shall not divulge any such
information unless disclosure is expressly or impliedly authorized by the client, or is required by law
or by a court”
- The CBA Code’s rule: (purports to provide lawyers with free-standing, self-contained definition of
confidentiality)
- “Lawyer has a duty to hold in strict confidence all info concerning the business and affairs of client
acquired in course of professional reln and should not divulge such info unless disclosure is expressly
or impliedly authorized by client, required by law or otherwise permitted or required by this Code”
- Note: confidentiality ≠ privilege:
- Privilege is a small part of confidentiality which arises whenever someone is seeking to compel
disclosure, and primarily arises in an evidentiary context
- ie: small circle within the big circle of confidentiality, to which the duty attaches, so privilege is what
you assert to preserve confidentiality when requested to divulge such information
- Remember: confidentiality belongs to the client, not the lawyer
- Therefore, absent instructions to waive privilege, the lawyer must protect confidentiality and/or
privilege as much as possible
- This is true even in the face of court orders, police search warrants, ect…
- Privilege: confidential info becomes privileged when somebody is seeking to compel disclosure
- ie: witness in court…lawyers can be subpoenaed and may start to cross the line
- As the questioning lawyer, can still Q another lawyer aggressively because privilege can be waived;
you’re not the gatekeeper, you’re just asking the Qs
- However, if questioning an unrepresented client, should consider that you’d be undermining your
own client’s rights (justice system); also, judges get pisses if lawyers take advantage of lay litigants
____________________________________________________________________________________
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II. OVERVIEW
- Principles that underlie the duty of confidentiality:
a) Further client legal rights
- Obligation to maintain confidentiality fosters the autonomy and dignity of the client by
protecting his/her privacy
- Client who is assured of complete secrecy is more likely to reveal to his/her counsel all
information pertaining to the case
b) Enhance truth-finding function of the adversarial system
- Lawyer who is in possession of all relevant information is better able to advise the client and
hence provide competent service
c) Connected to overarching duty of loyalty
- Obligation to be loyal would be compromised if a lawyer could use information so as to cause
adverse impact to the client
- Always presume: even if information is available from another source, if a lawyer has obtained
information from the client (no matter where the info is obtained from), assume that info is confidential
- The client is not expected to presume the lawyer will only talk about what's in the public sphere
- Therefore, the lawyer needs client consent to disclose information to any media
- Stewart: harm wasn't as much disclosing privilege, but rather emphasis on self-promotion which
offended the duty of loyalty more than the duty of confidentiality
- If given a court order to produce confidential information, a lawyer should:
a) Only give what is required
- Still zealously protect all information
b) Process-specific
- The court order to waive privilege is specific to one proceeding, so this does not mean that
confidentiality is waived everywhere else
- Important sections in Chapter 5 of the Professional Conduct Handbook on confidentiality:
a) Duty of Confidentiality
1
Duty of confidentiality
- "A lawyer shall hold in strict confidence all information concerning the business and affairs
of the client acquired in the course of the professional relationship, regardless of the nature
or source of the information or of the fact that others may share the knowledge, and shall
not divulge any such information unless disclosure is expressly or impliedly authorized by the
client, or is required by law or by a court"
- Even if client has impliedly authorized communication of confidential information, the
lawyer should always have a written record of the conversation (ie: by email or memo)
4
Continuing duty
- "A lawyer shall preserve the client's secrets even after the termination of the retainer,
whether or not differences have arisen between them"
b) Confidential information not to be used in almost all circumstances
5
Can’t use confidential info for personal
- "A lawyer shall not use any confidential information respecting a client for the benefit of the
lawyer or another person, or to the disadvantage of the client. When engaging in a business
transaction with a client or former client in the limited circumstances permitted by Chapter 7,
the lawyer shall not use for personal benefit any confidential information acquired in the
course of acting for the client"
6
Publications
- "A lawyer who engages in literary work such as an autobiography or memoirs shall not
disclose confidential information"
7
Sharing confidential information with different clients
- "A lawyer shall not disclose to one client confidential information concerning or received
from another client in a different matter, and shall decline employment or withdraw from a
retainer which might require such disclosure"
8
Prohibition against gossiping
- "A lawyer shall avoid indiscreet conversations or gossip, and shall not repeat gossip or
information about a client's affairs, even though the client is not named or otherwise
identified"
c) Disclosure authorized by client
11 Disclosure authorized by client or disclosure to other members of the firm
- "A lawyer may:
(a) with the express or implied authority of the client, disclose confidential information,
and
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(b) unless the client directs otherwise, disclose the client's affairs to partners,
associates and articled students and, to the extent necessary, to legal assistants,
non-legal staff such as secretaries and filing clerks, and to others whose services
are utilized by the lawyer"
- Therefore, within the firm, there is an implied duty that lawyers may talk to other firm
lawyers about files
- Note: some jurisdictions make lawyers responsible for ensuring that their staff keeps all
information confidential
d) Disclosure to prevent a crime
12 Disclosure to prevent a crime
- "A lawyer may disclose information received as a result of a solicitor-client relationship if
the lawyer has reasonable grounds to believe that the disclosure is necessary to prevent a
crime involving death or serious bodily harm to any person"
- Smith: "public safety" exception, where SCC adds an "imminent" requirement
- Note: Alberta and CBA have a mandatory rule; BC and Ontario have a permissive rule
- Smith: 3 factors that overlap and vary in importance and significance:
i) Is there a clear risk to an identifiable person or group of persons?
ii) Is there a risk of serious bodily harm or death?
iii) Is the danger imminent? (which, then the danger becomes serious)
- Alberta: drops imminence and identifiable group requirements
- Ontario: expands to include serious psychological harm
f) Disclosure required by law
13 Never disclose more information than is necessary
- "A lawyer who is required by law or by order of a court to disclose a client's affairs shall not
divulge more information than is necessary"
14 Always claim documents are privileged
- "A lawyer who is required, under the Criminal Code, the Income Tax Act or any other
federal or provincial legislation, to produce or surrender a document or provide information
which is or may be privileged shall, unless the client waives the privilege, claim a solicitorclient privilege in respect of the document"
g) Use of opponent's documents
15 Return all documents intended to be confidential
- "A lawyer who has access to or comes into possession of a document which the lawyer has
reasonable grounds to believe belongs to or is intended for an opposing party and was not
intended for the lawyer to see, shall:
(a) return the document, unread and uncopied, to the party to whom it belongs, or
(b) if the lawyer reads part or all of the document before realizing that it was not
intended for him or her, cease reading the document and promptly return it,
uncopied, to the party to whom it belongs, advising that party:
(i) of the extent to which the lawyer is aware of the contents, and
(ii) what use the lawyer intends to make of the contents of the document"
- Q: what happens when there is a competing public interest and confidentiality is at stake?
Descoteaux v. Mierzwinski (1982 SCC)…Confidentiality begins as soon as client approaches law firm
F: - In order to get proof that an applicant for legal aid committed an offence by incorrectly reporting a
lower income, two peace officers presented themselves at a legal aid bureau with a search warrant
- Warrant related to certain documents, including a form with info on applicant's financial situation
- Search was made in the presence of a lawyer, and the police officers agreed to receive the
documents in a sealed envelope without examining them
- Applicant wanted to quash the seizure on ground that the documents were protected by privilege
I: - Was the confidential information protected by solicitor-client privilege? When does it arise?
J: - Most of it was, as all info given in the “Application for Legal Aid” form was to obtain legal advice;
only fraudulent financial documents weren’t protected, as they were criminal in themselves since they
constituted the material element of the crime charged
A: - At trial and CA, the courts found that the documents were prepared before S-C privilege existed
- They weren't protected by a duty of confidentiality either because they were made in an effort
to mislead on a Legal Aid application
- However, SCC held that all communications made in confidence for the purpose of getting legal
advice enjoys the privileges attached to confidentiality
- Q: when does the duty of confidentiality arise?
- A: it attaches to all communications made within the framework of the solicitor-client
relationship, to the lawyer as well as to his employees/staff
- Note: it arises even before the retainer is established, as soon as the client takes the first
steps in approaching a law firm, which includes info concerning the client's ability to pay and any
other info which a lawyer is reasonably entitled to require before accepting the retainer
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- It may be invoked in any circumstances where such communications are likely to be disclosed
without the client's consent
- Exception: communications that are criminal in themselves or that are made with a view to
obtaining legal advice to facilitate the commission of a crime will not be privileged
- Here, the communications made by the applicant with respect to his financial means were
criminal in themselves since they constituted the material element of the crime charged
- However, all other information contained in the "Application for Legal Aid" form was protected
- The duty of confidentiality is much broader than solicitor-client privilege and covers
communications arising even before the lawyer-client relationship exists
- Note: as the obligations related to client confidences start at such an early point, a lawyer who actually
intends to decline to represent a person and never enters into a retainer with the client may still have a
duty of confidentiality to that person
- ie: may depend on the definition of “client” in the jurisdiction
____________________________________________________________________________________
III. THE PRINCIPLE AND SOME EXCEPTIONS
1) THE “FUTURE CRIME” EXCEPTION
- Framework for dealing with challenges and exceptions to confidentiality:
a) Confidentiality may be raised where communications between a lawyer and client are likely to be
disclosed without the client’s consent
b) Unless law provides otherwise, if lawful exercise of a right would interfere with another person’s
right to lawyer-client confidentiality, the conflict should be resolved in favour of protecting the
confidentiality
c) When law confers authority to do something that might interfere with confidentiality, authority
should be exercised in such as way that confidentiality is not interfered with except to the
extent absolutely necessary in order to achieve the ends sought by the enabling legislation
- Disclosure required by law (PCH, c.5, s.13)
- “A lawyer who is required by law or by order of a court to disclose a client's affairs shall not divulge
more information than is necessary”
- Disclosure to prevent a crime (PCH, c.5, s.12)
- “A lawyer may disclose information received as a result of a solicitor-client relationship if the lawyer
has reasonable grounds to believe that the disclosure is necessary to prevent a crime involving death
or serious bodily harm to any person. (permissive – allows lawyer to judge so personal morality is a
huge factor)”
- Note: rules in provinces vary with regard to mandatory vs. permissive and with regard to detail
a) AB Code: “lawyer must disclose if likely to result in death or bodily harm”
- This is a mandatory rule and no mention of “imminence”
b) ON Code: “including risk of serious psychological harm”
- This is also permissive and
c) Others: in some provinces, mandatory requirement is coupled with discretion
- Justifications for confidentiality/privilege are usually articulated in circumstances when someone seeks to
set aside an individual’s right to have the confidence preserved or the privilege maintained
- ie: the next case, confidentiality was sought to be set aside for the “future crime” exception…
Smith v. Jones (1999 SCC)…Clear and imminent threat of serious bodily harm to an identifiable group
F: - AC charged with raping on a prostitute; his lawyer sent him to a psychiatrist hoping that it would
help his defence at trial or during sentencing in the event of a guilty plea
- AC was told by his lawyer that his talks with the psychiatrist were privileged in the same way as
consultation with his lawyer
- Based on this information, AC described during his interview with the psychiatrist his plan to kidnap,
rape and kill the prostitutes
- Psychiatrist then went and informed AC’s lawyer that, in his opinion, AC was a dangerous individual
who would likely commit future offences unless he received treatment
- AC later pled guilty to the aggravated sexual assault charge at trial
- Before sentencing, the psychiatrist phoned AC’s lawyer to ask about the status of the proceedings
and learned that his concerns about the AC wouldn’t be addressed during the sentencing hearing
- Psychiatrist then started this action for a declaration that he was entitled to disclose the information
he had in his possession in the interests of public safety
I: - Could the information be revealed as part of the "future crime" exception?
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J:
A:
- Yes (with dissent), info that the AC would likely re-offend revealed in the interests of public safety
- Majority: Cory J. held that solicitor-client privilege is a principle of fundamental importance to
the administration of justice and is the highest privilege recognized by the courts
- However, the privilege is not absolute and remains subject to limited exceptions
- While only a compelling public interest can justify setting aside solicitor-client privilege, danger
to public safety can, in appropriate circumstances, provide such a justification
- Test: would a reasonable observer, given all the facts for which solicitor-client privilege is sought,
consider the danger posed by a person to be clear, serious, and imminent? 3 factors in determining
whether public safety outweighs solicitor-client privilege:
a) Clarity – Is there a clear risk to an identifiable person or group of persons?
- Usually the group or person should be ascertainable, as a general death threat directed to
everyone in a community may be too vague to warrant setting aside the privilege
- However, if the threatened harm to the members of the public is compelling, extremely
serious and imminent, it might well be appropriate to lift the privilege
- All the surrounding circumstances will have to be taken into consideration in every case
b) Seriousness – Is there a risk of serious bodily harm or death?
- The “seriousness” factor requires that the threat be such that the intended victim is in
danger of being killed or of suffering serious bodily harm
- Psychological harm may constitute serious bodily harm if it substantially interferes with the
health or well-being of the complainant
c) Imminence – Is the danger imminent?
- The nature of the threat for the “imminence” factor must create a sense of urgency that
may be applicable to some time in the future
- Depending on the seriousness and clarity of the threat, won’t need to always impose a
particular time limit on the risk
- Answer: if there is a clear and imminent threat of serious bodily harm to an identifiable group, and
if this threat is made in a manner that a sense of urgency is created, privilege will be set aside
- Value: threat to public safety outweighs the need to preserve solicitor-client privilege
- When it is set aside, the disclosure should be limited so that it includes only the information
necessary to protect public safety
- Here, the AC described in detail his plan and the method of attack and gave evidence of planning
that were similar to his prior attacks on prostitutes in the area...”imminence” factor proved by:
a) AC breached his bail conditions by continuing to visit the specific area where he knew
prostitutes could be found
b) After his arrest and while awaiting sentencing, AC would/should have been acutely aware of
the consequences of his actions
- Dissent: Major J. outlines 2 principles that should guide disclosure:
a) The breach of privilege must be as narrow as possible
b) AC's right to consult counsel without fear of having his words used against him at trial is vital
to our conception of justice
- Here, AC was only diagnosed and made aware of the possibility of treatment because he felt secure
in confiding to the psychiatrist
- If that confidence is undermined, then these individuals will not disclose the danger they pose,
they will not be identified, and public safety will suffer
- Therefore, greater protection should be accorded to solicitor-client privilege as it would be more
likely to cause lawyers to refer their clients for professional help
- W: "clarity" principle is a factor, so if the client claims he will go out and kill "people", that may be
sufficient if it offends morality and after consultation
R: - When public safety is involved, to the extent that death or serious bodily harm is
imminent to an identifiable person or group, then the privilege should be set aside
____________________________________________________________________________________
2) THE “INNOCENCE AT STAKE” EXCEPTION
- The disclosure of client confidences will only be facilitated if the information it generates is highly
relevant and likely to affect a decision with respect to charges against the “innocent party”
- Therefore, mere awareness of the existence of confidential client info that might assist the defence
is insufficient…must meet the evidentiary burden articulated in the next case…
R. v. McClure (2001 SCC)…Heavy onus on AC to produce evidence of communications that raise a RD
F: - McClure was a librarian and teacher at the school in the mid-1970s; in 1997, he was charged with
sexual offences against 11 former students
- After reading about M’s arrest, another student gave a statement to the police alleging incidents of
sexual touching by M, and his allegations were later added to the indictment against M
- M sought production of the student’s civil litigation file to determine the nature of the allegations
and to assess if he had any motive to lie or exaggerate the incidents of abuse
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I:
J:
A:
- Could the order for production of the brief be granted under the "innocence at stake" exception?
- No, for Crown, order for production denied
- Major J. holds that solicitor-client privilege is a principle of fundamental importance to the
administration of justice as a whole
- Despite its importance, however, the privilege is not absolute and, in limited circumstances,
may yield to allow an AC to make full answer and defence
- Pre-requisite: AC must establish that the info in the solicitor-client file is not available from any
other source and that he/she is unable to raise a reasonable doubt as to guilt in any other way
- Stringently applied test: privilege should be set aside only where:
a) Stage 1 – evidentiary basis that communication exists to raise RD about guilt
- AC seeking production of solicitor-client communications must provide some evidentiary
basis upon which to conclude that something actually exists that could raise a reasonable
doubt as to his guilt
- J must decide at this stage whether to review the evidence at all
- Onus: on AC to demonstrate some evidentiary basis for his claim; mere speculation as to
what a file might contain is insufficient
- If the judge is satisfied that such an evidentiary basis exists, go to stage #2
b) Stage 2 – examine record and determine whether there is anything raising a RD
- Privilege should only be infringed where:
i) Core issues going to the guilt of the accused are involved, AND
ii) There is a genuine risk of a wrongful conviction
- Therefore, the communication must go directly to one of the elements of the offence
- If the second stage of the test is met, then the judge should order the production but only
of that portion of the solicitor-client file that is necessary to raise the defence claimed
- Here, the circumstances didn't justify setting aside the solicitor-client privilege, as the first stage of
the innocence at stake test wasn’t met
- There was no evidence that the info sought by AC could raise a reasonable doubt to his guilt
R: - Theme in confidentiality: where there will be a breach of confidentiality (such as the
"innocence at stake" exception), and you must disclose, observe the minimal invasion
principle and fight to keep it veiled wherever possible
____________________________________________________________________________________
IV. THE PRINCIPLE REASSERTED
1) “ABSOLUTELY NECESSARY”
- Q: any circumstances in which “partial disclosure” or “disclosure for a limited purpose” may be justified?
Goodis v. Ontario (Ministry of Correctional Services) (2006 SCC)…No disclosure for limited purpose
F: - A journalistic applied under Ontario’s Freedom of Information Act for records pertaining to allegation
of sexual abuse by Ontario probation officers
- While the Ministry identified records, they claimed solicitor-client privilege over almost all of them
- A Freedom of Information adjudicator ordered that 19 of the 459 pages be disclosed
- Divisional Court J then granted access to records notwithstanding the claim of privilege by treating
the motion for access as one by the journalist’s counsel, and not as one by the journalist herself
- The order for disclosure was made subject to a confidentiality undertaking…upheld by CA
I: - Can the records in issue be disclosed to counsel notwithstanding the claim of privilege?
J: - No, for Ontario…disclosure didn’t meet threshold of “absolute necessity”
A: - Test: records subject to a claim of solicitor-client privilege may be ordered disclosed only where
absolutely necessary…a test just short of absolute prohibition
- A different test is not justified for access to information cases
- Here, the evidence revealed no such absolute necessity, and any records claimed to be subject to
solicitor-client privilege should not be disclosed
- Hard to imagine circumstances where the test could be met if sole purpose of disclosure is to
facilitate argument by requester’s counsel on Q of whether privilege is properly claimed
- Unlike McClure, where it was found that documents subject to privilege could be disclosed
where there was a genuine danger of wrongful conviction and wasn’t available from other sources
R: - The appropriate test for any document claimed to be subject to solicitor-client privilege is
“absolute necessity”
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2) ETHICS REDUX: PHYSICAL (OR REAL) EVIDENCE OF A CRIME
- In R. v. Murray (Bernardo’s lawyer with videotapes), TJ made it clear that lawyer’s obligation in such
circumstances is to deal proactively with the evidence
- TJ found that M’s concealment of the tapes was an act that had a tendency to pervert or obstruct
the course of justice
- M had 3 legally justifiable options once he had discovered the overwhelming significance of tapes:
a) Immediately turn them over to the prosecution, either directly or anonymously,
b) Deposit them with TJ, or
c) Disclose their existence to the prosecution and prepare to do battle to retain them
- Note: AB’s Code of Prof. Conduct: a lawyer must not counsel or participate in
a) The obtaining of info by illegal means
b) The falsification of evidence
c) The destruction of property having potential evidentiary value or the alteration of property so as to
affect its evidentiary value, or
d) The concealment of property have potential evidentiary value in a criminal proceeding (but this is
not a positive obligation)
____________________________________________________________________________________
V. CONFIDENTIALITY, LAW ENFORCEMENT, AND NATIONAL SECURITY
- Mierzwinski: not unusual for law enforcement authorities to suspect that info relevant to the commission
of crimes may be in the possession of a lawyer
- In these situations, a lawyer has an obligation to preserve client confidentiality at all costs
- However, Parliament sometimes introduces provisions to set aside client’s right to confidentiality
- Still, in this situation, a lawyer must resist until absolutely compelled to do so
R. v. Fink (2002 SCC)…Disclosure provision in Criminal Code unconstitutional because it’s too robust
F: - s. 488.1 of the Criminal Code set out a procedure for determining claims of solicitor-client privilege
in relation to documents seized from a law office under a warrant…procedure mandated that:
a) The material be sealed at the time of the search
b) Solicitor make an application within strict time lines for a determination that the material is
indeed protected by privilege, and that
c) With the permission of the court, the Crown may be permitted to examine the material in
order to assist in a determination on the issue of the existence of privilege
I: - Is s. 488.1 of the Code inconsistent with s. 8 of the Charter?
J: - Yes, for Fink…s. 488.1 of the Criminal Code is unconstitutional because it more than minimally
impairs solicitor-client privilege and thus amounts to an unreasonable search and seizure under s.8
A: - Interest at stake is solicitor-client privilege, which is a principle of fundamental justice
- Usually, there would be a balancing of privacy interests and the exigencies of law enforcement
- However, this is not particularly helpful here because the privilege is a positive feature of law
enforcement, not an impediment to it
- Given that solicitor-client privilege must remain as close to absolute as possible to retain its
relevance, the Court must adopt stringent norms to ensure its protection
- Here, s.488.1 more than minimally impairs solicitor-client privilege because of 2 fatal features:
a) Potential breach of solicitor-client privilege without the client’s knowledge, let alone consent
b) Absence of judicial discretion in determination of the validity of an asserted claim of privilege
R: - Laws that unjustly or accidentally infringe solicitor-client privilege erode the public’s
confidence in the fairness of the justice system, and therefore the public has an interest in
maintaining the integrity of the solicitor-client relationship
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PART FOUR – THE DUTY OF LOYALTY AND CONFLICTS OF INTEREST
I. INTRODUCTION
- Conflicts arise in 2 scenarios:
a) Conflicts between 2 or more clients
b) Conflicts between the lawyer's interest and the client's interests
- Neil: a “conflict of interest” is a “substantial risk that the lawyer’s representation of the client would be
materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another
current client, a former client, or a third person”
- Usually involves duties of loyalty and confidentiality
- Hallmark of conflict of interest: if lawyer loses the case, it may cause doubt in client’s mind as to
lawyer’s performance/conduct
- There can be conflict of interests b/t clients or b/t lawyer and client
- Duty of loyalty: fiduciary duty to client
- Lawyer must exercise independent professional judgment so must avoid conflicts of interest
- Lawyers face complex set of obligations with regard to avoidance of conflicts of interest, which generally
arise from duty of loyalty to clients
- Other public values are implicated in the regulation of conflicts include:
a) Limit cost of legal services to clients
b) To make services as widely available as possible
c) Enable client to retain lawyer of his choosing
- Evolving shape of legal profession, i.e. concentration of many lawyers in large firms as well as national
and international firms that serve multitude of clients across many jurisdictions; also multi-disciplinary
firms where lawyers and other professionals practice side by side
- Waiver: there’s implied waiver of conflict for govts, or large entities like ICBC, Law Society
- Client can also waive conflict if fully informed
- In this area, there is a SCC “conflicts trilogy” where the Court tried to articulate appropriate standards
and ground the standards in fundamentally important values
- Trilogy of cases illustrate conflicting demands; cases do not provide easy solution to the problem
____________________________________________________________________________________
II. DUTIES TO FORMER CLIENTS
- See the Professional Conduct Handbook:
a) Chapter 6 – Conflicts of Interests Between Clients
7
Acting against a former client
- “Subject to Rule 7.4, a lawyer must not represent a client for the purpose of acting against
the interests of a former client of the lawyer unless:
(a) the former client is informed that the lawyer proposes to act for a client adverse in
interest to the former client and the former client consents to the new
representation, or
(b) the new representation is substantially unrelated to the lawyer's representation of
the former client, and the lawyer does not possess confidential information arising
from the representation of the former client that might reasonably affect the new
representation”
7.1 Conflicts arising as a result of transfer between law firms
- "client" includes anyone to whom a lawyer owes a duty of confidentiality, whether or not a
solicitor-client relationship exists between them;
- "confidential information" means information not generally known to the public that is
obtained from a client;
- "law firm" includes one or more lawyers practising:
(a) in a sole proprietorship,
(b) in a partnership,
(c) in an arrangement for sharing space,5
(d) as a law corporation,
(e) in a government, a Crown corporation or any other public body,6 and
(f) in a corporation or other body;”
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7.2
7.3
7.4
7.5
7.6
7.7
7.8
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- "lawyer" means a member of the Society, and includes an articled student registered in
the Law Society Admission Program;
- "matter" means a case or client file, but does not include general "know-how" and, in the
case of a government lawyer, does not include policy advice unless the advice relates to a
particular case.
Applications of rules
- “Rules 7.1 to 7.9 apply when a lawyer transfers from one law firm ("former law firm") to
another ("new law firm"), and either the transferring lawyer or the new law firm is aware at
the time of the transfer or later discovers that:
(a) the new law firm represents a client in a matter that is the same as or related to a
matter in which the former law firm represents its client ("former client"),
(b) the interests of those clients in that matter conflict, and
(c) the transferring lawyer actually possesses relevant information respecting that
matter”
Exemption
- “Rules 7.4 to 7.7 do not apply to a lawyer employed by the federal or a provincial or
territorial attorney general or department of justice who continues to be employed by that
attorney general or department of justice after transferring from one department, ministry or
agency to another”
Firm disqualification
- “If the transferring lawyer actually possesses confidential information relevant to a matter
referred to in paragraph 7.2(a) respecting the former client that may prejudice the former
client if disclosed to a member of the new law firm, the new law firm must cease its
representation of its client in that matter unless:
(a) the former client consents to the new law firm's continued representation of its
client, or
(b) the new law firm can establish, in accordance with Rule 7.8, when called upon to do
so by a party adverse in interest, that:
(i) it is reasonable that its representation of its client in the matter continue,
having regard to all relevant circumstances, including:
(A) the adequacy of the measures taken under subparagraph (ii),
(B) the extent of prejudice to the affected clients, and,
(C) the good faith of the former client and the client of the new law firm, and
(ii) it has taken reasonable measures to ensure that there will be no disclosure of
the former client's confidential information by the transferring lawyer to any
member of the new law firm”
Continued representation not to involve transferring lawyer
- “If the transferring lawyer actually possesses information relevant to a matter referred to in
paragraph 7.2(a) respecting the former client, but that information is not confidential
information that may prejudice the former client if disclosed to a member of the new law
firm, the new law firm must notify its client of the relevant circumstances and its intended
action under Rules 7.1 to 7.9”
Continued representation not to involve transferring lawyer
- “Unless the former client consents, a transferring lawyer to whom Rule 7.4 or 7.5 applies
must not:
(a) participate in any manner in the new law firm's representation of its client in that
matter, or
(b)
disclose any confidential information respecting the former client”
Continued representation not to involve transferring lawyer
- “Unless the former client consents, a member of the new law firm must not discuss the new
law firm's representation of its client or the former law firm's representation of the former
client in that matter with a transferring lawyer to whom Rule 7.4 or 7.5 applies”
Determination of compliance
- “Anyone who has an interest in, or who represents a party in, a matter referred to in Rules
7.1 to 7.9 may apply to a court of competent jurisdiction for a determination of any aspect of
those Rules, or seek the opinion of the Society on the application of those Rules”
Due diligence
- “A lawyer must exercise due diligence in ensuring that each member and employee of the
lawyer's law firm, and each other person whose services the lawyer has retained:
(a) complies with Rules 7.1 to 7.9, and
(b) does not disclose:
(i) confidences of clients of the firm, and
(ii) confidences of clients of another law firm in which the person has worked”
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- The next case, the Martin v. Gray case, is the quintessential "transferring lawyer" case in which there
was a conflict between the transferring lawyer's duty to his/her former client and the duties of the
lawyer's new firm to its current client
- Starts the SCC "conflicts trilogy" and was the first time the SCC tackled the confllct of interest issue
- Duty of loyalty is much more restricted in its application to a former client rather than a current client
MacDonald Estate v. Martin (1990 SCC)…Rebuttable presump. of imputed knowledge to firm members
F: - Plaintiff was Martin, a former client (as opposed to Neil and Strother which deal with current clients)
- A lawyer was assisted by a junior member of his firm who was actively engaged in a case and was
privy to many confidences disclosed by the estate to their solicitor
- The junior lawyer then joined the law firm representing the opposite side
- The estate then applied for a declaration that the firm was ineligible to continue to act as solicitors
- The trial court grated the application and ordered the firm removed; CA reversed
I: - What is the standard in deciding whether a law firm should be disqualified from continuing to act in
a case by reason of a conflict of interest?
J: - For Martin, law firm disqualified acting for D (but dissent on reasoning)
A: - A lawyer who has relevant confidential info is automatically disqualified from acting against a
client or former client
- Dickson CJ. found, in determining whether a disqualifying COI exists, there are 3 competing and
underlying values regarding the former client's interest and a current client's interest:
a) Concern to maintain the high standards of the legal profession and the integrity of
the justice system
b) Countervailing value that a litigant should not be deprived of their choice of counsel
without good cause
c) Desirability of permitting reasonable mobility in the legal profession
- Also known as the economic self-interest of the legal profession
- Test: the public represented by the reasonably informed person must be satisfied that no use of
confidential information would occur
- In applying this test, two questions must be answered:
a) Did the lawyer receive confidential information attributable to the solicitor and the
client relationship relevant to the matter at hand?
- Once it is shows by the client that there existed a previous relationship which is sufficiently
related to the retainer from which it is sought to remove the lawyer, the court should infer
that confidential info was disclosed
- Burden can be discharged only if the lawyer can prove that no information was imparted
which could be relevant
- Must be info relevant to the matter at hand, not just confidential information
b) Is there a risk that the confidential info will be used to the prejudice of the client?
- Court adopts the strict "possibility of mischief" standard, but majority finds it is rebuttable
while dissent finds it is irrebutable
- With respect of partners or associates in the firm, the principle of imputed knowledge is
unrealistic in the era of the "mega-firm"
- Note: this proposition has drawn criticism for putting the economic self-interest of
lawyers above the integrity of the system, as USA system hasn't fallen apart
- Therefore, the court should draw the inference that lawyers who work together share
confidences unless the court is satisfied that all reasonable measures have been taken to
ensure that no disclosure will occur by the "tainted" lawyer to the member or members of
the firm who are engaged against the former client
- "Reasonable measures" devices = Chinese walls (virtual wall around the lawyer) and cones
of silence (nobody talks to the lawyer about the case and vice versa)
- Undertakings are not sufficient, as affidavits of lawyers are difficult to verify objectively and
the public is not satisfied without additional guarantees…no more than saying "trust me"
- W: institutional mechanisms and virtual walls are also just saying "trust me" as lawyers
- Here, lawyer actively worked on the very case in respect of which her new firm is acting against her
former client, and therefore she was in possession of relevant confidential info
- Also, with respect to the 2nd "misuse of information" Q, there was nothing in the affidavits filed
to indicate that any independently verifiable steps were taken by the firm to implement any kind
of screening
- Therefore, the firm can't continue to act
- Strong dissent by Cory J: states that there is an "irrebuttable presumption" where a lawyer
who has had a substantial involvement with a client in an ongoing contentious matter joins another
law firm which is acting for an opposing party
- This irrebuttable presumption is that the knowledge of the lawyer, including confidential info
disclosed to him/her by the former client, has become the knowledge of the new firm
- Rationale: essential to preserve public confidence in the administration of justice
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- Cory J. rejects the argument that the merger of law firms (ie: the "mega-firm) or the value of
mobility of lawyers can be permitted to adversely affect the public's confidence in the justice system
- Important that justice not only be done, but appear to be done in the eyes of the public
- Integrity of the judicial system is of such fundamental importance that it must be the
predominant value
R: - A lawyer that has confidential information from a former client that is not relevant to the
matter at hand can act against a former client
____________________________________________________________________________________
II. DUTIES TO CURRENT CLIENTS
- See the BC Professional Conduct Handbook for rules on joint representation:
a) Chapter 6 – Conflicts of Interests Between Clients
4
Acting for two or more clients
- “A lawyer may jointly represent two or more clients if, at the commencement of the
retainer, the lawyer:
(a) explains to each client the principle of undivided loyalty,
(b) advises each client that no information received from one of them as a part of the
joint representation can be treated as confidential as between them,
(c) receives from all clients the fully informed consent to one of the following courses of
action to be followed in the event the lawyer receives from one client, in the
lawyer's separate representation of that client, information relevant to the joint
representation:
(i) the information must not be disclosed to the other jointly represented clients,
and the lawyer must withdraw from the joint representation;
(ii) the information must be disclosed to all other jointly represented clients, and
the lawyer may continue to act for the clients jointly, and
(d) secures the informed consent of each client (with independent legal advice, if
necessary) as to the course of action that will be followed if a conflict arises
between them”
5
Acting for two or more clients
- “If a lawyer jointly represents two or more clients, and a conflict arises between any of
them, the lawyer must cease representing all the clients, unless all of the clients:
(a) consented, under paragraph 4(d), to the lawyer continuing to represent one of them
or a group of clients that have an identity of interests, or
(b) give informed consent to the lawyer assisting all of them to resolve the conflict”
6
Acting for two or more clients
- “A lawyer who ceased joint representation under Rule 5 or who continued to represent one
or more clients under paragraph 5(a) may, with the informed consent of all the clients,
resume representation of all of them after the conflict has been resolved”
- See the BC Professional Conduct Handbook for rules on acting against current clients:
a) Chapter 6 – Conflicts of Interests Between Clients
6.3 Acting against a current client
- “A lawyer must not represent a client for the purpose of acting against the interests of
another client of the lawyer unless:
(a) both clients are informed that the lawyer proposes to act for both clients and both
consent, and
(b) the matters are substantially unrelated and the lawyer does not possess confidential
information arising from the representation of one client that might reasonably
affect the other representation”
6.4 Acting against a current client
- “For the purposes of Rule 6.3, the consent of a client to the lawyer acting for another client
adverse in interest may be inferred in the absence of contrary instructions if, in the
reasonable belief of the lawyer, the client would consent in the matter in question because
the client has
(a) previously consented to the lawyer, or another lawyer, acting for another client
adverse in interest,
(b) commonly permitted a lawyer to act against the client while retaining the same
lawyer in other matters to act on the client's behalf, or
(c) consented, generally, to the lawyer acting for another client adverse in interest”
- In Martin v. Grey, the complaint came from a former client, and the primary concern of the court was
with the assurance that no confidential information was passed with respect from the former client to the
current client
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- In the next two cases, a different (or additional) problem arises whether the conflict involves two clients
whom a lawyer or firm is representing
- Even if confidential info can be protected (ie: virtual walls), it is an open Q whether the law firm
acting for those two clients can act consistently with the obligations of loyalty and justice
R. v. Neil (2002 SCC)…Bright line test where the firm, not just individual lawyer, owes fiduciary duty
F: - An Alberta paralegal was providing legal advice contrary to the Alberta Legal Profession Act
- ie: fabricated court documents in a divorce action, defrauded Canada Trust, ect…
- In Neil's prior job, he retained the legal services of a lawyer
- Neil's assistant had hired Lazin from the same firm to represent her in relation to the charges
- Lazin sat in on an interview with Neil's lawyer in order to gain advantage for his client
- In a second incident, Lazin was approached by an old client of Neil who believed that Neil had
fabricated a divorce document
- Someone in the firm was representing them, and a partner in the firm attended an interview where
the lawyer was asking Q's of the client in order to get info that he could use for another client
I: - Did the lawyer create a conflict of interest by assisting in establishing charges against Neil when he
was a past client?
J: - Yes, but no stay of proceedings granted as a remedy
A: - It is the firm (not just the individual lawyer) that owes a fiduciary duty to its client and requires a
bright line
- General bright line rule: a lawyer can’t represent one client whose interest are directly adverse to
the immediate interests of another current client – even if the two mandates are unrelated – unless:
a) Both clients consent after receiving full disclosure
- Note: preferably, both sides would also receive independent legal advice
b) Lawyer reasonably believes that he/she is able to represent each client without
adversely affecting the other client
- W: full disclosure/consent, independent legal advice, and reasonable belief is a big hurdle
- The duty of loyalty is the much broader principle of avoidance of conflicts of interest, in which
confidential info may/may not play a role, and include:
a) Duty to avoid conflicts of interest
b) Duty of commitment to the client's cause
- Sometimes referred to as "zealous representation"
c) Duty of candour with the client on matters relevant to the retainer
R: - There is a “bright line” test that prohibits a lawyer from representing one client whose
interests are directly adverse to the immediate interests of another client
- Remember: there are 3 aspects of the duty of loyalty:
a) Duty to avoid conflicting interests
b) Duty of commitment to client’s cause (zealous representation)
c) Duty of candour
- Therefore, if the firm represents 2 clients in same matter, if it receives info from one client,
must keep it confidential; but at same time has duty of candour to other client to disclose
relevant info…may be a dilemma
- While Neil suggests a bright line for conflicts, Strother suggests that you may be able to represent
concurrent clients that may have competing financial interests but not competing legal interests…
Strother v. 3464920 Canada Inc. (2007 SCC)…Lawyer/firm can act for clients with competing interest
F: - The plaintiff (Monarch Entertainment) ran a tax shelter investment program in the 1990s, and hired
Strother (employed at Davis) pursuant to a written retainer signed in 1996 that prohibited the firm
from acting for other clients with related tax-shelter programs
- They made a lot of money until the gov't closed a loophole
- Strother knew how to get around it, and formed a partnership with Darc without informing Monarch
about the possibility of a revival in the film production services business at any time
I: - Was Strother liable for breach of contract and/or breach of fiduciary duty? Was Davis also
vicariously liable?
J: - For Monarch, Strother owed $1 million in damages (which was pocket change considering he made
about $60 million from his breach of fiduciary duty) but Davis not liable
A: - When a lawyer is retained by a client, the scope of the retainer is governed by contract
- The solicitor-client relationship thus created is, however, overlaid with certain fiduciary
responsibilities, which are imposed as a matter of law
- Fiduciary duties provide a framework within which the lawyer performs the work and may
include obligations that go beyond what the parties expressly bargained for
- Fiduciary responsibilities include the duty of loyalty, of which an element is the avoidance of
conflicts of interest
- The subject matter of the 1998 retainer was "tax-assisted business opportunities"
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- Subject to confidentiality considerations for other clients, if S knew there was still a way to
continue to syndicate U.S. studio film production expenses to Canadian investors on a taxefficient basis, the 1998 retainer entitled Monarch to be told that S's previous negative advice
was now subject to reconsideration
- While generally a lawyer does not have a duty to alter a past opinion in light of a subsequent change
of circumstances, there are exceptions to the general rule
- Here, Monarch's written 1997 retainer had come to an end but the solicitor-client relationship
based on a continuing (if more limited) retainer in relation to tax-assisted film production
services carried on into 1998 and 1999
- The issue here was not so much a duty to alter a past opinion, as it was part of S's duty to provide
candid advice on all matters relevant to the continuing 1998 retainer
- Moreover, there was no excuse for S not to advise Monarch of the successful tax ruling when it
was made public in October 1998
- Accordingly, the firm (and S) failed to provide candid and proper legal advice in breach of the
1998 retainer
- The firm and S were free to take on D and Sentinel as new clients once the "exclusivity"
arrangement with Monarch expired at the end of 1997
- The retainer by Sentinel was not directly adverse to any immediate interest of Monarch
- Issues of confidentiality are routinely dealt with successfully in law firms
- S could have managed the relationship with the two clients as other specialist practitioners do,
by being candid with their legal advice while protecting from disclosure the confidential details of
the other client's business
- S accepted Sentinel as a new client and the firm was given no reason to think that he and his
colleagues could not provide proper legal advice to both clients
- Commercial conflicts between clients that do not impair a lawyer's ability to properly represent
the legal interests of both clients will not generally present a conflict problem
- Whether or not a real risk of impairment exists will be a question of fact
- The risk did not exist here if the necessary even-handed representation had not been skewed
by S's personal undisclosed financial interest
- W: may be a modification of the bright line test in Neil
- In each case where no issue of potential abuse of confidential information arises, the court should
evaluate whether there is a serious risk that the lawyer's ability to properly represent the complaining
client may be adversely affected, and if so, what steps short of disqualification (if any) can be taken
to provide an adequate remedy to avoid this result
- S was not free to take a personal financial interest in the D/Sentinel venture
- The difficulty is not that Sentinel and Monarch were potential competitors; the difficulty is that
S aligned his personal financial interest with the former's success
- By acquiring a substantial and direct financial interest in one client (Sentinel) seeking to enter a
very restricted market related to film production services in which another client (Monarch)
previously had a major presence, S put his personal financial interest into conflict with his duty to
Monarch
- The conflict compromised S's duty to "zealously" represent Monarch's interest
- Taking a direct and significant interest in the potential profits of Monarch's commercial
competitor created a substantial risk that his representation of Monarch would be materially and
adversely affected by consideration of his own interests
- In time, the risk became a fact
- However, the firm, for its part, did not breach its fiduciary duty to Monarch
- The firm's partners were innocent of S's breach and Strother was simply a “rogue” partner
- The firm cannot be held to have breached a fiduciary duty on the basis of facts of which its
partners were ignorant
- A lawyer has no duty to alter a past legal opinion in light of changed circumstances where
the retainer has ended
- W: was majority decision a serious step back? consider the bright line test
- They say problem is not Davis having 2 clients from same industry but Strother’s conflict due to
potential personal profit
- Neil’s bright line test where lawyer/firm can’t act for 2 clients whose interests are adverse and
Strother decision that says lawyer/firm can act for clients competing in same industry
- PCH rules reflect case law; new rules coming out, formulated by Federation of Law Societies
____________________________________________________________________________________
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IV. LAWYER-CLIENT CONFLICTS
- Potential to undermine lawyer’s ability to represent client properly and to create perception that client’s
interests have not been properly represented
- Q: does conflict interfere with lawyer’s duty of loyalty to client, his ability to provide
uncompromising and uncompromised representation of client’s interest?
- ie: clients’ money held in trust accounts, personal relns b/t lawyer and client
- Personal relationships with clients may:
a) Lead to loss of objectivity on lawyer’s and client’s part
b) Raise issue of confidentiality – is it preserved?
c) Lead to client expecting a break on fees or special service
d) Personal relationship compromises everyone’s position, so give up the client if you want to bang
your client (and please be sensitive to need for detachment and objectivity)
- As opposed to Strother, where the lawyer’s business interests conflict with the duty of loyalty, here the
lawyer’s interest conflicted with the lawyer’s personal interest…
Law Society of Upper Canada v. Hunter (2007 LSUC)…Conflict when having sex with your client
F: - Lawyer had sexual/romantic relationship with his client for over 2.5 years while retained by her on
family law matter without recommending that she obtain independent legal advice or that she retain a
different lawyer
- Before revealing to her his 2 other relationships, d-bag attempted to rectify the situation by getting
her to sign a copy of Rules of Prof. Conduct re: conflicts of interest between lawyer and client,
acknowledging that he had complied with the rule in their relationship
- He made continued attempts to get his client to confirm his position, contributing to her concern and
emotional distress
I: - Did H engage in professional misconduct with regard to his conflict of interest in handling his sexual
relationship with his client?
J: - Of course yes, for LS…H received 60-day suspension and fine of $2,500
A: - May raise confidentiality concerns, as here complainant alleged he came onto her using conf. info
R: - Lawyer must provide disclosure regarding conflict issues so the client can make an
informed decision
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PART FIVE – THE LAWYER AS ADVOCATE
I. INTRODUCTION
- Discussion here is on advocacy in court, in particular civil litigation
- Some various approaches on the lawyer as advocate:
a) Nova Scotia
- NS Barristers’ Society Prof. Conduct Handbook: when acting as an advocate, lawyer’s duty to:
a) Represent client absolutely, honourably and within the limits of the law
b) Ask every question, raise every issue and advance every argument, however distasteful,
that advocate reasonably thinks will help client’s case
c) Endeavour to obtain for client the benefit of any and every right, remedy and defence that
is authorized by law
b) Ontario
- LS of Upper Cda Rules of Prof. Conduct:
a) When acting as advocate, lawyer should refrain from expressing lawyer’s personal
opinions on merits of client’s case
c) Lord Denning
- Lord Denning: advocate’s duty is not only to client; he has duty to ct which is paramount; he
owes duty to cause of truth and justice
- He must not knowingly conceal the truth (criminal defence lawyers do this all the time because
onus is on the Crown to prove case)
- Key: identify the various and often competing interests to which litigator must be faithful and then
determine how to balance and resolve them
- ie: duty of loyalty to client (zealous representation); duty as officer of court; goals of serving truth
and justice, ect…
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- See Chapter 8: The Lawyer as Advocate from the BC Professional Conduct Handbook:
1
Prohibited conduct
- “A lawyer must not:
(a) abuse the process of a court or tribunal by instituting or prosecuting proceedings that,
although legal in themselves, are clearly motivated by malice on the part of the client
and are brought solely for the purpose of injuring another party,
(b) knowingly assist the client to do anything or acquiesce in the client doing anything
dishonest or dishonourable,
(c) appear before a judicial officer when the lawyer, the lawyer's associates or the client
have business or personal relationships with the officer that may reasonably be
perceived to affect the officer's impartiality,
(d) attempt or acquiesce in anyone else attempting, directly or indirectly, to influence the
decision or actions of a court or tribunal or any of its officials by any means except open
persuasion as an advocate,
(e) knowingly assert something for which there is no reasonable basis in evidence, or the
admissibility of which must first be established,
(e.1)
make suggestions to a witness recklessly or that the lawyer knows to be false
(f) deliberately refrain from informing the court or tribunal of any pertinent authority
directly on point that has not been mentioned by an opponent,
(g) dissuade a material witness from giving evidence, or advise such a witness to be absent,
(h) knowingly permit a party or a witness to be presented in a false way, or to impersonate
another person, or
(i) appear before a court or tribunal while impaired by alcohol or a drug”
____________________________________________________________________________________
II. ETHICS IN PRE-TRIAL PROCEEDINGS
1) PLEADINGS
- A lawyer must not pursue unmeritorious steps in litigation process
- A lawyer has duty to take full advantage of legal procedure for benefit of each client and may assert a
position on client’s behalf, including one that lawyer does not believe will ultimately prevail, if position is
supportable by a good faith argument on the merits
- Lawyer may have greater latitude if, for example, all the facts have yet to be fully substantiated or
lawyer expects to develop further evidence through discovery
- However, it’s an abuse of process for lawyer to commence or defend action on grounds that are not and
have no chance of becoming a legitimate and meritorious claim or defence
- Note: a step taken for sole purpose of embarrassing, inconveniencing or harassing another party is
always improper
D.C.B. V. Zellers Inc. (1996 Man. QB)…Can’t send deceptive letters threatening to sue people
F: - DCB's 14-year-old son shoplifted in Zellers along with a young friend, taking $59.95 worth of goods
which were later recovered unharmed
- Thereafter, legal counsel for the store wrote the mother demanding restitution of $225, failing which
the store would proceed with a civil action against her
- This was in accordance with the store's policy to recover the incremental costs of shoplifting from
shoplifters and, in the case of children, their parents
- The plaintiff mom paid the $225, but after obtaining legal advice, sought the return of these funds
- Small claims court denied the claim for $225, so the mom appealed
I: - What is the effect of the lawyer’s demand letter?
J: - For DCB, settlement reversed and costs assessed against Zellers (probably should’ve been awarded
against the lawyer as well, possible discipline as well)
A: - The store did not have a valid claim against the appellant as a parent, and there was no general rule
that parents were liable for the torts of their children
- Parents could only be liable if they were in some way negligent or had committed a tort in their
personal capacities, and this did not occur in this case
- The mom’s mistaken belief that the store had a valid claim against her entitled her to a refund
- Lawyer’s demand letter was written despite the fact that he knew there was no legal basis for it
- Zeller’s counsel never seriously thought that this claim could succeed or ever seriously intended
to pursue it to court if it were not paid
R: - It is an abuse of process for a lawyer to commence or defend and action on grounds that
are not, and have no chance of becoming, a legitimate and meritorious claim or defence
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2) DISCOVERY
- Discovery is a thorny area for advocacy dilemmas: parties are asked to open up their offices, homes,
personal files, trade secrets, etc. to scrutiny of other side
- Actual process of document discovery is largely conducted either in the office or boardroom of lawyer or
client w/o other side present, or for examinations in a boardroom w/o a judge present, so ethical conduct
depends on the parties and their lawyers
- The lawyer must explain to client the obligation of making full disclosure b/c clients often don’t
understand that they have to turn over all potentially relevant docs even if it hurts their case; some
clients may fire lawyer for insisting on disclosure
Grossman Et Al. v. Toronto General Hospital Et Al. (1983 Ont. HCJ)…Lawyer’s duty for full discovery
F: - Patient was missing in Toronto General Hospital for 12 days in an air-duct shaft
- Hospital denied the death and only revealed the deceased hospital record on discovery
A: - Note: in Ontario, every affidavit is sworn; in BC, only when you mistrust the other party and have
grounds do you apply for a sworn statement (almost an insult)
- Where a claim of privilege is made with respect to relevant documents, sufficient information must
be given in the affidavit on production to enable a party opposed to identify such documents
- Enough detail must be given to enable a court to make a prima facie decision whether a claim
for privilege has been established from what appears on the face of the affidavit, although the
party resisting production is not required to give particulars which would destroy the benefit of
any privilege
- It is quite inappropriate for the party required to produce to take the position that it is for his
opponent to establish the existence of any documents which should be produced
- The integrity of the system relating to production of documents depends upon the willingness of
lawyers to require full and fair discovery of their clients
- Stonewalling and improper concealment is bad practice which can work real injustice and cause
delay and expense; it is a practice which must be condemned as, if widespread, it would
undermine the trial system
- Where there has been a deliberate refusal to comply with the notice to produce upon advice of a
solicitor, an order requiring the solicitor personally to pay the costs of the proceedings may be made
- However, where the case is an example of excessive zeal, an appropriate order is that the costs
of the application be paid in any event of the cause forthwith after taxation as between a solicitor
and his own client
R: - If there is a lack of proper disclosure, the courts will place the blame on the lawyer
because the client doesn’t understand disclosure and privilege
____________________________________________________________________________________
3) NEGOTIATION
- In the BC Professional Conduct Handbook:
a) Chapter 1 – Canons of Legal Ethics
3(3) To the client
- “Whenever the dispute will admit of fair settlement the client should be advised to avoid or
to end the litigation”
- Therefore, a lawyer has a duty to advise and encourage client to settle a case rather than
commence or continue legal proceedings where case can be settled fairly and reasonably
- Negotiation is not addressed in most professional conduct handbooks; it’s an emerging area
- Most codes of professional conduct are still relatively silent on professional obligations of lawyers
during conduct of a negotiation
- Note: in Alberta’s Code during negotiation, a lawyer must not lie to or mislead an opposing party,
and if he or client or somebody allied with client has misled opposing party, whether intentionally or
otherwise, lawyer must immediately correct the resulting misapprehension
____________________________________________________________________________________
III. ETHICS AT TRIAL
1) GENERAL
- A lawyer must balance his obligation to represent client fearlessly and advance every argument that will
help client’s case, with obligation not to knowingly assist client to do anything or acquiesce in client doing
anything dishonest or dishonourable
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- Lawyers aren’t allowed vigorous representation of client to cross over to unethical conduct
- Typically, the basis of these determinations is simply the conscience and good faith beliefs of lawyer
personally
____________________________________________________________________________________
2) CROSS-EXAMINATION
- In R. v. Sweeney (1987 Nfld CA), a lawyer was convicted of attempted obstruction of justice for wilfully
counselling evasive evidence (told his client to be evasive and forgetful when testifying)
- Therefore, a lawyer who does this commits an offence contrary to Criminal Code and breaches his
duty as officer of the court
R. v. Lyttle (2004 SCC)…Cross-examiner may pursue any hypothesis that’s honestly advanced
F: - The victim was severely beaten by five men
- He claimed that he had been beaten over a gold chain but two police officers stated in separate
reports, which were disclosed to the defence, that they believed attack was related to a drug debt
- In a voir dire and repeatedly at trial, TJ stated that defence counsel could only proceed with her
proposed cross--examination of the Crown's witnesses if she provided substantive evidence of the
drug debt theory
I: - Could defence cross-examine on the issue without some substantive evidence?
J: - Yes, for AC
A: - Here, TJ unduly restricted the right of the accused to conduct a full and proper cross-examination of
the principal Crown witness
- The AC was not required to undertake to call evidence to support his drug debt theory as a
condition for permitting the cross-examination
- The right of an accused to cross-examine prosecution witnesses without significant and
unwarranted constraint is an essential component of the right to make a full answer and defence
- The right of cross-examination, which is protected by ss. 7 and 11(d) of the Charter
- A question can be put to a witness in cross-examination regarding matters that need not be proved
independently if the purpose is not to mislead
- However, counsel must have a good faith basis for putting the question
- It is not uncommon for counsel to believe what is in fact true without being able to prove it
otherwise than by cross-examination
- "A good faith basis" is a function of the information available to the cross-examiner, his or her
belief in its likely accuracy, and the purpose for which it is used
- The information may fall short of admissible evidence and may be incomplete or uncertain,
provided the cross-examiner does not put suggestions to the witness recklessly or that he or she
knows to be false
- The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of
reasonable inference, experience or intuition and there is no requirement of an evidentiary foundation
for every factual suggestion put to a witness in cross-examination
- Where a question implies the existence of a disputed factual predicate that is manifestly
tenuous or suspect, TJ may seek assurance that a good faith basis exists for the question
- If the judge is satisfied in this regard and the question is not otherwise prohibited, counsel
should be permitted to put the question to the witness
- Here, the existence of a good faith basis for the defence's drug debt theory had become apparent
over the course of the two voir dires
- Therefore, TJ erred in law by requiring an evidentiary foundation for the cross-examination
R: - Questions may be put to a witness by counsel conducting a cross-examination if they
have a good faith basis for asking the question
____________________________________________________________________________________
3) REPRESENTATIONS ABOUT THE LAW
- In the Professional Conduct Handbook:
a) Chapter 8 – Lawyer as Advocate
1
Prohibited conduct
- “A lawyer must not:
(f) deliberately refrain from informing the court or tribunal of any pertinent authority
directly on point that has not been mentioned by an opponent”
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- GM: three points on representations and the law:
a) Courts don’t expect counsel to search out unreported cases, although if counsel knows of an
unreported case in point, he must bring it to court’s attention
b) “On point” does not mean cases whose resemblance to case at bar is in the facts; it means cases
that decide a point of law
c) Counsel cannot discharge his duty by not bothering to determine whether there is a relevant
authority; in this context ignorance is no excuse
General Motors Acceptance Corp. of Canada v. Issac Estate (1992 Alta. QB)…Must inform court
F: - Facts of a case were entirely parallel to a case determined by the Alberta Court of Appeal which
neither counsel referred to in their factum despite the fact that counsel for the plaintiff had appeared
for the plaintiff in that case as well
I: - What happens to a lawyer when they try to outsmart a judge?
J: - For D…simply a scheme to get around rules, costs against the solicitor
A: - Here, the judge happened to know of the case, waited for counsel to bring it up in oral submissions
but neither did
- When judge mentioned case, P’s counsel “remembered” it; judge’s knowledge triggered
counsel’s disclosure of his knowledge of it
- Conversely, counsel for D was not aware of case
- Therefore, counsel can’t fail to disclose b/c case is “distinguishable”; it’s judge’s role to decide if it’s
distinguishable
R: - The duty to bring relevant law to attention of the court is founded on proposition that
counsel has obligation to court to assist in duly administering the law, as well as a duty to
his client and that, in some circumstances, the former may override the latter
____________________________________________________________________________________
IV. ADVOCACY AND CIVILITY
- “Civility” as applied by law societies has 2 central meanings:
a) Includes requirement that lawyers treat each other and those participating in justice system, with
degree of politeness
b) Includes obligations—also enshrined independently in LS codes of conduct—on lawyers to act fairly,
honestly and with utmost integrity in their dealings with other lawyers and members of the court
- Civility helps to ensure lawyers uphold their duties as officers of the court and improve public’s
perception of the administration of justice
- Sources of the obligation include:
- Court’s inherent jurisdiction to govern proceedings in courtroom, including lawyers’ conduct within
those proceedings
- Codes of conduct contemplate high level of lawyer civility
- Best practice civility codes provide guidance for courts, lawyers and regulators
- Lawyers’ own personal ethics play important self-regulating role
Schreiber v. Mulroney (2007 FTC)…Advocates must be civil in court proceedings against each other
F: - Schreiber served Mulroney with a statement of claim; M disputed jurisdiction of ON
- S’s counsel Anka agreed that while jurisdiction issue was being resolved, M would not file a
statement of defence and he would not be noted in default
- The parties then had disagreement and Anka obtained default J contrary to his agreement with
Mulroney…M then moved to set aside the default J against him
I: - Did Anka do anything wrong?
J: - For the former PM…actions taken by S’s counsel to obtain default J were egregious and wrong;
counsel breached his obligations to ct and counsel for M
A: - M indicated clear intention to defend the action by arguing that ON lacked jurisdiction over matter
- If P obtains default J to which he is not entitled, default jJmt is to be set aside
- Anka breached his agreement with M’s lawyer Prehogan when he sought default J, an egregious
breach he had no right to commit and S had no right to instruct Anka to commit
- He also did not give Prehogan any advance notice he was going to note M in default or take
default J proceedings – this constitutes sharp practice and breaches principles of civility
- Instead, he continued to conceal the fact that he had sought default J by suggesting there were
interlocutory matters to be dealt with
R: - Lawyers who breach their agreement not to seek default J will have the J overturned
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PART SIX – ETHICS AND CRIMINAL LAW
I. INTRODUCTION
Example Scenario
F: - Your client, a black woman, was seen driving a vehicle of a description that hit a parked car and
took off; made considerable damage, location outside a significant parking lot at 3pm
- Before trial, you discussed circumstances with client…she says it was her car, she was in it, and she
had gone to a pharmacy that morning, parked in the parking lot, but left at 2pm so couldn’t be her
- You advise her it’s too coincidental, as her physical description, car, and licence plate are the same
- You tell her that story will look bad, and what might be a fine may become more serious if the judge
feels that you have lied in giving evidence
- Client insists that they want to defend, as they didn’t do it, and wants to go to trial
- You insist they bring the car to a mechanic to check it out, but she refuses
- Having told her she must tell the truth, you call her as a witness; when asked about where she
went, she says she was in New Westminster from the morning until the afternoon…contradictory
I: - Practically, what do you do? What principles/rules govern your conduct? Regardless of any rules,
what do you think you should be able to do to balance different duties?
A: - What rule applies to surprise perjury?
- Talk to them, ask them if they lied, confirm they did, and if they are not prepared to correct
themselves, go through rules 2-4 in Chapter 8 with them and tell them it’s your duty to withdraw
- Practical: ask for adjournment, talk to client, and call the law society and talk to
bencher/practice advisor
- Exam: p.193, point (5) will be on the exam
- Exam: may also have true/false Q’s covering a breadth of material
____________________________________________________________________________________
II. ETHICAL DUTIES OF CROWN COUNSEL
1) GENERAL
- See the Professional Conduct Handbook for rules related to the ethical duties of Crown counsel:
a) Chapter 8 – The Lawyer as Advocate
18 Duties of prosecutor
- “When engaged as a prosecutor the lawyer's prime duty is not to seek a conviction, but to
see that justice is done. The prosecutor exercises a public function involving much discretion
and power, and must act fairly and dispassionately. The prosecutor should not do anything
that might prevent the accused from being represented by counsel or communicating with
counsel and, to the extent required by law and accepted practice, should make timely
disclosure to defence counsel or to an unrepresented accused of all relevant facts and known
witnesses, whether tending to show guilt or innocence, or that would affect the punishment
of the accused”
- Canada uses the adversarial system of trial, where both Crown and defence counsel have “dual roles” in
criminal trial:
a) Crown: expected to be fair, objective and dispassionate but to also argue forcefully for legitimate
result, which is often a conviction
- Prosecutor is expected to seek a just outcome and see that truth is served → quasi-judicial role
- Prosecutor has duty of full material disclosure
b) Defence: expected to vigorously represent interests of AC but also to remain independent of client
and mindful of various overriding duties to court
- ie: there’s a continuum for counsel’s adversarial duties to the party represented and overriding
duties to ct and ideals of justice system
- Defence counsel doesn’t serve truth and justice
- Defence doesn’t have duty to lead judge to the truth but has a duty not to mislead the court
- Even if defence knows that client is guilty, can still aggressively use all the tools to get him off
- Therefore, prosecutors need to be independent, must be free from political or social pressures
- Must consider public needs and community concerns but duty sometimes lies in defying community
pressures, though always within confines of the law
- When Crown allows its actions to be influenced by public pressure, the essential fairness and
legitimacy of our justice system is lost
- Prosecutor’s linchpin duty: seek justice in the public interest, includes these principles:
a) Prosecutor can seek conviction but must strive to ensure AC has a fair trial
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b) Prosecutor’s goal is not to obtain a conviction at any cost but to assist the court in eliciting truth
without infringing on the legitimate rights of AC
c) At each stage of the criminal justice process, prosecutor should exercise discretion with objectivity
and impartiality and not in a purely partisan way
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2) FULL DISCLOSURE
- Crown counsel’s most important ethical obligation is duty to make full disclosure to defence of all
relevant info in Crown’s possession, which is embodied in the following rules:
a) Chapter 1 – Canons of Legal Ethics
1(2) To the state
- “When engaged as a Crown prosecutor, a lawyer's primary duty is not to seek a conviction
but to see that justice is done; to that end the lawyer should make timely disclosure to the
defence of all facts and known witnesses whether tending to show guilt or innocence, or that
would affect the punishment of the accused”
- Also see c.9, R.18 above
- Historically full disclosure was not required, until D. Marshall’s wrongful conviction was attributed to
Crown’s failure to make full disclosure of prior inconsistent stmts to defence
- Marshall Commission recommended that Parliament require full disclosure at pre-trial stage
- Parliament did nothing and 2 years later, SCC changed law in Stinchcombe, giving rise to modern
ethical and constitutional duty to make full disclosure
-Crown has certain amount of discretion, e.g. timing of disclosure: might want to delay to protect witness
or ongoing investigation, don’t want to reveal phone tap or info will dry up
- Q: is prosecutorial discretion subject to review by Law Society?
- For a long time AG said not subject
- Krieger: not subject to external review if it was legitimate exercise of discretion
- Law Society can review if evidence of bad faith or dishonesty
- In the next case, the SCC defined the modern rule on disclosure…
R. v. Stinchcombe (1991 SCC)…Crown has duty to disclose to the defence all material evidence
F: - AC was Calgary lawyer charged with criminal breach of trust for misappropriating trust funds
- Defence argued no appropriation because they were partners business venture
- AC’s former secretary gave evidence favourable to Defence at preliminary inquiry and police took 2
statements from her…Crown advised Defence of statements but refused to disclose contents
- Crown did not call secretary as W at trial, claiming she was not credible
I: - Was Crown required to call W to give evidence favourable to Defence?
J: - Yes, for D…Crown breached their duty to the state
A: - Overriding concern is that failure to disclose impedes ability of AC to make full answer and defence,
which is now a principle of fundamental justice under s.7 of the Charter
- Crown has broad duty to disclose to the defence all material evidence, whether favourable to AC or
not, unless it’s clearly irrelevant
- However, the obligation is not absolute; it’s subject to discretion of Crown counsel with regard
to withholding info and timing of disclosure…ie: delaying disclosure
- Exceptions: privileged info, protect ID of informants and safety of Ws, to protect ongoing police
investigation
- Discretion of Crown counsel is reviewable by TJ and Crown must justify its refusal to disclose
- Failure to make proper disclosure is a very serious breach of legal ethics
R: - The Crown is under a duty at common law to disclose all material evidence whether
favourable to the accused or not
- In the next case, the SCC wrestled with the question of whether exercise of prosecutorial discretion was
a matter that could be examined by provincial Law Societies…
Krieger v. Law Society of Alberta (2002 SCC)…Crown counsel’s prosecutorial discretion subject to rev.
F: - Krieger was Crown counsel in murder case; 2 weeks before preliminary inquiry, K learned
preliminary results from blood tests implicated a different person than AC
- K did not disclose this to Defence, telling him instead that blood test results would not be available
for prelim inquiry
- Defence discovered the results favourable to AC and complained about K’s conduct to AG’s office
- AC complained to Law Society; K argued he was delaying disclosure while awaiting final test results,
pursuant to the discretion recognized in Stinchcombe
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- AG’s office reprimanded K and removed him from case, holding conduct to be an error in judgment
- AG and K want to stop Law Society from reviewing his conduct
I: - Is Crown counsel’s exercise of prosecutorial discretion immune from external disciplinary review?
J: - For Krieger…law society may review Crown prosecutor’s conduct wrt ethical violations
A: - Quasi-judicial function of AG cannot be subjected to interference from parties who are not as
competent to consider the various factors involved in making decision to prosecute
- To subject such decisions to political interference or to judicial supervision could erode integrity of
our system of prosecution
- Crown prosecutor in AB requires 2 things:
a) Employment by AG’s office
b) Membership in Law Society of AB
- To keep job, prosecutor must remain in good standing by complying with ethical
requirements of LS
- All AB lawyers, including Crown prosecutors, are subject to rules of LS
- Review by law society for bad faith or improper purpose by prosecutor does not constitute a review
of the exercise of prosecutorial discretion per se, since an official action undertaken in bad faith or for
improper motives is not within the scope of powers of the AG
- Public officers are entitled to no special immunities or privileges when they act beyond powers
accorded to them by law in their official capacities; conduct amounting to bad faith or dishonesty
is beyond the pale of prosecutorial discretion
- If LS does not have jd to review or sanction conduct arising from exercise of prosecutorial
discretion, it means prosecutors who act in bad faith or dishonestly could not be disciplined
- Crown has discretion not to disclose irrelevant info but disclosure of relevant info is a matter of
prosecutorial duty, not discretion
- LS’s jd to review K’s failure to disclose relevant evidence is limited to examining whether it was an
ethical violation
- Not all non-disclosure is ethical breach; can be due to mistake, misunderstanding nature of
evidence or questionable strategy adopted in good faith
- Ethical violate often requires more: an act or omission revealing intentional departure from
fundamental duty to act in fairness
R: - Evidence of dishonest or bad faith can put prosecutorial discretion into the domain of the
Law Society
____________________________________________________________________________________
3) THE CROWN’S DUTY TO CALL ALL MATERIAL WITNESSES
- No current obligation to call all material witnesses…only a historic duty
R. v. Cook (1997 SCC)…Crown has discretion to present its case as it sees fit
F: - AC was charged with assault causing bodily harm; Crown decided not to call victim as W at trial,
relying instead on his former girlfriend’s evidence
I: - Does Crown have a duty to call victim as a W?
J: - No, for Crown
A: - If Crown were required to call certain Ws regardless of their truthfulness, desire to testify or
ultimate effect on trial, it would have major impact on Crown to conduct its own case and be a clear
interference with broad discretionary powers of Crown counsel at the heart of the adversarial process
- Decisions on how to present the case against AC must be left to Crown’s discretion, absent
evidence discretion is being abused
- Any rationale compelling Crown to call Ws based on need to bring forward all material facts was
distinguished by development of duty to make full disclosure
- When Crown has satisfied its obligation to disclose evidence, it can choose the Ws necessary to
establish factual basis of his case
- In adversarial system, Crown must establish case against AC beyond a reasonable doubt; once it
has done so, it is up to Defence to do its own work and call evidence or face conviction
- However, the defence always has option to call the W
R: - There is no duty on the Crown to call W’s nor do they have a specific duty to call any
complainants to the witness stand
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4) OVERZEALOUS ADVOCACY BY CROWN COUNSEL
- The Crown has a quasi-judicial role in the justice system
- Counsel cannot use inflammatory or vindictive language to express his own opinion that AC is guilty
or use remarks that leave jury with impression that Crown’s investigation is such that they should find
AC guilty
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- Criminal prosecution is not a contest b/t individuals; it’s an investigation that should be conducted w/o
feeling or animus on part of prosecution, with single view of determining the truth
- Prosecutors should regard themselves as ministers of justice assisting in its administration rather
than as advocates
- In address to jury, Crown should not give inadmissible evidence or appeal to emotion
- Note: rules of ethics and evidence are often abused when you think AC is guilty of reprehensible crime
R. v. R. (A. J.) (1994 Ont. CA)…Overzealous advocacy by Crown can prejudice AC and result in miscar.
F: - AC was charged with multiple counts of incest against his daughter and granddaughter; counsel for
AC submits that Crown counsel’s overall conduct and tenor of cross-exam of AC resulted in
miscarriage of justice
I: - Was Crown’s conduct unreasonable?
J: - For AC…cross-exam was abusive and unfair, prejudiced AC in his defence and significantly
undermined the appearance of fairness of the trial
A: - From outset, Crown adopted sarcastic tone and repeatedly inserted editorial commentary into Qs
- Her approach was calculated to demean and humiliate AC
- Statements of personal opinion have no place in cross-exam; nor should cross-exam degenerate
into argument b/t Crown and W
- Indicates a lack of civility as officer of court
R: - Cross-examination by the Crown cannot be abusive and unfair to the witness
____________________________________________________________________________________
III. ETHICAL DUTIES OF DEFENSE COUNSEL
1) GENERAL
- As officers of the court, both counsel are constrained from engaging in certain forms of highly
adversarial behaviour; focuses on counsel’s honesty and integrity in two duties:
a) Duty not to make frivolous arguments
b) Duty of civility…ability to agree without being disagreeable, as counsel not a mouthpiece for client
- Counsel has dual role as officer of court and representative of the client, and the purpose of court
proceedings is to seek justice and truth
____________________________________________________________________________________
2) DEFENDING THE GUILTY CLIENT
- Lawyer can continue to defend client even if convinced of his guilt (PCH, c.1, s.3(6)) but can only use
means of defence that do not involve knowingly misleading the ct (PCH, c.1, s.2(3))
- Lawyer should avoid forming any opinions on the subject of guilt or innocence in the first place
- ie: do not judge client; this is for the judge and jury to determine
- Defence counsel’s personal opinion as to client’s guilt or innocence is generally irrelevant and may
cause counsel to fail in carrying out broad partisan duty to resolutely defend client
- Marshall inquiry: commission heard evidence suggesting that AC’s counsel believed he was guilty – did
those feelings influence their effort in mounting a defence?
- Marshall’s counsel did not carry out independent investigation of the facts, interview Ws not called
by the Crown or seek production of Crown Ws’ prior inconsistent stmts – steps that would’ve revealed
Marshall’s innocence
- A lawyer who is convinced of client’s guilt is subject to certain ethical constraints in the conduct of the
defence…ie: duty not to mislead the court
- Lawyer may object to jd of the ct or to the form of the indictment or to the admissibility of
sufficiency of the evidence
- Lawyer must not suggest that some other person the offence or call evidence lawyer believes to be
false in light of client’s admission; must not call evidence in support of an alibi intended to show AC
did not do the act
- Lawyer is also limited on extent to which he can attack Crown’s evidence: lawyer may test individual
W’s evidence and argue the evidence as a whole is insufficient proof that AC is guilty, but lawyer
should go no further than that
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R. v. Tuckiar (1934 Aust. HC)…Defence counsel personal opinion on guilt/innocence is irrelevant
F: - Aboriginal AC was convicted of murdering police officer with a spear and sentenced to death
- Crown’s case was based on 2 oral stmts to other Aboriginals; 1 stmt was more damaging; other
stmt was that he had acted in self defence
- Counsel believed he could not continue to defend his client after client confessed to him
- Counsel then violated duty of confidentiality by disclosing client’s confession to TJ
I: - Did Defence counsel lose his cool?
J: - Yes, for AC; conviction quashed and AC acquitted; new trial not possible b/c counsel’s public stmt
was published in local press and broadcast to community from which jury members are drawn
A: - Whether he be in fact guilty or not, AC is entitled to acquittal if evidence fails to prove that he
committed the offence
- Counsel breached his paramount duty to respect the privilege attaching to AC’s communications to
him as counsel
- From the course of events, based on defence counsel’s conduct, jury could infer that AC was guilty
R: - Defence counsel may continue to defend AC if he/she believes that the AC is guilty and
must not disclose communications with the AC
____________________________________________________________________________________
3) TAKING CUSTODY AND CONTROL OF REAL EVIDENCE
- Q: what to do when client asks counsel to take possession of real evidence?
- A: lawyer who does risks criminal prosecution, depending on his precise state of mind or intention
- Lawyers cannot allow their privileged status in law to be used as a vehicle for disposing of
incriminating evidence
- Criminal Code, s.139: offence of attempting to obstruct, pervert or defeat the course justice – has been
held to include hiding and disposing of real evidence within its actus reus
- CC, s. 23 offence defines an “accessory after the fact” as one who receives, comforts or assists as
person who has committed an offence – hiding or disposing of real evidence also falls within this actus
reus
- The only possible defence for a lawyer who takes possession of the smoking gun and keeps it in his
file is lack of mens rea
- Note: Canadian rules of prof. conduct are largely silent or unhelpful
- ie: prohibits knowingly attempting to influence the course of justice by suppressing what ought to
be disclosed or otherwise assisting in any fraud, crime or illegal conduct
- Problem with “suppressing what ought to be disclose” is that defence has no reciprocal obligation to
disclose evidence
R. v. Murray (2000 Ont. SC)…Obstruction of justice: Crown must prove actus reus and mens rea BARD
F: - Paul Bernardo’s lawyer charged with wilfully obstructing or attempting to obstruct course of justice
by concealing videotapes for 17 months
I: - Is M guilty of obstructing justice?
J: - No, for Murrary…Crown failed to prove mens rea BARD
A: - Judge’s function here is to decide if M committed the crime, not to judge his ethics; ethical duties do
not automatically translate into legal obligations
- Actus reus: AC must have done the act and the act must obstruct the course of justice
- Here, actus reus element is met: M took and concealed the tapes; secreting them had tendency
to obstruct the police in their duty to investigate the crimes
- There is no obligation on a citizen to help the police, but taking positive steps to conceal evidence is
unlawful
- Tapes are not subject to solicitor-client privilege, which covers only cmns b/t solicitor and client
- US authorities suggest counsel may retain incriminating evidence for reasonable time for
examination and testing; there was no testing contemplated here and M continued to conceal
tapes after examining them
- Here, M had 3 legally justifiable options once he had discovered the overwhelming significance of
the tapes:
a) Immediately turn them over to the prosecution, either directly or anonymously,
b) Deposit them with TJ, or
c) Disclose their existence to the prosecution and prepare to do battle to retain them
- Mens rea: onus is on Crown to prove BARD that it was M’s intention to obstruct the course of justice
- Here, M clearly intended to impede the prosecution of case against Bernardo; defence strategy
was based on concealment of the tapes
- If M was aware concealment was unlawful, the only reasonable inference would be that he
intended to obstruct the course of justice
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- M knew it was unlawful to permanently suppress the tapes and there is some support that he
intended to use them during trial in defence of Bernardo (although judge is sceptical of M’s
evidence of his intention)
- However, TJ finds:
- M’s concealment of the tapes had a tendency to obstruct the course of justice
- M knew it would be obstructing justice to permanently suppress the tapes
- He may not have intended to permanently suppress them
- He may have believed that he had no obligation to disclose them before trial
- Overall, the whole of the evidence raises a reasonable doubt as to M’s intention to obstruct justice
R: - Lawyers must deal proactively with physical evidence and have a positive obligation to
turn over evidence to the authorities
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4) NEGOTIATING A GUILTY PLEA AND SENTENCE
- See the Professional Conduct Handbook:
a) Chapter 8 – The Lawyer as Advocate
20 Representation of an accused on guilty plea
- “A lawyer may represent an accused on a guilty plea provided that the accused:
(a) admits to all the factual elements of the offence, and
(b) is competent to instruct the lawyer”
- Defence counsel has duty to appropriately negotiate a guilty plea and sentence for a client who faces
inevitable conviction at trial or who wishes to acknowledge guilt regardless of prospects at trial
- Ethical issues (these are all examples of unethical conduct):
a) Counsel who routinely overbook calendars and negotiate guilty pleas at the last minute w/o
learning the facts and law applicable to the case
b) Counsel who pressure client to plead guilty, e.g. when counsel has to be in another ct or
unprepared for trial
c) Counsel who act on client’s instructions to plead guilty for expediency in spite of client’s
confidential stmts of innocence
- 4 main ethical rules for defence counsel:
a) Counsel must not conclude plea and sentence discussions w/o first completing a thorough analysis
of the facts and law applicable to case
b) Having completed the above investigation, client is entitled to skilled advice as to the prospects for
an acquittal or finding of guilt if case proceeds to trial and as to implications and possible
consequences of a guilty plea; i.e. client is entitled to weigh relative merits of trial vs. guilty plea
based on competent advice
c) It’s client’s decision as to what plea to enter; decision must be made freely and voluntarily
d) Although client is entitled to plead guilty, plea must be based on an admission of the necessary
factual and mental elements of the offence charged; public interest must not be sacrificed in the
interest of expediency; i.e. insincere guilty pleas or “pleas of convenience”
- Note: this rule is controversial and subject to considerable disagreement
R. v. K. (S.) (1995 Ont. CA)…No pleas of convenience; AC must admit to facts supporting conviction
F: - AC charged with 10 counts of sexual offences against 5 young girls, went to trial in youth ct and
eventually pleaded guilty to 4 counts
- AC now wants guilty plea set aside, claiming to be innocent and that he never wavered from that
position; this is confirmed by fresh evidence
I: - Can AC plead guilty when he is innocent?
J: - Yes, for AC…guilty pleas set aside
A: - Defence counsel discussed with AC possibility of pleading guilty to the 4 less serious assaults in
return for withdrawal of remaining counts and possibly a non-custodial sentence
- He also discussed with AC and AC’s parents the dangers of defending the more serious counts
and likelihood of a significant custodial sentence
- Here, counsel and AC were engaged in risk management and not concerned about the search
for truth and justice
- At a further meeting with AC and his parents, AC said the allegations made against him were not the
truth; counsel advised that criminal cts don’t necessarily deal in truth, but they deal in evidence
- AC had declared his innocence to probation officer and psychologist, which made it impossible
for him to receive counselling treatment as required by his probation order
- AC was unaware of contradiction b/t a plea of guilty and denial until he received advice from
probation officer
- AC must admit to the facts that support the conviction
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- Court should not convict and sentence individuals who fall short of admitting the facts to support the
conviction unless that guilt is proved BARD; nor should sentencing proceed on the false assumption of
contrition
- Court may reject a guilty plea and proceed to trial
- A court that allows itself to be misled cannot serve the interests of justice
- Note: in US, guilty plea may be accepted even though AC maintains his innocence
- W: client should be able to enter a plea of convenience
R: - Guilty pleas can’t proceed if AC denies guilty, as the AC must admit the necessary factual
and mental elements of the guilty plea
____________________________________________________________________________________
5) CLIENT PERJURY
- See the Professional Conduct Handbook:
a) Chapter 8 – The Lawyer as Advocate
2
Offering to give false testimony
- “When a client advises a lawyer that the client intends to offer false testimony in a
proceeding, the lawyer must explain to the client the lawyer's professional duty to withdraw
if the client insists on offering, or in fact does offer, false testimony”
3
Offering to give false testimony
- “When a client who has been counselled in accordance with Rule 2 advises the lawyer that
the client intends to offer false testimony in a proceeding, the lawyer must withdraw from
representing the client in that matter, in accordance with Chapter 10”
4
Offering to give false testimony
- “A lawyer who withdraws under Rule 3 must not disclose to the court or tribunal, or to any
other person, the fact that the withdrawal was occasioned by the client's insistence on
offering false testimony”
5
Offering to give false testimony
- “A lawyer must not call as a witness in a proceeding a person who has advised the lawyer
that the witness intends to offer false testimony”
6
Inconsistent statements or testimony
- “Mere inconsistency in a client's or witness's statements or testimony, or between two
proffered defences, is insufficient to support the conclusion that the person will offer or has
offered false testimony. However, when such inconsistency exists, the lawyer must explore
the inconsistency with the client or witness at the first available opportunity. If, based on
that enquiry, the lawyer is certain that the client or witness intends to offer false testimony,
the lawyer must comply with Rules 2 to 5. Otherwise, the lawyer is entitled to proceed,
leaving it to the court or tribunal to assess the truth or otherwise of the client's or witness's
statements or testimony”
7
Duty to withdraw
- “When a client wishes to adopt a course prohibited by this Chapter, the lawyer must do
everything reasonably possible to prevent it”
8
Duty to withdraw
- “If, despite the lawyer's actions under Rule 7, the client does anything prohibited under this
Chapter, the lawyer must withdraw from representing the client, subject to Rules 2 to 5 and
in accordance with Chapter 10”
____________________________________________________________________________________
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PART SEVEN – OTHER LAWYER DUTIES
I. COUNSELLING AND NEGOTIATION
1) GENERAL
- See Professional Conduct Handbook, chapters 1-3
- Counselling often takes place in private settings
- Consider impact on need for ethical rules and content of those rules
- Consider the potential for conflict b/t those rules and other rules of professional conduct such as
duty of loyalty to client
- Vital to public to know the law; lawyers provide important service of telling them what the law is, esp.
b/c most clients lack means of accessing the law
- If law is ambiguous, e.g. wording of statute or conflicting decisions, lawyer must also provide his
opinion as to the law’s true content
- Lawyer may also have to apply the law to client’s circumstances
- Client may ask lawyer to advise him how to proceed
- There can be tension in counselling process b/t client autonomy and lawyer expressly or implicitly
making the decision for client b/c client is there for advice and guidance
- Important ethical issues:
a) Can lawyer ever advise client to break law?
b) Can lawyer provide advice that could be used by client as a basis for subsequent decision to break
law?
- In counselling clients, lawyer can’t just tell them what they want to hear; lawyer is obliged to be honest
and candid; advice must be clear and in terms that client can understand
- No rule on negotiating in BC, and no norm of practice to clarify misunderstandings on behalf of the
parties involved
- Alberta rule: “This rule expresses an obvious aspect of integrity. In no situation, including
negotiation, is a lawyer justified in deliberately misleading an opposing party”
- W: startling proposition for most lawyers in BC that their duty to guard against the other side
resulting in an inadvertent misrepresentation
- In BC, no duty to correct an accidental mispresentation
- W: no duty on defence counsel to correct a factual misapprehension of the court
____________________________________________________________________________________
2) COUNSELLING AND ILLEGAL CONDUCT
- 2 Q’s:
a) Is it ever permissible for a laywer to advise a client to break the law?
- ie: can you counsel a client to break the law to set up a test case to challenge a law that is
possibly unconstitutional, such as drug possession, prostitution, ect…
- Can advise what law is and what conduct would abide the law, but can’t advise to break the law
b) When can, if ever, lawyers offer advice that would permit the client to subsequently
break the law?
- Just because a lawyer feels strongly about a cause doesn’t make it ethically correct
- If client asks about possibility of getting caught, may raise questions
- Example: client wants advice on assisted suicide; uty to advise a client might trump a lawyer’s own
moral code depending on circumstances
- ABA Rule: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course
of conduct with a client”
- Ontario Rule: “When advising a client, a lawyer shall not knowingly assist in or encourage (broader)
any dishonesty, fraud, crime, or illegal conduct, or instruct the client on how to violate the law and avoid
punishment”
- Therefore, in BC, can assist but probably can’t encourage
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Law Society of Upper Canada v. Sussman (1995 LSDD)…Lawyer can’t counsel client to break law
F: - Lawyer counseled client to breach a court order pertaining to access
I: - Is the lawyer permitted to counsel client to breach a court order?
J: - No, for LS…lawyer guilty of professional misconduct
A: - S argued he had intended to bring variation application but had never done so
- However, court rejects this arg’t
- Circumstances in which lawyer may counsel client to ignore terms of a mandatory court order are
very limited:
a) Lawyer must have reasonable and honest belief that there’s imminent risk or danger to
a child and he must make immediate application to court to have issues determined
b) If court makes decision not to vary the outstanding order, client must “trust in the efficacy of
the legal system” and adhere to ct order and can then seek a full hearing for a permanent change
- Here, there was no imminent risk or danger to the child that would have justified lawyer’s behaviour
- Lawyer who counsels client to disobey terms of ct order undermines ct’s effectiveness and
brings system of justice into disrepute
- Such behaviour sets undesirable example for ordinary citizens, lawyers and law students
R: - The circumstances in which the counseling of unlawful activity of any sort can be
countenanced are extremely narrow, have implicit in them the elements of reasonable and
honest belief of there being imminent risk of bodily harm, and must co-exist with the
requirement that there be an immediate application to a court to have the issues
determined forthwith
____________________________________________________________________________________
3) OTHER ISSUES IN COUNSELLING
- Lawyers are sometimes asked to provide business, financial or strategic advice; if they do, should clearly
differentiate b/t this and legal advice
- Must ensure client is aware of any limitations on their ability to provide non-legal advice, e.g. no
financial or accounting training
- If lawyer provides non-legal advice, opens the possibility of client suing him in negligence if advice turns
out to be incorrect; such a claim is likely not covered by lawyer’s professional insurance, which covers
claims based on providing legal services
- If lawyer discovers he has made an error that could damage client’s position, he should promptly notify
client and discuss how to proceed, including candidly discussing possibility of a claim against lawyer
- Lawyer should insist that client obtain independent legal advice (from another lawyer) before
making a decision
- Lawyer should also insist on independent legal advice wrt client’s transactions in which lawyer has
an interest
____________________________________________________________________________________
II. TRANSACTIONS WITH CLIENTS
- See the Professional Conduct Handbook:
a) Chapter 7 – Conflicts of Interest Between Lawyer and Client
1
Direct or indirect financial interest
- “Except as otherwise permitted by the Handbook, a lawyer must not perform any legal services
for a client if:
(a) the lawyer has a direct or indirect financial interest in the subject matter of the legal
services, or
(b) anyone, including a relative, partner, employer, employee, business associate or friend
of the lawyer, has a direct or indirect financial interest that would reasonably be
expected to affect the lawyer's professional judgment”
- Under s.7(1)(a), if a lawyer has a direct or indirect financial interest, can’t act for client
- If it is another person, it must meet a threshold test of that which would be “reasonably be
expected to affect the lawyer’s professional judgment”
2
Financial or membership interest in the client
- “A lawyer must not perform any legal services for a client with whom or in which the lawyer or
anyone, including a relative, partner, employer, employee, business associate or friend of the
lawyer, has a financial or membership interest that would reasonably be expected to affect the
lawyer's professional judgment
- ie: golf club
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Transaction with a client
- “A lawyer must not purchase anything from or sell anything to a client of the lawyer's firm
unless the transaction is clearly severable from any legal work performed by the lawyer or by
another lawyer in the firm for the client, and either:
(a) the transaction is of a routine nature to and in the ordinary course of business of the
client, or
(b) the client is independently represented in all aspects of the transaction”
- ie: purchasing client’s car
- Independent legal advice will always soften blow if transaction has been done wrong
Client loan, credit or guarantee
- “Unless the transaction is of a routine nature to and in the ordinary course of business of the
client, a lawyer must not borrow money or obtain credit from a client of the lawyer's firm, or
obtain a benefit from any security or guarantee given by such a client”
Financial interest in a client
- “A lawyer must not acquire a financial interest in a client of the lawyer's firm unless
(a) the acquisition is effected on or through the facilities of a stock exchange, or
(b) the client:
(i) acknowledges in writing that the lawyer is not representing the client in the
acquisition and the client will not rely on the lawyer's advice in the matter, and
(ii) is independently represented in all aspects of the acquisition”
Ancillary business or occupation
- “A lawyer must not carry on any business or occupation other than the practice of law in such a
way that a person might reasonably:
(a) find it difficult to determine whether in any matter the lawyer is acting as a lawyer, or
(b) expect that in the carrying on of the other business or occupation the lawyer will
exercise legal judgment or skill for the protection of that person.
A lawyer who concurrently practices law and carries on another business or occupation must not
act for a client if the client's interests and the lawyer's business or occupational interests differ”
- Again, even though doesn’t explicitly state, should send client out for independent legal advice
Investing a client's funds
- “A lawyer must not invest the funds of a client of the lawyer's firm or advise such a client to
invest the client's funds in anything in which the lawyer or anyone, including a relative, partner,
employer, employee, business associate or friend of the lawyer, has a personal interest, if that
interest would reasonably be expected to affect the lawyer's professional judgment”
- Ethics Committee will provide rulings if it’s not in the discipline stream, so can submit it to them but
provide full details; can also seek guidance from practice advisors
- Note: contingency action can pose huge risk of conflict
- ie: if lawyers have flat, single rate and settling would give lawyer more profit than if he went to ct,
which would get more money but be a lot more work; or advancing loans to clients
- To buy or sell sth from client, you or another lawyer from firm; transaction must be of a routine nature
in client’s business and client must be independently represented by another lawyer
- Remember: telling client to seek independent advice will soften the blow if you did somethibng wrong
____________________________________________________________________________________
III. UNDERTAKINGS
- Undertaking: asacred promise by lawyer; if broken, serious punitive action by law society
- Critical to many commercial and other transactions
- UTs also arise as trust conditions, need not be express: I give this to you on trust to do...ie: “this is
an implied UT and you will be deemed to accept it if you don’t reject it”
- See the Professional Conduct Handbook:
a) Chapter 11 – Responsibility to Other Lawyers
7
Undertakings and trust conditions
- “A lawyer must
(a) not give an undertaking that cannot be fulfilled,
(b) fulfil every undertaking given, and
(c) scrupulously honour any trust condition once accepted”
7.1 Undertakings and trust conditions
- “Undertakings and trust conditions should be
(a) written, or confirmed in writing, and
(b) unambiguous in their terms”
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9
Conditional undertakings
- “If a lawyer gives an undertaking conditional on something else happening or in respect of
which the lawyer does not intend to accept personal responsibility, this must be stated clearly in
the undertaking itself”
10 Imposed undertakings
- “A lawyer must not impose on other lawyers impossible, impractical or manifestly unfair
conditions of trust”
11 Imposed undertakings
- “If a lawyer is unable or unwilling to honour a trust condition imposed by someone else, the
subject of the trust condition must be immediately returned to the person imposing the trust
condition unless its terms can be forthwith amended in writing on a mutually agreeable basis”
- ie: any cheques received by a lawyer must be immediately returned
- Should be reluctant to give or accept UT if you don’t have to and must be sure you can actually carry
out/perform the UT; if in doubt, seek advice
- If you don’t accept UT that other lawyer has “imposed” on you, must immediately inform him
- Practice notes: whenever you give or accept UT, mark it in red in front of file
- UT should be clear in its terms and in writing
- When lawyers transfer contingency file, payment is deferred until end of case, then split payment
according to contribution; if can’t agree, go to registrar
- Can get conditional UTs, R. 11(9)
- Some lawyers try to get UT for everything; others say: why turn it into a disciplinable matter
- Example letters:
- 1st letter didn’t volunteer an UT, and not characterized as a trust – ltr does not constitute UT and
that lawyer was trying hard not to give UT; payment is qualified by obtaining proceeds from
settlement or judgment and assessment of fees
- 2nd letter: lawyer has converted it to an UT; removed qualifier in 1st letter re: getting settlement or
judgment and subject to client’s right to have account assessed
- Problems:
- You might get an adverse jmt and get no money
- Or client gets a new lawyer, which he has already done once
- Or client dies
- So if new lawyer commits to pay w/o conditions, he’s on the hook
- New lawyer can say: I’ll bind my client to get any subsequent lawyer to agree to those terms (via
contract) and I won’t give up file unless next lawyer gives UT, but this is not failsafe b/c lawyer may
have to give file up if critical to advance his case
- Advice: never get into formal battle re: fees; just say okay, pay what you can; otherwise end up in
ct and have to give evidence and client will probably lie
- Instead, seek remediation immediately if problem with UT
- If you breach an undertaking: lawyer may agree to release you from UT if you have good relations –
retrospective release
- Lawyer has obligation to report breach of UT, but not too late to get release
____________________________________________________________________________________
PART EIGHT – ACCESS TO JUSTICE
I. CHOICE OF CLIENT
- CBA Code of Prof. Conduct, s.6:
- “A lawyer has a general right to decline particular employment (except when assigned as counsel by
a ct) but lawyer should be slow to decline a client if it would be difficult for client to find another
lawyer; if lawyer does decline, he should help client find another lawyer w/o charge, except in very
special circumstances”
- Client selection is very important b/c once lawyer takes client on, he is committed to host of ethical and
moral obligations
- Once lawyer-client relationship is established, lawyer’s options about what he is and is not prepared
to do are severely curtailed and obligation is closely circumscribed b/c it would be unconscionable to
take on clients and represent them in incompetent or half-hearted way
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- There is an ethical consensus that a lawyer should refuse to take a client if:
a) There’s conflict of interest
b) Lawyer lacks competence in the matter
c) Client has a continuing retainer with previous lawyer
d) Lawyer has potential to be a witness in a case, or
e) There’s an illegal purpose
- However, beyond these situations there’s disagreement as to circumstances in which lawyer should
accept or refuse clients…2 philosophies:
a) Moral non-accountability
- Lawyer is neutral agent whose obligation is to represent client’s interest w/o regard to the
morality of client’s conduct or attitude
- Citizens need lawyers to guide them through legal system
- The truth will emerge through advocacy in our adversarial system
- It’s judge’s, not lawyer’s, job to decide the legal entitlements of the parties
b) Taking it personally
- Even the larger system values have limits
- Lawyers must take responsibility for their choice of clients and the strategies they use on their
behalf
- ie: human agency and human accountability cannot be disregarded
- Law is an instrument of power and people can benefit and suffer as consequence of legal
behaviour
- Classic example of clash of visions: criminal defence lawyer who defends sb he knows is guilty of a
morally reprehensible crime – the “unpopular client”
- p.165: Proulx and Layton provide recommendations for criminal defence lawyer
____________________________________________________________________________________
II. ACCESSIBILITY OF LEGAL SERVICES
- Access to legal services becomes an issue when lawyers are able to choose clients based on personal
judgements or clients’ financial circumstances
- So, ethical Q of client selection is inextricably linked to ethical Q of access to justice
- Q: what is meant by “accessible”? 2 branches of analysis:
a) Professional obligation to improve administration of justice
- “Basic commitment by lawyer to concept of equal justice for all” – CBA Code, Ch. XIII
b) Pro bono
- Lawyer may assist in making legal services available by participating in legal aid plans...and can
reduce or waive a fee in cases of hardship or poverty – CBA Code, Guiding Principle 5
- Note: permissive approach is criticized as ineffective in reducing access to justice problems
____________________________________________________________________________________
III. COMPETENCE AND QUALITY OF SERVICE
- “Competence” includes knowledge of substantive law and procedure, professional judgment and
experience, legal and practice mgmt skills and intellectual and emotional capacity
- Statutes and codes of conduct often indicate that duty of loyalty to client requires lawyers to be
competent and render quality service to client
- Very few lawyers have been disciplined for incompetence even though empirical studies in other jds
show that major causes of dissatisfaction with lawyers involve perception that lawyers tend to provide
poor quality service for high price
- CBA Code, Ch. II: The lawyer should serve the client in a conscientious, diligent and efficient manner so
as to provide a quality of service at least equal to that which lawyers would expect of a
competent lawyer in a like situation
- There are 2 possible legal angles to address lawyers’ incompetence:
a) Law of lawyer malpractice (primarily negligence)
b) Codes of professional conduct
Nova Scotia Barristers’ Society v. Richey (2002 NSLD)…Incompetence requires repeated absences
F: - Richey was charged with professional misconduct and professional incompetence for breaching Prof.
Conduct Handbook
I: - Does R’s conduct constitute professional incompetence?
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J:
- Yes; he failed to provide a quality of service at least equal to that which lawyers generally expect of
a competent lawyer in like situations; he is fined $1000 and ordered to pay costs of $30,000
A: - Legal framework for incompetence: no guidance in Act or Regulations on parameters and definition
of incompetence
- Incompetence here is determinable by its consistent pattern
- Public is entitled to expect that self-governing legal profession will take reasonable measures to
ensure that all practicing lawyers will possess minimum skill sets required in the circumstances
- Here, repeated absence of specific skills, conscientious, diligent and efficient client service
- Lawyer failed to meet time commitments, failed to move file to settlement or trial contrary to
client’s instructions, failed to obtain and disclose all relevant medical records, failed to respond to
cmns and requests for info in a timely manner, failed to maintain adequate BF system, etc.
R: - A finding of incompetence is fact and time specific; doesn’t intend to say that lawyer is
incapable of meeting generally accepted standards of practice
____________________________________________________________________________________
IV. TERMINATION OF THE LAWYER-CLIENT RELATIONSHIP
1) GENERAL
- There are 3 ways to terminate the lawyer-client relationship:
a) End of retainer
b) Mandatory withdrawal
c) Permissive withdrawal
- Lawyer-client reln is primarily contractual in nature, although saturated with fiduciary obligations
- Termination may be explicit or implied
- Lawyers don’t want to send explicit termination letter b/c they want reln to continue, but if reln isn’t
terminated, may result in conflict of interest with a new client
- Although client may end reln at will, lawyer does not have the same right b/c lawyer has duty of
loyalty that limits his ability to end the relationship
- See the Professional Conduct Handbook:
a) Chapter 10 – Withdrawal
0.1 Definition
- “In this Chapter, to "withdraw" includes to
(a) sever the solicitor-client relationship, or
(b) withdraw as counsel”
1
Obligatory withdrawal
- “A lawyer is required to sever the solicitor-client relationship or withdraw as counsel if:
(a) discharged by the client,
(b) instructed by the client to do something inconsistent with the lawyer's professional
responsibility, including the duty to the court,
(c) the client takes a position solely to harass or maliciously injure another,
(d) the lawyer's continued involvement will place the lawyer in a conflict of interest, or
(e) the lawyer is not competent to handle the matter”
2
Optional withdrawal
- “A lawyer is permitted, but is not required, to withdraw if there has been a serious loss of
confidence between the lawyer and client”
- Example: where client has:
a) Deceived the lawyer,
b) Refused to give adequate instructions to the lawyer, or
c) efused to accept and act upon the lawyer’s advice on a significant point
- Note: lawyer should not threaten withdrawal to force client to make a hasty decision on a
difficult question
3
Residual right to withdraw
- “In situations not covered by Rules 1 and 2, a lawyer may withdraw only if the withdrawal
is not:
(a) unfair to the client, or
(b) done for an improper purpose.
4
Unfairness to the client
- “Unfairness to the client depends on the circumstances of each case, but normally includes
consideration of whether the withdrawal would:
(a) occur at a stage in the proceedings requiring the client to retain another lawyer to
do the same work, or part of it, again,
(b) leave the client with insufficient time to retain another lawyer, and
(c) give a replacement lawyer insufficient time to prepare to represent the client”
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5
Improper purpose
- “Impropriety depends on the circumstances of each case, but includes withdrawal in order:
(a) delay court proceedings, or
(b) assist the client in effecting an improper purpose”
6
Withdrawal for non-payment of fee
- “If a lawyer and client agree that the lawyer will act only if the lawyer's fee is paid in
advance, the lawyer must confirm that agreement in writing to the client, specifying a
payment date”
7
Withdrawal for non-payment of fee
- “A lawyer must not withdraw because the client has not paid the lawyer's fee when due
unless there is sufficient time for the client to obtain the services of another lawyer and for
that other lawyer to prepare adequately for trial”
8
Procedure for withdrawal
- “Upon withdrawal, the lawyer must immediately:
(a) notify the client in writing, stating:
(i) the fact that the lawyer has withdrawn,
(ii) the reasons, if any, for the withdrawal, and
(iii) in the case of litigation, that the client should expect that the hearing or trial
will proceed on the date scheduled and that the client should retain new
counsel promptly,
(b) notify in writing the court registry where the lawyer's name appears as counsel for
the client that the lawyer has withdrawn and, where applicable, comply with any
statutory requirements,2
(c) notify in writing all other parties, including the Crown where appropriate, of the
severance or withdrawal
(d) account to the client for:
(i) any money received for fees or disbursements, and
(ii) any valuable property held on behalf of the client, and
(e) take all reasonable steps to assist in the transfer of the client's file”
9
Confidentiality
- “If the reason for withdrawal results from confidential communications between the lawyer
and the client the lawyer must not, unless the client consents, disclose the reason for the
withdrawal”
b) Chapter 8 – The Lawyer as Advocate
7
Duty to withdraw
- “When a client wishes to adopt a course prohibited by this Chapter, the lawyer must do
everything reasonably possible to prevent it”
8
Duty to withdraw
- “If, despite the lawyer's actions under Rule 7, the client does anything prohibited under this
Chapter, the lawyer must withdraw from representing the client, subject to Rules 2 to 5 and
in accordance with Chapter 10”
____________________________________________________________________________________
2) SURPRISE PERJURY
- There are two possible perjury problem:
a) Anticipated perjury – client tells lawyer he’s going to lie on the stand
b) Surprise perjury – client says sth on stand that lawyer knows to be false
- Suggestions on handling perjury:
a) It’s up to the ct to assess credibility; lawyer has no duty to refuse to call evidence unless he knows
its false
b) If client or W intends to lie, lawyer should dissuade them from doing so b/c of possible criminal
prosecution for perjury, likelihood the falsity will be exposed on cross-examination or otherwise,
possible costs consequences, duties of lawyers to refrain from calling false evidence and to expose
perjury in many circumstances
c) If client is not convinced, may terminate lawyer or it may be necessary for lawyer to withdraw, but
this may only shift problem to another lawyer or encourage client to be less honest with next lawyer
d) Lawyer in civil case should not call Ws who lawyer knows will lie; lawyer can call Ws who will lie
about some things and be honest about others if lawyer restricts his Qs to the truthful answers
e) If client lies unexpectedly or if lawyer learns later about falsity of evidence, he should take
reasonable steps to correct it by urging client or W to correct it if possible, either privately or by
asking Qs designed to get the truth out; if client doesn’t correct the evidence, lawyer should do so
either by informing the ct in argument w/o explanation that the evidence can’t be relied on; anything
short of that, including silence, is inadequate b/c don’t know what weight ct will put on false evidence
even if lawyer makes no use of it
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- Note: criticisms of suggestions: #5 turns lawyer into a snitch; #3 suggests withdrawal for anticipated
perjury while #5 suggests disclosure, not withdrawal, for surprise perjury – is this distinction justified?
some jds require withdrawal if client refuses to correct surprise perjury
- In some jds, ct approval is required for lawyer to withdraw; ct approval is not required in BC; ct can only
review if withdrawal was done for an improper purpose (PCH, c.10, R.8(b) – footnote)
- Lawyer must not reveal reason for withdrawal unless client consents (PCH, c.10, R.9)
- Most codes of conduct, including CBA Code, do not draw distinction b/t withdrawal in criminal and
civil cases; LS of Upper Cda does draw distinction (p. 195-196)
____________________________________________________________________________________
V. RIGHT TO JUSTICE?
British Columbia (AG) v. Christie (2007 SCC)…Only dealt with in a cursory way on the exam
F: - Christie provided legal services to poor people at low or no cost; for 9 years his income never
exceeded $30,000; BC gov’t introduced 7% tax on legal services that Christie couldn’t pay b/c his
clients didn’t pay him; Christie argued tax was unconstitutional b/c it prevents access to the cts,
which requires legal counsel
I: - Do we have a constitutional right to be represented by a lawyer in court or tribunal proceedings
where our legal rights and obligations are at stake, in order to have effective access to courts?
J: - No, for province…there’s a constitutional right to a lawyer in some circumstances (ie: in criminal
case where AC’s liberty is at stake with s.7 life, liberty and security of the person) but not generally
A: - If there were such a right, logical result would be a constitutionally mandated scheme for virtually
all proceedings
- The fiscal implications of this is enormous; it would alter the legal landscape and impose a not
inconsiderable burden on taxpayers
R: - There is no general constitutional right to legal counsel in proceedings before courts and
tribunals dealing with rights and obligations
____________________________________________________________________________________
PART NINE – LAWYER REGULATION: MISCONDUCT AND CONDUCT UNBECOMING
I. THE “GOOD CHARACTER” REQUIREMENT
- Purposes: to protect the public, maintain high ethical standards and maintain public confidence in the
legal profession
- Underlying assumption: character determines conduct and applicant of bad character who becomes
a lawyer is more likely to act unethically and to placed unsuspecting public at risk
- Law societies require applicants to demonstrate absence of bad conduct indicating bad character such as
prior criminal convictions, academic dishonesty or dishonesty to the law society
- If such behaviour has occurred, want to ensure applicants are repentant and rehabilitated
Preyra v. Law Society of Upper Canada (2000 LSDD)…Don’t falsify law school marks and credentials
F: - To get articling position, student falsified law school marks and other academic credentials and
pursuits to prospective employers; even after his misrepresentations were exposed, he continued to
misrep what happened in significant ways
I: - Could he get admitted?
J: - No, for Law Society…applicant hasn’t satisfied onus of proof that he is now of good character
A: - Purpose of “good character” req’t: to ensure Law Society can protect the public and maintain high
ethical standards in lawyers the Society admits to practice
- Good character refers to bundle of attributes: moral or ethical strength, integrity, candour,
empathy and honesty
- Onus: on applicant to prove that he’s of good character on balance of probabilities at time of
hearing; the issue is his character today, not risk of his re-offending
- Can’t confuse with forgiveness or giving applicant a second chance, as honesty and integrity are
fundamental
- Here, LSDD had psychiatric evidence presented by expert
- Forensic psychiatrist stated “behaviour flows from character”
- Applicant displayed bad behaviour from 1994-98, from which an inference could be drawn about
bad character; he displayed good behaviour in 1999
- Transition from bad to good character is a process, not an event; it may not happen
- Central to task of panel is to determine whether that process of change has concluded
- Note: Preyra was subsequently admitted to LS (2003) b/c of improved evidence of rehabilitation
R: - Test for admission for admission to the Law Society is whether the applicant is of “good
character” and meets the high ethical standard of the bar
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Law Society of Upper Canada v. Burgess (2006 LSDD)…Lying repeatedly about plagiarism is bad
F: - Burgess committed plagiarism in essay during 4th year undergrad in 2001, then told ongoing and
persistent lies about her conduct
I: - Could she get admitted?
J: - No, for Law Society…there has not been sufficient passage of time to conclude that app is a person
of good character and suitable for admission as member of LS; she has not satisfied onus of proof on
BOP that she has changed
A: - Law Society would not have found her to be of bad character (5 years later) for plagiarism alone
- However, she lied to LS over extended period of time and lied to her references
- The sophistication of the lie is of great significance to the Panel (described a very different type
of activity that still fit within the definition of plagiarism at U of T)
- It would be helpful if Panel had some psychiatric and/or psychological evidence concerning the
app and behaviour she engaged in up until as recently as 17 months ago
- Q: has process of change (from bad to good character) concluded?
- Here, there has not been sufficient passage of time to find that bad character exhibited by app
has changed
R: - Test: has the applicant established, on a balance of probabilities, that the applicant is of
good character today?
____________________________________________________________________________________
II. EXTRA-PROFESSIONAL MISCONDUCT
- Law societies assert jurisdiction over misconduct by lawyers outside of their legal practice in two ways:
a) Narrowly – allows LS to regulate ethical misconduct that is substantially but not technically
related to lawyer’s conduct within legal practice
b) Broadly – allows LS to discipline lawyer for any behaviour LS thinks is “conduct unbecoming” a
member
- ie: public nudity, failing to care for animals at lawyer’s farm, writing a bad cheque to landlord
Cwinn v. Law Society of Upper Canada (1980 LSDD)…Don’t seduce underage girls if practicing law
F: - Lawyer seduced 4 girls aged 14-17 after inviting them to groom, ride and show his horses
- He pleaded guilty in US to “transporting in foreign commerce from Ottawa to Syracuse a girl for
purpose of debauchery or other immoral purposes”
- Served 3 months in prison or treatment centre and 21 months probation
- LS found him guilty of conduct unbecoming for conviction and for engaging in sexual intercourse
with young girls in his employ
I: - Should he be disbarred?
J: - Yes, for LS…his conduct was not only reprehensible but it seriously reflect upon and shatter his
professional integrity to the point where the protection of the public is involved
A: - Generally speaking, the law has no business in the sexual conduct of consenting adults
- These girls were not adults who could be said to be consenting
- Here, he solicited the girls by newspaper ads and at high schools; lured them with opportunity with
his horses; took advantage of trust their parents placed in him; played on their ambitions and
emotions; exploited their trust in him as a professional man
- This was not an isolated case but a systematic course of seduction
- Since he took them on trips for sometimes weeks at a time and far from their homes, he was in
loco parentis; he should’ve appreciated his legal duty, if not his moral duty, to protect them
- Overall, difficult to see how a solicitor who has so grossly breached the trust he had assumed with
these girls could be trusted to maintain the many other trusts that a solicitor is expected to maintain
R: - Law society can discipline members for all aspects of extra-professional misconduct if it
threatens protection of the public
Law Society of Alberta v. Sychuk (1999 LSDD)…Rehabilitation and perception of public factors
F: - Application for reinstatement after S was disbarred in 1990 after conviction of second degree
murder for stabbing his wife to death; S appears to be rehabilitated, no longer drinks and has
developed coping mechanisms
I: - Should S be reinstated?
J: - No, for LS; panel recommends against reinstatement; reinstatement would compromise the public’s
respect for the law and the legal profession; even if rehabilitation were the controlling factor,
insufficient time has passed to assure LS of complete rehabilitation
A: - There is no bar per se to readmission on basis that applicant is on parole
- There is also no bar per se to readmission because of the seriousness of the crime
- However, the controlling factor to app for readmission at law is rehabilitation
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- While seriousness of a crime is legitimate consideration, it speaks to the amount of proof
benchers should require of complete rehabilitation; i.e. the more serious the crime, the more
clearly it must be demonstrated that rehabilitation is complete
- Disbarment is not a life sentence; lawyer may apply for readmission
- Here, letters received opposing S’s reinstatement should be discounted b/c they were all authored
by people who have had no contact with S since his disbarment
- S has met the criteria at law for reinstatement b/c of overwhelming and uncontradicted
evidence of rehabilitation
- However, the principle of rehabilitation cannot be the paramount factor at the expense of the
standing of the legal profession
- Since the legal profession in Canada is self-governing, it’s even more important to be seen as
protecting the public interest and not as self-serving
- Ultimately, Benchers must assess the effect of admission to bar of this applicant on public
respect for the legal profession and the law in AB
- Denunciation: aims to cmn society’s condemnation of offender’s conduct
- Denunciation by the public and the LS would be undermined if LS were to reinstate S;
membership in LS implicitly carries with it a badge of respect; S’s reinstatement would tarnish
that badge not b/c he’s a bad person but b/c of the enormity of the crime he committed while a
member of the bar
R: - Lawyer shouldn’t be admitted to the law society after committing a serious crime if it
would compromise the public’s respect for the law and the legal profession
____________________________________________________________________________________
III. SANCTIONING LAWYERS FOR MISCONDUCT
Adams v. Law Society of Alberta (2000 Alt. CA)…Sexually exploiting teenagers = disbarment
F: - Lawyer convicted for sexually exploiting his 16-year-old client; he persuaded her to have sex with
him, knowing of her strong desire to have her boyfriend released from jail; he appeals from decision
to disbar him from practice of law, claiming disbarment is manifestly unreasonable
I: - Should A be disbarred?
J: - Yes, for LS…disbarment is appropriate sanction
A: - Professional misconduct hearing involves not only the individual and all factors that relate to him,
favourable and unfavourable, but also effect of his misconduct on the individual client and generally
on the profession
- This public dimension is of critical significance to the mandate of professional disciplinary bodies
- Relationship of solicitor and client is founded on trust; this is why clients bring their most intimate
problems and other matters to their lawyers
- Here, the hearing Ctte considered the good character evidence, which it found was not sufficient to
displace the seriousness of his conduct
- Psychologist’s report did not persuade Ctte that A would not re-offend
R: - Law societies have the power to disbar members
Law Society of Upper Canada v. Hunter (2007 LSUC)…Sex with client can be conflict of interest
F: - Conflict of interest case; lawyer had 2.5 year sexual relationship with his client w/o discussing with
her potential conflict of interest issues
I: - What’s the appropriate sanction?
J: - H is suspended for 60 days and must pay $2,500 fine
A: - A reprimand would fail to reflect the seriousness of the misconduct
- Lengthy suspension is not necessary and fails to take into consideration the accumulation of
mitigating factors
R: - Law society discipline committees have a variety of weapons at their disposal
____________________________________________________________________________________
IV. REGULATING THE UNAUTHORIZED PRACTICE OF LAW
Law Society of Upper Canada v. Boldt (2006 Ont. SC)…Must be qualified as a practicing lawyer
F: - B, a paralegal and mediator, never licensed to practice law in ON, pleaded guilty to unlawfully
practicing law and made undertaking not to offer legal services again; LS also got permanent
injunction against B to prohibit her from practising law
I: - Does B’s conduct constitute the unauthorized practice of law as prohibited by injunction?
J: - Yes, for LS…B is found in contempt of court
A: - B breached terms of injunction by dispensing legal advice, preparing separation agmts and offering
to undertake divorce proceedings
R: - Ordinary joes and janes can’t practice law if they don’t pass the bar
____________________________________________________________________________________
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V. SELF-REGULATION OF LAWYER CONDUCT
- Self-regulation by law societies is basically peer review
- Apart from formal disciplinary processes, lawyer conduct is also regulated through rules and
regulations made by law societies relating to matters such as: keeping of records and accounts,
liability insurance and establishment of codes of ethics or conduct
- Written codes of conduct are now prominent features of conduct regulation to serve several purposes:
a) Represent and codify the collective beliefs, ideals and values of legal community to guide conduct
of members
b) Make stmt to public about lawyers’ beliefs and values
c) Set out mandatory and detailed standards of conduct as basis for professional discipline
- In 1974, Cdn Bar Assn adopted Code of Prof. Conduct, which was adopted by law societies across Cda
- Uses lots of aspirational language
- Alberta deviated and adopted in 1995 the most detailed code in Cda, unique for its extensive use of
mandatory language and specific provisions; format: each chapter contains a stmt of principle
followed by rules and commentary
- Self governance is supported by imposition of obligation on lawyers to report misconduct and dishonesty
of other lawyers, in some or all instances
- Discipline is undertaken not for punitive purposes but to protect the public, by sanctioning the offending
lawyer and deterring others and to protect the profession’s reputation by demonstrating a collective
commitment to and enforcement of standards of proper conduct
- One commentator has suggested there are 4 reasons for taking disciplinary action against lawyers:
a) Guilty of theft, fraud, forgery or some other criminal offence
b) Violated fiduciary duty imposed by law
c) Unable to carry on practice due to physical or mental disability or serious addiction
d) Failed to respond to inquiries from governing body
- This means the bulk of provisions found in ethics codes do not serve as basis for professional
discipline
- Law society does not discipline when clients complain about quality of legal services; consumer
complaints fall outside law society’s focus on lawyers’ ethics and discipline – but now tries to help resolve
the complaint informally so public doesn’t get pissed off
- Discipline hearings are adversarial in nature, conducted before a panel of discipline committee
- LS has burden of proof: must provide clear and convincing evidence of misconduct
____________________________________________________________________________________
VI. GUEST LECTURE NOTES
- Guest lecture by Andrea Brownstone, head of division of investigative arm
- Law Society does 2 things:
a) The public needs to know there’s somewhere to go with complaints about lawyers
b) Must deal with bad lawyers
- Public interest is paramount
- LS must be seen as fulfilling its mandate to protect society
- Numbers: 10,000 practicing lawyers in BC, with about 1,200 complaints about lawyers
- Complainants: clients, opposing parties, judges (not so common)
- Process: AG notifies LS if lawyer is charged with crime
- Serious complaints are those likely to result in further action
- Lawyer has duty to answer to LS and LS can request forensic audit
- Conduct reviews are not public; become part of professional conduct record, but citations are public
- Conduct unbecoming can bring profession into disrepute: dishonourable, disgraceful to profession or
administration of justice
- ie: lawyer is convicted of criminal offence, drinking & driving, domestic assault – may show poor J
- Administrative law rules apply to LS disciplinary actions: fairness, fundamental justice, he who hears
must decide
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- Penalties: reprimand, fine, suspension, disbarment or lawyer can enter into consent to withdraw from
profession and not re-apply
- Examples of complaints: dishonesty, criticism or disrespect of the ct; criminal or quasi-criminal
conduct, breach LS requirements usually wrt accounting requirements, counselling or engaging in
dishonest conduct, breach of undertaking
- Q: what mental element is required for professional misconduct?
- ie: for negligence where lawyer swears an affidavit based on false info that his assistant gave him
- Strict liability approach or intent? how far does stupidity defence go?
- HW thinks we’re too sensitive to what public thinks of profession so we overreact to lawyers’ conduct
- Client complaints re: quality of service section in PCH
- Problem: clients are often not in position to judge quality of service; LS is
- AB doesn’t think LS deals with it well, since the LS doesn’t deal with one-off instances of quality—
that’s negligence
- Sole and small firm practitioners face many pressures; may be tempted to take on more files than
they can handle
- Advice: re: ethical issues: seek help early, admit the problem and deal with it
____________________________________________________________________________________
VII. MISCELLANEOUS NOTES
- Advising client – wrt initial interview – three different views:
a) “Tell me what happened” – write it out, ask questions
b) Before asking anything, obtain Crown disclosure – particulars – & review w/client – then say, “do
you have anything to say about this”
c) Go thru Crown disclosure w/client & then let client know some of law in context
- 3rd suggested as best to Z by prof – client charged w/assault at hockey arena – explain that
there has to be intention to commit assault & that if for instance client was not intending to strike
but just tap on shoulder, that might be a defence
- Z doesn’t like #1 – w/o indicating what’s been disclosed b/c (1) nobody should be asked to
speak to anyone about this incl. own lawyer w/o knowing what allegations are (2) wrt most crim
clients you’ll be dealing with, unless client gets clearly focused wrt disclosure info, may well not
know exactly what trouble they’re in
- Z likes #2 - #3 is suborning perjury
- Sometimes it is right thing to provide accused w/law
- Suppose acting for accused in rural area – charged w/murdering spouse
- If you don’t tell him drunkenness is defence, he may well think it’s aggravating factor
- By not telling, encouraging to lie against their interests
- Avoid putting client in position where they have to stay w/lie
- Depends on circumstances…be clear w/self whether suborning perjury or legitimately seeking
defence…if there is chance info you’re providing about law will be utilized by accused in furtherance of
providing you w/truth that helps provide defence, you are justified in providing info
- Conduct of case – you are not simply mouthpiece of client
- Client must decide freely whether to plead guilty or not, but all other decisions are yours to make
unless client refuses < you only act on authority
- In that case you may have to withdraw – if your professional view re how to proceed conflicts
w/client instructions, can’t take client’s instructions against own view of how to proceed…Q of degree
- What’s rationale to tell clients for why decisions have to be yours? They came to see you to do
game plan – if you lose control of that, there’s not much reason for you to be there
- Re: surprise perjury: As btwn free narrative & withdrawal: Z is happiest w/ a rule that says during
course of being engaged as counsel it is obligation of lawyer to say “if you perjure yourself & I know about
it, I will be obliged to withdraw” & then if perjury occurs, duty to withdraw
- Such a position gives full & fair meaning to client, & avoids lawyer becoming involved in untenable
situation, leaves client w/ ability to proceed as he/she wishes w/ full knowledge of consequences
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