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* THE CANADIAN LAWYER CODE OF PROFESSIONAL CONDUCT
Section 4 of 5
* THE CANADIAN LAWYER CODE OF PROFESSIONAL CONDUCT
Section 4 of 5
| THE CANADIAN BAR ASSOCIATION | |
WITHDRAWAL
RULE
The lawyer owes a duty to the client not to withdraw services except for good cause and upon notice appropriate in the circumstances.1
Commentary
Guiding Principles
1. Although the client has a right to terminate the lawyerclient relationship at will, the lawyer does not enjoy the same freedom of action. Having once accepted professional employment the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship.2
2. The lawyer who withdraws from employment should act so as to minimize expense and avoid prejudice to the client, doing everything reasonably possible to facilitate the expeditious and orderly transfer of the matter to the successor
lawyer.3
3. Where withdrawal is required or permitted by this Rule the lawyer must comply with all applicable rules of court as well as local rules and practice.4
Obligatory Withdrawal
4. In some circumstances the lawyer will be under a duty to withdraw. The obvious example is following discharge by the client. Other examples are:
(a) if the lawyer is instructed by the client to do something inconsistent with the lawyers duty to the court or tribunal and, following explanation, the client persists in such instructions;
(b) if the client is guilty of dishonourable conduct in the proceedings or is taking a position solely to harass or maliciously injure another;
(c) if it becomes clear that the lawyers continued employment will lead to a breach of these Rules such as, for example, a breach of the Rules relating to conflict of interest; or
(d) if it develops that the lawyer is not competent to handle the matter. In all these situations there is a duty to inform the client that the lawyer must withdraw.5
Optional Withdrawal
5. Situations where a lawyer would be entitled to withdraw, although not under a positive duty to do so, will as a rule arise only where there has been a serious loss of confidence between lawyer and client. Such a loss of confidence goes to the very basis of the relationship. Thus, the lawyer who is deceived by the client will have justifiable cause for withdrawal. Again, the refusal of the client to accept and act upon the lawyers advice on a significant point might indicate such a loss of confidence. At the same time, the lawyer should not use the threat of withdrawal as a device to force the client into making a hasty decision on a difficult question. The lawyer may withdraw if unable to obtain instructions from the client.6
Non-Payment of Fees
6. Failure on the part of the client after reasonable notice to provide funds on account of disbursements or fees will justify withdrawal by the lawyer unless serious prejudice to the client would result.7
Notice to Client
7. No hard and fast rules can be laid down as to what will constitute reasonable notice prior to withdrawal. Where the matter is covered by statutory provisions or rules of court, these will govern. In other situations the governing principle is that the lawyer should protect the clients interests so far as possible and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril.8
Duty Following Withdrawal
8. Upon discharge or withdrawal the lawyer should:
(a) deliver in an orderly and expeditious manner to or to the order of the client all papers and property to which the client is entitled;9
(b) give the client all information that may be required about the case or matter;
(c) account for all funds of the client on hand or previously dealt with and refund any remuneration not earned during the employment;10
(d) promptly render an account for outstanding fees and disbursements;11
(e) cooperate with the successor lawyer for the purposes
outlined in paragraph.12
The obligation in clause (a) to deliver papers and property is subject to the lawyers right of lien referred to in paragraph 11. In the event of conflicting claims to such papers and property, the lawyer should make every effort to have the claimants settle the dispute.13
9. Cooperation with the successor lawyer will normally include providing any memoranda of fact and law that have been prepared by the lawyer in connection with the matter, but confidential information not clearly related to the matter should not be divulged without the express consent of the client.14
10. The lawyer acting for several clients in a case or matter who ceases to act for one or more of them should cooperate with the successor lawyer or lawyers to the extent permitted by this Code, and should seek to avoid any unseemly rivalry, whether real or apparent.15
Lien for Unpaid Fees
11. Where upon the discharge or withdrawal of the lawyer the question of a right of lien for unpaid fees and disbursements arises, the lawyer should have due regard to the effect of its enforcement upon the clients position. Generally speaking, the lawyer should not enforce such a lien if the result would be to prejudice materially the clients position in any uncompleted matter.16
Duty of Successor Lawyer
12. Before accepting employment, the successor lawyer should be satisfied that the former lawyer approves, or has withdrawn or been discharged by the client. It is quite proper for the successor lawyer to urge the client to settle or take reasonable steps toward settling or securing any account owed to the former lawyer, especially if the latter withdrew for good cause or was capriciously discharged. But if a trial or hearing is in progress or imminent, or if the client would otherwise be prejudiced, the existence of an outstanding account should not be allowed to interfere with the successor lawyer acting for the client.17
Dissolution of Law Firm
13. When a law firm is dissolved, this will usually result in the termination of the lawyer-client relationship as between a particular client and one or more of the lawyers involved. In such cases, most clients will prefer to retain the services of the lawyer whom they regarded as being in charge of their business prior to the dissolution. However, the final decision rests in each case with the client, and the lawyers who are no longer retained by the client should act in accordance with the principles here set out, and in particular commentary.18
Subscripts
1 Alta. 14-S.O.P.; ABA-MC EC 2-32, DR 2-110(A), (C); N.B. 10-R; N.S. R-11;
Ont. 2.09(1); Que. 3.03.04. For cases, see 4 Can. Abr. (2d) under Barristers and Solicitors: Termination of Relationship, paras. 101-02 and supplements.
2 N.B. 10-C.1(a); N.S. R-11 Guiding Principle 1; Ont. 2.09(1) Commentary.
3 ABA-MC EC 2-32, DR 2-110(A); N.B. 10-C.1(b)(i),(ii); N.S. R-11 Guiding Principle 2; Ont. 2.09(8). Provincial Rules of Court provide for the giving of notice of change of solicitors and for the bringing of motions for leave to withdraw. For cases, see 4 Can. Abr. (2d) under Barristers and Solicitors: Change of Solicitors, paras. 342-58 and supplements. In legal aid cases, provincial regulations may also require notice to the plan administrators; see, e.g., in R.R.O. 1990, Reg. 710, s.
63(1)(a).
4 N.B. 10-C.1(b)(iii); N.S. R-11 Guiding Principle 3.
5 Alta. 14-R.1; ABA-MC DR 2-110(B); ABA-MR 1.16(a); B.C. 10(1); N.B. 10-C. 3; N.S. C-11.1, C-11.2; Ont. 2.09(7); Que. 3.02.09.
6 Alta. 14-R.2; ABA-MR 1.16(b); B.C. 10(2); N.B. 10-C.4(a); N.S. C-11.3 to C-
11.5; Ont. 2.09(2); Que. 3.03.04, 3.03.05. Failure to instruct counsel constitutes
repudiation which counsel could accept and terminate the employment.
7 B.C. 10(6), 10(7); N.B. 10-C.4(vi), 4(b); N.S. C-11.6; Ont. 2.09(3).
8 ABA-MC DR 2-110(A)(2); N.B. 10-C.2(b); N.S. C-11.7, 11.8; Ont. 2.09(1)
Commentary.
9 B.C. 10(8)(d)(ii).
10 B.C. 10(8)(d)(i).
11 Alta. 14-R.4.
12 Alta. 14-R.3; B.C. 10(8)(e).
13 ABA-MC EC 2-32; ABA-MR 1.16(d); N.B. 10-C.5(a); N.S. C-11.9, 11.10; Ont.
2.09(9).
14 N.B. 10-C.5(a); N.S. C-11.11.
15 N.B. 10-C.5(b); N.S. C-11.12; Ont. 2.09(9) Commentary.
16 Alta. 13-R.9; N.B. 10-C.6; N.S. C-11.13; Ont. 2.09(9) Commentary.
17 Alta. 14-R.5; N.B. 10-C.7; N.S. C-1.14, 11.15; Ont. 2.09(10).
18 N.B. 10-C.8; N.S. C-11.16, 11.17; Ont. 2.09(7) Commentary.
CHAPTER XIII
THE LAWYER AND THE ADMINISTRATION OF JUSTICE
RULE
The lawyer should encourage public respect for and try to improve the administration of justice.1
Commentary
Guiding Principles
1. The admission to and continuance in the practice of law imply a basic commitment by the lawyer to the concept of equal justice for all within an open, ordered and impartial system. However, judicial institutions will not function effectively unless they command the respect of the public. Because of changes in human affairs and the imperfection of human institutions, constant efforts must be made to improve the administration of justice and thereby maintain public respect for it.2
2. The lawyer, by training, opportunity and experience, is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions and public authorities. The lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned.3
Scope of the Rule
3. The obligation outlined in the Rule is not restricted to the lawyers professional activities but is a general responsibility resulting from the lawyers position in the community. The lawyers responsibilities are greater than those of a private citizen. The lawyer must not subvert the law by counselling or assisting in activities that are in defiance of it and must do nothing to lessen the respect and confidence of the public in the legal system of which the lawyer is a part. The lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by broad irresponsible allegations of corruption or partiality. The lawyer in public life must be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to any public statements. For the same reason, the lawyer should not hesitate to speak out against an injustice. (As to test cases, see commentary 8 of the Rule relating to advising clients.)4
Criticism of the Tribunal
4. Although proceedings and decisions of tribunals are properly subject to scrutiny and criticism by all members of the public, including lawyers, members of tribunals are often prohibited by law or custom from defending themselves. Their inability to do so imposes special responsibilities upon lawyers. Firstly, the lawyer should avoid criticism that is petty, intemperate or unsupported by a bona fide belief in its real merit, bearing in mind that in the eyes of the public, professional knowledge lends weight to the lawyers judgements or criticism. Secondly, if the lawyer has been involved in the proceedings, there is the risk that any criticism may be, or may appear to be, partisan rather than objective. Thirdly, where a tribunal is the object of unjust criticism, the lawyer, as a participant in the administration of justice, is uniquely able to and should support the tribunal, both because its members cannot defend themselves and because the lawyer is thereby contributing to greater public understanding of and therefore respect for the legal system.5
Improving the Administration of Justice
5. The lawyer who seeks legislative or administrative changes should disclose whose interest is being advanced, whether it be the lawyers interest, that of a client, or the public interest. The lawyer may advocate such changes on behalf of a client without personally agreeing with them, but the lawyer who purports to act in the public interest should espouse only those changes that the lawyer conscientiously believes to be in the public interest.6
Subscripts
1 Alta. 1-R.1 to R.3; ABA-MC Canon 8, DR 1-102 (A)(5); N.B. 20-R; N.S. R-21;
Ont. 4.06(1); Que. 2.01 to 2.10.
2 N.B. 20-C.2; N.S. R-21 Guiding Principle; Ont. 4.06(1) Commentary. Cf. the traditional barristers oath: ...to protect and defend the right and interest of such of your fellow-citizens as may employ you.... You shall not pervert the law to favour or prejudice any man.... ABA-MC ECs 8-1, 8-2, 8-9: Changes in human affairs and imperfections in human institutions make necessary constant efforts to maintain and improve our legal system. This system should function in a manner that commands public respect and fosters the use of legal remedies to achieve redress of grievances.... Rules of law are deficient if they are not just, understandable and responsive to theneeds of society.... The advancement of our legal system is of vital importance in maintaining the rule of law and in facilitating orderly changes....
3 ABA-MC EC 8-1, 8-2, 8-9; N.B. 20-C.3(a); N.S. R-21 Guiding Principle; Ont.
4.06(1) Commentary. ABA-MC ECs 8-1, 8-2: By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein.... [The lawyer] should encourage the simplification of laws and the repeal or amendment of laws that are outmoded. Likewise, legal procedures should be improved whenever experience indicates a change is needed.
4 Alta. 1-R.5; N.S. C-21.1 to 21.4; Ont. 4.06(1).
5 Alta. 1-C.2; ABA-MC EC 8-6; N.B. 20-C.4; N.S. C-21.5 to 21.8; Ont. 4.06(1)
Commentary; Que. 2.01.
6 Alta. 1-C.2; ABA-MC EC 8-4; N.B. 20-C.3(b), (c); N.S. C-21.9; Ont. 4.06(2) and Commentary.
CHAPTER XIV
ADVERTISING, SOLICITATION AND MAKING LEGAL SERVICES AVAILABLE
RULE
Lawyers should make legal services available to the public in an efficient and convenient manner that will command respect and confidence, and by means that are compatible with the integrity, independence and effectiveness of the profession.1
Commentary
Guiding Principles
1. It is essential that a person requiring legal services be able to find a qualified lawyer with a minimum of difficulty or delay. In a relatively small community where lawyers are well known, the person will usually be able to make an informed choice and select a qualified lawyer in whom to have confidence. However, in larger centres these conditions will often not obtain. As the practice of law becomes increasingly complex and many individual lawyers restrict their activities to particular fields of law, the reputations of lawyers and their competence or qualification in particular fields may not be sufficiently well known to enable a person to make an informed choice.
Thus one who has had little or no contact with lawyers or who is a stranger in the community may have difficulty finding a lawyer with the special skill required for a particular task. Telephone directories, legal directories and referral services may help find a lawyer, but not necessarily the right one for the work involved. Advertising of legal services by the lawyer may assist members of the public and thereby result in increased access to the legal system. Where local rules permit, the lawyer may, therefore, advertise legal services to the general public.2
2. When considering whether advertising in a particular area meets the public need, consideration must be given to the clientele to be served. For example, in a small community with a stable population a person requiring a lawyer for a particular purpose will not have the same difficulty in selecting one as someone in a newly established community or a large city. Thus the governing body must have freedom of action in determining the nature and content of advertising that will best meet the community need.
3. Despite the lawyers economic interest in earning a living, advertising must comply with any rules prescribed by the governing body, must be consistent with the public interest, and must not detract from the integrity, independence or effectiveness of the legal profession. Advertising must not mislead the uninformed or arouse unattainable hopes and expectations, and must not adversely affect the quality of legal services, or be so undignified or otherwise offensive as to be prejudicial to the interests of the public or the legal profession.3
Finding a Lawyer
4. The lawyer who is consulted by a prospective client should be ready to assist in finding the right lawyer to deal with the problem. If unable to act, for example, because of lack of qualification in the particular field, the lawyer should assist in finding a practitioner who is qualified and able to act. Such assistance should be given willingly and, except in very special circumstances, without charge.4
5. The lawyer may also assist in making legal services available by participating in legal aid plans and referral services, by engaging in programs of public information, education or advice concerning legal matters, and by being considerate of those who seek advice but are inexperienced in legal matters or cannot readily explain their problems.5
6. The lawyer has a general right to decline particular employment (except when assigned as counsel by a court) but it is a right the lawyer should be slow to exercise if the probable result would be to make it very difficult for a person to obtain legal advice or representation. Generally speaking, the lawyer should not exercise the right merely because the person seeking legal services or that persons cause is unpopular or notorious, or because powerful interests or allegations of misconduct or malfeasance are involved, or because of the lawyers private opinion about the guilt of the accused. As stated in commentary 4, the lawyer who declines employment should assist the person to obtain the services of another lawyer competent in the particular field and able to act.6
7. Lawyers may offer professional services to prospective clients by any means except means:
(a) that are false or misleading;7
(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 persons lawyer for that matter, unless the change is initiated by the person or the other lawyer;8 or
(e) that otherwise bring the profession or the administration of justice into disrepute.9
Enforcement of Restrictive Rules
8. The lawyer should adhere to rules made by the governing body with respect to making legal services available and respecting advertising, but rigid adherence to restrictive rules should be enforced with discretion where the lawyer who may have infringed such rules acted in good faith in trying to make legal services available more efficiently, economically and conveniently than they would otherwise have been.
Subscripts
1 Alta. 5-S.O.P.; ABA-MC Canon 2, EC 2-1; ABA-MR 7; B.C. 14(3); N.B. 16-R;
N.S. R-15; Ont. 3.0.1.
2 ABA-MC EC 2-6 to EC 2-8; ABA-MR 7.2; N.B. 16-C.1; N.S. R-15 Guiding
Principle; Ont. 3.01 Commentary.
3 Alta. 5-R.2, R.3; ABA-MC EC 2-9 to EC 2-14, DR 2-101(B); N.B. 16-C.3; Que.
5.02, 5.05.
4 Alta. 5-R.1; N.S. C-15.1; Ont. 3.01 Commentary.
5 ABA-MC EC 2-15, 2-16, DR 2-103; N.S. C-15.3; Ont. 3.01 Commentary.
6 Alta. 5-R.1; ABA-MC EC 2-26 to EC 2-30; N.S. 15.4; Ont. 3.01 Commentary.
7 N.B. 16-C.4(a).
8 N.B. 16-C.4(d).
9 Alta. 5-C.G.2.
CHAPTER XV
RESPONSIBILITY TO THE PROFESSION GENERALLY
RULE
The lawyer should assist in maintaining the integrity of the profession and should participate in its activities.1
Commentary
Guiding Principles
1. Unless the lawyer who tends to depart from standards of professional conduct is checked at an early stage, loss or damage to clients or others may ensue. Evidence of minor breaches may, on investigation, disclose a more serious situation or may indicate the beginning of a course of conduct that would lead to serious breaches in the future. It is, therefore, proper for a lawyer to report to a governing body any occurrence involving a breach of this Code unless the information is privileged or it would otherwise be unlawful for the lawyer to do so. Where, however, there is a reasonable likelihood that someone will suffer serious damage as a consequence of an apparent breach, for example, where a shortage of trust funds is involved, the lawyer has an obligation to the profession to report the matter unless the information is privileged or it is otherwise unlawful to do so.2 The lawyer also has an obligation to the profession to report to the governing body (unless to do so would be unlawful or would involve a breach of privilege):
(a) a misappropriation or misapplication of trust money or other property held in trust;3
(b) the abandonment of a law practice;
(c) participation in criminal activity related to a lawyers practice;
(d) the mental instability of a lawyer of such a serious nature that the lawyers clients are likely to be severely prejudiced; and
(e) any other situation where a lawyers client is likely to be severely prejudiced.4
In all cases, the report must be made bona fide and without ulterior motive. Further, subject to local rules, the lawyer must not act on a clients instructions to recover from another lawyer money or other property allegedly misappropriated by the other lawyer unless the client authorizes disclosure to the governing body and the lawyer makes such disclosure.
2. The lawyer has a duty to reply promptly to any communication from the governing body.5
3. The lawyer should not in the course of a professional practice write letters, whether to a client, another lawyer or any other person, that are abusive, offensive or otherwise totally inconsistent with the proper tone of a professional communication from a lawyer.6
Participation in Professional Activities
4. In order that the profession may discharge its public responsibility of providing independent and competent legal services, the individual lawyer should do everything possible to assist the profession to function properly and effectively. In this regard, participation in such activities as law reform, continuing legal education, tutorials, legal aid programs, community legal services, professional conduct and discipline, liaison with other professions and other activities of the governing body or local, provincial or national associations, although often time-consuming and without tangible reward, is essential to the maintenance of a strong, independent and useful profession.7
Subscripts
1 ABA-MC Canon 1, EC 1-4; ABA-MR 8; Alta. 3-S.O.P., 3-R.1; N.B. 19-R(a); N.S. R-18.
2 ABA-MC EC 1-2, 1-4, DR 1-103; ABA-MR 8.3; B.C. 13(1), (2); N.B. 15-C.6;
N.S. C-18.1, 18.2; Law Society of Prince Edward Island v. Aylward [2001] L.S.D.D. No. 48.
3 B.C. 13(1)(b).
4 Alta. 3-R.4; Que. 4.02.01.
5 Alta. 3-R.3; B.C. 13(3); N.B. 19-C.1; N.S. C-18.4; Que. 4.03.02.
6 Alta. 3-R.2; N.B. 19-C.2.
7 ABA-MC EC 6-2, 8-1, 8-2, 8-9, 9-6; Alta. 3-C.G.1; N.B. 19-C.3; N.S. C-18.5;
Que. 4.04.01.
CHAPTER XVI
RESPONSIBILITY TO LAWYERS AND OTHERS
RULE
The lawyers conduct toward all persons with whom the lawyer comes into contact in practice should be characterized by courtesy and good faith.1
Commentary
Guiding Principles
1. Public interest demands that matters entrusted to the lawyer be dealt with effectively and expeditiously. Fair and courteous dealing on the part of each lawyer engaged in a matter will contribute materially to this end. The lawyer who behaves otherwise does a disservice to the client, and neglect of the Rule will impair the ability of lawyers to perform their function properly.2
2. Any ill feeling that may exist or be engendered between clients, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. The presence of personal animosity between lawyers involved in a matter may cause their judgment to be clouded by emotional factors and hinder the proper resolution of the matter. Personal remarks or references between them should be avoided. Haranguing or offensive tactics interfere with the orderly administration of justice and have no place in our legal system.3
3. The lawyer should accede to reasonable requests for trial dates, adjournments, waivers of procedural formalities and similar matters that do not prejudice the rights of the client. The lawyer who knows that another lawyer has been consulted in a matter should not proceed by default in the matter without enquiry and warning.4
Avoidance of Sharp Practices
4. The lawyer should avoid sharp practice and not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving any sacrifice of the clients rights. The lawyer should not, unless required by the transaction, impose on other lawyers impossible, impractical or manifestly unfair conditions of trust, including those with
respect to time restraints and the payment of penalty interest.5
5. The lawyer should not use a tape-recorder or other device to record a conversation, whether with a client, another lawyer or anyone else, even if lawful, without first informing the other person of the intention to do so.6
6. The lawyer should answer with reasonable promptness all professional letters and communications from other lawyers that require an answer and should be punctual in fulfilling all commitments.7
Undertakings
7. The lawyer should give no undertaking that cannot be fulfilled, should fulfill every undertaking given, and should scrupulously honour any trust condition once accepted.8
Undertakings and trust conditions should be written or confirmed in writing and should be absolutely unambiguous in their terms. If the lawyer giving an undertaking does not intend to accept personal responsibility, this should be stated clearly in the undertaking itself. In the absence of such a statement, the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honour it personally. If the lawyer is unable or unwilling to honour a trust condition imposed by someone else, the subject of the trust condition should be immediately returned to the person imposing the trust condition unless its terms can be forthwith amended in writing on a mutually agreeable basis.9
8. The lawyer should not communicate upon or attempt to negotiate or compromise a matter directly with any party who is represented by a lawyer except through or with the consent of that lawyer.10
Acting Against Another Lawyer
9. The lawyer should avoid ill-considered or uninformed criticism of the competence, conduct, advice or charges of other lawyers, but should be prepared, when requested, to advise and represent a client in a complaint involving another lawyer.11
10. The same courtesy and good faith should characterize the lawyers conduct toward lay persons lawfully representing others or themselves.12
11. The lawyer who is retained by another lawyer as counsel or adviser in a particular matter should act only as counsel or adviser and respect the relationship between the other lawyer and the client.13
Subscripts
1 ABA-MC EC 7-36 to 7-38, DR 7-101(A)(1); ABA-MR 3.4; Alta. 3-R.1, 4-S.O.P.; B.C. 1(4), 11; N.B. 15-R; N.S. R-13; Ont. 6.03(1); Que. 4.03.03. 2 Ont. 6.03(1) Commentary; N.S. R-13 Guiding Principle. In Ontario, The Advocates Society has published Principles of Civility for Advocates as an educational tool for the encouragement and maintenance of civility in our justice system. See Appendix.
3 ABA-MC EC 7-37; N.S. C-13.1; Ont. 6.03(1) Commentary; M.M. Orkin, Legal
Ethics: A Study of Professional Conduct (Toronto: Cartwright & Jane, 1957) at pp.131- 32; N.B. D-4: ...it is the duty of counsel to try the merits of the cause and not to try each other.
4 ABA-MC EC 7-38, 7-39; Alta 4-R.4; N.B. 15-C.2(i), (iii); N.S. C-13.3; Ont.
6.03(2).
5 Alta 1-R.1; N.B. 15-C.4; N.S. C-13.2; Ont. 6.03(3).
6 Alta. 1-R.7; B.C. 11(14); N.B. 15-C.2(iv); N.S. C-13.4; Ont. 6.03(4). [T]o build
up a clients case on the slips of an opponent is not the duty of a professional man.... Solicitors do not do their duty to their clients by insisting upon the strict letter of their rights. That is the sort of thing which, if permitted, brings the administration of justice into odium, per Middleton J. in Re Arthur and Town of Meaford (1915), 34 O.L.R. 231 at 233-34 (Ont. H.C.).
7 Alta. 1-R.5; B.C. 11(6); N.B. 15-C.2(v); N.S. C-13.5; Ont. 6.03(6).
8 Alta. 1-R.10.
9 Alta. 1-R.11; B.C. 11(7); N.B. 15-C.3; Ont. 6.03(8); N.S. C-13.6 to C-13.9.
10 ABA-MC EC 7-18; Alta. 1-R.6; B.C. 4(1.1); N.B. 15-C.2(ii); N.S. C-13.10; Ont. 6.03(7).
11 ABA-MC EC 2-28; B.C. 11(13); N.B. 15-C.5; N.S. C-13.12; Ont. 6.03(1)
Commentary.
12 N.B. 15-C.2(vii); N.S. C-13.11.
13 N.B. 15-C.2(vi); N.S. C-13.11.
CHAPTER XVII
PRACTICE BY UNAUTHORIZED PERSONS
RULE
The lawyer should assist in preventing the unauthorized practice of law.1
Commentary
Guiding Principles
1. Statutory provisions against the practice of law by unauthorized persons are for the protection of the public. Unauthorized persons may have technical or personal ability, but they are immune from control, regulation and, in the case of misconduct, from discipline by any governing body. Their competence and integrity have not been vouched for by an independent body representative of the legal profession. Moreover, the client of a lawyer who is authorized to practice has the protection and benefit of the solicitor-client privilege, the lawyers duty of secrecy, the professional standards of care that the law requires of lawyers, as well as the authority that the courts exercise over them. Other safeguards include group professional liability insurance, rights with respect to the taxation of bills, rules respecting trust monies, and requirements for the maintenance of compensation funds.2
Suspended or Disbarred Persons
2. The lawyer should not, without the approval of the governing body, employ in any capacity having to do with the practice of law (a) a lawyer who is under suspension as a result of disciplinary proceedings, or (b) a person who has been disbarred as a lawyer or has been permitted to resign while facing disciplinary proceedings and has not been reinstated.3
Supervision of Employees
3. The lawyer must assume complete professional responsibility for all business entrusted to the lawyer, maintaining direct supervision over staff and assistants such as students, clerks and legal assistants to whom particular tasks and functions may be delegated. The lawyer who practices alone or operates a branch or part-time office should ensure that all matters requiring a lawyers professional skill and judgment are dealt with by a lawyer qualified to do the work and that legal advice is not given by unauthorized persons, whether in the lawyers name or otherwise. Furthermore, the lawyer should approve the amount of any fee to be charged to a client.4
Legal Assistants
4. There are many tasks that can be performed by a legal assistant working under the supervision of a lawyer. It is in the interests of the profession and the public for the delivery of more efficient, comprehensive and better quality legal services that the training and employment of legal assistants be encouraged.5
5. Subject to general and specific restrictions that may be established by local rules and practice, a legal assistant may perform any task delegated and supervised by a lawyer so long as the lawyer maintains a direct relationship with the client and assumes full professional responsibility for the work. Legal assistants shall not perform any of the duties that lawyers only may perform or do things that lawyers themselves may not do. Generally speaking, the question of what the lawyer may delegate to a legal assistant turns on the distinction between the special knowledge of the legal assistant and the professional legal judgment of the lawyer, which must be exercised whenever it is required.6
6. A legal assistant should be permitted to act only under the supervision of a lawyer. Adequacy of supervision will depend on the type of legal matter, including the degree of standardization and repetitiveness of the matter as well as the experience of the legal assistant, both generally and with regard to the particular matter. The burden rests on the lawyer who employs a legal assistant to educate the latter about the duties to which the legal assistant may be assigned and also to supervise on a continuing basis the way in which the legal assistant carries them out so that the work of the legal assistant will be shaped by the lawyers judgment.7
Subscripts
1 ABA-MC Canon 3, DR 3-101(A), (B); ABA-MR 5.5; B.C. 12; N.B. 19-R(b); Ont. 6.07(1); N.S. R-19.
2 ABA-MC EC 3-1, 3-3, 3-4; N.S. C-19.1; Ont. 6.07(1) Commentary. Cases and
statutes provide that certain acts amount to the practice of law; see, for example:
B.C.: Legal Profession Act, R.S.B.C. 1998, c. 9, s. 1(1). Man.: Legal Profession Act, C.C.S.M. c. L-107, s. 20(3). Nfld.: Law Society Act, S.N.L. 1999, c. L-9.1, s. 2(2). N.S.: Barristers and Solicitors Act, R.S.N.S. 1989, c. 30, s. 5(2).
N.W.T.: Legal Profession Act, R.S.N.W.T. 1988, c. L-2, s. 1. P.E.I.: Legal Profession Act, R.S.P.E.I., 1988, c. L-6.1, s. 1(j). Que.: An Act respecting the Barreau du Qubec, R.S.Q. c.B-1, s. 128. The statutes of all provinces prohibit the practice of law by unauthorized persons: Alta.: Legal Profession Act, R.S.A. 2000, c. L-8, s. 106(1). B.C.: supra, s. 15. Man.: supra, s. 20(2). Nfld.: supra, s. 76(1).
N.S.: supra, s. 5(1). Ont.: Law Society Act, R.S.O. 1990, c. L8, s. 50(1), (2).
Que.: supra, ss. 132 et seq. Sask.: Legal Profession Act, R.S.S., c. L-10, s. 5.
To protect the public against persons who...set themselves up as competent to perform services that imperatively require the training and learning of a solicitor, although such persons are without either learning or experience to qualify them, is an urgent public service, per Robertson C.J.O. in Rex ex rel. Smith v. Ott (1950), O.R. 493 at 496 (Ont. C.A.). When a man says in effect, I am not a lawyer but I will do the work of a lawyer for you he is offering his services as a lawyer. In offering his services as a lawyer he is holding himself out as a lawyer even though he makes it clear he is not a properly qualified lawyer, per Miller C.C.J. in Regina v. Woods (1962), O.W.N. 27 at 30.
3 N.B. 19-C.4; N.S. C-19.2; Ont. 6.07(2).
4 ABA-MC EC 3-5, 3-6; Alta. 2-R.4, 2-C.4.1; B.C. 12(1), 12(2); N.B. 19-C.5; N.S.
C-19.3 to C-19.5.
5 B.C. 12(4), 12(8).
6 B.C. 12(5), 12(5.1), 12(6); N.B. 19-C.6; N.S. C-19.6.
7 ABA-MR 5.3; B.C. 12(7); N.S. C-19.7.
CHAPTER XVIII
PUBLIC APPEARANCES AND PUBLIC STATEMENTS BY LAWYERS
RULE
The lawyer who engages in public appearances and public statements should do so in conformity with the principles of the Code.1
Commentary
Guiding Principles
1. The lawyer who makes public appearances and public statements should behave in the same way as when dealing with clients, fellow practitioners and the courts. Dealings with the media are simply an extension of the lawyers conduct in a professional capacity. The fact that an appearance is outside a courtroom or law office does not excuse conduct that would be considered improper in those contexts.2
Public Statements Concerning Clients
2. The lawyers duty to the client demands that before making a public statement concerning the clients affairs, the lawyer must first be satisfied that any communication is in the best interests of the client and within the scope of the retainer. The lawyer owes a duty to the client to be qualified to represent the client effectively before the public and not to permit any personal interest or other cause to conflict with the clients interests.3
3. When acting as an advocate, the lawyer should refrain from expressing personal opinions about the merits of the clients case.4
Standard of Conduct
4. The lawyer should, where possible, encourage public respect for and try to improve the administration of justice. In particular, the lawyer should treat fellow practitioners, the courts and tribunals with respect, integrity and courtesy. Lawyers are subject to a separate and higher standard of conduct than that which might incur the sanction of the court.5
5. The lawyer who makes public appearances and public statements must comply with the requirements of commentary 3 of the Rule in Chapter XIV relating to advertising, solicitation and making legal services available.
Contacts with the Media
6. The media have recently shown greater interest in legal matters than they did formerly. This is reflected in more coverage of the passage of legislation at national and provincial levels, as well as of cases before the courts and tribunal that may have social, economic or political significance. This interest has been heightened by the enactment of the Canadian Charter of Rights and Freedoms. As a result, media reporters regularly seek out the views not only of lawyers directly involved in particular court and tribunal proceedings but also of lawyers who represent special interest groups or have recognized expertise in a given field in order to obtain information or provide commentary.6
7. Where the lawyer, by reason of professional involvement or otherwise, is able to assist the media in conveying accurate information to the public, it is proper for the lawyer to do so, provided that there is no infringement of the lawyers obligations to the client, the profession, the courts and tribunals or the administration of justice, and provided also that the lawyers comments are made bona fide and without malice or ulterior motive.7
8. The lawyer may make contact with the media in a nonlegal setting to publicize such things as fund-raising, expansion of hospitals or universities, promoting public institutions or political organizations, or speaking on behalf of organizations that represent various racial, religious or other special interest groups. This is a well established and completely proper role for the lawyer to play in view of the obvious contribution it makes to the community.8
9. The lawyer is often called upon to comment publicly on the effectiveness of existing statutory or legal remedies, on the effect of particular legislation or decided cases, or to offer an opinion on causes that have been or are about to be instituted. It is permissible to do this in order to assist the public to understand the legal issues involved.9
10. The lawyer may also be involved as an advocate for special interest groups whose objective is to bring about changes in legislation, government policy or even a heightened public awareness about certain issues, and the lawyer may properly comment publicly about such changes.10
11. Given the variety of cases that can arise in the legal system, whether in civil, criminal or administrative matters, it is not feasible to set down guidelines that would anticipate every possible situation. In some circumstances, the lawyer should have no contact at all with the media; in others, there may be a positive duty to contact the media in order to serve the client properly. The latter situation will arise more often when dealing with administrative boards and tribunals that are
instruments of government policy and hence susceptible to public opinion.11
12. The lawyer should bear in mind when making a public appearance or giving a statement that ordinarily the lawyer will have no control over any editing that may follow, or the context in which the appearance or statement may be used.12
13. This Rule should not be construed in such a way as to discourage constructive comment or criticism.
Subscripts
1 ABA-MR 3.6; N.B. 18-R; N.S. R-22.
2 N.B. 18-C.1; N.S. R-22 Guiding Principle; Ont. 6.06(1) Commentary.
3 B.C. 14(6.1); N.B. 18-C.2(a), (b); N.S. C-22.1; Ont. 6.06(1) Commentary.
4 B.C. 14(6)(a).
5 N.S. C-22.3; Que. 2.00.01.
6 N.S. C-22.5.
7 N.B. 18-C.3; N.S. C-22.6.
8 N.B. 18-C.5; N.S. C-22.7; Ont. 6.06(1) Commentary.
9 N.B. 18-C.4(a); Ont. 6.06(1) Commentary.
10 N.B. 18-C.4(b); N.S. C-22.4; Ont. 6.06(1) Commentary.
11 Ont. 6.06(1) Commentary; N.S. C-22.10.
12 N.B. 18-C.7; N.S. C-22.13; Ont. 6.06(1) Commentary.
CHAPTER XIX
AVOIDING QUESTIONABLE CONDUCT
RULE
The lawyer should observe the rules of professional conduct set out in the Code in the spirit as well as in the letter.1
Commentary
Guiding Principles
1. Public confidence in the administration of justice and the legal profession may be eroded by irresponsible conduct on the part of the individual lawyer. For that reason, even the appearance of impropriety should be avoided.2
2. Our justice system is designed to try issues in an impartial manner and decide them upon the merits. Statements or suggestions that the lawyer could or would try to circumvent the system should be avoided because they might bring the lawyer, the legal profession and the administration of justice into disrepute.3
Duty after Leaving Public Employment
3. After leaving public employment, the lawyer should not accept employment in connection with any matter in which the lawyer had substantial responsibility or confidential information prior to leaving because to do so would give the appearance of impropriety even if none existed. However, it would not be improper for the lawyer to act professionally in such a matter on behalf of the particular public body or authority by which the lawyer had formerly been employed. As to confidential government information acquired when the lawyer was a public officer or employee, see commentary 14 of the Rule relating to confidential information.4
Retired Judges
4. A judge who returns to practice after retiring or resigning from the bench should not (without the approval of the governing body) appear as a lawyer before the court of which the former judge was a member or before courts of inferior jurisdiction thereto in the province where the judge exercised judicial functions. If in a given case the former judge should be in a preferred position by reason of having held judicial office, the administration of justice would suffer; if the reverse were true, the client might suffer. There may, however, be cases where a governing body would consider that no preference or appearance of preference would result, for example, where the judge resigned for good reason after only a very short time on the bench. In this paragraph judge refers to one who was appointed as such under provincial legislation or section 96 of the Constitution Act, 1867 and courts include chambers and administrative boards and tribunals.5
5. Conversely, although it may be unavoidable in some circumstances or areas, generally speaking the lawyer should not appear before a judge if by reason of relationship or past association, the lawyer would appear to be in a preferred
position.6
Inserting Retainer in Clients Will
6. Without express instructions from the client, it is improper for the lawyer to insert in the clients will a clause directing the executor to retain the lawyers services in the administration of the estate.7
Duty to Meet Financial Obligations
7. The lawyer has a professional duty, quite apart from any legal liability, to meet financial obligations incurred or assumed in the course of practice when called upon to do so. Examples are agency accounts, obligations to members of the profession, fees or charges of witnesses, sheriffs, special examiners, registrars, reporters and public officials, as well as the deductible under a governing bodys errors and omissions insurance policy.8
Dealings with Unrepresented Persons
8. The lawyer should not undertake to advise an unrepresented person but should urge such a person to obtain independent legal advice and, if the unrepresented person does not do so, the lawyer must take care to see that such person is not proceeding under the impression that the lawyer is protecting such persons interests. If the unrepresented person requests the lawyer to advise or act in the matter, the lawyer should be governed by the considerations outlined in the Rule relating to impartiality and conflict of interest between clients. The lawyer may have an obligation to a person whom the lawyer does not represent, whether or not such person is represented by a lawyer.9
Bail
9. The lawyer shall not stand bail for an accused person for whom the lawyer or a partner or associate is acting, except where there is a family relationship with the accused, in which case the person should not be represented by the lawyer but may be represented by a partner or associate. Standard of Conduct
10. The lawyer should try at all times to observe a standard of conduct that reflects credit on the legal profession and the administration of justice generally and inspires the confidence, respect and trust of both clients and the community.10
Subscripts
1 ABA-MC Canon 9; ABA-MR 8.4; Alta. 1-R.1; N.B. 23-R(a); N.S. R-23; Que.
1.00.01. Cf. dictum of Hewart L.C.J. in The King v. Sussex Justices (1924), 1 K.B. 256 at 259 (K.B.D.): [It] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
2 ABA-MC EC 9-1, DR 9-101; N.B. 23-C.1; N.S. C-23.1.
3 ABA-MC EC 9-4; N.B. 23-C.2; N.S. C-23.2.
4 ABA-MC EC 9-3, DR 9-101(B); N.S. C-16.10.
5 Ont. 6.08(4); N.S. C-16.11.
6 Alta. 10-R.9.
7 N.S. C-7.3.
8 Alta. 8-R.2, R.3; B.C. 2(2); N.B. 23-C.4; Ont. 6.01(2); N.S. C-18.7.
9 ABA-MR 4.3; Alta. 11-R.5; B.C. 4(1); Ont. 2.04(14); N.S. C-4.20.
10 Alta. 15-R.2.
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