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					THE LAW SOCIETY OF ALBERTA

  CODE OF PROFESSIONAL
        CONDUCT
Code of Professional Conduct




                                AMENDMENT TABLE – 2009_V1
                                                 Version   Amendment    Amendment      Amendment
 Amended          Description of Change                                                              Other Impact
                                                   No.     Authorized    Effective       Source
 Chapter 6,       New Rule applicable to
                                                                                       Bencher’s
New Rule 5.1    conflicts and short-term legal
                                                 2009_V1     Benchers   June 6, 2009   June 2009
     &           services provided by non-
                                                                                        Meeting
Commentary      profit legal service providers




                                                                                             Version #: 2009_V1
                                                    Amendment Table 1
                                                                                                   June 3, 2009
Code of Professional Conduct




                                                TABLE OF CONTENTS
PREFACE ..................................................................................................................................1
INTERPRETATION ....................................................................................................................1
     CHAPTER 1 RELATIONSHIP OF THE LAWYER TO SOCIETY AND THE JUSTICE
     SYSTEM ........................................................................................................................... 1-1
     CHAPTER 2 COMPETENCE............................................................................................ 2-1
     CHAPTER 3 RELATIONSHIP OF THE LAWYER TO THE PROFESSION ...................... 3-1
     CHAPTER 4 RELATIONSHIP OF THE LAWYER TO OTHER LAWYERS....................... 4-1
     CHAPTER 5 ADVERTISING............................................................................................. 5-1
     CHAPTER 6 CONFLICTS OF INTEREST ........................................................................ 6-1
     CHAPTER 7 CONFIDENTIALITY ..................................................................................... 7-1
     CHAPTER 8 THE LAWYER AND THE BUSINESS ASPECTS OF PRACTICE ............... 8-1
     CHAPTER 9 THE LAWYER AS ADVISOR ....................................................................... 9-1
     CHAPTER 10 THE LAWYER AS ADVOCATE ............................................................... 10-1
     CHAPTER 11 THE LAWYER AS NEGOTIATOR ........................................................... 11-1
     CHAPTER 12 THE LAWYER IN CORPORATE AND GOVERNMENT SERVICE .......... 12-1
     CHAPTER 13 FEES........................................................................................................ 13-1
     CHAPTER 14 WITHDRAWAL AND DISMISSAL ............................................................ 14-1
     CHAPTER 15 THE LAWYER IN ACTIVITIES OTHER THAN THE PRACTICE OF LAW15-1
INDEX.........................................................................................................................................1




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                                                    PREFACE
         Lawyers have traditionally played a vital role in the protection and advancement of individual rights and
liberties in a democratic society. Fulfillment of this role requires an understanding and appreciation by lawyers of
their relationship to society and the legal system. By defining and clarifying expectations and standards of
behaviour that will be applied to lawyers, the Code of Professional Conduct is intended to serve a practical as well
as a motivational function.

         Two fundamental principles underlie this Code and are implicit throughout its provisions. First, a lawyer is
expected to establish and maintain a reputation for integrity, the most important attribute of a member of the legal
profession. Second, a lawyer's conduct should be above reproach. While the Law Society is empowered by
statute to declare any conduct deserving of sanction, whether or not it is related to a lawyer's practice, personal
behaviour is unlikely to be disciplined unless it is dishonourable or otherwise indicates an unsuitability to practise
law. However, regardless of the possibility of formal sanction, a lawyer should observe the highest standards of
conduct on both a personal and professional level so as to retain the trust, respect and confidence of colleagues
and members of the public.

        The legal profession is largely self-governing and is therefore impressed with special responsibilities. For
example, its rules and regulations must be cast in the public interest, and its members have an obligation to seek
observance of those rules on an individual and collective basis. However, the rules and regulations of the Law
Society cannot exhaustively cover all situations that may confront a lawyer, who may find it necessary to also
consider legislation relating to lawyers, other legislation, or general moral principles in determining an appropriate
course of action.

        Disciplinary assessment of a lawyer's conduct will be based on all facts and circumstances as they
existed at the time of the conduct, including the willfulness and seriousness of the conduct, the existence of
previous violations and any mitigating factors. A lawyer may seek an opinion from the Law Society with respect to
a proposed course of conduct which, if followed, will generally protect the lawyer against subsequent disciplinary
action.

          A member of the Law Society remains subject to this Code no matter where the member practises law. If
a lawyer becomes a member of the bar of another jurisdiction in addition to that of Alberta, and there is an
inconsistency or conflict between the rules of conduct of the two jurisdictions in a given instance, the rules of the
jurisdiction in which the lawyer is practising in that matter will normally prevail. However, the Law Society
continues to have jurisdiction over the lawyer. Disciplinary proceedings by another governing body may form the
basis for proceedings in Alberta.

        The willingness and determination of the profession to achieve widespread compliance with this Code is a
more powerful and fundamental enforcement mechanism than the imposition of sanctions by the Law Society. A
lawyer must therefore be vigilant with respect to the lawyer's own behaviour as well as that of colleagues.
However, it is inconsistent with the spirit of this Code to use any of its provisions as an instrument of harassment
or as a procedural weapon in the absence of a genuine concern respecting the interests of a client, the profession
or the public.




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                                                INTERPRETATION
1       Reading the Code:

        (a)      Structure of Code: This Code consists of a preface, an interpretation section and a number of
                 chapters. Each chapter consists of a statement of principle followed by rules and commentary.
                 Each statement of principle expresses an obligation of a lawyer in a general way; the rules
                 particularize the statement of principle in mandatory or exhortative language; and the
                 commentary expands on the rules while frequently providing examples. Examples of fact
                 situations in commentary are for illustrative purposes only. The application of a rule in a given
                 case will depend on the particular facts and all relevant circumstances.

        (b)      Overlap: The division of this Code into chapters gives rise to some overlap of subject matter.
                 Substantially the same comment may appear more than once for the purposes of clarity and
                 emphasis and to reduce cross-references.

2       Interpreting the Code:

        (a)      Entire Code governs: The conduct of a lawyer is governed by the Code in its entirety rather than
                 by any part in isolation. Consequently, a lawyer acting in a particular role (such as advocate or
                 negotiator) will be guided not only by the chapter devoted to that role, but by the more general
                 rules contained in other chapters (such as Relationship of the Lawyer to Other Lawyers), except
                 to the extent that the general rules are overridden or modified by the specific rules.

        (b)      Conflict of duties: The rules are sufficiently specific that a conflict among ethical duties should
                 not arise. A lawyer may perceive an apparent conflict when considering ethical obligations in
                 general terms (e.g., duties to client vs. duties to court) or as absolutes (e.g., a lawyer must
                 zealously represent the client). However, examining the applicable provisions of the Code and
                 analyzing how various duties and obligations interact should resolve any apparent conflict. The
                 duty of zealous representation, for example, is seen to be subject to law and professional ethics
                 and does not require a lawyer to follow the client's instructions regardless of circumstance.

        (c)      Relationship with law: This Code addresses certain matters that are also the subject of
                 statutory or case law and, in some instances, imposes obligations that are additional to those
                 imposed by law. A lawyer must meet these additional obligations unless they are clearly
                 prohibited by a law that is directly applicable to a given situation.

        (d)      Rulings and opinions: This Code will be supplemented when necessary by Rulings of the Law
                 Society, opinions of the Professional Responsibility Committee, and opinions of other committees
                 of the Law Society having authority to rule or opine on matters of professional conduct. When in
                 doubt as to whether conduct in a particular instance would constitute a violation, a lawyer is
                 encouraged to contact the office of the Practice Advisor or seek an opinion from an appropriate
                 committee of the Law Society.

3       Assessing conduct:

        (a)      Conduct deserving of sanction: Under the Legal Profession Act, the Law Society has broad
                 powers to declare conduct to be deserving of sanction and is not limited to disciplining violations
                 that are expressly or impliedly referred to in this Code.

                 However, the Law Society's primary concern is with conduct that reflects poorly on the profession
                 or that calls into question the suitability of an individual to practise law. Disciplinary assessment of
                 conduct will therefore be based on all facts and circumstances as they existed at the time of the
                 conduct. A trivial or technical breach of this Code without significant consequences is unlikely to
                 be sanctioned. A lawyer's intentions and the wilfulness of conduct are also relevant (see
                 paragraph (c)).

        (b)      Attempted violation: Unless expressly stated otherwise or excluded by the context, an attempt
                 to do an act prohibited by this Code is itself a violation.


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        (c)      Relevance of intentions and wilfulness: Although the word "knowingly" does not generally
                 appear in the rules, a lawyer's intentions and the wilfulness or deliberateness of conduct are
                 relevant to whether a breach of this Code will be sanctioned. If a lawyer did not know, and could
                 not reasonably be expected to have known, one or more factual elements of an ethical violation,
                 any disciplinary assessment of the conduct will take this circumstance into account.

        (d)      Co-responsibility: The term "lawyer" is defined in this Code to include the lawyer's firm and each
                 firm member except where expressly stated otherwise or excluded by the context. However, a
                 lawyer will not be responsible to the Law Society for the ethical misconduct of another member of
                 the firm unless the lawyer had actual knowledge of the misconduct or the circumstances clearly
                 indicate wilful blindness.

4       Definitions in this Code:

        (a)      "affiliated entity" of a lawyer means:

                 (i)      a trust or estate in which the lawyer or a related person has a beneficial interest or for
                          which the lawyer or a related person acts as a trustee or in a similar capacity;

                 (ii)     a corporation of which the lawyer is a director;

                 (iii)    a corporation controlled directly or indirectly by the lawyer or one or more related
                          persons, or by the lawyer and one or more related persons collectively, or by the lawyer's
                          firm; or

                 (iv)     a corporation in which a material interest is held, directly or indirectly, by the lawyer or
                          one or more related persons, or by the lawyer and one or more related persons
                          collectively, or by the lawyer's firm;

        (b)      "anyone" means any person;

        (c)      "belief", when used in relation to a lawyer, means that the lawyer actually believed or ought to
                 have believed the fact in question;

        (d)      "client" generally means a person on whose behalf the lawyer renders professional services and
                 with whom the lawyer has a current or ongoing lawyer/client relationship, but may also include a
                 person who reasonably believes that a lawyer/client relationship exists although one or more of
                 the customary indicia of such a relationship are absent;

        (e)      "confidential information" means all information concerning a client's business, interests and
                 affairs acquired in the course of a lawyer/client relationship;

        (f)      "consent" means fully informed and voluntary consent after disclosure;

        (g)      "counsel" means a lawyer, whether acting as barrister or solicitor;

        (h)      "court" means any decision-making body unless restricted expressly or by the context to a court
                 of law;

        (i)      "disclosure" means full and fair disclosure of all information relevant to a person's decision
                 (including, where applicable, those matters referred to in commentary of this Code), in sufficient
                 time for the person to make a genuine and independent decision, and the taking of reasonable
                 steps to ensure understanding of the matters disclosed;

        (j)      "firm" means:

                 (i)      a partnership formed for the practice of law and all lawyers employed by the partnership;

                 (ii)     a sole practitioner;



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                 (iii)    a sole proprietor and all lawyers employed by the sole proprietor;

                 (iv)     lawyers employed by a common employer; or

                 (v)      lawyers expressly or impliedly holding themselves out to be practising law together,
                          including lawyers practising law from the same premises while indicating a commonality
                          of practice through physical layout of office space; firm name, letterhead, signage and
                          business cards; reception and telephone-answering services; or the sharing of office
                          systems and support staff.

                 In addition, lawyers practising law from the same premises but clearly indicating that their
                 practices are independent are a firm for the purposes of Chapter 6, Conflicts of Interest, and
                 Chapter 7, Confidentiality;

        (k)      "firm member" means any lawyer in a particular firm, and includes a lawyer providing contract
                 services to the firm if the lawyer has a continuing relationship, whether full- or part-time, with the
                 firm. In addition, for the purposes of Rules #3 and #4 of Chapter 6, Conflicts of Interest, and Rule
                 #6 of Chapter 7, Confidentiality, "firm member" includes a lawyer providing contract services to
                 the firm if the lawyer has actual knowledge of relevant confidential information;

        (l)      "judge" means a decision-maker of a court;

        (m)      "Law Society" means the Law Society of Alberta, and includes the benchers and a committee or
                 other constituent of the Law Society where appropriate;

        (n)      "lawyer" means an active member of the Law Society, an inactive member of the Law Society, a
                 suspended member of the Law Society, a student-at-law and a lawyer entitled to practice law in
                 another jurisdiction who is entitled to practice law in Alberta. A reference to "lawyer" includes the
                 lawyer's firm and each firm member except where expressly stated otherwise or excluded by the
                 context;

        (o)      "party" or "person" includes the following as required by the fact or context:

                 (i)      an individual;

                 (ii)     a corporation or other legal entity;

                 (iii)    a government, including the Crown in right of Canada or a province, and any political
                          subdivision of a government; and

                 (iv)     an association, partnership or other organization;

        (p)      "profession" means the legal profession, which includes all lawyers collectively and their
                 institutions and governing bodies;

        (q)      "reasonable", when used in relation to the conduct or state of mind of a lawyer, means the
                 conduct or state of mind of a prudent and competent lawyer, acting in good faith, given all of the
                 facts and circumstances;

        (r)      "related person", in reference to a lawyer, means the spouse, child, sibling, parent, grandchild
                 or grandparent of the lawyer, and any person who is a member of the lawyer's household. For the
                 purposes of this definition, "lawyer" does not include a firm member; and

        (s)      "student-at-law" means a person admitted to the Law Society as a student-at-law.
                                                                                                               Nov2002




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                                     CHAPTER 1
            RELATIONSHIP OF THE LAWYER TO SOCIETY AND THE JUSTICE SYSTEM
                                            STATEMENT OF PRINCIPLE
A lawyer shares the responsibilities of all persons to society and the justice system and, in addition, has
certain special duties as an officer of the court and by virtue of the privileges accorded the legal
profession, including a duty to ensure that the public has access to the legal system.

                                                      RULES
1.      A lawyer must respect and uphold the law in personal conduct and in rendering advice and assistance to
        others.

2.      A lawyer should seek to improve the justice system.

3.      A lawyer must not act in a manner that might weaken public respect for the law or justice system or
        interfere with its fair administration.

4.      A lawyer should support and contribute to the profession's efforts to make legal services available to all
        who require them, regardless of ability to pay.

5.      ,A lawyer must not decline to act in a meritorious matter unless the lawyer makes reasonable efforts to
        assist the client in obtaining competent representation.
                                                                                                              Dec2005

6.      A lawyer must be courteous and candid in dealings with others.

7.      A lawyer's position must not be used to take unfair advantage of any person or situation.

8.      Except under extraordinary circumstances, a lawyer must not record a conversation with anyone, nor
        enable a third party to hear the conversation, without first obtaining the consent of the person to whom
        the lawyer is speaking.

9.      A lawyer must not harass any person or discriminate against any person on the basis of race, language,
        creed, colour, national or ethnic origin, gender, religion, marital status, sexual orientation, age, mental
        disability or physical disability or otherwise or on the basis of any similar personal attribute.

10.     A lawyer must not sexually harass a colleague, staff member, client or other person.

                                                  COMMENTARY
General

G.1     Lawyers have a quasi-official position in society by virtue of the privileges conferred on them by the state.
        Such privileges include the profession's right of self-regulation as well as its exclusive entitlement to
        advise others of their rights and limitations under the law, to represent them as advocates and to appear
        on their behalf in a court of law. The Legal Profession Act provides that no person other than a lawyer is
        authorized to practise law.

        As a consequence of this position of privilege, lawyers have certain enhanced responsibilities to society.
        The first is to ensure that competent and high-quality legal services are readily available at reasonable
        cost to those who require them. Lawyers also have an obligation to ensure that legal services are
        generally available to those that require them, and have an obligation to support legal aid plans and
        referral services, and to act on a pro bono basis in appropriate cases. There is an obligation on lawyers
        to educate the public and to assist the public, in recognizing when legal assistance may be of benefit and
        in making an informed decision as to which lawyer or firm to retain (see also Chapter 5 – Advertising). As



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        well, lawyers have a responsibility not to use their position to unfair advantage and must deal with others
        in an honourable manner.

        As officers of the court lawyers also have obligations with respect to the administration of justice. For
        example, they must safeguard the due process of law and the proper operation of institutions of justice.
        As Rule #2 makes clear, constructive efforts to improve the justice system are consistent with this
        obligation. In contrast, behaviour that is destructive or scornful of the justice system is inconsistent with a
        lawyer's position and responsibilities.
                                                                                                                    Dec2005

R.1     A lawyer must respect and uphold the law in personal conduct and in rendering advice and
        assistance to others.

C.1     Due to the connection of lawyers with the administration of justice and the public scrutiny to which their
actions will be subjected, a breach of law committed by a lawyer has potentially serious implications. A lawyer
therefore has an ethical as well as a legal obligation to obey the law.
"The law" for the purposes of Rule #1 is to be broadly interpreted and includes common law, such as tort law, in
addition to criminal and quasi-criminal statutes, However, not every breach of the law will be considered conduct
deserving of sanction. The Law Society's primary concern is to protect the public and the integrity of the
profession by ensuring that each member of the profession is an appropriate individual to practise law. All
relevant circumstances of an offence will therefore be taken into account, including its nature and seriousness
and the existence of previous violations. Behaviour that is notorious or public in nature or that has a
dishonourable element (such as failure to pay a civil debt in the absence of a legitimate dispute or other
justification) is the kind of conduct that may invoke ethical sanction.
A lawyer must also exhibit respect for the law in dealings with others. As to advising or assisting a client to commit
a crime or fraud see Rule #11 of Chapter 9, The Lawyer as Advisor, and Rule #4 of Chapter 12, The Lawyer in
Corporate and Government Service. Generally, any involvement of a lawyer with illegal conduct, however indirect,
has the potential to encourage public disrespect for the law itself as well as the profession and its members.
Even the honest belief of a lawyer in the unjustness of a law does not justify advocating that a client or any other
person deliberately violate the law. A lawyer in these circumstances has an obligation to seek amendment or
abolition of the law through the normal democratic process (see Rule #2). However, Rule #1 is not intended to
prevent a lawyer from advising a client who, in good faith and on reasonable grounds, desires to challenge or test
a law through a violation of the law, provided that this is the most effective means of achieving the client's
objective and the violation does not involve injury or material damage to any person or property.
R.2     A lawyer should seek to improve the justice system.

C.2     Efforts to improve the justice system, including constructive criticism of its operation and institutions, are
consistent with a lawyer's responsibilities to the administration of justice. Legal training and the opportunity to
observe the justice system in operation uniquely qualify lawyers to evaluate and seek improvements to that
system. The justice system includes not only the courts and the judiciary, but all public institutions involved with
the administration of justice such as the legal profession, the police department, and various governmental
departments and agencies, including legislative bodies.
Implicit in Rule #2 is the duty to report misconduct by persons connected with the justice system. See also Rule
#4 of Chapter 3, Relationship of the Lawyer to The Profession, respecting the duty to report the misconduct of
colleagues in the legal profession.
A lawyer's efforts to improve the justice system must be constructive and bona fide in nature. Whether seeking a
legislative or administrative change, speaking out against an injustice or perceived weakness in the system or
expressing other criticism, a lawyer must act with intelligence, professionalism and due deliberation.
Moreover, the party or parties to whom criticism is expressed must be appropriate under the circumstances. In
some instances, this will be the Law Society; in others, the Judicial Council, the police department, the police
commission or the media. In deciding whether to publicize criticism through the media, a lawyer must consider all
possible consequences, such as loss of control over how the lawyer’s comments are ultimately reported and
inability of the subject of the criticism to respond in any meaningful way.



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Although proceedings and decisions of the courts are properly subject to scrutiny and criticism by all citizens, a
lawyer who chooses to criticize such matters or the judiciary itself must take into account the following
considerations:
            an opinion expressed by a lawyer may be given particular weight or credibility due to the lawyer's
             professional knowledge and connection with the legal system;

            if a lawyer voicing an opinion has been involved in the proceedings at issue, the lawyer's comments
             may be, or may appear to be, partisan rather than objective; and

            judges are often prohibited by law or custom from speaking in their own defence. In this regard, a
             lawyer may in some circumstances have an obligation not only to refrain from expressing criticism,
             but to defend the court if it is the subject of unjust criticism.

Finally, a lawyer seeking reform to the justice system must disclose whether it is sought in the public interest, on
the lawyer's own behalf or on behalf of a client, although the name of a client may not be divulged in the absence
of express or implied authorization. (see Rule # 2 of Chapter 7, Confidentiality)
R.3     A lawyer must not act in a manner that might weaken public respect for the law or justice system
        or interfere with its fair administration.

C.3       Society expects that the legal profession will play a leading role in protecting the integrity of the justice
system and ensuring that it functions properly. A lawyer's behaviour is incompatible with this role if it encourages
public disdain or disregard for the administration of justice. Examples are deliberate flouting of the law or other
flagrant disrespect for an aspect of the justice system; irresponsible or unjustified allegations of corruption or
partiality; criticism that is ill-considered or malicious; disrupting judicial or administrative proceedings; and
suggesting to a client or other person that evasion of the law is acceptable.
R.4     A lawyer should support and contribute to the profession's efforts to make legal services
        available to all who require them, regardless of ability to pay.

C.4     The right of every person to legal counsel creates a corresponding obligation on the part of society and
the profession to supply legal representation. Such representation must be available in fact, and not merely in
theory, or the right to counsel is meaningless.
Members of society with the most pressing need for legal services often encounter difficulty in obtaining
representation because of economic or social disadvantages. Lawyers should be willing to assist such persons
through participating in legal aid programs, accommodating requests by the court to represent parties appearing
before the court, and reducing or waiving fees in appropriate circumstances.
A lawyer should be slow to decline to act for a disadvantaged client unless the refusal has substantial ethical
justification. For example, a representation may be prohibited by the rules of this Code relating to competence or
conflicts of interest, or it may be likely to place an unreasonable burden on the lawyer. In such cases it is proper
for the lawyer to refuse the representation but, depending on the circumstances, there may be an obligation to
assist the client in finding other counsel. (see Rule #3 of Chapter 2, Competence, and Rule #5 of Chapter 1.
Relationship of the Lawyer to Society and the Justice System).
                                                                                                                     Dec2005

R.5     A lawyer must not decline to act in a meritorious matter unless the lawyer makes reasonable
        efforts to assist the client in obtaining competent represenation.

C.5       “Client” in the context of Rule #5 includes a potential or prospective client. A lawyer is generally entitled
to decline to act in any matter provided that reasonable efforts are made to ensure that a meritorious cause does
not go unrepresented. Such efforts would normally consist of referring the client to a firm member, directing the
client to a lawyer referral service or legal aid program, or identifying for the client two or three lawyers believed to
be competent in the area in question.
A lawyer should be slow to exercise the right to decline a representation when the client is disadvantaged in some
respect, particularly if the court has requested that the lawyer act for the disadvantaged client. See Commentary
4 of Chapter 1, for a discussion of the considerations that apply. If a lawyer is permitted or obligated by this Code



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to decline a representation requested by the court, that lawyer must then cooperate with the court, if so
requested, in reasonable efforts to obtain counsel for the client.
It is improper to decline a representation solely because it involves allegations of misconduct on the part of a
colleague. The client with a meritorious claim against a lawyer should not encounter undue difficulty in obtaining
competent representation. A willingness to act in such a situation as well as to report ethical violations to the Law
Society is consistent with a lawyer’s duties to the profession and the public (see also Rule #4 and accompanying
Commentary of Chapter 3, Relationship of Lawyer to the Profession).
If a client’s position or claim is clearly without merit, the lawyer must decline to act (see Rule #1 of Chapter 10,
The Lawyer as Advocate) and has no obligation to assist the client to find another lawyer.
If a lawyer is not competent to handle a particular matter, it is generally improper for the lawyer to act but, again,
the lawyer must exert reasonable efforts to assist the client in obtaining competent representation (see Rule #3 of
Chapter 2, Competence).
                                                                                                                    Dec2005

R.6     A lawyer must be courteous and candid in dealings with others.

C.6     A lawyer has an obligation to refrain from conduct that is rude, dishonest or misleading or that is
otherwise inconsistent with the lawyer's professional standing. This obligation includes the duty to respond within
a reasonable time, given all of the circumstances, to telephone calls, correspondence and other communications.
A lawyer also has a responsibility to refrain from employing means in the representation of a client having no
substantial purpose other than to embarrass, delay or annoy another party. (see Commentaries 1 and 2 of
Chapter 10, The Lawyer as Advocate).
If a lawyer is dealing on a client's behalf with an unrepresented person, the duty of candour requires special
efforts to clarify the lawyer's role. In particular, it is necessary to explain that comments and information offered by
the lawyer are likely to be partisan in nature and that the lawyer is not acting in the interests of the unrepresented
person (see also Rule #5 of Chapter 11, The Lawyer as Negotiator).
                                                                                                                    Dec2005

R.7     A lawyer's position must not be used to take unfair advantage of any person or situation.

C.7       The opportunity for abuse is present in any position of privilege, including the quasi-official position in
society held by a member of the legal profession. Lawyers must therefore conduct themselves in a manner that
excludes any suggestion of abuse. With regard to clients, a lawyer is frequently in a dominant position due to
legal knowledge and professional experience. The client, in contrast, may be made particularly vulnerable by the
client's legal problem. As a consequence, lawyers must ensure that the relationship formed with clients is not
condescending or manipulative, but one of mutual trust and respect. Furthermore, any appearance of unfair
advantage or undue influence must be avoided. As to business transactions with clients (see Rule #9 of Chapter
6, Conflicts of Interest).
With regard to third parties, the taking of an unfair advantage equates to conduct that a normal person, acting
reasonably, would consider to be dishonourable (see also Commentary G.1 of Chapter 8, The Lawyer and the
Business Aspects of Practice). Negotiation with an unrepresented party is the subject of Rule #5 of Chapter 11,
The Lawyer as Negotiator.
A lawyer who seeks political or social reform through espousal of a cause must ensure that clients continue to
receive independent representation and that no client becomes a tool for the lawyer to advance a personal cause
or belief (see Rule #8 of Chapter 6, Conflicts of Interest).
                                                                                                           Nov2001;Dec2005

R.8     Except under extraordinary circumstances, a lawyer must not record a conversation with anyone,
        nor enable a third party to hear the conversation, without first obtaining the consent of the person
        to whom the lawyer is speaking.

C.8     This rule is intended to operate independently of laws dealing with invasion of privacy. An example of a
circumstance that would justify recording a conversation without consent is a police request that a telephone
conversation be recorded to protect a lawyer who has been threatened.
                                                                                                                    Dec2005



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R.9     A lawyer must not harass any person or discriminate against any person on the basis of race,
        language, creed, colour, national or ethnic origin, gender, religion, marital status, sexual
        orientation, age, mental disability or physical disability or otherwise or on the basis of any similar
        personal attribute.

C.9      A lawyer has an ethical obligation to recognize the essential dignity of each individual and the principle of
equal rights and justice for all persons. Rule #9 applies to lawyers' personal, social and professional relationships
with all persons and classes of persons, including clients and prospective clients, employees, other lawyers, and
society in general. Rule #9 is not intended to prohibit practices that are reasonable and justifiable or otherwise
permissible under principles of general law. Discrimination is where a person or a group is disadvantaged, denied
an opportunity or treated adversely because of a distinction relating to personal attributes within the prohibited
grounds. Stereotyped views often cause discriminatory conduct. In some cases strictly equal or even-handed
application of rules or policies may be discriminatory against a person or a group because of the differing impact
those rules or policies have on those individuals or groups. This is called adverse discrimination and creates a
duty to take reasonable steps to accommodate the special needs of those individuals and groups.
Harassment may encompass conduct which:
        (a)      undermines another person’s dignity by causing embarrassment, discomfort or humiliation;

        (b)      creates an intimidating or hostile environment for the recipient of the harassment;

        (c)      is an abuse of one's status and exploits the power imbalance between the person or persons
                 engaging in harassing conduct and the recipient of the harassment;

        (d)      if submitted to or rejected, affects decisions regarding the person’s future. If the recipient of the
                 harassment is a client, this may affect the future provision of legal advice and services. In the
                 employment context this may include matters such as promotion, salary, benefits and job
                 security;

        (e)      either explicitly or implicitly must be submitted to as a term or condition prescribed by the
                 harasser; for example, as a condition for the provision of legal services or as a condition of
                 employment.

Harassment can be sexual, discriminatory or personal in nature. Sexual harassment is specifically addressed in
Commentary 10. Discriminatory harassment is harassment focused on a personal characteristic within one of the
prohibited grounds. It could take the form of name-calling nicknames (for an individual or a group of people),
demeaning the character of a person or group of persons or telling jokes about a person or a group of people.
Personal harassment is disrespectful and degrading conduct generally that is not specifically focused within the
prohibited grounds. It includes conduct that is rude, insulting, belittling or vindictive (see also Rules #2, #6 and #7
in this chapter and related commentaries).
The key in determining whether conduct is harassment is the impact the conduct has had on the complainant, not
the intent with which it was done. Harassment is different from offending a person; it involves undermining
another person's personal integrity.
The rule against harassment applies in the workplace. Employers and others in positions of authority have a
positive duty to provide a harassment-free working environment that does not undermine personal integrity,
economic potential or both. Legal employers are expected to have a harassment policy in place explaining both
the conduct expected in that work place and the steps to be taken if an employee wishes to make a complaint
about conduct.
The rule against harassment is a pervasive rule. It applies to lawyers' relations with clients, other lawyers, others
who work in the justice system (judges, court officials and staff, the police and prison guards, etc.) and members
of the general public.
                                                                                                                    Dec2005

R.10    A lawyer must not sexually harass a colleague, staff member, client or other person.




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C.10 A lawyer is ethically bound to promote the dignity and equality of all those in the work environment by
avoiding discriminatory practices in compliance with Rule #9 and, specifically, by rejecting sexual harassment.
Verbal or physical conduct having a sexual element constitutes sexual harassment when:
        (a)       it undermines another person's dignity by causing embarrassment, discomfort, humiliation or
                  offence;

        (b)       it interferes with a person's work performance by creating an intimidating or hostile work
                  environment;

        (c)       submission to or rejection of such conduct affects decisions regarding that person’s employment,
                  including matters such as promotion, salary, benefits and job security; or

        (d)       submission to such conduct is made, either explicitly or implicitly, a term or condition of
                  employment or the rendering of professional services.

Sexual harassment can occur as behaviour by men toward women, by women toward men, between men or
between women. Sexual assault is an obvious example of sexual harassment. Other examples include the
following behaviours in situations in which the offender knows or ought to know that the behaviour is unwelcome,
embarrassing or offensive or will adversely affect a recipient's work environment (see paragraphs (a) through (d)
above):
             telling sexist jokes, displaying material of a sexual nature or using sexually suggestive gestures;

             using sexually derogatory or degrading words to describe an individual or persons of one gender or
              sexual orientation;

             making innuendos, inquiries, propositions, requests or demands of a sexual nature;

             leering;

             pinching, patting, rubbing or other physical contact.
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                                                   CHAPTER 2
                                                  COMPETENCE
                                             STATEMENT OF PRINCIPLE
A lawyer has a duty to be competent and to render competent services.

                                                       RULES
1.      A lawyer, to be competent, must possess the skills and attributes relevant to each matter undertaken on
        behalf of a client and must apply them in a manner appropriate to that matter.

2.      A lawyer must not act or continue to act in any matter in which it may be reasonably foreseen that the
        lawyer will be unable for any reason to provide competent services.

3.      A lawyer who is prevented from acting or continuing to act by Rule #2 must make reasonable efforts to
        assist the client in obtaining competent representation.

4.      A lawyer may assign to support personnel only those tasks that they are competent to perform and must
        ensure that they are properly trained and supervised.

5.      A lawyer must refrain from conduct that impairs the lawyer's capacity or motivation to provide competent
        services.

                                                   COMMENTARY
General

G.1     Aspects of competence: The competence of lawyers is essential to the satisfactory operation of the legal
        system since it directly affects the ability of clients to enforce and benefit from legal rights. This principle
        applies whether a lawyer is acting as an advocate in the courtroom, where the proper functioning of the
        adversary system is dependent on the competence of counsel for all parties, or as a solicitor (for
        example, in the preparation of a contract).

        Competence is a continuum rather than an absolute standard of perfection. It is not expected that a
        lawyer will achieve a general condition of competence throughout all categories of legal services, but a
        lawyer should strive to attain the upper range of the continuum in those areas in which the lawyer
        practises.

        The term "competence" eludes precise definition because it encompasses a broad range of
        characteristics. Some of these, discussed in more detail below, are the following:

                          (a)    professionalism;
                          (b)    knowledge of the law, legal procedures and legal institutions;
                          (c)    sound professional judgment;
                          (d)    skill;
                          (e)    management and organization;
                          (f)    intellectual and emotional capacity to perform competently;
                          (g)    experience; and
                          (h)    maintenance and improvement of knowledge and skills. A lawyer has an
                                 obligation to maintain legal skills and knowledge and to keep abreast of
                                 developments in the lawyer's areas of practice. A lawyer should also seek to
                                 improve competence on an ongoing basis to facilitate optimum performance in
                                 each matter and should annually prepare a professional development plan. The
                                 plan may reflect many different learning activities in order to achieve these goals.




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        (a)      Professionalism. This characteristic comprises attitudes and values such as dedication to the
                 client's welfare, good work habits, an understanding of client relations, a general determination to
                 practise ethically and a high regard for the interests of society generally. An important aspect of
                 professionalism is attention to quality of service. A lawyer must be conscientious, diligent and
                 efficient in providing services. All deadlines must be met unless the lawyer is able to offer a
                 reasonable explanation and no prejudice to the client will result. Whether or not a specific
                 deadline applies, a lawyer must be prompt in prosecuting a matter, responding to
                 communications and reporting developments to the client. In the absence of developments,
                 contact with the client must be maintained to the extent reasonably expected by the client.

        (b)      Knowledge of the law, legal procedures and legal institutions. Lack of legal knowledge in a
                 particular area will not always prevent a lawyer from acting since it may be possible to acquire the
                 requisite knowledge within a reasonable time at no undue expense to the client. However, the
                 lawyer must also consider whether other circumstances, such as lack of experience or skill, would
                 make it unwise to agree to act despite the lawyer's ability to become technically knowledgeable in
                 the area (see paragraph (g) below).

        (c)      Sound professional judgment. The following are attributes that contribute to professional
                 judgment:

                 (i)      ability to assess the strengths and weaknesses of a client's case and recommend an
                          appropriate course of action;

                 (ii)     ability to recognize one's limitations and issues beyond one's competence;

                 (iii)    ability to identify problems created by an excessive workload and the steps that must be
                          taken to correct the situation;

                 (iv)     ability to assess whether the nature of a matter will justify the legal costs of bringing it to
                          its conclusion. A lawyer may be aware at the outset of a matter, or may become aware
                          during the course of a matter, that the costs of performing the requested services
                          completely and competently will be disproportionately high (for example, the appeal of a
                          relatively small judgment to the Supreme Court of Canada). This fact must immediately
                          be brought to the client's attention. If the client is not prepared to pay the full legal costs
                          as estimated by the lawyer, it will be necessary for the lawyer to decide whether to
                          withdraw or to perform the services for something less than an amount that fairly
                          compensates the lawyer. As to situations in which the client requests abbreviated
                          services, (see paragraph (c)(v) below);

                 (v)      ability to balance the obligation to be thorough with the obligation to be economical. While
                          it is ethically improper to spend a client's money foolishly or unnecessarily, it is also
                          unacceptable to curtail the scope of services in an effort to minimize legal fees when to
                          do so would compromise the lawyer's standard of competence. A lawyer must therefore
                          carefully assess in each case in which a client desires abbreviated or partial services
                          whether, under the circumstances, it is possible to render those services in a competent
                          manner. It may be permissible, for example, to prepare and register a non-arm's-length
                          transfer of land without attending to closing or the handling of funds, provided that the
                          client understands and accepts the risks involved. It may not be permissible to prepare
                          an abbreviated or simplified contract which, when viewed objectively, is incomplete or
                          insufficient to protect the client's interests. In this case, if the client is not willing to pay the
                          costs of an adequately detailed document, the lawyer must withdraw or provide complete
                          services for less than an amount that fairly compensates the lawyer.

                 In circumstances in which abbreviated or partial services may be rendered competently, the client
                 must be fully apprised of the risks and limitations of the retainer. Discussions with the client in this
                 regard must be confirmed in writing.




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        (d)      Skill. This attribute is essentially the ability to translate legal knowledge into action. Skill involves
                 the mastering of various techniques, including the following:

                    interviewing
                    counselling
                    research
                    negotiating
                    communicating, orally and in writing
                    drafting
                    advocacy
                    examining witnesses

        (e)      Management and organization. To be competent, a lawyer's services must be economical, timely
                 and efficient. A lawyer must therefore have adequate staff, equipment and facilities. As well, a law
                 office should implement support systems that effectively deal with aspects of daily practice such
                 as the following:

                    work management
                    accounting
                    file management
                    monitoring of limitation dates
                    quality control of legal and office processes and documents
                    monitoring of conflicts of interest

        (f)      Intellectual and emotional capacity to perform competently. A lawyer's capacity may be impaired
                 by alcohol or drug abuse, personal problems, health problems, work overload or excessive
                 involvement in outside activities. Motivation, a key aspect of capacity, may also be affected by a
                 more specific or temporary condition such as mental block. In such a case, the most effective
                 solution is often to turn the matter over to another lawyer.

        (g)      Experience. Lack of experience may not always prevent a lawyer from acting since, assuming
                 that no undue delay or expense is created for the client, an inexperienced lawyer may be able to
                 competently handle a matter through research, study, and possibly the supervision or assistance
                 of colleagues. However, certain representations, such as the handling of a murder trial, clearly
                 require experience.

        (h)      Maintenance and improvement of knowledge and skills. A lawyer has an obligation to maintain
                 legal skills and knowledge and to keep abreast of developments in the lawyer's areas of practice.
                 A lawyer should also seek to improve competence on an ongoing basis to facilitate optimum
                 performance in each matter and should annually prepare a professional development plan. The
                 plan may reflect many different learning activities in order to achieve these goals.

G.2     Incompetence vs. negligence: The ethical rules governing competence do not necessarily correspond to
        the legal rules governing negligence. An isolated incident or inadvertent error may constitute negligence
        and be legally actionable without amounting to incompetence. Conversely, conduct that (for example)
        evidences gross neglect in a particular matter, or a pattern of neglect or mistakes in different matters, may
        prompt Law Society intervention although it has not resulted in any loss or damage to a client.

G.3     Steps in rendering competent service: To render competent service in a particular matter, a lawyer will
        normally complete the following steps:

        (a)      Gather all of the facts relevant to the client's problem;

        (b)      Formulate and assess the material issues raised by the fact situation;

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        (d)      Develop an appropriate legal strategy to address the client's problem in consultation with the
                 client;

        (e)      Execute the legal strategy in a thorough yet economical manner that is responsive to the needs of
                 the client.

        In some cases, a lawyer may have a responsibility to suggest that experts be retained in areas in which
        the lawyer cannot competently advise the client, such as financial and accounting matters or family
        counselling. However, the services of experts must not be engaged on the client's behalf without the
        client's consent.

R.1     A lawyer, to be competent, must possess the skills and attributes relevant to each matter
        undertaken on behalf of a client and must apply them in a manner appropriate to that matter.

(see paragraph (h) of Commentary G.1)
R.2     A lawyer must not act or continue to act in any matter in which it may be reasonably foreseen that
        the lawyer will be unable for any reason to provide competent services.

C.2     The circumstances potentially preventing a lawyer from rendering competent service in a matter may be
of a personal or professional nature. For example, a lawyer may have personal feelings or beliefs about a client or
issue that would foreseeably create an impairment of professional judgment if a particular matter were undertaken
(see Rule #8 of Chapter 6, Conflicts of Interest).
Professionally, a lawyer may have unusually heavy commitments that would prevent the appropriate attention to a
matter or its timely prosecution. Timeliness in this context is not determined solely by the lawyer's calendar or the
welfare of the client; the lawyer must also consider the legitimate interests of opposing parties, the interests of the
administration of justice generally, and other relevant factors such as the possible application of the Charter of
Rights and Freedoms. As a consequence, the client's willingness to accept delay will not of itself be sufficient to
justify a lawyer's agreeing to act in a matter if the lawyer will be unable to advance the matter with reasonable
timeliness.
Alternatively, a lawyer may lack the necessary knowledge, skills or experience to perform competently. As noted
in paragraphs (b) and (g) of Commentary G.1, there are situations in which it may be appropriate for a lawyer to
become competent in order to undertake a matter. However, the lawyer must be realistic in assessing how
completely and efficiently the missing elements of competence can be acquired as well as the possibility of
prejudice to the client's position.
Rule #2 also applies to a lawyer who becomes unable to act competently in the course of a matter already
underway. In such a situation the lawyer ought to obtain assistance from other counsel or withdraw. See Rules #3
and #4 of Chapter 14, Withdrawal and Dismissal, for a discussion of a lawyer's duties and responsibilities in
connection with withdrawal.
R.3     A lawyer who is prevented from acting or continuing to act by Rule #2 must make reasonable
        efforts to assist the client in obtaining competent representation.

C.3      "Client" in the context of Rule #3 includes a potential or prospective client. Reasonable efforts to assist
the client would normally consist of referring the client to a firm member, directing the client to a lawyer referral
service or legal aid program, or identifying for the client two or three lawyers believed to be competent in the area
in question.
R.4     A lawyer may assign to support personnel only those tasks that they are competent to perform
        and must ensure that they are properly trained and supervised.

C.4.1 General: The obligation to train employees extends to ethical guidance (see, for example, Rule #4 of
Chapter 7, Confidentiality).
Supervision of every employee must be meaningful and effective. In particular, if a staff member is assisting a
lawyer in providing services that are legal in nature rather than clerical, the standard of supervision required is
extremely high. A system for periodic evaluation of employees facilitates the monitoring of competence on an
ongoing basis.



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Certain tasks in the provision of legal services may not be delegated to a non-lawyer. These include the following:
            accepting new cases;
            exercising professional judgment;
            negotiating or compromising a matter with another lawyer or third party;
            approving legal documents;
            advising on the merits of a case;
            setting fees;
            exercising judgment with respect to accepting, imposing or amending trust conditions;
            exercising judgment with respect to giving or accepting undertakings.

C.4.2 Students-at-law: A lawyer has particular duties and obligations with respect to students-at-law. Most
importantly, a lawyer must provide proper and complete articles to each student accepted, whether or not the firm
will be in a position to hire all students as associates.
A firm must offer its students a variety of experiences in different areas of the law and legal practice. A firm with
only a limited range of files should arrange with the approval of the Law Society to have the student work at
another office for an appropriate period. It is also essential that students be provided with training in office
procedures and the use of office systems and equipment.
A student-at-law is uniquely in need of support and supervision. A student's work and ability to deal with clients
must be monitored on an ongoing basis. Each student should be alerted to common pitfalls such as the misuse of
precedents, excessive reliance on staff, and inattention to proofreading and other detail. Accessibility and
receptiveness to students are important aspects of a proper program of supervision and training.
R.5     A lawyer must refrain from conduct that impairs the lawyer's capacity or motivation to provide
        competent services.

(see paragraph (f) of Commentary G.1)




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                                          CHAPTER 3
                        RELATIONSHIP OF THE LAWYER TO THE PROFESSION
                                            STATEMENT OF PRINCIPLE
A lawyer has a duty to uphold the standards and reputation of the profession and to assist in the
advancement of its goals, organizations and institutions.

                                                       RULES
1.      A lawyer must refrain from personal or professional conduct that brings discredit to the profession.

2.      All correspondence and remarks by a lawyer addressed to or concerning another lawyer, the Law Society
        or any other professional organization or institution must be fair, accurate and courteous.

3.      A lawyer must respond on a timely basis and in a complete and appropriate manner to any
        communication from the Law Society that contemplates a reply.

4.      A lawyer must report to the Law Society any conduct of which the lawyer has personal knowledge and
        which in the lawyer's reasonable opinion, acting in good faith, raises a serious question about the
        competence, honesty or trustworthiness of another lawyer, or is likely to harm any person.

                                                   COMMENTARY
General

G.1     In support of the continuing right to self-governance, each lawyer must accept personal responsibility for
        development of the profession by supporting its legitimate objectives and by seeking changes to its goals,
        organizations or institutions when the lawyer believes in good faith that such changes are necessary in
        the public interest.

        Collectively, lawyers also have a responsibility to enhance the profession through activities such as the
        following:

        (a)      sharing knowledge and experience with colleagues and students informally in day-to-day practice
                 as well as through contribution to professional journals and publications, support of law school
                 projects, and participation in panel discussions, legal education seminars, bar admission courses
                 and university lectures;

        (b)      participating in legal aid programs and community legal services;

        (c)      filling elected and volunteer positions with the Law Society;

        (d)      acting as directors, officers and members of local, provincial, national and international bar
                 associations and their various committees and sections;

        (e)      acting as directors, officers and members of organizations involved in liaison with other
                 professionals or in the reform or administration of the law.

R.1     A lawyer must refrain from personal or professional conduct that brings discredit to the
        profession.

C.1     Because of a lawyer's quasi-official position in society (see Chapter 1, Relationship of the Lawyer to
Society and the Justice System), the personal and professional behaviour of a lawyer may attract more attention
than that of a non-lawyer and may directly or indirectly influence the public's perception of the justice system and
the profession. It follows that a lawyer has a responsibility to avoid even the appearance of impropriety, and to act
in a manner that encourages the confidence, respect and trust of society.




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Behaviour considered to bring discredit to the profession would include incidents reflecting adversely on a
lawyer's personal integrity (such as those involving fraud or dishonesty) as well as conduct that is demeaning to
the profession or to the administration of justice generally (such as public abusiveness or offensiveness or
counselling illegal acts). (see also the Legal Profession Act; Rules #1 and #3 of Chapter 1, Relationship of the
Lawyer to Society and the Justice System; and Rule #2 of Chapter 15, The Lawyer in Activities Other Than the
Practice of Law)
R.2     All correspondence and remarks by a lawyer addressed to or concerning another lawyer, the Law
        Society or any other professional organization or institution must be fair, accurate and courteous.

C.2     The tone and content of remarks by a lawyer affecting the profession or one of its members must at all
times be appropriate, despite strongly-held opinions or personal animosities. With respect to criticism of
colleagues (see also Commentary G.2 of Chapter 4, Relationship of the Lawyer to Other Lawyers). Rule #2 is not
intended to inhibit honest disagreement or criticism, nor to curtail activities by lawyers designed to bring about
changes in the administration of justice or professional organizations such as the Law Society.
R.3     A lawyer must respond on a timely basis and in a complete and appropriate manner to any
        communication from the Law Society that contemplates a reply.

C.3      If a communication from the Law Society specifies a time for response, that deadline must be met or an
extension obtained. If no deadline is specified, response on a timely basis means response within a reasonable
time given all of the circumstances. The lawyer must also ensure that the reply adequately answers or explains all
points raised in the Law Society communication and complies with the requirements of Rule #2.
R.4     A lawyer must report to the Law Society any conduct of which the lawyer has personal knowledge
        and which in the lawyer's reasonable opinion, acting in good faith, raises a serious question
        about the competence, honesty or trustworthiness of another lawyer, or is likely to harm any
        person.

C.4.1 Because the profession is self-governing, instances of incompetence or impropriety on the part of its
members must be brought to the attention of the Law Society to protect the interests of the public. A fellow lawyer
is often the best judge of what constitutes incompetence or impropriety and, in addition, is usually in a position to
learn about a particular instance of such behaviour. In deciding whether a given incident or series of incidents is
required to be reported, a lawyer must first assess the credibility of information received respecting the conduct in
question. There is no duty to report or inquire into a mere rumour, suspicious circumstances or an incident coming
to the lawyer's attention through questionable sources.
If a lawyer is satisfied that an ethical violation has occurred, it is then necessary to evaluate its seriousness and
potential ramifications for the profession and the public. Rule #4 does not require that the lawyer report an
isolated occurrence that is trivial or a technical breach only.
If an ethical violation falls within Rule #4, it must be reported regardless of promises of rectification by the violator.
It is therefore improper to state or imply that the conduct will not be reported if certain events occur, or to use it as
the basis for threatening the violator. However, there may be ongoing conduct by a lawyer that is at first not
serious enough to warrant reporting but that will be aggravated, if it continues, to the level contemplated by Rule
#4. An example is repeated failure to respond to telephone calls or letters. Under these circumstances, a lawyer
may be justified in advising the offender that a report will be made to the Law Society unless the conduct is
corrected within a certain period of time.
If reporting the impropriety or incompetence of a colleague necessitates disclosure of information that is
confidential to a client of the lawyer, the consent of that client must be obtained prior to disclosure. If consent is
refused, the lawyer may, but is not obliged to, withdraw. Rule #4 therefore differs from the rules of this Code that
are stated to be subject to confidentiality since, in those instances, a client's wilful frustration of fulfilment of the
lawyer's ethical responsibilities compels withdrawal.




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C.4.2 Improper conduct often arises from emotional, mental or family disturbances or substance abuse.
Lawyers who suffer from such problems should be encouraged to seek help as early as possible. The Law
Society supports the ASSIST Program and similar agencies in their commitment to the provision of counselling on
a confidential basis. Therefore, a lawyer who is making a bona fide effort to have another lawyer seek help for
such problems is not required to report to the Law Society noncriminal conduct of that lawyer that would otherwise
have to be reported under Rule #4. However, the lawyer must advise the Law Society if there are reasonable
grounds to believe that the other lawyer will engage in conduct that is criminal or is likely to harm any person or of
any conduct under Rule #4 if the lawyer refuses or fails to seek help.
                                                                                                                  Apr2002

See Law Society Rules #31.1 and #31.2 which, respectively, exempt:
        (a)      the Office of the Practice Advisor from reporting conduct unless it relates to the misappropriation
                 or the likely misappropriation of funds, or to the likelihood of physical harm to any person;

        (b)      the Office of the Equity Ombudsperson from reporting any conduct unless it relates to the
                 misappropriation or the likely misappropriation of funds.




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                                          CHAPTER 4
                        RELATIONSHIP OF THE LAWYER TO OTHER LAWYERS
                                            STATEMENT OF PRINCIPLE
A lawyer has a duty to deal with all other lawyers honourably and with integrity.

                                                      RULES
1.      A lawyer must not lie to or mislead another lawyer.

2.      If a lawyer becomes aware during the course of a representation that

        (a)      the lawyer has inadvertently misled another lawyer; or

        (b)      the client, or someone allied with the client or client's matter, has misled another lawyer,
                 intentionally or otherwise; or

        (c)      the lawyer or the client, or someone allied with the client or client's matter, has made a material
                 representation to another lawyer that was accurate when made but has since become inaccurate;

        then (subject to confidentiality - see Rule #7 of Chapter 7, Confidentiality) the lawyer must immediately
        correct the resulting misapprehension on the part of the other lawyer.

3.      A lawyer must not take advantage of a mistake on the part of another lawyer if to do so would obtain for
        the lawyer's client a benefit to which the client has no bona fide claim or entitlement.

4.      A lawyer must agree to reasonable requests by another lawyer for extensions of time, waivers of
        procedural formalities and similar accommodations unless the client's position would be materially
        prejudiced.

5.      A lawyer must be punctual in fulfilling commitments made to other lawyers and must respond on a timely
        basis to all communications from other lawyers that contemplate a reply.

6.      If a lawyer is aware that a party is represented by counsel in a particular matter, the lawyer must not
        communicate with that party in connection with the matter except through or with the consent of its
        counsel.

7.      A lawyer may give a second opinion to a client regarding a matter in the hands of another lawyer.

8.      A lawyer who comes into possession of a privileged written communication of an opposing party through
        the lawyer's own impropriety, or with knowledge that the communication is not intended to be read by the
        lawyer, must not use it nor the information contained therein in any respect and must immediately return
        the communication to opposing counsel, or if received electronically, purge the communication from the
        system.

9.      When a lawyer leaves a firm to practise elsewhere, the following rules apply:

        (a)      The clients' interests are paramount and, accordingly, the decision whether the lawyer will
                 continue to represent a given client must be made by the client in the absence of undue influence
                 or harassment by either the lawyer or the firm.

        (b)      In their relationship and dealings with each other, the lawyer and the firm must conduct
                 themselves in a manner that is honourable, professional and consistent with the best interests of
                 the profession.

10.     A lawyer must honour all undertakings given by the lawyer regardless of their form or the manner in which
        they have been communicated.



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11.     The following rules govern the use of trust conditions:

        (a)      An entrustor seeking to impose trust conditions on a lawyer must set forth each trust condition
                 clearly, unambiguously and in writing.

        (b)      No trust condition imposed by the entrustor may be inconsistent with the terms of the clients'
                 agreement.

        (c)      Subject to paragraph (b), the entrustor must not impose any trust condition that is impractical or
                 manifestly unfair.

        (d)      The entrustor must clearly specify the subject matter of the trust (the "entrusted property") and
                 must not subsequently purport to add to or vary the entrusted property without the express
                 consent of the entrustee.

        (e)      If one or more of the trust conditions imposed on a lawyer is:

                 (i)      unclear or ambiguous;

                 (ii)     inconsistent with the terms of the clients' agreement; or

                 (iii)    impractical or manifestly unfair,

                 or if that lawyer is unable or unwilling to honour one or more of the trust conditions for some other
                 reason, then that lawyer must forthwith:

                          (A)     return the entrusted property to the entrustor, or

                          (B)     reach agreement with the entrustor to amend or clarify the trust conditions.

        (f)      If the parties agree on an amendment to or clarification of the trust conditions, the amendment or
                 clarification must be confirmed in writing.

        (g)      When a trust condition falling within subparagraph (e)(i), (ii) or (iii) above has not been amended
                 or clarified by agreement within a reasonable time of the entrustee's receipt of the entrusted
                 property, the entrustee must return the entrusted property to the entrustor.

        (h)      When a trust condition that the entrustee is unable or unwilling to honour for reasons other than
                 those described in subparagraphs (e)(i), (ii) and (iii) above has not been amended by agreement
                 within a reasonable time of the entrustee's receipt of the entrusted property, the entrustee must
                 either:

                 (i)      return the entrusted property to the entrustor, or

                 (ii)     accept the trust conditions as originally stated by the entrustor.

        (i)      If a lawyer receives something which on a reasonable construction has been forwarded to the
                 lawyer in trust, but which is not accompanied by express trust conditions, the lawyer must
                 proceed in accordance with paragraphs (e), (f) and (g) above, which shall apply with the
                 necessary changes in detail.

        (j)      No trust conditions may be added to, withdrawn or varied by the entrustor, whether or not they
                 have been acted on by the entrustee, without the express consent of the entrustee.

        (k)      A lawyer who has agreed, expressly or impliedly, to trust conditions or amendments is bound by
                 them, whether or not they have been recorded in writing as required by this rule, and whether the
                 lawyer is dealing with another lawyer or with a third party.
                                                                                                                  Dec1998




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                                                   COMMENTARY
General

G.1     Meaning of "other lawyers": The duties owed by a lawyer to other lawyers are owed to members of the
        bar and students-at-law of every jurisdiction, whether or not authorized to practise law in Alberta. Such
        duties must also be observed in dealings with members of one's own firm.

G.2     Good relations among members of the bar are important from several perspectives. They contribute to
        the effective and expeditious dispatch of clients' business while enhancing working conditions for lawyers.
        To the extent that dealings among counsel are observed by the public, polite and professional conduct
        fosters respect for lawyers on an individual and collective basis. Conversely, rude or offensive behaviour
        reflects adversely on the lawyer involved, the profession and the administration of justice.

        Examples of specific conduct contrary to the principles of this chapter are the use of relative seniority to
        take advantage of a colleague of lesser experience or standing, and unfair criticism or denigration of a
        colleague, particularly when publicized to others (for example, in a courtroom or by letter copied to a
        client). Personal animosities and emotional factors must not be permitted to affect the professional
        relationship between counsel, which should be characterized at all times by courtesy and objectivity (see
        also Rule #2 of Chapter 3, Relationship of the Lawyer to the Profession).

        In determining how a matter will be conducted, a lawyer must act in good faith and with due regard for the
        legitimate rights of opposing parties and counsel. Rule #3 addresses one aspect of sharp practice; other
        conduct that is improper includes obstructing opposing counsel's access to evidence or witnesses,
        occasioning unnecessary costs or delay, and intentionally violating an established rule of procedure or
        evidence (see also Commentaries 1 and 2 of Chapter 10, The Lawyer as Advocate).

        A lawyer should be prepared to assist a colleague not adverse in interest, particularly one in distress, by
        (for example) discussing problems of a personal or professional nature and rendering advice, or referring
        the colleague to other sources of support.

        When dealing in a professional capacity with a non-lawyer representing another person, or with a person
        not represented by counsel, a lawyer has the same general duties of honesty, courtesy and good faith
        that are owed to professional colleagues. In addition, a lawyer may have special duties if the person is
        unrepresented (see, for example, Commentary 6 of Chapter 1, Relationship of the Lawyer to Society and
        the Justice System; Commentary 8.1 of Chapter 10, The Lawyer as Advocate; and Rule #5 of Chapter
        11, The Lawyer as Negotiator).

R.1     A lawyer must not lie to or mislead another lawyer.

C.1     This rule expresses an obvious aspect of integrity, one of the fundamental principles underlying this
Code. In no situation, including negotiation, is a lawyer entitled to deliberately mislead a colleague (see also Rule
#1 of Chapter 9, The Lawyer as Advisor, and Rule #1 of Chapter 11, The Lawyer as Negotiator).
When a lawyer (in response to a question, for example) is prevented by the rules of confidentiality from actively
disclosing the truth, a falsehood is still not justified. The lawyer has other alternatives, such as declining to
answer. If this approach would in itself be misleading, the lawyer must seek the client's consent to such disclosure
of confidential information as is necessary to prevent the other lawyer from being misled. (see Rule #7 of Chapter
7, Confidentiality)
R.2     If a lawyer becomes aware during the course of a representation that

        (a)      the lawyer has inadvertently misled another lawyer; or

        (b)      the client, or someone allied with the client or client's matter, has misled another lawyer,
                 intentionally or otherwise; or

        (c)      the lawyer or the client, or someone allied with the client or client's matter, has made a
                 material representation to another lawyer that was accurate when made but has since
                 become inaccurate;


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        then (subject to confidentiality - see Rule #7 of Chapter 7, Confidentiality) the lawyer must
        immediately correct the resulting misapprehension on the part of the other lawyer.

C.2.1 General: In addition to refusing to deliberately mislead other counsel, a lawyer has an obligation to ensure
that a statement or action of the lawyer does not result in an inadvertent misrepresentation. To the extent
possible, a lawyer must also prevent a false impression from being created by the client or someone allied with
the client (such as an employee, friend or relative) or with the client's matter (such as an expert or a witness).
While a lawyer cannot be responsible for persons who are independent of the client or associated with an
opposing side, a degree of control must be exerted over those subject to the lawyer's direction.
The terminology used in Rule #2 is to be broadly interpreted. The concept of "misleading" includes creating a
misconception through oral or written statements, other communications, actions or conduct, failure to act, or
silence. A lawyer may have provided technically accurate information that is rendered misleading by the
withholding of other information; in such a case, there is an obligation to correct the situation. In paragraph (c) of
Rule #2, the concept of an inaccurate representation is not limited to one that would be actionable at law.
An example of a situation caught by paragraph (c) is the unexpected death or recovery of an injured plaintiff
during settlement negotiations. Similar situations may occur in matters not involving litigation. If it is reasonable to
assume that an opposing party is continuing to rely on a representation expressly or impliedly made by a lawyer
or someone subject to the lawyer's direction, Rule #2 applies.
The obligation to correct the misapprehension of another lawyer does not necessarily require disclosure of further
or new information. It may be sufficient to merely advise the other lawyer not to rely on the previous information.
Also, Rule #2 does not apply when opposing counsel has a misunderstanding not attributable to the lawyer, the
client or someone allied with the client or client's matter.
C.2.2 "Subject to confidentiality": This condition is the subject of a rule and commentary in Chapter 7,
Confidentiality. Briefly, if correction of the misrepresentation requires disclosure of confidential information, the
lawyer must seek the client's consent to such disclosure. If the client withholds consent, the lawyer is obliged to
withdraw.
R.3     A lawyer must not take advantage of a mistake on the part of another lawyer if to do so would
        obtain for the lawyer's client a benefit to which the client has no bona fide claim or entitlement.

C.3       This rule is directed at sharp practice. It becomes operative when two elements are present: an obvious
mistake by opposing counsel, and a benefit flowing from that mistake to which the lawyer's client is clearly not
entitled.
A clerical or arithmetical error is an example of an obvious mistake. However, an act or omission by another
lawyer that appears questionable but that may have involved a conscious exercise of judgment is not a mistake of
the kind contemplated by Rule #3. For example, an opponent's acceptance of an apparently unfavourable
contract or settlement offer, or the failure of a Crown prosecutor to raise the criminal record of an accused, may
have been the result of careful consideration, including factors of which the lawyer is not aware.
As to the second element of Rule #3, a client has no legal entitlement to a benefit created solely through error.
Consequently, it is improper for a lawyer to knowingly proceed on the basis of an incorrect statement of
adjustments or a transfer that misdescribes the property intended to be bought and sold. The benefit that would
be obtained by the client is unwarranted and without independent legal support.
On the other hand, a defendant in a lawsuit has a legal right to insist that proceedings be brought within a certain
period of time. Accordingly, while the missing of a limitation date by plaintiff's counsel may be an obvious mistake,
the defendant's lawyer does not violate Rule #3 by allowing the limitation period to expire.
R.4     A lawyer must agree to reasonable requests by another lawyer for extensions of time, waivers of
        procedural formalities and similar accommodations unless the client's position would be
        materially prejudiced.

C.4     An important element of the duty of courtesy to other lawyers is willingness to accede to reasonable
requests that do not affect the client's position in any material respect. What is reasonable in any given case will
depend on all of the circumstances. For example, a sole practitioner who is suddenly incapacitated, or a lawyer
who has received instructions to defend an action on the eve of the deadline for responding, would in most cases
be acting reasonably in requesting an extension of time to file a statement of defence.


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As noted in Commentary G.2, cooperation of this nature assists in expediting the clients' business. Forcing one's
opponent to make a court application that will surely be granted not only antagonizes opposing parties, but
causes additional delay and expense for both sides.
It is not sufficient justification for a refusal to cooperate that a client has so instructed the lawyer, since a client's
instructions can never override the ethical obligations of counsel. A lawyer must seriously question continuing to
act for a client who is adamant about refusing cooperation after all of the implications of so doing (including the
additional delay and expense mentioned above) have been fully explained.
R.5     A lawyer must be punctual in fulfilling commitments made to other lawyers and must respond on
        a timely basis to all communications from other lawyers that contemplate a reply.

C.5     Responding promptly to telephone calls and correspondence and being punctual for appointments are
important aspects of courteous professional dealings. Much of the delay and tardiness displayed by lawyers has
no substantial justification. When a letter or telephone message is received from a colleague, a lawyer must not
avoid responding because of personal animosities or because the information to be conveyed may provoke a
confrontation or other unpleasantness. Even in circumstances in which the information sought cannot or ought not
to be provided, the lawyer is ethically obliged to courteously recognize the request. The phrase "on a timely basis"
as used in Rule #5 means response within a reasonable time given all of the circumstances.
Furthermore, it is unacceptable to keep others waiting for a meeting, examination or other pre-arranged
appointment unless the delay is legitimately unavoidable. Poor planning, a self-created emergency, or accepting a
telephone call only moments before an appointment provide insufficient justification.
R.6     If a lawyer is aware that a party is represented by counsel in a particular matter, the lawyer must
        not communicate with that party in connection with the matter except through or with the consent
        of its counsel.

C.6      A lawyer's obligations with respect to parties known to be represented by counsel are not limited to
situations in which the representation is a matter of record. The lawyer may have knowledge of the representation
through other sources. However, knowledge that a person usually retains a certain lawyer or firm does not trigger
Rule #6 in the absence of an awareness that the lawyer or firm has been retained in the matter at hand.
If an opposing party is an organization such as a corporation, association or government department, a lawyer is
prohibited from communicating about the matter with directors and officers of the organization and
management-level personnel having decision-making authority.
Rule #6 is intended to apply whether a lawyer is acting as a lawyer or is a party to the matter. However, Rule #6 is
subject to any contrary arrangement made with the consent of all parties and their counsel.
R.7     A lawyer may give a second opinion to a client regarding a matter in the hands of another lawyer.

C.7     A client may wish to obtain a second opinion from another lawyer. While a lawyer should not hesitate to
provide a second opinion, the obligation to be competent and to render competent services requires that the
opinion be based on sufficient information (see Commentary G.3 of Chapter 2, Competence). In the case of a
second opinion, such information may include facts that can be obtained only through consultation with the first
lawyer involved. If the client does not wish that lawyer to be contacted, additional considerations apply (see Rule
#2 and accompanying commentary of Chapter 9, The Lawyer as Advisor). (see also Rule #17 and accompanying
commentary of Chapter 9, The Lawyer as Advisor)
A second opinion ought not to be provided solely for the purpose of obtaining the client's business.
R.8     A lawyer who comes into possession of a privileged written communication of an opposing party
        through the lawyer's own impropriety, or with knowledge that the communication is not intended
        to be read by the lawyer, must not use it nor the information contained therein in any respect and
        must immediately return the communication to opposing counsel, or if received electronically,
        purge the communication from the system.

C.8     If a written communication has been obtained by a lawyer through deceit, fraud or other impropriety, it
must be returned to opposing counsel, or purged if received electronically, without copies having been made. The
lawyer is prohibited from using in any manner information acquired from the communication.




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It may be evident to a lawyer immediately upon receiving a privileged communication that it has been provided in
error, in which case the lawyer may not read the communication and must return it to opposing counsel, or purge
it, without copies having been made. Knowledge that a communication is not intended for the lawyer receiving it
will be imputed if, under the circumstances, it would have been unreasonable for the lawyer to come to any other
conclusion.
A lawyer who innocently reads all or a portion of a privileged communication before becoming aware of its nature
must advise opposing counsel of the lawyer's possession of the communication. The issue of whether or to what
extent the communication may be copied or its contents disclosed or used must then be resolved by agreement
or by the court. In the meantime, it is improper to use the communication or disclose its contents in any manner.
R.9     When a lawyer leaves a firm to practise elsewhere, the following rules apply:

        (a)      The clients' interests are paramount and, accordingly, the decision whether the lawyer will
                 continue to represent a given client must be made by the client in the absence of undue
                 influence or harassment by either the lawyer or the firm.

        (b)      In their relationship and dealings with each other, the lawyer and the firm must conduct
                 themselves in a manner that is honourable, professional and consistent with the best
                 interests of the profession.

C.9       While termination of an association between lawyers is not always amicable, the paramount consideration
is the interests of clients of the firm. All matters in connection with the termination should be handled accordingly.
With respect to notification of clients and distribution of files, the approach taken should be moderate, reasonable
and free of efforts by either the departing lawyer or the firm to influence unduly a client's instructions regarding
disposition of a current matter. An optimum solution would be mutual review of the client list and agreement as to
a fair and appropriate manner of contacting clients and obtaining written authorizations for the transfer of files
moving with the lawyer. Each party should be willing to agree that certain clients be contacted by the other party.
As to clients whom both parties wish to contact, a neutrally-worded letter should be jointly formulated that clearly
leaves the decision about future representation to the client. No client should be subjected to the unsolicited
urgings of either party. Should advice be actively sought by the client, the response of the lawyer contacted must
be professional and consistent with the client's best interests.
With respect to other dealings between the departing lawyer and the firm, the reputations of those involved and
the profession as a whole must take precedence over personal animosities. Reasonable notice should be given
by the departing lawyer to the firm in advance of notice to clients. The lawyer and firm must come to a mutually
acceptable arrangement respecting work-in-progress and disbursements outstanding on files that are to be
transferred with the lawyer. The transfer of a file and, consequently, the progress of a client matter should not be
unduly delayed. See also Commentary 9 of Chapter 13, Fees, respecting enforcement of a solicitor's lien, and
Commentary 5 of Chapter 14, Withdrawal and Dismissal, respecting the duties of former and successor counsel.
When a client chooses to remain with the firm, it is generally improper to charge the client for time expended by
another firm member in becoming familiar with the file.
R.10    A lawyer must honour all undertakings given by the lawyer regardless of their form or the manner
        in which they have been communicated.

C.10 A lawyer's undertaking is any promise made by the lawyer (written, oral or implied) that is relied upon in
some manner by another party. An undertaking is a matter of utmost good faith and must be personally fulfilled by
the lawyer giving it, whether or not the recipient of the undertaking is another lawyer. Failure to use the word
"undertaking" does not relieve a lawyer of this responsibility when the intention of the parties is clear.
Occasionally a client may covenant to do something through counsel. This situation warrants some care on the
part of the lawyer since, unless it is made manifestly clear that the client's covenant is not a personal undertaking
of the lawyer, responsibility for performance may be attributed to the lawyer.
When retained in a matter involving the performance of undertakings or trust conditions, a lawyer should fully
explain to the client at the outset the implications of a lawyer's undertaking or acceptance of a trust condition and
the fact that, having given an undertaking or accepted a trust condition, the lawyer will be unable to accept later
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R.11    The following rules govern the use of trust conditions:

        (a)      An entrustor seeking to impose trust conditions on a lawyer must set forth each trust
                 condition clearly, unambiguously and in writing.

        (b)      No trust condition imposed by the entrustor may be inconsistent with the terms of the
                 clients' agreement.

        (c)      Subject to paragraph (b), the entrustor must not impose any trust condition that is
                 impractical or manifestly unfair.

        (d)      The entrustor must clearly specify the subject matter of the trust (the "entrusted
                 property") and must not subsequently purport to add to or vary the entrusted property
                 without the express consent of the entrustee.

        (e)      If one or more of the trust conditions imposed on a lawyer is:

                 (i)      unclear or ambiguous;

                 (ii)     inconsistent with the terms of the clients' agreement; or

                 (iii)    impractical or manifestly unfair,

                 or if that lawyer is unable or unwilling to honour one or more of the trust conditions for
                 some other reason, then that lawyer must forthwith:

                          (A)    return the entrusted property to the entrustor, or

                          (B)    reach agreement with the entrustor to amend or clarify the trust conditions.

        (f)      If the parties agree on an amendment to or clarification of the trust conditions, the
                 amendment or clarification must be confirmed in writing.

        (g)      When a trust condition falling within subparagraph (e)(i), (ii) or (iii) above has not been
                 amended or clarified by agreement within a reasonable time of the entrustee's receipt of
                 the entrusted property, the entrustee must return the entrusted property to the entrustor.

        (h)      When a trust condition that the entrustee is unable or unwilling to honour for reasons
                 other than those described in subparagraphs (e)(i), (ii) and (iii) above has not been
                 amended by agreement within a reasonable time of the entrustee's receipt of the entrusted
                 property, the entrustee must either:

                 (i)      return the entrusted property to the entrustor, or

                 (ii)     accept the trust conditions as originally stated by the entrustor.

        (i)      If a lawyer receives something which on a reasonable construction has been forwarded to
                 the lawyer in trust, but which is not accompanied by express trust conditions, the lawyer
                 must proceed in accordance with paragraphs (e), (f) and (g) above, which shall apply with
                 the necessary changes in detail.

        (j)      No trust conditions may be added to, withdrawn or varied by the entrustor, whether or not
                 they have been acted on by the entrustee, without the express consent of the entrustee.

        (k)      A lawyer who has agreed, expressly or impliedly, to trust conditions or amendments is
                 bound by them, whether or not they have been recorded in writing as required by this rule,
                 and whether the lawyer is dealing with another lawyer or with a third party.




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C.11.1 General: The use of trust conditions is a mechanism that enables lawyers to implement a transaction
agreed upon by their respective clients. If a transaction is jeopardized because the lawyers are unable to agree
on trust conditions, the clients' opinion of those lawyers in particular and the profession in general will be
adversely affected.
Trust conditions are also occasionally used by non-lawyers. In a particular transaction, the entrustor or the
entrustee may not be a lawyer and will not, therefore, be subject to this Code. As a consequence, the
enforceability of trust conditions purported to be imposed on a non-lawyer may be subject to question. On the
other hand, a personal undertaking or trust condition accepted by a lawyer is binding on that person regardless of
whether the other party involved is also a member of the legal profession.
Failure of an entrustor to use the words "trust condition" or "in trust" does not relieve the entrustee from the
obligation to perform if the action required of the entrustee is clear, and it is reasonable to construe the request for
the action as a trust condition by virtue of the dealings between the parties or customary practice in the area.
C.11.2 Specific provisions: Rule 11(c): This paragraph has particular application to trust conditions imposing time
restraints or providing for the payment of penalty interest.
Rule 11(i): Express trust wording may not always be used, particularly if the person forwarding the property is not
a lawyer. The intention that the property be held in trust is often readily apparent nonetheless. If a lawyer believes
that a trust was probably intended but is unsure, the lawyer has an obligation to contact the other party for
clarification.
Rule (j): This paragraph prohibits the unilateral withdrawal or variation of trust conditions by an entrustor, whether
or not they have been acted on by the entrustee. Although the entrustor must therefore seek consent to any
change, the entrustee may have an obligation to agree pursuant to Rule #3 or Rule #4.
C.11.3 "Trust on a trust": Several paragraphs of Rule #11 address the alternatives available to an entrustee in
dealing with the subject matter of the trust and the trust conditions imposed by the entrustor. An option not open
to the entrustee is to attempt to impose trust conditions in turn on the entrustor. When a trust condition
arrangement, or an undertaking or exchange of undertakings, has been established and all of the conditions or
events giving rise to performance by the entrustee have been completed, the entrustee cannot escape or modify
performance by adding a new term or by seeking to impose a new obligation on the entrustor. Rather, the
entrustee must accept the trust conditions as stated by the entrustor, or seek amendment to those conditions in
accordance with Rule #11. If a client persists in instructions to impose a trust on a trust, the lawyer's duty is to
withdraw after complying with the trust conditions earlier accepted by the lawyer. (see Commentary 2(a) of
Chapter 14, Withdrawal and Dismissal)
Since an entrustee has no status or capacity to impose a trust on a trust despite the use of a phrase such as "in
trust", "on the trust condition that" or "on your undertaking", the entrustor to whom such an attempt is directed is
entitled to ignore it, but has an obligation to so advise the entrustee. The imposition of a trust on a trust must be
distinguished from the situation where an entrustor, concurrently with the imposition of trust conditions,
undertakes to do something in connection with the transaction. This practice does not violate Rule #11, and the
undertaking is binding on the entrustor in accordance with its terms.




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                                                    CHAPTER 5
                                                   ADVERTISING
                                             STATEMENT OF PRINCIPLE
Lawyers may advertise for the purpose of providing the public with information relevant to understanding
their rights and to the selection of a lawyer.

                                                        RULES
1.      A lawyer may advertise, provided that the advertising contains information relevant to the selection of
        counsel or to the understanding of rights and, further, is:

        (a)      demonstrably true, accurate and verifiable;

        (b)      neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive;

        (c)      consistent with public respect and confidence in the integrity of the profession and the
                 administration of justice; and

        (d)      consistent with these Rules.
                                                                                                                   Dec2005

2.      A lawyer must not advertise that the lawyer will make loans to clients, whether such loans are
        characterized as loans or cash advances with respect to claims.
                                                                                                            Jan2004;Dec2005

3.      A lawyer shall not solicit, either personally or through any third party, professional employment from a
        person who is believed to be in need of legal services, arising out of traumatic circumstances. This
        provision shall not apply:

        (a)      if the lawyer is contacted by a close relative or personal friend of the potential client for the
                 purpose of the consultation; or

        (b)      if the lawyer has a close family or professional relationship with the potential client.
                                                                                                                   Dec2005

4.       Law firms are permitted to use trade names, initials, logos, symbols, or the names of individuals or their
        professional corporations, provided that they are not misleading or confusing, and are otherwise
        consistent with these Rules.
                                                                                                                   Dec2005

5.      A lawyer must not state that the lawyer is a specialist or expert.
                                                                                                                   Dec2005

6.      A lawyer must ensure that any advertisement mentioning professional fees:

        (a)      is precise as to the services offered for each fee quoted;

        (b)      states whether other amounts, such as disbursements and taxes, will be charged in addition to
                 the fee; and

        (c)      is strictly adhered to in every applicable case; and

        (d)      does not compare the fees charged by the lawyer with those charged by another lawyer.
                                                                                                                   Dec2005




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7.      A lawyer must not give anything of value to a non-lawyer for recommending the lawyer's services or
        referring a client to the lawyer.
                                                                                                     Nov2001;Dec2005

8.      A lawyer must not invite public or media attendance involving a client unless the client has consented.
                                                                                                              Dec2005

                                                  COMMENTARY
General

G.1     Interpretation: In this chapter, "advertisement" or "advertising" means any statement (oral or written, or
        communicated through electronic media) made by a lawyer or firm to the public in general or to one or
        more individuals and having as a substantial purpose the promotion of the lawyer or firm.

G.2     The form and content of advertising is subject to the over-riding interest of protecting the public from
        misleading, confusing, or deceptive advertising, and must be consistent with the public respect and
        confidence in the integrity and independence of the profession, the administration of justice, and
        associated institutions.

        The public's right to know about the legal system and legal services, and to make informed decisions
        about the choice of legal counsel, must be balanced with the need to regulate professional advertising,
        the maintenance of professionalism and the protection of the public from irresponsible and misleading
        advertising (Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 SCR 232 [SCC]).

R.1     A lawyer may advertise, provided that the advertising contains information relevant to the
        selection of counsel or to the understanding of rights and, further, is:

        (a)      demonstrably true, accurate and verifiable;

        (b)      neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive;

        (c)      consistent with public respect and confidence in the integrity of the profession and the
                 administration of justice; and

        (d)      consistent with these Rules.

C.1      General: The practice of law, like other professions, calls for the exercise of subjective personal
judgment. Accordingly, claims about the quality of representation which may be provided by particular lawyers are
inherently incapable of verification. The consumers of legal services are vulnerable to unregulated advertising, as
they often lack the ability to evaluate competing claims as to the quality of legal services provided by particular
lawyers.
The following are examples of advertising practices which contravene the Rules set forth in subparagraphs (a)
through (d), above:
        (a)      The requirement of accuracy prohibits a misrepresentation of law or fact, or the omission thereof.
                 For example, a defence lawyer may not advertise the number of acquittals recorded by the lawyer
                 without also indicating the number of convictions or total number of criminal defence matters in
                 which the lawyer has been involved. Also unacceptable is a technically accurate advertisement
                 that may induce unrealistic expectations or otherwise mislead the public. General references to
                 large settlement amounts in personal injury actions may have this effect, especially if technical or
                 legal terms such as "structured settlement" are used without explanation.

                 An advertisement that states or implies qualitative superiority to another firm or lawyer is
                 generally unacceptable, because it cannot be verified according to any objective, widely-held
                 standard. For example, a claim that a firm is "the best" in a particular area cannot be proven. In
                 contrast, a statement, such as a quantitative statement making reference to "the largest firm in
                 Alberta", is acceptable as it is capable of verification. It is improper to compare the quality of a


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                 lawyer’s services with that of other lawyers, or to otherwise imply that the lawyer is able to obtain
                 results not achievable by other lawyers.

        (b)      Lawyers should carefully refrain from giving, or appearing to give, a general solution applicable to
                 all apparently similar individual problems, since slight changes in the fact situation may require a
                 material variation in the applicable advice. The public may otherwise be misled and may not
                 receive proper advice.

                 The use of dollar signs, terms such as “maximum recovery”, or other written or graphic material
                 that suggests the outcome of a legal matter may also be misleading or confusing. Disclaimers or
                 qualifying statements are not effective to cure the misleading, confusing or deceptive nature of
                 such advertisements. It is improper in any advertisement to make a statement which may raise
                 unjustified expectations about the results that a lawyer can achieve. Advertisements or other
                 claims that convey an impression that the ingenuity of the lawyer, rather than the merits of the
                 matter, is determinative to the outcome of the claim are likely to mislead, confuse or deceive a
                 member of the public. The use of statistical data or other information of past performance must
                 not convey a prediction of future success because it has the potential to be deceptive as it
                 ignores the specifics of the matter.

                 The advertising of fees may be subject to abuse and may be misleading, confusing or deceptive.
                 Due to the individuality of each problem, statements regarding average, minimum or estimated
                 fees may be misleading, as will information regarding results previously achieved, general or
                 average solutions, or expected outcomes.

                 Advertising is not the only means by which representations are made to the public. Other means
                 include the use of firm names, trade names, letterhead and logos, which is dealt with in more
                 detail by Rule 3 and the related Commentary. In addition, the way in which a lawyer’s practise is
                 presented to the public may constitute a representation about certain aspects of the practise. A
                 member of the public must not be misled as to the support systems and resources that are
                 available to the lawyer. A misleading impression can result from physical layout, office signage or
                 reception and telephone answering services, particularly when lawyers share space.
                                                                                                                    Feb2007

        (c)      Any means of interacting with the public must be consistent with public respect and confidence in
                 the integrity of the profession, the administration of justice, and the interests of society in general.

                 Examples of activities which contravene these Rules include:

                    techniques that amount to coercion, duress or harassment;
                    advertisements which convey a willingness to use strategies that directly or impliedly involve
                     illegalities, to use legal processes for inappropriate or unmeritorious purposes, or to
                     circumvent proper and ethical legal procedures, including statements about the
                     aggressiveness of a lawyer:;
                    advertisements which contain disparaging or demeaning representations about the opposing
                     parties, the judicial system, or others involved in a legal matter;
                    advertisements that are calculated to, or are likely to, take advantage of physical, mental or
                     emotional vulnerability of any person, such that the person would not be expected to exercise
                     reasonable judgment with regard to the retention of counsel;
                    interference with an existing file between a client and another lawyer, for the purpose of
                     obtaining the file, unless transfer of the file is initiated by the client. A lawyer is not prohibited,
                     however, from providing a second opinion to a client regarding a matter in which another
                     lawyer has been retained (see also Rule 3 and Commentary in this Chapter; Rule 7,
                     Commentary in Chapter 4, Relationship of the Lawyer to Other Lawyers; and Rule 17 and
                     Commentary in Chapter 9, The Lawyer as Advisor.);
                    the use of any advertising strategy which undermines the serious purpose of legal services
                     and the judicial system or has the potential to bring the profession into disrepute is
                     unprofessional and is prohibited. The prohibition includes the use of inflammatory
                     statements, undignified comments, or similar material unrelated to the selection of counsel. It


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                     also applies to the use of photographs or other depictions of: dramatic scenes, accidents or
                     injury victims, as well as dramatizations, emotional appeals, sound effects, hawkish
                     spokespersons, celebrity endorsements, or slapstick routines;
                    use or adoption of a firm name which is motivated by an intent or desire to obtain a more
                     desirable listing in a telephone book or directory (see also Rule 4, and related Commentary);
                    use of testimonials or endorsements which contain emotional appeals, are misleading, create
                     unreasonable expectations, or otherwise offend these rules;
                    offers of incentives or gifts which are not objectively relevant to the selection of a lawyer;
                    use of any means that may bring the administration of justice into disrepute.

The publication of client names or other information about clients is improper unless their prior consent has been
obtained (see Rule 2 of Chapter 7, Confidentiality).
Nothing in these Rules prohibits lawyers from engaging in advertisements publicizing their charitable and
philanthropic activities in the community.
                                                                                                                   Feb2007

R.2     A lawyer must not advertise that the lawyer will make loans to clients, whether such loans are
        characterized as loans or cash advances with respect to claims.

C.2      This Rule applies to the conduct of a lawyer personally or in relation to entities either related to or
controlled by a lawyer.
R.3     A lawyer shall not solicit, either personally or through any third party, professional employment
        from a person who is believed to be in need of legal services, arising out of traumatic
        circumstances. This provision shall not apply:

        (a)      if the lawyer is contacted by a close relative or personal friend of the potential client for
                 the purpose of the consultation; or

        (b)      if the lawyer has a close family or professional relationship with the potential client.

C.3      Any person who has suffered a traumatic experience and who may already be overwhelmed by the
circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available
alternatives with reasoned judgment. Such persons should be provided the time and opportunity to consider all
information that may be available with regard to the need for legal services and the qualifications of available
lawyers and law firms, without being subjected to any form of unsolicited direct persuasion that may overwhelm
the client’s judgment, or other behaviour that takes advantage of a client’s vulnerability.
R.4     Law firms are permitted to use trade names, initials, logos, symbols, or the names of individuals
        or their professional corporations, provided that they are not misleading or confusing, and are
        otherwise consistent with these rules.

C.4    Firm names must accurately represent the firm and the work carried out by firm members. A firm name
may consist of:
        (a)      the names of one or more individual lawyers;

        (b)      the names of one or more professional corporations;

        (c)      the names of existing or former partners or associates;

        (d)      a trade name; or

        (e)      any combination of (a), (b), (c) and (d).

The firm must be able to: (a) demonstrate sufficient connection or relationship with the name(s) included, and (b)
use such qualifying words as necessary to ensure that a potential consumer of the firm's services understands it
is a law firm and is not engaged in some other business. A law firm name must not include the name of any
individual or other entity not entitled to practise law in Canada or any other jurisdiction. The firm name may
include the name(s) of individuals currently or formerly entitled to practice law in Canada and in jurisdictions other


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than Canada. If using a trade name, the name should include such phrases as “Law”, “Law Firm”, “Lawyer”, or
“Barristers and Solicitors”, so that it is clear that the activity of the firm is the practice of law.
The inclusion in a firm name of a person or entity not currently licensed or eligible to deliver legal services in
Alberta, or a person who is no longer alive, does not constitute a representation that the named person or entity is
available in the firm to deliver legal services.
A trade name must be carefully selected to avoid any misconception on the part of the public. For example,
"University Legal Clinic" would be unacceptable because it implies a connection with another institution. A
geographical trade name is improper if it leads a reasonable person to erroneously conclude that the law office is
a public agency, or is the only law office available in that area or locality, or if the name misleads the public in
another respect. A trade name which includes a reference to the lawyer’s area(s) of practice is allowed, as long
as it is not misleading or confusing.
The name of a firm member who has become a judge may continue to be in the firm name (but not in the listing of
names on the letterhead); however, no firm member may appear before that judge so long as the judge's name
forms part of the firm name. This prohibition is necessary to preserve the appearance of justice and propriety.
(see Rule 9 and accompanying Commentary in Chapter 10, The Lawyer as Advocate.).
The use by a sole practitioner of the phrase "and Company" or "and Associates" after the lawyer's surname is
misleading.
Limited liability partnership: A limited liability partnership, in addition to complying with the name regulations under
the Partnership Act (Alberta), must ensure that any trade name used by the partnership clearly indicates the
limited liability status of its partners.
Names listed on letterhead: Names listed on letterhead must accurately represent the status of the individual(s)
named. For example:
        (a)      the status of an inactive or former member must be clearly indicated;

        (b)      the names of extraprovincial lawyers associated with the firm must be so described, together with
                 the jurisdictions in which they are authorized to practice;

        (c)      the position or status of persons who are not lawyers (such as office manager, in-house
                 accountants, students-at-law and patent and trade mark agents) employed by the firm, must be
                 clearly stated.

The status of a person whose name appears in the firm name only and is not listed on the letterhead does not
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R.5     A lawyer shall not state that the lawyer is a specialist or expert.

C.5       A claim that a lawyer is a specialist or expert implies that the lawyer has met some objective standard or
criteria of expertise, presumably established or recognized by the Law Society. In the absence of Law Society
recognition or a certification process, an assertion by a lawyer that the lawyer is a specialist or expert is improper.
On the other hand, a lawyer may advertise areas of practice if the representations made are accurate (that is,
demonstrably true) and are not misleading. For example, a lawyer may list preferred areas of practice or one or
more areas without comment, provided that the lawyer actually practises and is competent in those areas.
Similarly, an advertisement that a lawyer's practice is restricted to a certain area of law must be supported by an
actual restriction of the practice as long as the advertisement remains outstanding. The object of advertising
practice areas is to provide information that facilitates an informed choice of counsel. A misrepresentation as to
the experience or skill of a lawyer would improperly influence that decision.
In a case where a firm practises in more than one jurisdiction, some of which certify or recognize specialization,
then an advertisement by such a firm which makes reference to the status of a firm member as a specialist or
expert, in media circulated concurrently in Alberta and the certifying jurisdiction, shall not be considered as
offending this Rule if the certifying authority or organization is identified.
R.6     A lawyer must ensure that any advertisement mentioning professional fees:

        (a)      is precise as to the services offered for each fee quoted;

        (b)      states whether other amounts, such as disbursements and taxes, will be charged in
                 addition to the fee;

        (c)      is strictly adhered to in every applicable case; and

        (d)      does not compare the fees charged by the lawyer with those charged by another lawyer

C.6      Information about fees is meaningful to the public and is useful in allaying the apprehension experienced
by many people about lawyers' fees. Fee information must be clear and accurate. For example, an advertisement
quoting a fee for a "house sale" is ambiguous since this may be construed to include the legal fees of only the
vendor, only the purchaser or both vendor and purchaser. Reference to a minimum fee (for example, "$100 and
up") is not meaningful to potential clients because a maximum fee is not stated, nor is the public informed of the
factors that will increase the fee beyond the minimum.
Once a fee has been advertised, it must be honoured in all applicable cases.
R.7     A lawyer must not give anything of value to a non-lawyer for recommending the lawyer’s services
        or referring a client to the lawyer.

C.7      If a person without legal training stands to incur personal benefit from making the judgment that legal
assistance is required by another and then referring that person to a particular lawyer or firm, the best interests of
the client may not be well served. However, Rule 7 is not intended to prohibit a gift or benefit, the value or
significance of which is insufficient to have been a factor in the recommendation. The best interests of the client
are served, however, where a lawyer refers a client to another lawyer who may be more skilled and experienced
or to avoid a conflict (see Rule 7(c) of Chapter 13, Fees).
Compensation related to a particular client matter may not be paid to the non-lawyer, and payment of
compensation for a particular client matter can only be paid pursuant to Rule 7 of Chapter 13, Fees. It is also
improper for a lawyer to pay a referral fee to a non-lawyer based on the number of files received by that lawyer.
If a lawyer participates in the activities of, or engages the assistance of, a lawyer referral service or agency, it is
the responsibility of that lawyer to ensure that the referral service or agency does not contravene the advertising
rules in this chapter. Lawyers may pay non-lawyers for direct and reasonable advertising costs, and are also
allowed to compensate employees and other persons for general marketing and public relations services, whether
by salary, profit sharing, bonus or otherwise, provided the compensation is not directly related to a specific client
matter.
R.8     A lawyer must not invite public or media attendance involving a client unless the client has
        consented.


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C.8      The work of a lawyer may attract publicity because it is carried out in a public forum or involves a
transaction of wide general interest. Protection of confidentiality remains a paramount consideration in such a
situation, even if certain details of the client's affairs are already a matter of public record. The client's consent (as
defined in Interpretation) must therefore be obtained before a lawyer may publicize a case by (for example)
inviting attendance of the media at a trial where a novel defence will be tested. It will be considered a violation of
this Rule if a lawyer solicits the client's consent to publicity that is intended solely for the lawyer's benefit or that is
otherwise incompatible with the client's best interests.
A lawyer having any contact with the media is subject to the sub judice rule and should be aware of it. Per David
M. Brown, What Can Lawyers Say in Public?, Canadian Bar Review, Vol. 78, p.283 at p.316:
        Designed to ensure the fairness of the trial process to the parties involved, the sub judice rule
        makes it a contempt of court to publish statement before or during a trial which may tend to
        prejudice a fair trial or influence the course of justice…For contempt to be found, it is necessary
        for a court to be satisfied, beyond a reasonable doubt, that the words published were calculated
        to interfere with the course of justice in the sense of being apt, or having a tendency, to do so.
        The mens rea necessary for the offence is not an intention to commit a criminal contempt, but to
        knowingly and intentionally publish the material, irrespective of the absence of an intention or bad
        faith with respect to the question of criminal contempt itself.

It will be a question of fact in each case whether the words published “were calculated to interfere with the course
of justice in the sense of being apt or having a tendency to do so,” but because the media frequently publishes
lawyers’ comments, lawyers should be particularly careful when dealing with members of the media.
                                                                                                                    Dec2005




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                                           CONFLICTS OF INTEREST
                                              STATEMENT OF PRINCIPLE
In each matter, a lawyer's judgment and fidelity to the client's interests must be free from compromising
influences.

                                                         RULES
1.      A lawyer must not represent opposing parties to a dispute.

2.      A lawyer must not act for more than one party in a conflict or potential conflict situation unless all such
        parties consent and it is in the best interests of the parties that the lawyer so act.

3.      (a)      Except with the consent of the client, a lawyer must not represent a person whose interests are
                 directly adverse to the immediate interests of a current client.

        (b)      Except with the consent of the client or approval of a court pursuant to (c), a lawyer must not act
                 against a former client if the lawyer has confidential information that could be used to the former
                 client's disadvantage in the new representation.

        (c)      With the approval of a court, a lawyer may act personally against a former client where another
                 lawyer in the firm has confidential information that could be used to the former client's
                 disadvantage in the new representation.
                                                                                                               Jun2004

4.      When:

        (a)      a lawyer transfers from one firm ("former firm") to another ("new firm"), and

        (b)      either the transferring lawyer or the new firm is aware at the time of the transfer or later discovers
                 that:

                 (i)      the new firm represents a client in a matter that is the same as or related to a matter in
                          respect of which the former firm represents its client ("former client"),

                 (ii)     the interests of those clients in that matter conflict, and

                 (iii)    the transferring lawyer possesses relevant information respecting that matter,

        then the following rules apply:

        (c)      If the transferring lawyer does not possess confidential information respecting the former client
                 that, if disclosed to a member of the new firm, could prejudice the former client ("prejudicial
                 confidential information"), the new firm and the transferring lawyer must comply with the
                 requirements set forth in the commentary relating to this paragraph (c).

        (d)      If the transferring lawyer possesses prejudicial confidential information, the new firm must cease
                 to act in the matter unless the new firm and the transferring lawyer have complied with the
                 requirements set forth in the commentary relating to this paragraph (d).

5.      When two firms have been representing different parties in a matter and the firms merge during the
        course of the matter, the following rules apply:

        (a)      If the matter constitutes a dispute, the merged firm must not continue acting for opposing parties
                 to the dispute.




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        (b)      If the matter constitutes a conflict or potential conflict, the merged firm may continue acting for
                 more than one party only in compliance with Rule #2.

        (c)      Whether the matter constitutes a dispute, a conflict or a potential conflict, the merged firm may
                 continue acting for one of the parties only if all parties consent.

5.1.    (a)      A lawyer engaged in the provision of short-term legal services through a non-profit legal services
                 provider, without any expectation that the lawyer will provide continuing representation in the
                 matter:

                 (i)      May provide legal services, unless the lawyer is aware that the clients’ interests are
                          directly adverse to the immediate interests of another current client of the individual
                          lawyer, the lawyer’s firm or the non-profit legal services provider; and

                 (ii)     May provide legal services, unless the lawyer is aware that the lawyer or the lawyer’s firm
                          may be disqualified from acting due to the possession of confidential information which
                          could be used to the disadvantage of a current or former client of the lawyer, the lawyer’s
                          firm, or the non-profit legal services provider.

        (b)      In the event a lawyer provides short-term legal services through a non-profit legal services
                 provider, other lawyers within the lawyer’s firm or providing services through the non-profit legal
                 services provider may undertake or continue the representation of other clients with interests
                 adverse to the client being represented for a short-term or limited purpose, provided that
                 adequate screening measures are taken to prevent disclosure or involvement by the lawyer
                 providing short-term legal services.
                                                                                                                Jun2009

6.      (a)      A lawyer must not personally represent a party to a dispute when a related person is acting for an
                 opposing party.

        (b)      Unless all parties consent, a lawyer must not personally represent a party to a matter when a
                 related person is representing another party to the matter and those parties are in a conflict or
                 potential conflict situation.

        (c)      If a relationship exists that does not, pursuant to paragraph (a) or (b) or Rule #8, prevent a lawyer
                 from acting in a matter but that raises a reasonable apprehension of impropriety, the lawyer must
                 disclose the relationship to the client.

7.      A lawyer must not act when there is a conflict or potential conflict between lawyer and client unless the
        client consents and it is in the client's best interests that the lawyer so act.

8.      A lawyer must not act personally in a matter when the lawyer's objectivity is impaired to the extent that the
        lawyer would be unable to properly and competently carry out the representation.

9.      A lawyer must not engage in a business transaction with a client of the lawyer who does not have
        independent legal representation unless the client consents and the transaction is fair and reasonable to
        the client in all respects.

                                                   COMMENTARY
General

G.1     Definitions: The terms "firm", "firm member" and "lawyer" are defined in Interpretation. They have
        particular relevance to conflicts of interest because a rule prohibiting a lawyer from acting will also
        generally prevent a member of the same firm from acting. It is therefore important to know who will be
        considered a firm member in this context.

        When lawyers share space, the risk of advertent or inadvertent disclosure of confidential information is
        significant even if the lawyers involved exert efforts to insulate their respective practices. Consequently,


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        for the purposes of this chapter, "firm" includes lawyers practising law from the same premises but
        otherwise practising law independently of one another. A lawyer doing project work for a firm pursuant to
        contract may also be viewed as a firm member under certain circumstances. (see Interpretation)

        Rules #6 and #8 of this chapter prohibit a lawyer from acting personally and are not intended to apply to
        other firm members. The circumstance disqualifying the lawyer is sufficiently personal that it should not
        taint others by association.

G.2     Lawyers in public office: A lawyer who has held public office may have special considerations in ensuring
        that a subsequent representation is free from compromising influences. For example, a lawyer should not
        accept private employment in a matter in which the lawyer has had substantial involvement in an
        adjudicative capacity since it may appear that, in discharging those adjudicative duties, the lawyer was
        influenced by the prospect of subsequent employment. Similarly, a lawyer should refrain from rendering
        legal advice on a ruling made by a tribunal of which the lawyer is a member, or was a member at the time
        the ruling was made.

G.3     General: The term "conflict of interest" is usually employed in the sense of competing client interests;
        however, a personal interest, loyalty, belief or feeling of a lawyer may also clash with an interest of the
        client or otherwise interfere with the lawyer's professional judgment. Rules #1 through #5.1 deal with
        conflicting client interests, while Rules #6 through #9 address the difficulties potentially created by a
        consideration personal to a lawyer.
                                                                                                                       Jun2004

R.1     A lawyer must not represent opposing parties to a dispute.

C.1.1 General: The existence of an actual dispute precludes multiple representation, not only because it is
impossible to properly advocate more than one side of a matter, but because the administration of justice would
be brought into disrepute. However, it is sometimes difficult to determine whether a dispute exists.
While a litigation matter clearly qualifies as a dispute from the outset, parties who appear to have differing
interests or who even disagree are not necessarily engaged in a dispute. The parties may wish to resolve the
disagreement by consent, in which case a lawyer may be requested to act as a facilitator in providing information
for their consideration. At a certain point however, a conflict or potential conflict may develop into a dispute, in
which event the lawyer would be compelled by Rule #1 to cease acting for more than one party and perhaps to
withdraw altogether.
In considering whether a dispute exists, a lawyer should have regard for the following factors:
             degree of hostility, aggression and "posturing";
             importance of the matters not yet resolved;
             intransigence of one or more of the parties; and
             whether one or more of the parties wishes the lawyer to assume the role of advocate with respect to
              that party's position.

When in doubt, a lawyer should cease acting.
C.1.2 Mediation or arbitration: Rule #1 does not prevent a lawyer from mediating or arbitrating a dispute
between clients or former clients where:
        (a)      the parties consent;

        (b)      it is in the parties' best interests that the lawyer act as mediator or arbitrator; and

        (c)      the parties acknowledge that the lawyer will not be representing either party and that no
                 confidentiality will apply to material information in the lawyer's possession.

(see also Commentary G.2 of Chapter 15, The Lawyer in Activities Other Than the Practice of Law)
R.2     A lawyer must not act for more than one party in a conflict or potential conflict situation unless all
        such parties consent and it is in the best interests of the parties that the lawyer so act.



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C.2.1 "Conflict" means the situation existing when the parties in question are prima facie differing in interest but
there is no dispute among the parties in fact. Examples include vendor and purchaser, mortgagor and mortgagee,
insured and insurer, estranged spouses, and lessor and lessee. "Potential conflict" means the situation existing
when the parties in question are prima facie aligned in interest and there is no dispute among the parties in fact,
but the relationship or circumstances are such that there is a possibility of differences developing. Examples are
co-plaintiffs; co-defendants; co-insured; shareholders entering into a unanimous shareholder agreement; spouses
granting a mortgage to secure a loan; common guarantors; beneficiaries under a will; and a trustee in bankruptcy
or court-appointed receiver/manager and the secured creditor who had the trustee or receiver/manager
appointed.
Most lawyers prefer not to act for more than one party in a transaction. From the client's perspective, however,
this preference may interfere with the right to freely choose counsel and may appear to generate unwarranted
costs, hostility and complexity. In addition, another lawyer having the requisite expertise or experience may not be
readily available, especially in smaller communities. Situations will therefore arise in which it is clearly in the best
interests of the parties that a lawyer represent more than one of them in the same matter.
Yet professional loyalty remains an important aspect of the lawyer/client relationship, and many clients will be
unhappy when their lawyer's attentions are divided. Acting in a conflict or potential conflict situation increases a
lawyer's vulnerability to charges of professional misconduct. The apparent consent of those involved may be
challenged on the grounds of misrepresentation or overreaching. Moreover, the client in a multiple representation
context will expect to pay less than the normal fee for one client, creating another possible point of contention.
Consequently, although Rule #2 permits multiple representation in certain circumstances, this type of retainer
must be approached by a lawyer with caution, particularly if a conflict rather than potential conflict is involved. It
will generally be more difficult for a lawyer to justify acting in a situation involving actual conflicting interests. In
each case, the lawyer must assess the likelihood of being able to demonstrate after the fact that each client
received representation equal to that which would have been rendered by independent counsel.
In determining whether it is in the best interests of the parties that a lawyer act for more than one party where
there is no dispute but there is a conflict or potential conflict, the lawyer must consider all relevant factors,
including the following:
            complexity of the transaction;

            whether there are terms yet to be negotiated and the complexity and contentiousness of those terms;

            whether considerable extra cost, delay or inconvenience would result from using more than one
             lawyer;

            availability of another lawyer of comparable skill;

            whether the lawyer is peculiarly familiar with the parties' affairs;

            probability that the conflict or potential conflict will ripen into a dispute due to the respective positions
             or personalities of the parties, the history of their relationship or other factors;

            likely effect of a dispute on the parties;

            whether it may be inferred from the relative positions or circumstances of the parties (such as a
             long-standing previous relationship of one party with the lawyer) that the lawyer would be motivated
             to favour the interests of one party over another; and

            ability of the parties to make informed, independent decisions.

Furthermore, the requirement that the multiple representation be in the clients' best interests will not be fulfilled
unless the lawyer has made an independent evaluation and has concluded that this is the case. It is insufficient to
rely on the clients' assessment in this regard.
Although the parties to a particular matter may expressly request multiple representation, there are circumstances
in which a lawyer may not agree. Examples include representing opposing arm's-length parties in complex



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commercial transactions involving unique, heavily-negotiated terms. In these situations, the advantages of
retaining a single lawyer are outweighed by the risks.
                                                                                                                   May2001

C.2.2 Disclosure and consent: If a lawyer determines that multiple representation is permissible, the consent of
the parties must then be obtained. See the definitions of "consent" and "disclosure" in Interpretation. Consent in
this context will be valid only if full and fair disclosure has been made by the lawyer (to all parties together unless
completely impractical) of the advantages and disadvantages of, first, retaining one lawyer and, second, retaining
independent counsel for each party. Such disclosure must include the fact that no material information received in
connection with the matter from one party can be treated as confidential so far as any of the other parties is
concerned (see Commentary 2.3).
In addition, the lawyer must stipulate that if a dispute develops, the lawyer will be compelled to cease acting
altogether unless, at the time the dispute develops, all parties consent to the lawyer's continuing to represent one
of them. Consent given before the fact is ineffective since the party granting the consent will not at that time be in
possession of all relevant information.
While it is not mandatory that either disclosure or consent in connection with multiple representation be in writing,
the lawyer will have the onus of establishing that disclosure was sufficient and that informed consent was granted.
Therefore, it is advisable to document the process in some manner (such as memorandum to file or follow-up
letter) and to obtain written confirmation from the client wherever possible.
If a lawyer is proposing to act for both a corporation and one or more of its shareholders, directors, managers,
officers or employees, the lawyer must be satisfied that the dual representation is a true reflection of the will and
desire of the corporation as a separate entity. Having met all preliminary requirements, a lawyer acting in a
conflict or potential conflict situation must represent each party's interests to the fullest extent. The fact of multiple
representation will not provide a justification for cutting corners or failing in other respects to fulfill the duties and
responsibilities owed by lawyer to client.
C.2.3 Multiple representation without sharing of information: In certain circumstances, knowledgeable clients in
a conflict or potential conflict situation may desire representation by the same firm without the mutual sharing of
material information referred to in Commentary 2.2. It may be acceptable for a firm to agree to act in such a
situation provided that an effective screening device can be erected and the clients are fully apprised of, and
understand, the risks associated with the arrangement. Such advice must be given by counsel that is independent
of the firm involved.
This kind of arrangement remains an exception to the general rule, however, and should be undertaken only
when the justification is clear. In particular, multiple representation with or without the sharing of information is
unacceptable in a dispute or when the risk of divergence of interests is high. Responsibility remains with the
lawyers to consider the factors outlined in Commentary 2.1 and to independently judge the advisability of the
representation. Furthermore, the lawyers and clients involved must consider beforehand the risk that the
screening device may be breached, intentionally or otherwise, or that a lawyer acting for one of the clients will
obtain information confidential to the other client through a legitimate outside source. In such a circumstance, it
would be necessary for the firm to cease acting for all clients in the matter.
C.2.4 Single client in dual capacity: Special considerations apply when a lawyer is representing one client
acting in two possibly conflicting roles. The consent of the client recedes in importance and the lawyer's
independent assessment of the best interests of the client becomes more important. For example, a lawyer acting
for an estate when the executor is also a beneficiary must be sensitive to divergence of the interests of the client
in those two capacities. Such divergence could occur if the client is a surviving spouse who is the beneficiary of
only part of the estate. It is obviously in the spouse's interests to apply to the court to receive a greater share of
the estate; however, this course of action is detrimental to the other beneficiaries and therefore inconsistent with
the neutral role of executor. The lawyer would likely be obliged by Rule #2 to refer the client elsewhere with
respect to the application for relief since, despite the client's consent the lack of independent representation would
not operate in the client's best interests.
R.3     (a)      Except with the consent of the client, a lawyer must not represent a person whose
                 interests are directly adverse to the immediate interests of a current client.




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        (b)       Except with the consent of the client or approval of a court pursuant to (c), a lawyer must
                  not act against a former client if the lawyer has confidential information that could be used
                  to the former client's disadvantage in the new representation.

        (c)       With the approval of a court, a lawyer may act personally against a former client where
                  another lawyer in the firm has confidential information that could be used to the former
                  client's disadvantage in the new representation.

C.3.1 Lawyers' duties to former clients are primarily concerned with protecting confidential information. Their
duties to current clients are more extensive, being based on the broad fiduciary principle of loyalty, which prevails
irrespective of whether there is a risk of disclosure of confidential information.
Because of the definition of "firm", "firm member" and "lawyer" in Interpretation, the disqualification of a lawyer
under Rule # 3 will usually also mean the disqualification of all lawyers in the firm. See Commentary G.1 of this
chapter. However, Rule 3(c) allows a lawyer to act personally against a former client when another lawyer in the
firm is disqualified if the court approves after taking into consideration the requirements of Commentary 3.3.
A client is a current client if the lawyer is currently acting for the client, and may be a current client if a reasonable
person would believe that the lawyer has an ongoing duty of loyalty to the client despite there being no matters on
which the lawyer is currently acting. In determining whether a client is a current client, notwithstanding that the
lawyer has no current files, a lawyer must take into consideration all the circumstances of the solicitor/client
relationship, including, where relevant:
             the duration of the relationship
             the terms of the past retainer or retainers
             the length of time since the last representation was completed or the last representation assigned
             whether the client uses other lawyers for the same type of work
             whether the retainer was for one matter only, or for an open-ended series of matters (if a lawyer's
              employment is clearly limited to a specific matter, the relationship usually terminates when the matter
              has is completed; if the lawyer serves a client over a substantial period in a variety of matters, the
              client may reasonably assume that the relationship is ongoing unless the lawyer gives notice of
              withdrawal or termination)
             whether the client reasonably believes the relationship is on-going
             whether the lawyer has made representations that encouraged the client to believe that the
              relationship is on-going
             whether the lawyer has an ongoing relationship with a parent, subsidiary, affiliate or related entity of
              the client
             the seriousness of the matters for which the lawyer was retained, analyzed from the client's point of
              view
             whether the lawyer has confidential information that could be used to the client's disadvantage in the
              new representation
             whether the lawyer or the client has taken steps to terminate the relationship by, for example, the
              lawyer asserting in a reporting letter that the relationship is not an ongoing one or the client
              transferring all files to another lawyer
In addition, in determining the scope of the duty of loyalty owed to a current client, the lawyer may take into
account whether the lawyer provides substantive legal services or merely provides a registered office, an address
for service, a facility for routine filings or the like.
Where there may be doubt, the lawyer should clarify with the client whether the solicitor-client relationship is an
on-going one, preferably in writing, so the client will not mistakenly believe that the lawyer is continuing to look
after the client's interests when the lawyer has ceased to do so.
Having determined that a client is a current client, even if there is no dispute between the current client and the
other person (disputes are dealt with in Rule #1), a lawyer must not, without consent, undertake a new


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representation or take a step in an existing representation that is directly adverse to the client's immediate
interests, even if the matters are wholly unrelated. However, simultaneous representation in unrelated matters of
clients whose interests are only economically adverse, such as representation of competing enterprises in
unrelated litigation, does not require consent of the clients. This ethical standard is the same as the legal standard
referred to by the Supreme Court of Canada in R. v. Neil 2002 SCC 70.
C.3.2 "Confidential information" means all information concerning a client's business, interests and affairs
acquired in the course of the lawyer/client relationship (see Chapter 7, Confidentiality). A lawyer's knowledge of
personal characteristics or corporate policies that are notably unusual or unique to a client will bar an adverse
representation if such knowledge could potentially be used to the client's disadvantage. An example is the
knowledge that a client will not under any circumstances proceed to trial or appear as a witness. However, a
lawyer's awareness that a client has a characteristic common to many people (such as a general aversion to
testifying) or a fairly typical corporate policy (such as a propensity to settle rather than proceed to litigation) will
not generally preclude the lawyer from acting against that client.
A person who has consulted a lawyer in the lawyer's professional capacity may be considered a former client for
the purposes of Rule # 3 although the lawyer did not agree to represent that person or did not render an account
to that person (see also Commentary G.1 of Chapter 7, Confidentiality).
A lawyer's duty not to use confidential information to the disadvantage of a former client continues indefinitely.
However, the passage of time may mitigate the effect of a lawyer's possession of particular confidential
information, and may permit the lawyer to eventually act against a former client when the information becomes
outdated or irrrelevant to the point that it no longer has the potential to prejudice the former client.
A lawyer may be prevented by other rules of this Code from acting in circumstances in which the lawyer
possesses confidential information (see, for example, Rule # 6 of Chapter 7, Confidentiality). However, as with the
rule presently under discussion, consent of the parties involved may permit a lawyer to act despite the lawyer's
knowledge of confidential information. "Consent" comprises several elements, including full disclosure. See the
definitions of "consent" and "disclosure" in Interpretation.
C.3.3 A lawyer seeking court approval to act personally against a former client where another lawyer in the firm
has confidential information that could be used to the client's disadvantage in the new representation shall satisfy
the court, on notice to the former client, that:
        (a)      it is in the interests of justice to approve the representation, having regard to all the relevant
                 circumstances, including the adequacy of the measures taken under paragraph (b), the extent of
                 prejudice to any party, the good faith of the parties and the availability of suitable alternative
                 counsel; and

        (b)      the lawyer's firm has taken reasonable measures to ensure that no improper disclosure of the
                 client's confidential information will occur.

C.3.4 Prospective client: A prospective client is a person who discloses confidential information to a lawyer for
the purpose of retaining the lawyer. A lawyer must maintain the confidentiality of information received from a
prospective client. Before doing a conflict check, a lawyer should endeavour not to receive more information than
is necessary to carry out the conflict check: as soon as a conflict becomes evident the lawyer must, unless the
conflict is resolved by the consent of the existing client and the prospective client or Court approval, decline the
representation and refuse to receive further information. If the lawyer declines the representation, the information
disclosed by the prospective client, including the fact that the client approached the firm, must not be disclosed to
those who may act against the prospective client, notwithstanding Chapter 9, Commentary G.1. The firm may act
or continue to act contrary to the interests of the prospective client in relation to the proposed retainer if the lawyer
takes adequate steps to ensure that:
        (a)      the confidential information is not disclosed to other firm members representing clients adverse to
                 the prospective client, and

        (b)      firm members who have the confidential information will not be involved in any retainer that is
                 related to the matter for which the prospective client sought to retain the firm.




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The adequacy of the measures taken to prevent disclosure of the information will depend on the circumstances of
the case, and may include destroying, sealing or returning to the prospective client notes and correspondence
and deleting or password protecting computer files on which any such information may be recorded.
Subject to Rule #5 and Commentary # 5, Rule 3 applies to a merged law firm.
                                                                                                      Jun2004;Feb2005

R.4     When:

        (a)      a lawyer transfers from one firm ("former firm") to another ("new firm"), and

        (b)      either the transferring lawyer or the new firm is aware at the time of the transfer or later
                 discovers that

                 (i)      the new firm represents a client in a matter that is the same as or related to a
                          matter in respect of which the former firm represents its client ("former client"),

                 (ii)     the interests of those clients in that matter conflict, and

                 (iii)    the transferring lawyer possesses relevant information respecting that matter,

        then the following rules apply:

        (c)      If the transferring lawyer does not possess confidential information respecting the former
                 client that, if disclosed to a member of the new firm, could prejudice the former client
                 ("prejudicial confidential information"), the new firm and the transferring lawyer must
                 comply with the requirements set forth in the commentary relating to this paragraph (c).

        (d)      If the transferring lawyer possesses prejudicial confidential information, the new firm must
                 cease to act in the matter unless the new firm and the transferring lawyer have complied
                 with the requirements set forth in the commentary relating to this paragraph (d).

C.4      As noted in Commentary G.1, "firm" and "firm member" are defined broadly for the purposes of this Code
and, in particular, this chapter. (see Interpretation)
The increasing movement of lawyers among firms creates particular concerns in the area of conflicts. The priority
of a firm engaging an experienced lawyer must be to minimize fears of former clients of the lawyer with respect to
disclosure of confidential information while maintaining the fact and appearance of propriety.
Paragraph (c) of Rule #4: If the transferring lawyer does not possess prejudicial confidential information, the
following procedures must be followed:
        (a)      The transferring lawyer must execute an affidavit or sworn declaration to that effect;

        (b)      The new firm must notify its client and the former client (or the former client's counsel, if
                 represented) of the relevant circumstances and intended action and must deliver to each of those
                 persons a copy of the transferring lawyer's affidavit or sworn declaration;

        (c)      The transferring lawyer must not participate in any manner in the new firm's representation of its
                 client in that matter nor disclose any confidential information respecting the former client unless
                 the former client consents; and

        (d)      No member of the new firm may, unless the former client consents, discuss with the transferring
                 lawyer the new firm's representation of its client or the former firm's representation of the former
                 client.

Paragraph (d) of Rule #4: If the transferring lawyer possesses prejudicial confidential information, the new firm
must cease representation of its client in the matter unless:
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        (b)      The new firm establishes the following to the satisfaction of a court of law, after notifying its client
                 and the former client (or the former client's counsel, if represented) of the relevant circumstances
                 and intended action:

                 (i)      It is in the interests of justice that the representation continue having regard to all relevant
                          circumstances, including the adequacy of the measures taken under paragraph (ii) below,
                          the extent of prejudice to any party, the good faith of the parties and the availability of
                          suitable alternative counsel; and

                 (ii)     The new firm has taken reasonable measures to ensure that no disclosure to any
                          member of the new firm of the former client's confidential information will occur.

"Consent" comprises several elements, including full disclosure. See the definitions of "consent" and "disclosure"
in Interpretation.
Anyone who has an interest in or who represents a party in a matter referred to in Rule #4 may apply to a court of
law for a determination of any matter arising under Rule #4.
The primary purpose of the rules of this chapter is protection of the client’s interests. It is unethical for a lawyer to
challenge the continued representation of a client by another firm as a tactic and in the absence of any genuine
concern as to impropriety.
                                                                                                                    Jun2004

R.5     When two firms have been representing different parties in a matter and the firms merge during
        the course of the matter, the following rules apply:

        (a)      If the matter constitutes a dispute, the merged firm must not continue acting for opposing
                 parties to the dispute;

        (b)      If the matter constitutes a conflict or potential conflict; the merged firm may continue
                 acting for more than one party only in compliance with Rule #2;

        (c)      Whether the matter constitutes a dispute, a conflict or a potential conflict the merged firm
                 may continue acting for one of the parties only if all parties consent.

C.5     Like the preceding rule, Rule #5 is designed primarily for the protection of client interests. "Merger"
includes an association that creates a firm as defined in Interpretation.
A merger is distinguishable from lawyer movement between firms because there is always knowledge of
confidential information. However, since only one firm is involved rather than two, continuing to act for all parties
in a matter may be prohibited by Rule #1 or Rule #2. In evaluating the best interests of the clients pursuant to
Rule #2, the firm should consider additional factors such as the stage of the matter at the time of merger. If the
matter has not progressed very far and it would not be unduly prejudicial or costly for the clients to obtain other
counsel, the merged firm may be wise to refer all parties to other firms.
If, however, the firm wishes to send one or more clients elsewhere while continuing to act for another of the
clients (whether the matter constitutes a dispute, a conflict or a potential conflict), all parties must consent.
"Consent" comprises several elements, including full disclosure. See the definitions of "consent" and "disclosure"
in Interpretation.
R.5.1   (a)      A lawyer engaged in the provision of short-term legal services through a non-profit legal
                 services provider, without any expectation that the lawyer will provide continuing
                 representation in the matter:

                 (i)      May provide legal services, unless the lawyer is aware that the clients’ interests
                          are directly adverse to the immediate interests of another current client of the
                          individual lawyer, the lawyer’s firm or the non-profit legal services provider; and

                 (ii)     May provide legal services, unless the lawyer is aware that the lawyer or the
                          lawyer’s firm may be disqualified from acting due to the possession of confidential



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                          information which could be used to the disadvantage of a current or former client
                          of the lawyer, the lawyer’s firm, or the non-profit legal services provider.

        (b)      In the event a lawyer provides short-term legal services through a non-profit legal services
                 provider, other lawyers within the lawyer’s firm or providing services through the non-
                 profit legal services provider may undertake or continue the representation of other
                 clients with interests adverse to the client being represented for a short-term or limited
                 purpose, provided that adequate screening measures are taken to prevent disclosure or
                 involvement by the lawyer providing short-term legal services.

C.5.1 As noted in Commentary G.1, "firm" and "firm member" are defined broadly for the purposes of this Code
and, in particular, this chapter (see Interpretation).
For the purposes of this Rule, the term “non-profit legal services provider” means volunteer pro bono and non-
profit legal services organizations, including Legal Aid Alberta. These non-profit legal services providers have
established programs through which lawyers provide short-term legal services. “Short-term legal services”
means advice or representation of a summary nature provided by a lawyer to a client under the auspices of a
non-profit organization with the expectation by the lawyer and the client that the lawyer will not provide continuing
representation in the matter. It is in the interests of the public, the legal profession and the judicial system that
lawyers are available to individuals through these organizations. While a lawyer-client relationship is established,
there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation.
Such programs or services are normally offered in circumstances which make it difficult to systematically screen
for conflicts of interest, despite the best efforts and existing practices of non-profit legal services organizations.
Further, the limited nature of the legal services being provided significantly reduces the risk of conflicts of interest
with other matters being handled by the consulting lawyer’s firm. Accordingly, Rule #5.1 requires compliance with
the usual rules which govern conflicts of interest only if the consulting lawyer has actual knowledge that he or she
is disqualified as the result of a relationship between an existing or former client and the consulting lawyer, the
lawyer’s firm or the non-profit legal services provider. In most cases, it is expected that the existence of a
potential conflict will be identified through the conflict screening processes employed by non-profit legal services
organizations or by the individual lawyer who may identify a conflict before or at the time of meeting with the client
receiving the short-term legal services.
The personal disqualification of a lawyer providing legal services through a non-profit legal services provider will
not be imputed to other participating lawyers. If, however, the lawyer intends to represent the client on an
ongoing basis after commencing the short-term limited retainer, the other Rules in this Chapter will apply.
The confidentiality of information obtained by a lawyer providing short-term legal services pursuant to this Rule
must be maintained. If not, a lawyer’s partners and associates in his or her firm, or other lawyers providing
services under the auspices of the non-profit legal services provider, will not be able to act for other clients where
there is a conflict with the client who has obtained, or is obtaining, short-term legal services. Without restricting
the scope of screening measures which may appropriately be undertaken in a particular set of circumstances, the
following are some examples of proper measures which may be taken to ensure confidentiality. The lawyer who
provided the short-term legal services shall have no involvement in the representation of another client whose
interests conflict with those of the client who received short-term legal services from the lawyer, and shall not
have any discussions with the lawyers representing the other client. Discussions involving the relevant matter
should take place only with the limited group of firm members working on the other client’s matter. The relevant
files may be specifically identified and physically segregated and access to them limited only to those working on
the file or who require access for specifically identified or approved reasons. It would also be advisable to issue a
written policy to all lawyers and support staff, explaining the screening measures which have been undertaken.
No consent is required from either the client who received short-term legal services, or the client whose interests
may conflict with the client receiving short-term legal services, to allow a lawyer, the lawyer’s firm or a non-profit
legal services provider to act for any client whose interests conflict with those of the client who has received short-
term legal services, provided there has been compliance with Chapter 6, Rule 5.1(b). Rule 5.1(a) does not
contemplate that a conflict, of which a lawyer is or becomes aware when engaged in the provision of short-term
legal services through a non-profit legal services provider, may be waived by consent.
When offering short-term limited legal services, lawyers should also assess whether the client may require
additional legal services, beyond a limited consultation. In the event that such additional services are required or



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advisable, the lawyer should explain the limited nature of the consultation and encourage the client to seek further
legal assistance.
                                                                                                                  Jun2009

R.6     (a)      A lawyer must not personally represent a party to a dispute when a related person is
                 acting for an opposing party.

        (b)      Unless all parties consent, a lawyer must not personally represent a party to a matter
                 when a related person is representing another party to the matter and those parties are in
                 a conflict or potential conflict situation.

        (c)      If a relationship exists that does not, pursuant to paragraph (a) or (b) or Rule #8, prevent a
                 lawyer from acting in a matter but that raises a reasonable apprehension of impropriety,
                 the lawyer must disclose the relationship to the client.

C.6     "Related person" is defined to mean the spouse, child, sibling, parent, grandchild or grandparent of a
lawyer, and any person who is a member of the lawyer's household.
Rule #6 applies only to the lawyer having the relationship in question and not to other members of the lawyer's
firm. (see Commentary G.1)
Rules 6(a) and 6(b): A close familial relationship is inconsistent with the adversarial nature of legal representation
in a dispute, the meaning of which is discussed in Commentary 1.1. In contrast, the absence of a dispute may
permit related lawyers to act provided that Rule #8 does not apply. However, if the situation constitutes a conflict
or potential conflict (see Commentary 2.1), the consent of all relevant parties must be obtained.
Rule 6(c): A lawyer may have a close relationship with a person not qualifying as a related person. That
relationship may nonetheless be relevant to a particular representation. For example, a lawyer may be married to
the secretary of opposing counsel; lawyers acting on opposing sides of a matter may be cousins or close friends;
or opposing counsel may be a member of a small firm in which the lawyer's spouse also practises. In these and
similar situations, the relationship must be disclosed to the client.
R.7     A lawyer must not act when there is a conflict or potential conflict between lawyer and client
        unless the client consents and it is in the client's best interests that the lawyer so act.

C.7     A lawyer may have a loyalty, financial interest, personal belief or outside activity that is or may potentially
be in conflict with a client interest. If this situation would materially impair the lawyer's ability to carry out the
representation properly and competently, the lawyer may not act: Rule #8.
If the conflicting interest of the lawyer does not create an actual impairment of objectivity, the lawyer should
nonetheless decline to act unless the representation is in the client’s best interests. In making this judgment, the
lawyer must independently evaluate all relevant factors. It is insufficient to rely on the client's assessment in this
regard.
Rule #7 further requires that the client consent to the representation after full disclosure by the lawyer of the
nature of the conflicting interest and the advantages of the client's retaining other counsel. Since the onus will be
on the lawyer to establish that disclosure was sufficient and informed consent granted, it is advisable that these
matters be confirmed in writing.
Commentary 2.1 sets forth certain considerations that should be taken into account by a lawyer in a multiple
representation situation. Many of the same considerations, read with the necessary changes in reference, would
appropriately be weighed by the lawyer in determining whether a particular representation would offend Rule #7.
See also the definitions of "consent" and "disclosure" in Interpretation.
R.8     A lawyer must not act personally in a matter when the lawyer's objectivity is impaired to the extent
        that the lawyer would be unable to properly and competently carry out the representation.

C.8      The two preceding commentaries refer to situations in which a lawyer's professional objectivity in a matter
may be threatened or destroyed by circumstances personal to the lawyer, such as a family or other close
relationship; an outside activity, a financial interest; or a strong belief or viewpoint. Another example is a mental
state created or exacerbated by a particular representation, such as feelings of enmity towards a colleague acting
for an opposing party.


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In all of these circumstances, a lawyer must recognize the point at which it is not or is no longer in the client's best
interests to be represented by the lawyer. This may be so even if the lawyer is led to unduly favour the client's
position, since the result may be overly-optimistic advice or an unrealistic recommendation.
R.9     A lawyer must not engage in a business transaction with a client of the lawyer who does not have
        independent legal representation unless the client consents and the transaction is fair and
        reasonable to the client in all respects.

C.9    "Business transaction" includes lending or borrowing money buying or selling property, accepting a gift or
bequest, giving or acquiring an ownership, security or other pecuniary interest in a company or other venture,
recommending an investment and entering into a common business venture.
As with all rules in this Code, Rule #9 must be observed in the spirit as well as the letter. If a related person or an
affiliated entity of a lawyer transacts business with a client of the lawyer, there may be an actual or apparent
impropriety depending on the circumstances. Relevant factors include whether the lawyer knew of the transaction
in advance and gave explicit or implicit approval; whether the lawyer stood to gain a direct or indirect benefit;
whether and to what extent the lawyer has control over the client and the related person or affiliated entity, and
the nature of the relationship between the lawyer and the related person or affiliated entity, as well as the
presence or absence of the factors noted in Rule #9.
The wisest course for a lawyer is to never engage in a business transaction with a client. A blanket prohibition
would, however, fail to acknowledge the realities of lawyer/client relationships and the fact that a particular
business transaction may appear to both parties to be mutually advantageous.
Before engaging in such a transaction, a lawyer must carefully consider the fiduciary obligations of the lawyer and
the likely presumption of undue influence should the client later become dissatisfied. The lawyer will have the
onus of proving that the transaction was fair and reasonable from the client's perspective. Subsequent
discrepancies between the client's version of events and the lawyer's may be resolved in favour of the client.
These factors will override any apparent benefits of the transaction if a client is clearly in an unequal bargaining
position due to age, financial position, lack of education or experience, or other similar circumstances.
Even if a client is relatively sophisticated, the lawyer must objectively assess whether the client would agree to the
same terms and conditions with a person other than the lawyer, and whether the lawyer stands to incur a benefit
or advantage that, with due diligence, the lawyer would prevent someone else from obtaining in a transaction with
the client. Despite favourable responses to these and similar questions, the client must be advised of all of the
advantages of retaining independent counsel. Such consultations should be clearly documented and preferably
confirmed in writing. The nature of the matter may also require that the client, while not independently
represented in the transaction, obtain independent legal advice regarding the advisability of the transaction.
As noted above, "business transaction" includes the acceptance of a gift or bequest. A lawyer is traditionally not
entitled to make a profit from clients other than through fair professional remuneration. If a gift or bequest from a
client appears to be unearned or disproportionately substantial, it is prima facie not "fair and reasonable" to the
client as required by Rule #9 and a presumption of undue influence is raised. Therefore, a lawyer must refuse to
draft any instrument effecting a gift or bequest to the lawyer or to a related person or affiliated entity of the lawyer.
Moreover, a lawyer must refuse to accept a gift that is other than nominal unless the client has clearly received
adequate independent advice.
Rule #9 is not intended to prevent a lawyer from acting as a regular customer of the client. It is therefore proper
for a lawyer to borrow money on normal terms and conditions from a client that is a lending institution and
otherwise deal in the ordinary course of business with clients offering goods or services to the public.
Compassionate Loans
Lawyers sometimes find themselves in situations where their clients have claims but are in dire financial
circumstances and request a loan (which for these purposes includes a cash advance on prospective recovery)
from the lawyer, with little or no prospect of repayment other than from the proceeds of the case. Because of the
inequality of the bargaining positions of the lawyer and the client in these situations, and the inevitable
appearance that the lawyer is taking advantage of the client, a lawyer must not make a loan to such a client other
than on a no-interest, no-charges basis; however, it is appropriate for a lawyer to make a compassionate loan to
such a client, to be repaid out of the proceeds of the case or otherwise. A compassionate loan is one made for the
purpose of relieving the client's personal or financial distress and which carries no interest or other charges,
reflecting the fact that the loan is intended as a compassionate gesture and not as a commercial transaction.


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However, a lawyer must not make a compassionate loan if, as a result of the lawyer's expectation of recovering
fees, disbursements, and the loan from the proceeds of the case, the lawyer has a financial interest in the case
that is so disproportionate that the lawyer's objectivity will be impaired. See Rules #7 and #8 and commentaries in
this chapter. If a lawyer's objectivity or judgment is impaired because of a reassessment of a case after a loan has
been made, the lawyer must cease to act.
This commentary applies to the conduct of a lawyer personally or in relation to entities either related to or
controlled by the lawyer, including any arrangement pursuant to which the lawyer benefits directly or indirectly,
such as, for example, a referral by a lawyer to a lender who is a member of the lawyer's immediate family or a
lender controlled by a member of the lawyer's immediate family.
                                                                                                               Feb2004




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It is requested that this document be permanently retained. It is suggested that it be inserted in the Code of
Professional Conduct, at the end of Chapter 6, Conflicts of Interest.


                  MEMORANDUM RE MULTIPLE REPRESENTATION, Commentary 2.1

November, 1998
The profession will recall that since the introduction of the new Code of Professional Conduct on January 1, 1995,
there has been considerable discussion and debate over the issue of multiple representation in the new home
situation. Multiple representation, generally, is not prohibited. Chapter 6, Conflicts of Interest, Rule 2 provides:
        A lawyer must not act for more than one party in a conflict or potential conflict situation unless all such
        parties consent and it is in the best interests of the parties that the lawyer so act.

However, the commentary to that rule contains the following:
        Although the parties to a particular matter may expressly request multiple representation, there are
        circumstances in which a lawyer may not agree. Examples include ... acting for both purchaser and
        builder in the construction of a new home.

There has, from the outset been uncertainty as to the intent of this commentary and disagreement as to its scope.
This has given rise to varying practices among the lawyers involved in this area. The issues have been addressed
by the CBA Real Estate Sections and by the Professional Responsibility Committee but because an amendment
to the Code might be involved, ultimate resolution lay with the benchers. At their meeting of November 28, 1997,
the benchers heard from several practitioners in the area who outlined the various positions and issues. They
then struck a committee to further consider the matter and to return with a recommendation as to whether the
above commentary should be amended to delete the prohibition in the builder/purchaser situation, or whether
such prohibition should continue, perhaps with clarification.
The result of the committee's efforts was the following recommendation to the benchers:
        The Code of Conduct be amended by deleting the words "and acting for both builder and purchaser in the
        construction of a new home” from Commentary 2.1 to Rule # 2 of Chapter 6, Conflicts of Interest, where
        found on page 57.

The recommendation was accepted by the benchers at their October 9, 1998 meeting by passing a resolution in
the same wording.
Notwithstanding the effect of the proposed amendment, the benchers expressed concern for the position of the
purchaser who is represented by the same lawyer who represents the builder, and often the builder’s mortgage
lender. Accordingly, they draw to the attention of all members, the wording of Rule 2 which requires that the
multiple representation be "in the best interests of the parties," and wording of the commentary on page 56 which
provides:
        Furthermore, the requirement that the multiple representation be in the clients' best interests will not be
        fulfilled unless the lawyer has made an independent evaluation and has concluded that this is the case. It
        is insufficient to rely on the clients' assessment in this regard.

Commentary 2.1 provides many factors for the lawyer to consider in making the independent evaluation. Included
are:
            probability that the conflict or potential conflict will ripen into a dispute due to the respective positions
             or personalities of the parties, the history of their relationship or other factors

            likely effect of a dispute on the parties

            whether it may be inferred from the relative positions or circumstances of the parties (such as a
             long-standing previous relationship of one party with the lawyer) that the lawyer would be motivated
             to favour the interests of one party over another




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These factors, among the many others in the commentary, must be considered in the light of the kinds of
problems that can be anticipated in the builder/purchaser scenario. The problems can be as minor as the badly
hung door, or as major as the effect of the determination of who is the "owner" for holdback purposes under the
Builders' Lien Act.
It must also be remembered that when there has been an evaluation that multiple representation is in the best
interests of the clients, the lawyer will have to be "able to demonstrate after the fact that each client received
representation equal to that which would have been rendered by independent counsel."
These concerns apply to all multiple representations. Indeed, that was one of the reasons for the benchers’
resolution, i.e. no basis to justify different treatment for the builder/purchaser situation. Nonetheless, practitioners
in this area should be sensitive to the inherent potential conflicts and the fact that it is frequently a "once in a
lifetime" event for the purchaser, and therefore, carefully apply the criteria in evaluating the interests of the clients.
Notwithstanding the amendment to the Code, the benchers recognize that lawyers for builders will still, from time
to time, be dealing with unrepresented purchasers. The benchers wish to remind members, therefore, that courts
have frequently found a lawyer/client relationship because of the perception of the "client." This is of particular
concern in the new home situation where, frequently, the builder advertises that its lawyer is also acting for the
purchaser. In addition, the signing of documents by the purchaser at the office of the lawyer for the builder and
other contacts which may occur, further exacerbate the problem.
Accordingly, when dealing with the unrepresented purchaser the lawyer should be particularly cautious. Once
again, the Code of Conduct provides direction.
Chapter 1, Relationship of the Lawyer to Society and the Justice System, Commentary 7:
        If a lawyer is dealing with an unrepresented person, the duty of candour requires special efforts to clarify
        the lawyer's role. In particular, it is necessary to explain that comments and information offered by the
        lawyer are likely to be partisan in nature and that the lawyer is not acting in the interests of the
        unrepresented person.

Chapter 4, Relationship of the Lawyer to Other Lawyers, Commentary G.2:
        When dealing in a professional capacity with a non-lawyer representing another person, or with a person
        not represented by counsel, a lawyer has the same general duties of honesty, candour and good faith
        that are owed to professional colleagues.

Chapter 11, The Lawyer as Negotiator, Rule #5:
        When negotiating with an opposing party who is not represented by counsel, a lawyer must:

        (a)      advise the party that the lawyer is acting only for the lawyer's client and is not representing that
                 party, and,

        (b)      advise the party to retain independent counsel.

When communicating with an unrepresented purchaser in respect of the above matters, it is best to either do so
in writing or confirm oral discussions in writing.
The benchers hope that the foregoing will be helpful to those lawyers who practice in this area.




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                                                 CHAPTER 7
                                               CONFIDENTIALITY
                                             STATEMENT OF PRINCIPLE
A lawyer has a duty to keep confidential all information concerning a client's business, interests and
affairs acquired in the course of the professional relationship.

                                                       RULES
1.      A lawyer must not disclose any confidential information regardless of its source and whether or not it is a
        matter of public record.

2.      A lawyer must not disclose the identity of a client nor the fact of the lawyer's representation.

3.      A lawyer must preserve and keep confidential property of a client under the lawyer's control.

4.      A lawyer must take reasonable steps to ensure the maintenance of confidentiality by all persons engaged
        or employed by the lawyer.

5.      A lawyer must continue to hold a client's information in confidence despite conclusion of the matter or
        termination of the lawyer/client relationship.

6.      A lawyer who possesses confidential information of a client or former client:

        (a)      must not use such information for the lawyer's personal benefit nor the benefit of a firm member
                 or a related person or affiliated entity of the lawyer; and

        (b)      must not act or continue to act for another client if the lawyer would have a duty to disclose such
                 information to that client.

7.      When, in other provisions of this Code, an ethical obligation of lawyers is stated to be subject to
        confidentiality:

        (a)      confidential information of a client must not be disclosed to any party without the client's consent;

        (b)      a lawyer must seek the client's consent to disclosure of confidential information to the extent
                 necessary to permit the lawyer to fulfill the ethical obligation; and

        (c)      in the event that consent is withheld, the lawyer must withdraw.

8.      The foregoing rules of this chapter are subject to the following:

        (a)      A lawyer must disclose confidential information to the Law Society when required to do so by the
                 Law Society;

        (b)      A lawyer must disclose confidential information when required to do so by law;

        (c)      A lawyer must disclose confidential information when necessary to prevent a crime likely to result
                 in death or bodily harm, and may disclose confidential information when necessary to prevent any
                 other crime;

        (d)      When acting for more than one party in the same matter, a lawyer must disclose to all such
                 parties any material confidential information acquired by the lawyer in the course of the
                 representation and relating to the matter in question;

        (e)      A lawyer may use or disclose confidential information of a client when expressly or impliedly
                 authorized by the client;



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        (e.1)    A lawyer may disclose confidential information to another lawyer to secure legal or ethical advice
                 about the lawyer’s proposed conduct;

        (f)      A lawyer may disclose confidential information when reasonably necessary for the lawyer to
                 properly prosecute an action or defend a claim or allegation in a dispute with a client.
                                                                                                              Nov2001

9.      When confidential information is disclosed by a lawyer pursuant to Rule #8, the lawyer must disclose the
        minimum information required to give effect to Rule #8 and no more.

                                                  COMMENTARY
General

G.1     Frank and unreserved communication between lawyer and client encourages people to seek early legal
        assistance and facilitates the full development of facts, which in turn enables a lawyer to render effective
        professional service. The maintenance of confidentiality is central to the credibility of the profession and
        the trust that must be reposed in a legal advisor. As a result, a lawyer's professional duties with regard to
        confidentiality are defined largely in terms of the lawyer/client relationship.

        On the other hand, the obligation to treat information as confidential may arise although a lawyer/client
        relationship has not been established. For example, a lawyer may acquire through the discovery process
        information that relates primarily to a party to a matter other than the lawyer's client. Improper use or
        disclosure of such information would reflect poorly on the lawyer and the profession while possibly
        damaging the other party and contravening legal authority.

        Moreover, a lawyer is likely to be viewed as a confidant by persons other than clients. The rules of this
        chapter apply in principle, therefore, to the confidences of' anyone seeking advice or assistance on a
        matter invoking a lawyer's professional knowledge, although the lawyer may not render an account to or
        agree to represent that person. As a consequence, a lawyer should be cautious in accepting confidential
        information on an informal or preliminary basis since possession of the information may prevent the
        lawyer from subsequently acting for another party in the same or a related matter (see Rule #3 of Chapter
        6, Conflicts of Interest). Similarly, a lawyer should decline to accept information from another lawyer or a
        third party on condition that it be kept confidential from the lawyer's client, and should refrain from
        requesting a colleague to accept such a condition. Acquisition of information under these circumstances
        may compel withdrawal because the lawyer's promise to maintain confidentiality may interfere with the
        duty to disclose to the client all information that must be disclosed to enable a proper representation. (see
        Commentary 6)

G.2     Definitions: The terms "firm", "firm member" and "lawyer" are defined in Interpretation. They have
        particular relevance to confidentiality because a lawyer's duty to keep client information confidential
        extends to each member of the lawyer's firm and, if a lawyer is prevented from acting due to possession
        of confidential information, a member of the same firm is also prevented from acting. It is therefore
        important to know who will be considered a firm member in this context.

        A lawyer doing project work for a firm pursuant to contract may be viewed as a firm member under certain
        circumstances. (see Interpretation)

        When lawyers share space, the risk of advertent or inadvertent disclosure of confidential information is
        significant even if the lawyers involved exert efforts to insulate their respective practices. Consequently,
        for the purposes of this chapter, "firm" includes lawyers practising law from the same premises but
        otherwise practising law independently of one another.




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        To comply with the requirements of Chapter 6, Conflicts of Interest, lawyers in space-sharing
        arrangements must also share certain confidential client information with each other. For example, it will
        be necessary to know the identities of clients of the other lawyers to determine when conflicts exist.
        Where a conflicts check shows that a person against whom one of the lawyers wishes to act was
        previously represented by another of the lawyers, those lawyers may need to discuss the nature of any
        confidential information possessed by the previously-acting lawyer. Thus, the implied consent to
        disclosure of information referred to in Rule #8(e) extends to all the lawyers practising in such an
        arrangement.

G.3     Confidentiality vs. privilege: The ethical rules respecting confidentiality must be distinguished from the
        evidentiary rules of privilege. The latter are designed to prevent certain documents and communications
        passing between lawyer and client from being admitted as evidence in judicial proceedings. The ethical
        rules are wider since they apply whether or not a judicial proceeding is involved, and without regard for
        the nature or source of the information or the fact that others share the knowledge. A lawyer should
        become familiar with statutory provisions dealing with privilege and the related area of search and seizure
        (such as those contained in the Criminal Code, the Income Tax Act and the Charter of Rights and
        Freedoms), and must be prepared to assert privilege on a client's behalf when appropriate.

G.4     Disclosure or use of confidential information: Rules #1 through #7 are subject to Rule #8, which permits
        disclosure or use of confidential information under certain circumstances. The most common justification
        for disclosure or use is the client's express or implied consent. (see Rule #8(e) and accompanying
        commentary)

R.1     A lawyer must not disclose any confidential information regardless of its source and whether or
        not it is a matter of public record.

C.1     "Confidential information" means all information concerning a client's business, interests and affairs
acquired in the course of the lawyer/client relationship. Information about a client may come to the lawyer from a
source other than the client and may not relate directly to the client's matter. Such information will nonetheless be
confidential if acquired by the lawyer in the course of acting.
A lawyer's duty of secrecy is not affected by the fact that the lawyer is representing the client in a public forum,
nor by the availability or actual disclosure of information through other sources such as the media. A lawyer must
have the client's express or implied authorization before confirming any such information to a third party.
The duty to respect a client's confidences is not limited to business discussions; it applies as well to
communications with spouse, friends and family members. Once information has been divulged, a lawyer is
unable to ensure that it will not be repeated or used for inappropriate purposes. Similarly, it is improper to discuss
a client's affairs with colleagues unless they are persons to whom the lawyer is expressly or impliedly authorized
to make disclosure. Even when such discussions are authorized, they should take place under appropriate
circumstances. Indiscreet shop-talk among lawyers, whether or not the client is named, could result in prejudice to
the client if overheard by third parties able to identify the subject matter. Moreover, discussions of this nature
reflect adversely on the lawyers concerned and the legal profession generally.
A lawyer should not assume that a particular fact about a client, although apparently harmless, can be disclosed
by the lawyer to a third party. Details such as the client's social insurance number and address are confidential
unless Rule #8 applies.
From time to time, the revelation of confidential information may be in a client's interests and may even be
impliedly authorized by the client (see Rule #8(e)). Examples are disclosure of confidential details to outside
consultants retained with the client's permission, and disclosure to a client seeking to purchase property that
another client has suitable property for sale. However, the client may have valid reasons for wishing to suppress
disclosure despite its apparent benefits. The most prudent course is therefore to obtain the client's express
consent in these circumstances.
R.2     A lawyer must not disclose the identity of a client nor the fact of the lawyer's representation.

C.2     The identity of clients falls within the general ambit of confidential information. While disclosure of this
information may seem inconsequential, there are circumstances in which it would embarrass or damage the




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client. Disclosure of client names by a lawyer known to do only matrimonial or criminal defence work is an
example.
Like the five rules which follow, however, Rule #2 is subject to the exceptions described in Rule #8. Therefore, if a
lawyer obtains a client's express authorization, it may be appropriate to include the client's name in a firm
brochure or otherwise disclose the fact of the representation. Even if it becomes public knowledge that a client
has retained counsel (through a newspaper column, for example, that identifies the client as a party to litigation),
a lawyer should obtain the client's consent before disclosing the lawyer's role in the matter. The client's consent is
implied when disclosure is necessary to carry out the retainer or to conduct the lawyer's business in the ordinary
course. (see Rule #8(e) and accompanying commentary)
R.3     A lawyer must preserve and keep confidential property of a client under the lawyer's control.

C.3      Property of a client that is temporarily in the possession or under the control of a lawyer must be used
solely for the purposes expressly or impliedly authorized by the client. "Property" includes money and securities;
documents such as correspondence, wills, title deeds, minute books, licenses, certificates and other papers; and
personal property such as jewellery and corporate seals.
Access to client files, within the confines of the law office or otherwise, must be strictly limited to those legitimately
entitled to access. Leaving client papers in view, particularly where casual visitors to the law office might
encounter them (such as a meeting room or coffee lounge), is a potential breach of confidentiality. Nor should a
lawyer work on a file in a public place such as an airplane without taking appropriate safeguards.
In any dealings with client property, a lawyer must follow procedures that will facilitate its return in suitable
condition and with confidentiality intact. If a lawyer leaves practice or relocates, appropriate steps must be taken
to return wills and other important original documents to clients, or at least to ensure that clients will have ready
access to such documents after the lawyer's departure.
A lawyer's responsibilities with respect to client property are those of a professional fiduciary and not a mere
bailee. If a third party advances a claim to such property, the lawyer's recourse is to the courts.
A lawyer is entitled to a solicitor's lien over property of the client under certain circumstances. However, there is a
general duty to decline to enforce a lien for non-payment of legal fees if the client is unable to pay and assertion
of the lien would materially prejudice the client's position in any uncompleted matter. (see also Rule #9 of Chapter
13, Fees, and Commentary 3 of Chapter 14, Withdrawal and Dismissal)
R.4     A lawyer must take reasonable steps to ensure the maintenance of confidentiality by all persons
        engaged or employed by the lawyer.

C.4       A lawyer has implied authority (see Rule #8(e)) to disclose the affairs of clients to partners and associates
in the firm and, to the extent necessary, to other personnel such as students-at-law, legal assistants, secretaries,
paralegals and filing clerks; agents retained by the lawyer, such as search companies and expert witnesses; and
outside consultants, such as computer technicians and accountants. However, the lawyer must take reasonable
steps to ensure that client information is not used improperly in any respect by employees and that confidentiality
is maintained during the period of employment and afterwards. A lawyer who shares office space, equipment or
support staff with others must also ensure that such arrangements are structured in a manner that protects
confidentiality.
R.5     A lawyer must continue to hold a client's information in confidence despite conclusion of the
        matter or termination of the lawyer/client relationship.

C.5      Once a lawyer is impressed with the obligation to hold information in confidence, disclosure at any time
thereafter is improper unless Rule #8 applies. Therefore, a lawyer should not convey confidential information to a
successor lawyer on a change of solicitors unless satisfied that the client has authorized such disclosure. The
obligation of confidentiality also survives the death of a client.
R.6     A lawyer who possesses confidential information of a client or former client:

        (a)      must not use such information for the lawyer's personal benefit nor the benefit of a firm
                 member or a related person or affiliated entity of the lawyer; and




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        (b)       must not act or continue to act for another client if the lawyer would have a duty to
                  disclose such information to that client.

C.6     "Lawyer" includes all members of a lawyer's firm. For the purposes of this Code and, in particular, this
chapter, "firm" and "firm member" are defined broadly. (see Interpretation)
Rule 6(a): A lawyer is prohibited not only from actively disclosing confidential information of a client or former
client, but from using it to personal advantage or for the benefit of a firm member, related person or affiliated
entity. Use of information for the benefit of other persons connected with the lawyer may also offend the spirit of
Rule #6(a) if the lawyer could be seen to benefit indirectly from such use. However, Rule #6(a) is subject to client
consent. (see Rule #8(e) and accompanying commentary)
Rule 6(b): As noted in Commentary G.1 of Chapter 9, The Lawyer as Advisor, there is generally an obligation to
disclose to a client all information that must be disclosed to enable the lawyer to properly carry out the
representation. A lawyer must decline to act in a matter, therefore, or must withdraw from an existing
representation if all of the following circumstances are present:
             the lawyer is in possession of confidential information of a current or former client that is material to
              that matter or representation;

             the current or former client will not consent to disclosure of the information to the other client or
              potential client (see Rule #8(e)); and

             it is impossible to properly carry out the representation or prospective representation without making
              such disclosure or, alternatively, the client or potential client in that matter is unwilling to accept legal
              advice based on the information without actually being privy to the information and therefore insists
              on disclosure.

Under these circumstances, the lawyer is unable to act in the best interests of that client and cannot represent or
continue to represent the client.
Rules #3, #4 and #5 of Chapter 6, Conflicts of Interest, also deal with the relationship between possession of
confidential information and a lawyer's ability to act or continue to act.
R.7     When, in other provisions of this Code, an ethical obligation of lawyers is stated to be subject to
        confidentiality:

        (a)       confidential information of a client must not be disclosed to any party without the client's
                  consent;

        (b)       a lawyer must seek the client's consent to disclosure of confidential information to the
                  extent necessary to permit the lawyer to fulfill the ethical obligation; and

        (c)       in the event that consent is withheld, the lawyer must withdraw.

C.7      Various rules of this Code require that a lawyer correct a material misrepresentation that has originated
with the lawyer or with a person subject to the lawyer's control and direction (such as a client or witness) when the
court or an opposing party is continuing to rely on the representation. See, for example:
             Rule #2 of Chapter 4, Relationship of the Lawyer to Other Lawyers;
             Rule #15 of Chapter 10, The Lawyer as Advocate;
             Rule #2 of Chapter 11, The Lawyer as Negotiator.

The steps that must be taken to correct the misapprehension of the court or the other party will depend on all
relevant circumstances. Occasionally, the obligation may be satisfied by merely advising the court or opposing
party not to rely on the information. In other situations, fulfilment of the obligation requires communication of
information that is not confidential (such as the fact that an error has been made in calculating the cash to close a
real estate transaction), in which case the client's consent to disclosure need not be obtained. However, if the
misrepresentation may be corrected only through disclosure of confidential information, the lawyer's duties with
respect to confidentiality prohibit such disclosure without obtaining the client's consent. The lawyer must therefore
seek the client's consent so that the lawyer can correct the misrepresentation. If consent is withheld, the lawyer is


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obliged to cease acting. See Chapter 14, Withdrawal and Dismissal, with respect to duties associated with
withdrawal.
If a matter has been concluded, the client's refusal of consent to disclosure will effectively prevent the lawyer from
taking any further action.
R.8     The foregoing rules of this chapter are subject to the following:

        (a)      A lawyer must disclose confidential information to the Law Society when required to do so
                 by the Law Society;

        (b)      A lawyer must disclose confidential information when required to do so by law,

        (c)      A lawyer must disclose confidential information when necessary to prevent a crime likely
                 to result in death or bodily harm, and may disclose confidential information when
                 necessary to prevent any other crime;

        (d)      When acting for more than one party in the same matter, a lawyer must disclose to all
                 such parties any material confidential information acquired by the lawyer in the course of
                 the representation and relating to the matter in question;

        (e)      A lawyer may use or disclose confidential information of a client when expressly or
                 impliedly authorized by the client;

        (e.1)    A lawyer may disclose confidential information to another lawyer to secure legal or ethical
                 advice about the lawyer’s proposed conduct;

        (f)      A lawyer may disclose confidential information when reasonably necessary for the lawyer
                 to properly prosecute an action or defend a claim or allegation in a dispute with a client.

C.8.1 Relationship with law: A disclosure of confidential information that is required by Rule #8 may be
expressly prohibited by legislation, in which case the legislation would govern. (see also Commentary 2(c) of
Interpretation)
C.8.2 Rule #8(a): In some circumstances, such as disciplinary proceedings under the Legal Profession Act, the
Law Society may direct a lawyer to disclose information that is confidential, in which case the lawyer must comply
irrespective of client consent. If, however, the lawyer receives no such directive, the client's consent to disclosure
of confidential information must be obtained. An example is lawyer initiated contact with the Law Society
respecting the misconduct of a colleague. (see Rule #4 of Chapter 3, Relationship of the Lawyer to the
Profession)
Rule #8(b): While a lawyer is generally justified in obeying a court order to disclose confidential information, this
will not be the case if a lawyer believes in good faith, based on reasonable grounds, that the order is in error and
that the law does not require disclosure. In these circumstances, the lawyer has an obligation to withhold
disclosure pending final adjudication of the matter. (see Chapter 1, Relationship of the Lawyer to Society and the
Justice System)
Rule #8(c): A client who seeks an advocate with respect to past conduct is entitled to have disclosures held in
confidence by the advocate. The same rationale does not apply to a prospective crime since the client has no
right to expect the lawyer to assist in future misconduct. Included within the concept of "prospective crime" are
crimes of an ongoing nature that have a prospective element, such as the making of a false statement in a
prospectus upon which third parties are continuing to rely. Also included are past crimes having consequences
yet to occur that will constitute a new or added offence. An example is the offence of secreting a bomb on an
aircraft that will be aggravated to homicide if the bomb explodes. However, Rule #8(c) is not intended to apply to
a test-case scenario. (see Commentary 1 of Chapter 1, Relationship of the Lawyer to Society and the Justice
System)
A lawyer advised of a prospective crime by a client must first assess whether it is reasonable to assume that the
client will carry out the expressed intention. In doing so, the lawyer must evaluate factors such as the client's
history and the nature and extent of the lawyer/client relationship. If the crime seems reasonably likely to be




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effected and is likely to result in death or bodily harm, disclosure must be made to the extent necessary to prevent
the crime.
If the prospective crime does not involve death or bodily harm and disclosure is therefore discretionary, the lawyer
must evaluate the risk to the safety or property of others. The prospect of a "victimless" crime without serious
consequences may not warrant disclosure.
As suicide is not a crime, this sub-rule does not authorize disclosure of a threat of suicide. See the discussion
under Rule #8(e) below.
Rule #8(d): While multiple representation is generally discouraged, there are circumstances in which it is in the
best interests of the parties involved. (see Commentary 2.1 of Chapter 6, Conflicts of Interest) A lawyer will be
precluded, however, from receiving material information in connection with the matter from one client and treating
it as confidential in respect of the others. This aspect of the representation must be disclosed to the clients in
advance so that their consent is an informed one.
A limited exception to the mutual sharing of information in a multiple representation is discussed in Commentary
2.3 of Chapter 6, Conflicts of Interest.
Rule #8(e): A client's express authorization of disclosure or use of confidential information must be genuine and
informed. A lawyer must take reasonable steps to ensure that the client understands how such disclosure or use
will affect the client's interests, particularly if the lawyer stands to incur personal benefit from the client's waiver of
confidentiality. An example is the lawyer who solicits such a waiver to facilitate the writing of a memoir or
autobiography. Whether this constitutes ethical conduct will be determined by all relevant circumstances,
including the nature of the client information in question; the manner in which it is presented by the lawyer in the
publication; and whether the consequences for the client (such as effect on the client's reputation or ease of
identification of the client although not named) were within the contemplation of the client at the time consent was
granted.
Implied authorization to disclosure of confidential information arises from the contract of retainer between lawyer
and client. An implicit term of that contract is that the lawyer will be permitted to disclose confidential information
to the extent necessary to carry out the retainer and also to conduct the lawyer's business in the ordinary course.
For example, a lawyer must reveal certain information in pleadings and to firm members and staff (see
Commentary 4). As well, a lawyer is entitled to provide client-related information to the firm's auditors and bankers
(including, in the latter case, a listing of accounts receivable), and probably to outside consultants retained to
assist in firm management. Whether a particular disclosure without prior consent falls within the ambit of
day-to-day management of the firm will depend on all relevant circumstances, including the nature and extent of
the disclosure and the role of the party to whom the information is given.
A client will also be taken to have impliedly authorized disclosure of confidential information to safeguard the
client's health or property when the client is physically or mentally incapacitated. An example is disclosure of
information to family members of a client in support of an application under the Dependent Adults Act. Again,
whether a particular disclosure is justified will be determined by all relevant circumstances. The lawyer should be
in a position to demonstrate that disclosure is in the client's best interests.
The implied authority of a lawyer to reveal confidential information is subject to an express limitation or prohibition
by the client. It may also be overridden by special circumstances, such as the fact that a particular client is a
person in the public eye or would be exposed to personal risk if disclosure was made.
Threat of suicide. As confidentiality is fundamental to the lawyer-client relationship, and as the Code does not
expressly deal with disclosure issues arising from a threat of suicide, no disclosure can be made without careful
review of all of the circumstances. Rule 8(e) permits disclosure of confidential information of the client when
"expressly or impliedly authorized by the client". A lawyer should, if possible, discuss with the client whether the
lawyer may disclose an apparent intent to commit suicide and, if so, to whom. Disclosure might be made, for
example, to a relative, a mental health agency or expert, the court or the police. The circumstances supporting an
implicit authorization to disclose an intended suicide will be exceptional.
In the event the lawyer determines that the client has expressly or impliedly authorized disclosure, the lawyer
must disclose the minimum information, in accordance with Rule 9. threat
The lawyer's personal experience, beliefs or moral views on suicide are clearly subordinate to the lawyer's ethical
obligations to maintain the confidential information of their client. In considering the possible disclosure of



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information in the content of a threat of suicide under this Rule, a lawyer may wish to confidentially consult
another lawyer or the Law Society Practice Advisors pursuant to Rule 8(e.1)
If the lawyer concludes that there exists no express or implied authorization to disclose confidential information
about a threat of suicide, the lawyer may also consider whether the client lacks capacity to provide proper
instructions. Rules 7.1 and 7.2 of Chapter 9 of the Code provide for the taking of protective legal action by a
lawyer for the benefit of an incapacitated client.
                                                                                                              Feb 2006;

Rule #8(e.1): Usually, a lawyer who needs to disclose confidential information to secure legal or ethical advice
from another lawyer about the lawyer’s proposed conduct will be impliedly authorized to make the disclosure
under Rule 8(e) or will obtain the client’s consent, such as when the client is pressing the lawyer to act in a way
that the lawyer is concerned may be contrary to ethics or law and the client does not want the lawyer to get advice
from a colleague. In such cases, the lawyer may disclose confidential information without the client’s consent for
the purpose of securing legal or ethical advice from another lawyer. In making such disclosure, a lawyer must limit
the disclosure in accordance with Rule 9 of Chapter 7, Confidentiality. A lawyer who receives such information
must keep it confidential, subject to Rule 4 of Chapter 3, Relationship of the Lawyer to the Profession.
                                                                                                                 Nov2001;

Rule #8(f): This exception to confidentiality arises when a client undermines the lawyer/client relationship through
actions such as impugning the lawyer's conduct or character or refusing to pay the lawyer's account. The result is
a forfeiture or an implied waiver of the right to confidentiality, since both lawyer and client must presumably
disclose some confidential information in support of their respective positions.
A lawyer's discretion with respect to disclosure is wider when the lawyer is defending against a claim or allegation
by a client. In this situation it may be appropriate for the lawyer to respond to the media or another third party.
Conversely, if the lawyer is in the position of complainant or plaintiff, disclosure will generally be limited to
disclosure to the court to the extent necessitated by the litigation process.
R.9     When confidential information is disclosed by a lawyer pursuant to Rule #8, the lawyer must
        disclose the minimum information required to give effect to Rule #8 and no more.

C.9     When it appears that disclosure of confidential information is warranted, a lawyer should, first, carefully
assess exactly what information should be disclosed; and, second, afford the client the opportunity to either make
disclosure personally or persuade the lawyer that the apparent need for disclosure is based on incorrect
information. These steps will ensure that confidential information is not disclosed by a lawyer in haste or when
inappropriate to do so.




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                                        CHAPTER 8
                     THE LAWYER AND THE BUSINESS ASPECTS OF PRACTICE
                                              STATEMENT OF PRINCIPLE
Except where a higher standard is imposed by this Code, a lawyer in conducting the business aspects of
the practice of law must adhere to the highest business standards of the community.

                                                        RULES
1.      A lawyer having a legal obligation to another party must not raise a defence to its enforceability if, at the
        time it was undertaken, the lawyer was aware and the other party unaware that that defence applied to
        the transaction.

2.      A lawyer is personally responsible for financial commitments incurred by the lawyer on behalf of clients
        unless the lawyer has expressly disclaimed responsibility to the relevant party beforehand.

3.      A lawyer having personal responsibility for a financial commitment incurred in the business aspects of
        practice must ensure that such commitment is fulfilled unless there is reasonable justification for the
        lawyer's failure to do so.

                                                    COMMENTARY
General

G.1     The practice of law, while concerned primarily with the delivery of professional services, has a significant
        business component. As law firms grow larger and society more complex, the business aspects of
        practice assume increasing importance in the eyes of many lawyers. At all times, however, the lawyer
        remains a professional and has an obligation to behave as such.

        While the fiduciary standard applied in dealings with clients is not expected of a lawyer in business
        dealings with third parties, the lawyer must adhere to the highest business standards of the community,
        which are often higher than those imposed by law. As a result, conduct falling short of fraud or
        misrepresentation may attract ethical sanction depending on the circumstances. Relevant factors include
        the sophistication and acumen of the party dealing with the lawyer; the lawyer's intent and motivation;
        whether the lawyer's conduct reflects adversely on the profession; and any unfair advantage obtained by
        the lawyer. For a discussion of the meaning of "unfair advantage" in respect of third parties. (see
        Commentary 7 of Chapter 1, Relationship of the Lawyer to Society and the Justice System)

        Apart from the risk of disciplinary proceedings, it is to a lawyer's personal benefit to maintain high
        standards in business dealings since they will affect the lawyer's standing in the community and the
        extent to which the lawyer is regarded as a trustworthy and honourable advisor.

R.1     A lawyer having a legal obligation to another party must not raise a defence to its enforceability if,
        at the time it was undertaken, the lawyer was aware and the other party unaware that that defence
        applied to the transaction.

C.1       One example of a situation falling within Rule #1 is execution of a personal guarantee in the absence of a
certificate of notary public. Another is the borrowing of money pursuant to a loan agreement calling for interest at
an unconscionable rate. In neither case can a lawyer subsequently challenge the transaction on the basis of the
legal deficiency unless the other party was also aware of the deficiency, but desired to proceed nonetheless. The
onus will be on the lawyer to establish the other party's awareness.
This will normally require that the lawyer personally point out the potential defence, particularly if the other party is
not represented by counsel.




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R.2     A lawyer is personally responsible for financial commitments incurred by the lawyer on behalf of
        clients unless the lawyer has expressly disclaimed responsibility to the relevant party beforehand.

C.2      The efficacies and time restraints of practice often require that lawyers incur financial obligations to others
on behalf of clients. Such obligations include charges for medical reports; disbursements payable to government
registries; fees charged by expert witnesses, sheriffs, special examiners, registrars, reporters and public officials;
and the accounts of agents retained in other jurisdictions. A firm, as well as each firm member, is responsible for
an obligation incurred by the firm to a third party unless the third party is advised otherwise in advance.
Particularly in dealings with solicitor agents in other jurisdictions, it is common for a lawyer to forward the third
party's statement of account to the client for payment. While this practice is not in itself unethical, it does not
divest the lawyer of responsibility for ensuring that the account is paid when due and seeking reimbursement from
the client, if necessary.
In the event of a good-faith dispute regarding the proper amount of a fee or other charge, Rule #2 does not
require payment before an appropriate resolution of that issue.
R.3     A lawyer having personal responsibility for a financial commitment incurred in the business
        aspects of practice must ensure that such commitment is fulfilled unless there is reasonable
        justification for the lawyer's failure to do so.

C.3     Trade debts incurred in the practice of law are an example of financial commitments for which a partner or
sole practitioner has personal responsibility. These commitments constitute ethical as well as legal obligations of
the lawyer. Reasonable justification for failure to meet such an obligation would normally be limited to the
following:
        (a)      inability to pay created by insolvency of which the lawyer was not aware at the time the obligation
                 was incurred:

        (b)      the existence of a legitimate and bona fide defence to the obligation. In this regard, see Rule #1
                 and accompanying commentary.

Rule #3 is not intended to apply to debts for which the lawyer has no personal responsibility that have been
incurred by a management company or similar corporate entity other than a professional corporation.




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                                               CHAPTER 9
                                         THE LAWYER AS ADVISOR
                                            STATEMENT OF PRINCIPLE
A lawyer has a duty to provide informed, independent and competent advice and to obtain and implement
the client's proper instructions.

                                                        RULES
1.      A lawyer must not lie to or mislead a client.

2.      Except when the client directs otherwise, a lawyer must ascertain all of the facts and law relevant to the
        lawyer's advice.

3.      A lawyer must not render advice in situations in which the independence of the lawyer's professional
        judgment is impaired.

4.      A lawyer must not render advice unless competent to do so.

5.      A lawyer must obtain instructions from the client on all matters not falling within the express or implied
        authority of the lawyer.

6.      When a lawyer is unable to obtain instructions from a client because the client cannot be located, the
        lawyer must make reasonable efforts to locate the client.

7.1     When a client is unable to provide proper instructions in a matter due to incapacity:

        (a)      the lawyer must make reasonable efforts to cause the appointment of a legal representative for
                 the client; and

        (b)      pending such appointment, the lawyer must continue to act in the best interests of the client to the
                 extent that instructions are implied or as otherwise permitted by law.

7.2     In an emergency where the health, safety or a financial interest of a person lacking capacity is threatened
        with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even
        though the person is unable to establish a client/lawyer relationship or to make or express considered
        judgments about the matter, when the person lacking capacity or another acting in good faith on that
        person's behalf has consulted the lawyer.

8.      When a lawyer is retained by the legal representative of a minor or dependent adult to act in that regard,
        the lawyer owes to both such parties the duties normally owed by lawyer to client, and the following rules
        apply:

        (a)      If the lawyer receives instructions given in good faith by the legal representative that are within
                 that person's authority but that are not, in the lawyer's view, in the best interests of the minor or
                 dependent adult, the lawyer must either comply with such instructions or withdraw in accordance
                 with Chapter 14, Withdrawal and Dismissal;

        (b)      If the lawyer reasonably believes that the actions or intentions of the legal representative are not
                 in good faith or are outside that person's authority, and are not in the best interests of the minor
                 or dependent adult, the lawyer must take such steps as are reasonably necessary to protect the
                 interests of the minor or dependent adult.

9.      When receiving instructions from a third party on behalf of a client, a lawyer must ensure that the
        instructions accurately reflect the wishes of the client.

10.     A lawyer must not implement instructions of a client that are contrary to professional ethics and must
        withdraw if the client persists in such instructions.


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11.     A lawyer must not advise or assist a client to commit a crime or fraud.

12.     A lawyer must use reasonable efforts to ensure that the client comprehends the lawyer's advice and
        recommendations.

13.     A lawyer must be punctual in fulfilling commitments made to a client and must respond on a timely basis
        to all client communications that contemplate a reply.

14.     A lawyer must keep a client informed as to the progress of the client's matter.

15.     (a)      A lawyer must not make a settlement offer on behalf of a client except on the client's instructions.

        (b)      A lawyer must promptly and fully communicate all settlement offers to the client.

16.     A lawyer must recommend that a client accept a compromise or settlement of a dispute if it is reasonable
        and in the client's best interests.

17.     At the request of a client, and in appropriate circumstances, a lawyer must assist the client in obtaining a
        second opinion.

18.     A lawyer must promptly inform the client of any material error or omission in connection with the lawyer's
        representation irrespective of whether it is capable of rectification.

                                                   COMMENTARY
General

G.1     The underlying principle of this chapter is that a lawyer must follow the client's instructions. In so doing,
        the lawyer must be informed, independent and competent. However, there are situations in which it is
        impossible to obtain proper instructions or to implement them in a proper way. Many of the rules of this
        chapter address these unusual situations. In circumstances in which a lawyer cannot follow the client's
        instructions, a dilemma is created because, at the same time, a lawyer cannot act contrary to such
        instructions. If the dilemma cannot be resolved, it is necessary to withdraw.

        When advising a client, a lawyer has a duty, subject to Commentary C.3.4 of Chapter 6, to disclose to the
        client all information in the lawyer's possession that must be disclosed to enable the lawyer to properly
        carry out the representation. In some cases, this may compel the lawyer to decline to act rather than
        breach the confidence of another client. (see Commentary 6 of Chapter 7, Confidentiality).
                                                                                                               Feb2005

G.2     Legal advice plays an important and valuable role in the administration of justice. It may secure a client's
        physical liberty or immunity from liability. It facilitates the enforcement of legal rights; and in some
        situations, it may create law by inducing legislators to address the legality of a unique solution. In
        addition, a lawyer's advice helps to demystify the law and legal processes in the eyes of non-lawyers. It is
        often instrumental in assisting citizens to understand and deal with various government requirements,
        from the relatively simple filing and registration procedures under some enactments to the complexities of
        the Income Tax Act.

        An effective legal advisor is characterized by a wide range of attributes. Conscientiousness and
        intellectual thoroughness are crucial to research, fact-gathering and the analysis of legal doctrine. A
        sense of judgment is required to enable a lawyer to distinguish the significant aspects of a matter from
        those that are irrelevant or inconsequential. Perhaps most meaningful is the ability to objectively assess
        the strengths and weaknesses of a client's position and to frankly communicate one's conclusions, no
        matter how unpleasant or unfavourable, to the client.

        The client is entitled to receive full and complete information regarding all legal aspects of a matter. For
        example, it may be necessary to caution a client in civil litigation that proceeding in a certain way could
        affect the treatment of costs. Similarly, a client has a right to be informed of the legal advantages of a
        position, such as the availability of technical defences to a criminal defendant, although the lawyer


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        believes the client to be morally or factually culpable. With respect to advising a creditor or another client
        who may have grounds to lay a criminal complaint, see Rule #4 of Chapter 10, The Lawyer as Advocate.

        The giving of legal advice is also facilitated by personal skills that enhance the lawyer/client relationship.
        That relationship should be characterized by courtesy, attention and concern on the part of the legal
        advisor. An attitude of arrogance, impatience, condescension, boredom or indifference will erode the trust
        and confidence of clients and will reflect poorly on the profession as a whole.

G.3     Unsolicited advice: Although legal advice is usually solicited by the client, there are circumstances in
        which a lawyer may wish to initiate discussion or consultation. For example, a lawyer may become aware
        of developments that affect a client's legal position, in which case unsolicited advice will probably be
        appropriate. It may not be appropriate, however, if the lawyer intends to render an account or if, in the
        circumstances, the lawyer's intervention could be construed by the client as intrusive.

G.4     Non-legal advice: On occasion, a lawyer's advice may be more useful to the client if not limited to strictly
        legal considerations. Legal counsel may be relied on by the client to assist in policy decisions and, in so
        doing, to bring together diverse aspects of a given problem or circumstance. Rendering advice in a
        "generalist" capacity is proper so long as a lawyer is sufficiently experienced and competent to do so and,
        where appropriate, distinguishes legal advice from a mere expression of opinion on other aspects of a
        matter.

        The public relations impact of a proposed course of action is an extra-legal consideration of potential
        importance to institutional and high-profile clients. A reference to public relations concerns may therefore
        be appropriate in rendering advice to such a client. On other occasions, a lawyer may refer to economic,
        social and political factors that are relevant to the client's situation. In no case, however, should advice be
        offered beyond the scope of the lawyer's competence and qualifications. (see Rule #4)

R.1     A lawyer must not lie to or mislead a client.

No commentary
R.2     Except when the client directs otherwise, a lawyer must ascertain all of the facts and law relevant
        to the lawyer's advice.

C.2    For legal advice to be effective, it must be based on as much information as can reasonably be obtained,
keeping in mind the lawyer's obligation to be economical (see Commentary G.1 (c)(v) of Chapter 2, Competence).
Generally, an in-depth knowledge and understanding of a client's affairs facilitates the provision of meaningful and
useful advice in most situations involving the client. Investigation of the facts by a lawyer may extend beyond
information provided by the client. For example, it may be appropriate to interview witnesses; conduct searches at
government registries; examine other public records; obtain information from parties connected with the client
(such as accountants, relatives or employees); or physically inspect the client's business, an accident site, or
another relevant locale. It may also be proper to verify questionable information conveyed by a client to prevent
unwitting participation by the lawyer in defamation, interference with contractual relations, negligent
misrepresentation or other illegality.
A lawyer should, however, consult with the client regarding the scope of investigations and should provide an
estimate of costs (see Commentary 2 of Chapter 14, Fees). The client may feel that the detail requested cannot
be provided in the time available or is disproportionate to the importance of the problem in the client's eyes. A
lawyer's duties with respect to legal research are similar to those relating to fact-gathering. While a lawyer must
become familiar with all relevant law, regard must be had for economy and efficiency. If research becomes more
extensive or costly than initially estimated or reasonably anticipated by the client, the lawyer should advise the
client. The client's unwillingness to pay will not affect the standard of competence demanded of a lawyer and will
therefore compel the lawyer to withdraw or to complete the necessary research at no further cost to the client.
(see Commentary G.1(c)(iv) of Chapter 2, Competence)
Occasionally, a client will specifically request that a lawyer provide an opinion or advice based only on limited
facts or assumptions or without the benefit of legal research. While it may be proper in some cases to agree, the
lawyer must ensure that the client understands the limitations of such advice. Not infrequently, a legal opinion
based on limited facts or assumptions will be so restricted and qualified as to be practically worthless. Similarly,


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advice given without research in an area in which a lawyer lacks knowledge or experience is likely to be
unreliable.
R.3     A lawyer must not render advice in situations in which the independence of the lawyer's
        professional judgment is impaired.

C.3      Examples of factors having the potential to interfere with professional objectivity are a lawyer's personal
relationship with or feelings about a client or an opposing lawyer or party; a financial, business or property interest
of the lawyer; and the interests of another client or third party to whom the lawyer owes some allegiance or
fiduciary duty. The precise nature of these conflicting duties and loyalties is explored more thoroughly in Chapter
6, Conflicts of Interest. When a lawyer is acting as advisor, the ability to remain objective assumes special
importance since the advice given will influence the client's future conduct, rights and obligations.
In unusual cases, the application of Rule #3 may be mitigated by considerations such as those described in the
last paragraph of Commentary 11.
R.4     A lawyer must not render advice unless competent to do so.

C.4     As described in Chapter 2, Competence, there are many aspects of a lawyer's obligation to be
competent. If a lawyer is unable to satisfy one or more of these in a given matter, then it is unethical for the lawyer
to render advice.
In particular, a lawyer may lack the requisite knowledge or experience in a given area to support an opinion or
recommendation. If such a situation occurs in a matter involving strictly legal considerations, the lawyer has a
duty to assist the client in obtaining other counsel (see Rule #3 of Chapter 2, Competence). In a matter
encompassing non-legal issues, the lawyer may have an obligation to recommend that the client seek expert
advice from (for example) a financial, family or business consultant. However, an expert may not be retained on a
client's behalf unless the client has consented.
A common example of a case in which competence may become an issue is the implementation of a transaction
having income tax consequences. A lawyer should be continually alert to this possibility and should ensure that,
where necessary, the client has obtained appropriate tax advice.
A lawyer should also be wary of handling legal matters having extrajurisdictional aspects. While a lawyer is not
entitled to practise law in any jurisdiction unless authorized to do so by the relevant governing body, it is
occasionally necessary to register documents or attend to other procedural matters outside Alberta. The
assistance of a lawyer from the other jurisdiction should generally be obtained since, although such a task may
seem straightforward, its proper discharge may in fact be dependent on custom and day-to-day practice that
differs from that followed in Alberta.
R.5     A lawyer must obtain instructions from the client on all matters not falling within the express or
        implied authority of the lawyer.

C.5     Assuming that there are no practical exigencies requiring a lawyer to act for a client without prior
consultation, the lawyer must consider before each decision in a matter whether and to what extent the client
should be consulted or informed. Even an apparently routine step that clearly falls within the lawyer's authority
may warrant prior consultation, depending on circumstances such as a particular client's desire to be involved in
the day-to-day conduct of a matter.
A lawyer has an ethical obligation to put all settlement offers to the client and to obtain specific instructions in that
respect (see Rule #15). In addition, certain decisions in litigation, such as how a criminal defendant will plead,
whether a client will testify, whether to waive a jury trial and whether to appeal, require prior discussion with the
client. As to other, less fundamental decisions, if there is any doubt in the lawyer's mind as to whether the client
should be consulted, it is most prudent to do so.
If a client persistently refuses or fails to provide instructions, the lawyer is entitled to withdraw (see Rule #1(d) of
Chapter 14, Withdrawal and Dismissal). If, however, the failure to provide instructions is due to the client's
disappearance or incapacity, the lawyer has additional duties to attend to before withdrawal is justified. (see Rules
#6 and #7 and accompanying commentaries)
When acting for a corporation, on an in-house basis or otherwise, a lawyer may encounter difficulty in identifying
who within the corporation has authority to give instructions and receive advice on the client's behalf. In this
regard, see Commentary 1 of Chapter 12, The Lawyer in Corporate and Government Service.


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R.6     When a lawyer is unable to obtain instructions from a client because the client cannot be located,
        the lawyer must make reasonable efforts to locate the client.

C.6       Circumstances dictating the extent of a lawyer's efforts to locate a missing client include the facts giving
rise to the inability to contact the client and importance of the issue on which instructions are sought. A wilful
disappearance may mandate a less strenuous attempt at location, while the potential loss of a significant right or
remedy will require greater efforts. In the latter case, the lawyer should take such steps as are reasonably
necessary and in accordance with the lawyer's implied authority to preserve the right or remedy in the meantime.
Once a matter moves beyond the implied authority of the lawyer and all attempts to locate the client have been
unsuccessful, the lawyer may be compelled to withdraw since a representation may not be continued in the
absence of proper instructions.
R.7.1   When a client is unable to provide proper instructions in a matter due to incapacity:

        (a)      the lawyer must make reasonable efforts to cause the appointment of a legal
                 representative for the client; and

        (b)      pending such appointment, the lawyer must continue to act in the best interests of the
                 client to the extent that instructions are implied or as otherwise permitted by law.

C.7.1 Whether a client is able to make reasonable judgments respecting the client's affairs is a legal issue
rather than an ethical one. However, it may be proper in some circumstances to accept instructions from a minor
or from a client who appears or has been adjudged to lack capacity in certain matters. Conversely, one who does
not appear to lack capacity initially may be found, as a matter progresses, to be unable to provide proper
instructions to counsel.
A lawyer who believes a client to be incapable of giving instructions must decline to act. If this inability develops
during an ongoing matter, the lawyer must use reasonable efforts to have a legal representative appointed. What
is reasonable depends on all relevant circumstances, including the importance and urgency of the matter on
which instructions are required. If a significant right or remedy of the client is in jeopardy and family members are
uncooperative in the appointment, the lawyer's role must be more active.
Pending the appointment, the lawyer should preserve and protect the client's position and interests to the extent
possible while avoiding steps that would normally require an exercise of judgment and provision of instructions by
the client. However, it may be proper to take certain actions on the basis of implied instructions, such as filing a
statement of claim on a client's behalf when a limitation period is about to expire. Implied instructions also include
a waiver of confidentiality as reasonably necessary to implement and complete the appointment process.
If a legal representative is not appointed after all reasonable efforts have been made, the lawyer must withdraw
from the representation.
R.7.2   In an emergency where the health, safety or a financial interest of a person lacking capacity is
        threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a
        person even though the person is unable to establish a client/lawyer relationship or to make or
        express considered judgments about the matter, when the person lacking capacity or another
        acting in good faith on that person's behalf has consulted the lawyer.

C.7.2 Even in an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the
person has no other lawyer, agent or other representative available. The lawyer should take legal action on behalf
of the person lacking capacity only to the extent reasonably necessary to maintain the status quo or otherwise
avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such a situation has the
same duties under these Rules as the lawyer would with respect to a client.
A lawyer who acts in an emergency on behalf of a person lacking capacity should keep the confidences of that
person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended
protective action. If a court or other counsel becomes involved, they should be informed of the nature of the
lawyer's relationship with the person lacking capacity. Steps should be taken to regularize the relationship or
implement other protective solutions as soon as possible. See the Chapter 8, Rule 8(e) commentary respecting
confidentiality issues in the context of a threat of suicide.
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R.8     When a lawyer is retained by the legal representative of a minor or dependent adult to act in that
        regard, the lawyer owes to both such parties the duties normally owed by lawyer to client, and the
        following rules apply:

        (a)      If the lawyer receives instructions given in good faith by the legal representative that are
                 within that person's authority but that are not, in the lawyer's view, in the best interests of
                 the minor or dependent adult, the lawyer must either comply with such instructions or
                 withdraw in accordance with Chapter 14, Withdrawal and Dismissal;

        (b)      If the lawyer reasonably believes that the actions or intentions of the legal representative
                 are not in good faith or are outside that person's authority, and are not in the best
                 interests of the minor or dependent adult, the lawyer must take such steps as are
                 reasonably necessary to protect the interests of the minor or dependent adult.

C.8      In the case of a minor or dependent adult speaking through a legal representative, it may not be clear as
a matter of law whether both parties are clients of the lawyer or only one. Ethically, however, the lawyer owes
similar duties and obligations to each party.
While Rule #8 does not specifically address instructions that are outside the authority of a legal representative but
apparently in the best interests of the minor or dependent adult, a lawyer should in this situation consider all
relevant factors, including any law that may apply, in deciding whether to comply with such instructions.
Rule 8(a): A lawyer may in some circumstances disagree with a legal representative's assessment of the best
interests of a minor or dependent adult. It is the legal representative, however, who is entitled and obliged to
formulate such an assessment. The judgment of the legal representative must therefore prevail if there is no lack
of good faith or authority. A mere difference of opinion (as to whether to accept a settlement offer in a lawsuit, for
example) does not justify the breach of confidentiality that would be necessary to bring a third party, such as the
court or the Public Trustee, into the decision-making process. The lawyer may or may not be justified in
withdrawing under the circumstances. (see Chapter 14, Withdrawal and Dismissal)
Rule 8(b): If a lawyer becomes aware of conduct or intended conduct on the part of a legal representative that is
clearly in bad faith or outside that person's authority, such as fraud or theft, and contrary to the best interests of
the minor or dependent adult, the lawyer must act to protect those interests. This may require reporting the
misconduct to a person or institution, such as a family member, the Public Guardian, the Public Trustee or the
court, having the ability and authority to act on behalf of the minor or dependent adult. The legal representative is
not entitled to rely on confidentiality as a means of perpetuating or concealing misconduct.
R.9     When receiving instructions from a third party on behalf of a client, a lawyer must ensure that the
        instructions accurately reflect the wishes of the client.

C.9.1 General: It is not inherently improper for a lawyer to accept instructions on a client's behalf from someone
other than the client. For example, a client may be indisposed or unavailable and therefore unable to provide
instructions directly, or a lawyer may be retained at the suggestion of another advisor, such as an accountant,
with the result that at least the initial contact is made by the advisor on the client's behalf.
In these circumstances a lawyer must verify that the instructions are accurate and were given freely and
voluntarily by a client having the capacity to do so. The lawyer's freedom of access to the client must be
unrestricted. In certain situations it may be appropriate for the lawyer to insist on meeting alone with the client.
(see also Commentary 12)
From time to time a lawyer is retained and paid by one party but requested to prepare a document for execution
by another party. While on a technical analysis the instructing party may be the client, the facts may indicate a
relationship with the other party as well that carries with it certain duties on the part of the lawyer, such as the duty
to make direct contact with the other party to confirm the instructions. If, for example, a lawyer has been asked to
prepare a power of attorney or a will for a relative of the person providing instructions, the possibility of coercion
or undue influence requires that steps be taken to protect the interests of the relative. If that person's wishes
cannot be satisfactorily verified, it is improper for the lawyer to carry out the instructions.




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C.9.2 Accepting payment from a third party: A lawyer may be paid by one person, such as an insurance
company or union, while being retained to act for another person, such as an insured individual or union member,
who has standing to provide instructions directly to the lawyer. In this situation, the lawyer must clarify through
discussions with both parties at the outset of the representation whether the lawyer will be acting for both parties,
or only for the person instructing the lawyer.
If both parties are to be represented by the lawyer in the relevant matter, then the provisions of Chapter 6,
Conflicts of Interest, respecting multiple representation will apply. Briefly, the lawyer must make an independent
judgment whether acting for both is in the parties' best interests; both parties must consent to the terms of the
arrangement after full disclosure; and the lawyer will not be permitted to keep material information confidential
from either party. In the event that a dispute develops, the lawyer will be compelled to cease acting altogether
unless, at the time the dispute arises, both parties consent to the lawyer's continuing to represent one of them.
In some circumstances, the person responsible for payment may agree that the other person will be considered
the sole client of the lawyer in that matter if (for example) the first party is paying the other's legal fees through
courtesy or philanthropy or pursuant to a prepaid legal services plan. In this event, the lawyer should be satisfied
that the financially responsible party understands the significance of the characterization of the other party as the
sole client and, in particular, that the financially responsible party will have no right to request or receive
confidential information regarding the matter.
Some prepaid legal services plans do not offer subscribers a choice of counsel. A lawyer participating in such a
plan must explain to the client the implications of this lack of choice at the first available opportunity.
R.10    A lawyer must not implement instructions of a client that are contrary to professional ethics and
        must withdraw if the client persists in such instructions.

C.10 A lawyer's ethical obligations override instructions given by a client to the contrary. For example, a lawyer
cannot proceed on the basis of an arithmetical error made by opposing counsel. A lawyer must also tender cash
to close a real estate transaction in accordance with trust conditions accepted by the lawyer, although the client
instructs a holdback based on alleged deficiencies in the property. (see Rules #3 and #11 of Chapter 4,
Relationship of the Lawyer to Other Lawyers)
Certain ethical obligations of lawyers (such as the obligation expressed in Rule #15 of Chapter 10, The Lawyer as
Advocate, to correct a misrepresentation made to the court) are stated to be subject to confidentiality. In these
situations, if fulfillment of the obligation requires disclosure of confidential information of a client, the lawyer must
seek the client's consent to such disclosure. If the client withholds consent, the lawyer is obliged to withdraw. (see
Rule #7 of Chapter 7, Confidentiality)
R.11    A lawyer must not advise or assist a client to commit a crime or fraud.

C.11 A lawyer's duty to uphold the law, and the high standards of conduct expected of lawyers generally,
prohibit counselling, encouraging or assisting in conduct that is criminal or fraudulent. (see Rule #1 and
accompanying commentary of Chapter 1, Relationship of the Lawyer to Society and the Justice System, and Rule
#4 of Chapter 12, The Lawyer in Corporate and Government Service)
Rule #11 does not apply to conduct the legality of which is supportable by a reasonable and good-faith argument,
nor to advising a client in a test-case scenario (see Commentary 1 of Chapter 1, Relationship of the Lawyer to
Society and the Justice System). Further, Rule #11 is not intended to prevent a lawyer from fully explaining the
options available to a client, including the consequences of various means of proceeding, or from representing
after the fact a client accused of wrongful conduct. However, a lawyer may not act in furtherance of a client's
improper objective. An example would be assisting a client to implement a transaction that is clearly a fraudulent
preference. Nor may a lawyer purport to set forth alternatives without making a direct recommendation if the
lawyer's silence would be construed as an indirect endorsement of an illegal action.




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The mere provision of legal information must be distinguished from rendering legal advice or providing active
assistance to a client. If a lawyer is reasonably satisfied on a balance of probabilities that the result of advice or
assistance will be to involve the lawyer in a criminal or fraudulent act, then the advice or assistance should not be
given. In contrast, merely providing legal information that could be used to commit a crime or fraud is not improper
since everyone has a right to know and understand the law. Indeed, a lawyer has a positive obligation to provide
such information or ensure that alternative competent legal advice is available to the client (see Chapter 5,
Advertising). Only if there is reason to believe beyond a reasonable doubt, based on familiarity with the client or
information received from other reliable sources, that a client intends to use legal information to commit a crime
should a lawyer decline to provide the information sought.
With respect to objectives or beliefs of a client that a lawyer finds objectionable although they are neither illegal
nor involve the lawyer in unethical conduct, one should generally overcome the inclination to pass moral
judgment. While a lawyer is entitled to decline to act in a meritorious matter provided that reasonable steps are
taken to assist the client in finding competent representation (see Rule #5 of Chapter 1, Relationship of the
Lawyer to Society and the Justice System), it is usually the unpopular client who will encounter the most difficulty
in obtaining legal assistance. Representing a client does not constitute approval of the client's views or activities,
and representation by a lawyer with personal reservations may be preferable to no representation at all.
R.12    A lawyer must use reasonable efforts to ensure that the client comprehends the lawyer's advice
        and recommendations.

C.12 Legal advice must be understood and appreciated by clients to be of value. A lawyer's duty to ensure
understanding will vary according to the client's individual attributes. It is necessary to be more painstaking with
an unsophisticated client or one who lacks education, experience, financial acumen or intelligence. A lawyer
should also take into account client characteristics such as age, temperament and facility with the language, and
should adjust the tone, thoroughness and complexity of communications accordingly.
Note that if a client appears to lack capacity, Rule #7 may apply.
When a lawyer has been retained to give a certificate of independent legal advice, the task must be undertaken
conscientiously and with due consideration for all relevant circumstances. While the normal obligation of
independent counsel is to ensure the voluntariness of a transaction and the client's understanding of it, factors
such as the relationship between the parties, an apparent inequality of bargaining position or an agreement that
appears heavily weighted in favour of one party may require the lawyer to make further inquiries. Under no
circumstances may an offhand or cursory approach be taken to completion of a certificate of independent advice.
Consultation with independent counsel is frequently the client's only opportunity to consider objectively a
transaction that may be primarily for the benefit of some other party while exposing the client to the risk of
significant liability or prejudice.
R.13    A lawyer must be punctual in fulfilling commitments made to a client and must respond on a
        timely basis to all client communications that contemplate a reply.

C.13 Many of the reasons relied on by lawyers to justify failure to respond to a telephone call or letter are
ethically unacceptable. Such reasons include a desire to avoid unpleasant consequences that may flow from
response; the view that response is unnecessary although the client is unaware of this; and the argument that
one's schedule does not allow time for response. The obligations of courtesy and fairness require that all
communications, generally speaking, be responded to or at least acknowledged on a timely basis (that is, within a
reasonable time given all of the circumstances). If a lawyer is legitimately unable to do so personally,
arrangements should be made for another person in the office to contact the client.
Occasionally a lawyer may be justified in not responding to a communication (for example, one intended solely for
harassment), but whether this is the case will be determined by all relevant circumstances.
A lawyer must also respect commitments made to a client regarding the lawyer's availability or an action to be
taken within a certain period of time. If genuinely unable to comply, the lawyer must so advise the client in a
forthright manner, preferably in advance of the deadline, and must exert reasonable efforts to propose an
acceptable alternative.




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R.14    A lawyer must keep a client informed as to the progress of the client's matter.

C.14 A lawyer often assumes that a client has more legal knowledge and understanding than is actually the
case, or that the client will not be interested in the routine details of a matter. Both these assumptions can lead to
misunderstandings that are detrimental to the lawyer/client relationship. The process of informing, consulting with,
and explaining and reporting to the client improves the quality of legal services in fact (since a lawyer must have
the matter well in hand to implement this process), while contributing to the client's feeling of involvement and
conviction that the lawyer is genuinely concerned about the client's matter.
Furthermore, full and complete communication with the client that is properly documented on the file will provide a
lawyer with significant support should the file ever be scrutinized in the context of a complaint or legal proceeding.
A lawyer's obligation to inform includes the following:
        (a)      communicating to the client all settlement offers (see Rule #15);

        (b)      fully explaining to the client all matters necessary to ensure appreciation of the client's legal
                 position and accompanying risks, benefits and obligations; and

        (c)      providing to the client a prompt and complete report when a matter is concluded.

As noted in Commentary 5, certain clients wish to be kept more fully informed than others, and it is the lawyer's
responsibility to comply with the reasonable expectations of each client.
R.15    (a)      A lawyer must not make a settlement offer on behalf of a client except on the client's
                 instructions.

        (b)      A lawyer must promptly and fully communicate all settlement offers to the client.

C.15 A lawyer is obliged to obtain instructions on all matters not falling within the lawyer's express or implied
authority (see Rule #5). Although the compromise of an action may fall within the implied authority of a lawyer as
a matter of law, counsel has an ethical obligation to discuss settlement with the client due to the fundamental and
critical nature of this decision.
Even if a client has previously given express authority to the lawyer to settle, the client has the right to reconsider
such instructions at the time of each settlement offer. Consequently, every offer received from an opposing party
must be presented to the client, including those offers that appear to fall outside the guidelines earlier indicated by
the client to be acceptable. Similarly, the client's approval must be obtained before an offer originating with the
lawyer is communicated to an opposing party.
However, Rule #15 is not intended to inhibit lawyers in exploring settlement possibilities. In particular, a lawyer is
entitled to negotiate a settlement subject to client confirmation provided that opposing parties are made aware
that the settlement is conditional.
R.16    A lawyer must recommend that a client accept a compromise or settlement of a dispute if it is
        reasonable and in the client's best interests.

C.16 As noted in Chapter 10, The Lawyer as Advocate, it is to the general benefit of society and the
administration of justice that lawyers discourage unmeritorious suits and seek the early resolution of disputes. The
result is to keep legal costs to a minimum and ease the demands on the judicial system while encouraging
cooperation among opposing parties and counsel. In fulfilling this ethical duty, a lawyer is obliged to use all
reasonable efforts to pursue settlement or compromise.
Determining whether settlement or compromise is a realistic alternative requires objective evaluation and the
application of a lawyer's professional judgment and experience to the circumstances of the case. The client must
then be advised of the advantages and drawbacks of settlement versus litigation. Due to the uncertainty, delay
and expense inherent in the litigation process, it is often in the client's interests that a matter be settled. On the
other hand, because a lawyer's role is that of advocate rather than adjudicator, going to trial is justified if the client
so instructs and the matter is meritorious (see Rule #1 and accompanying commentary of Chapter 10, The
Lawyer as Advocate). A lawyer should not press settlement for personal reasons such as an overloaded calendar,
lack of preparation, reluctance to face judge or opposing counsel in a courtroom setting, or possible financial
benefit due to the terms of a fee agreement.


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In addition to the conventional legal process, a lawyer should consider alternative dispute resolution.
R.17    At the request of a client, and in appropriate circumstances, a lawyer must assist the client in
        obtaining a second opinion.

C.17 In some circumstances, a client has reservations about legal advice received and wishes to obtain a
second opinion. The lawyer providing the initial advice should respond in a cooperative and positive manner. For
example, sufficient information must be provided to the other lawyer upon request to render the second opinion
an informed one.
A lawyer is not obliged to assist in obtaining a second opinion when the client is attempting to coerce the
formulation of a favourable opinion or is acting unreasonably in another respect. However, the obligation to be
cooperative and to review objectively and in good faith any second opinion obtained is unaffected.
With respect to the duties of a lawyer providing a second opinion, see Commentary 7 of Chapter 4, Relationship
of the Lawyer to Other Lawyers.
R.18    A lawyer must promptly inform the client of any material error or omission in connection with the
        lawyer's representation irrespective of whether it is capable of rectification.

C.18 A normally competent lawyer may become aware of an oversight or mistake in the course of a
representation. Even if the likelihood of a claim or liability is remote, the lawyer must report the matter to the
Alberta Lawyers Insurance Association (ALIA).
Frequently such an error is capable of correction without expense, delay or other prejudice to the client.
Nonetheless, if the error is material, it must be reported to the client. An unsuccessful attempt at correction before
informing the client will only exacerbate the situation and may aggravate the lawyer's responsibilities.
If the mistake has already created a problem for the client, the lawyer must advise the client to consider retaining
other counsel. There may be circumstances when, at the client's request and in consultation with ALIA, it is
appropriate for the lawyer to continue acting.
In any event, and regardless of the seriousness of an error, if the client wishes another lawyer to assume conduct
of the matter the existing lawyer must be professional and cooperative in transition of the file. (see Rule #3 and
accompanying commentary of Chapter 14, Withdrawal and Dismissal).
                                                                                                                 Apr2002




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                                              CHAPTER 10
                                        THE LAWYER AS ADVOCATE
                                             STATEMENT OF PRINCIPLE
When acting as advocate, a lawyer has a duty to advance the client's cause resolutely and to the best of
the lawyer's ability, subject to limitations imposed by law or professional ethics.

                                                        RULES
1.      A lawyer must not take any step in the representation of a client that is clearly without merit.

2.      A lawyer must use reasonable efforts to expedite the litigation process.

3.      A lawyer representing an accused or potential accused must not influence the complainant or potential
        complainant with respect to the laying, prosecution or withdrawal of criminal charges.

4.      A lawyer shall not personally, and shall not advise a client to:

        (a)      lay or threaten to lay a criminal or quasi-criminal charge; or

        (b)      make or threaten to make a complaint against a lawyer to a law society, or

        (c)      agree to withhold the laying of, or to withdraw, a criminal or quasi-criminal charge, or

        (d)      agree to withhold the making of, or to withdraw, a complaint against a lawyer to a law society,

        for the collateral purpose of enforcing the payment of a civil claim or securing any other civil advantage
        for a client of the lawyer.
                                                                                                       Feb2005;Dec2005

5.      A lawyer must not participate in the preparation or delivery of a document resembling a document issued
        by a court or other authority and intended to deceive the recipient.

6.      When a lawyer is required by law to notify one or more parties of a step taken or to be taken in a matter,
        the lawyer must notify all parties to the matter.

7.      A lawyer must not communicate with the court respecting a matter unless the other parties to the matter
        (or, if represented, their counsel) are present or have had reasonable prior notice, or unless the
        circumstances are exceptional and are disclosed fully and completely to the court.

8.      In an ex parte proceeding, a lawyer must (subject to confidentiality - see Rule #7 of Chapter 7,
        Confidentiality) inform the court of all material facts known to the lawyer that will enable the court to make
        an informed decision, whether or not the facts are adverse.

9.      Except with the consent of all parties, a lawyer must not appear before a judge or a court when the
        lawyer's past or present relationship with the judge or the court would create a reasonable apprehension
        of bias.

10.     A lawyer must not act as counsel in any proceeding in which it is likely that the lawyer will give evidence
        that will be contested.

11.     A lawyer must not express a personal opinion or belief to the court as to the facts in evidence.

12.     A lawyer's dealings with the court must be courteous and respectful.

13.     A lawyer must not misrepresent to the court the identity of the lawyer's client or witness, the client's
        position in the litigation nor the issues to be determined in the litigation.



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14.     A lawyer must not mislead the court nor assist a client or witness to do so.

15.     Upon becoming aware that the court is under a misapprehension as a result of submissions made by the
        lawyer or evidence given by the lawyer's client or witness, a lawyer must (subject to confidentiality - see
        Rule #7 of Chapter 7, Confidentiality) immediately correct the misapprehension.

16.     When the court requests that a lawyer answer a question or provide information, the following rules apply:

        (a)      The lawyer may decline to respond on the ground that to answer the question or provide the
                 information

                 (i)      would contravene the lawyer's obligations of confidentiality, or

                 (ii)     would have the effect of making the lawyer a witness in the proceeding, or

                 (iii)    would be detrimental to the client's interests, the lawyer not being required to respond by
                          any other provision of this Code.

        (b)      The lawyer who chooses to respond must do so in a complete and truthful manner.

17.     (a)      A lawyer's representations to the court concerning the facts of a case must be limited to
                 representations supported by the evidence.

        (b)      A lawyer's representations to the court concerning the law must be supported by judicial decision
                 or other legal authority unless the lawyer informs the court that there is no such support.

18.     A lawyer must inform the court of relevant adverse authority of which the lawyer is aware and that has not
        been raised by opposing counsel.

19.     A lawyer must not introduce or otherwise bring to the court's attention facts or evidence that the lawyer
        knows to be inadmissible.

20.     A lawyer must not counsel or participate in:

        (a)      the obtaining of evidence or information 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 having potential evidentiary value in a criminal proceeding.

21.     A lawyer must treat with fairness all witnesses and others involved in a matter.

22.     A lawyer must not advise or encourage a witness or potential witness in a matter to refrain from
        communicating with other parties involved in the matter, subject to the exceptions set forth in
        Commentary 22.

23.     A lawyer must not permit or participate in a payment or other benefit to a witness in excess of reasonable
        compensation.

24.     A lawyer must not counsel a witness to give evidence that is untruthful or misleading.

25.     A lawyer involved in a proceeding:

        (a)      must not, during a cross-examination, obstruct the cross-examination in any manner; and

        (b)      must not, during a break in a cross-examination, discuss with the witness the evidence that that
                 witness has given or is about to give.



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26.     A lawyer involved in a proceeding must not discuss the testimony of a witness with a person excluded by
        the court during such testimony.

27.     A lawyer must not enter a guilty plea, nor make an agreement with the prosecution to enter a guilty plea,
        on behalf of a client unless:

        (a)      the client so instructs the lawyer after receiving full information and advice from the lawyer; and

        (b)      the client is prepared to admit in court the necessary factual and mental elements of the charge
                 or charges.

28.     When engaged as a prosecutor, a lawyer exercises a public function involving much discretion and
        power. Accordingly:

        (a)      a lawyer's prime duty is not to seek to convict, but to see that justice is done through a fair trial on
                 the merits;

        (b)      a lawyer must act fairly and dispassionately;

        (c)      a lawyer must not do anything that might prevent an accused from being represented by or
                 communicating with counsel;

        (d)      to the extent required by law or accepted practice, a lawyer must make timely disclosure to the
                 accused or defence counsel of all known facts and witneses, whether tending towards guilt or
                 innocence.
                                                                                                                 Dec2005

                                                    COMMENTARY
General

G.1     Lawyers involved in the litigation process are those most frequently called upon to act as advocates.
        However, this chapter is not limited in application to litigation-related activities. It applies to any
        professional activity having an element of advocacy, regardless of whether the lawyer in question would
        be considered to be acting as a barrister or as a solicitor.

G.2     The exclusive right of lawyers to speak for another citizen before a body that will adjudicate that person's
        legal rights and obligations creates corresponding duties not only to clients, but to opposing parties, the
        court, others involved in the litigation process and society at large. The duty to zealously represent the
        client is therefore not unqualified. Lawyers must actively participate in safeguarding the fairness, integrity
        and propriety of judicial proceedings, including efforts to govern the behaviour of clients and witnesses.

R.1     A lawyer must not take any step in the representation of a client that is clearly without merit.

C.1      A lawyer has a duty to take full advantage of legal procedure for the benefit of each client and may assert
a position on a client's behalf, including one that the lawyer does not believe will ultimately prevail, if the position
is supportable by a good faith argument on the merits. A lawyer may have greater latitude if (for example) all of
the facts have yet to be fully substantiated or the lawyer expects to develop further evidence through discovery.
It is an abuse of process, however, for a lawyer to commence or defend an action on grounds that are not, and
have no chance of becoming, a legitimate and meritorious claim or defence. In evaluating the client's position and
determining the extent to which it should be pursued, a lawyer must realistically assess all factual, evidential and
jurisprudential factors bearing on the matter. A step taken for the sole purpose of embarrassing, inconveniencing
or harassing another party is improper.
R.2     A lawyer must use reasonable efforts to expedite the litigation process.

C.2     Unreasonable delay by lawyers, or delay sought merely to frustrate or inconvenience another party,
brings discredit to the administration of justice. Lawyers therefore have a general duty to expedite litigation to the



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extent possible. However, Rule #2 is not intended to apply when parties to litigation agree to delay, nor will it
compel a defendant's counsel to take steps to advance the litigation when a plaintiff has chosen not to proceed
expeditiously.
Counsel may be justified in requesting postponement of an application, examination or meeting for a short period
of time due to other commitments. Indeed, lawyers are ethically obliged to accommodate reasonable requests of
this nature. (see Rule #4 of Chapter 4, Relationship of the Lawyer to Other Lawyers) A more lengthy delay may
also be acceptable if the clients' consent has been obtained. However, as noted in Commentary 2 of Chapter 2,
Competence, if a lawyer is unable to proceed with reasonable expedition, assistance must be obtained from
another firm member or the matter must be referred elsewhere.
R.3     A lawyer representing an accused or potential accused must not influence the complainant or
        potential complainant with respect to the laying, prosecution or withdrawal of criminal charges.

C.3     Where mitigating factors exist, the lawyer for an accused may discuss the charges with the Crown and
suggest or request that the prosecutor speak with the complainant about the possibility of withdrawal. However, a
lawyer may not attempt to persuade the complainant to withdraw the charges, either before or after a private
agreement of settlement dealing with civil matters has been concluded between the accused and complainant. As
a consequence, an express or implied agreement that charges will be withdrawn in return for a benefit to be
conferred on the complainant, or for any other purpose, is improper (see also Rule #4 and accompanying
commentary).
Rule #3 is not intended to prevent a lawyer from discussing factual information with the complainant, or arranging
for restitution or an apology by the accused, so long as such activities are not accompanied by a request for
withdrawal of the charges.
4.      A lawyer shall not personally, and shall not advise a client to:

        (a)      lay or threaten to lay a criminal or quasi-criminal charge; or

        (b)      make or threaten to make a complaint against a lawyer to a law society, or

        (c)      agree to withhold the laying of, or to withdraw, a criminal or quasi-criminal charge, or

        (d)      agree to withhold the making of, or to withdraw, a complaint against a lawyer to a law
                 society,

        for the collateral purpose of enforcing the payment of a civil claim or securing any other civil
        advantage for a client of the lawyer.

C.4      Lawyers are in a position to influence the course of criminal proceedings through the rendering of legal
advice to clients who are witnesses or complainants or those, such as creditors, who may have possible grounds
for a complaint. It is proper to advise such a client of the implications of laying charges and the likelihood of
conviction. However, it is improper to threaten another person with criminal, quasi-criminal charges,or law society
complaints or promise that charges or complaints will be withdrawn, in an attempt to gain a financial or other
benefit for the client. The fact that the client has a legitimate entitlement to the benefit sought is immaterial.
                                                                                                     Apr2005;Dec2005

R.5     A lawyer must not participate in the preparation or delivery of a document resembling a document
        issued by a court or other authority and intended to deceive the recipient.

C.5      Knowledge of legal forms and processes confers an advantage on lawyers since a large segment of
society is inexperienced with, and may be wary of documents appearing to have legal import. The use of technical
knowledge for the purposes of coercion or intimidation would constitute an abuse of the position of lawyers in the
legal system. For example, a lawyer may not prepare or deliver, nor assist a client to prepare or deliver, a
document designed to resemble a statement of claim or subpoena so that the recipient will be misled as to the
import of the document. Pursuant to statutory law, such conduct may also constitute an offence. See, for
example, the Judicature Act respecting court forms and processes
R.6     When a lawyer is required by law to notify one or more parties of a step taken or to be taken in a
        matter, the lawyer must notify all parties to the matter.


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C.6      Taking a step without due notification to others interested in the proceeding is not justified. Although a
step such as an examination on affidavit, a defence to counterclaim or an application seeking costs may appear
to involve only certain parties and not others, the interests of one or more of the other parties may be affected in a
manner not immediately evident. A lawyer's ethical obligations with respect to notice therefore extend beyond the
technical requirements contained in the Rules of Court and other procedural regulations. They will, however, be
subject to the court's direction as to which parties are to receive notice, as well as to an agreement among
counsel that certain lawyers will not receive notice of specified events.
The manner of giving the notice required by Rule #6 will depend on all relevant circumstances. In certain
situations, it maybe sufficient to provide other counsel with a courtesy copy of the relevant document or letter.
Even when prior notification of a step is not required by law, it may be appropriate to informally contact opposing
counsel as a matter of courtesy. The public has an interest in expeditious legal proceedings. If a step, such as
noting an opposing party in default, is likely to be overturned, unnecessary delay and expense will be avoided by
providing advance notice of an intention to take the step.
With respect to commencement of appeal proceedings, a lawyer should notify opposing trial counsel if it is
reasonable to assume that that lawyer will be continuing to act. A telephone call in advance of formal service of
documents is the most straightforward and courteous means of resolving any uncertainty.
R.7     A lawyer must not communicate with the court respecting a matter unless the other parties to the
        matter (or, if represented, their counsel) are present or have had reasonable prior notice, or
        unless the circumstances are exceptional and are disclosed fully and completely to the court.

C.7       The fundamental even-handedness of the adversary process is undermined by discussion with or written
submissions to the court by one party without the knowledge of other parties. Accordingly, such conduct will be
justified only in exceptional circumstances. For example, a matter may be sufficiently urgent that the time taken to
afford notice will place the client's remedy in jeopardy, or the giving of notice may permit an opposing party to
defeat the remedy altogether. An example is a fact situation justifying the issuance of a garnishee summons
before judgment.
In these and other exceptional circumstances, a lawyer must disclose all facts to the court at the outset to enable
the court to rule on the propriety of the application's proceeding in the absence of the other side. The very high
level of disclosure required in such applications is described in Rule #8 of this chapter and in Commentary 8.1.
The lawyer should also request that an order granted ex parte set forth the special circumstances and the fact
that, in the court's view, the granting of the order is warranted.
R.8     In an ex parte proceeding, a lawyer must (subject to confidentiality - see Rule #7 of Chapter 7,
        Confidentiality) inform the court of all material facts known to the lawyer that will enable the court
        to make an informed decision, whether or not the facts are adverse.

C.8.1 General: Certain factors will prevent the adversary system from functioning at its optimum level. One such
factor is the absence of an opposing party since the court, in reaching its decision, must consider both sides of an
issue or argument.
This situation creates an obligation on the lawyer present to prevent a manifestly unjust result by disclosing all
material facts known to the lawyer that the lawyer reasonably believes are necessary to an informed decision.
With respect to dealings with parties not represented by counsel, see Commentary 6 of Chapter 1, Relationship of
the Lawyer to Society and the Justice System; Commentary G.2 of Chapter 4, Relationship of the Lawyer to Other
Lawyers; and Rule #5 of Chapter 11, The Lawyer as Negotiator.
C.8.2 "Subject to confidentiality": Rule #8 is stated to be subject to confidentiality (see rule #7 of Chapter 7,
Confidentiality). Briefly, if a fact required to be disclosed by a lawyer is confidential information, the lawyer must
seek the client's consent to such disclosure. If consent is withheld, the lawyer must withdraw.
R.9     Except with the consent of all parties, a lawyer must not appear before a judge or a court when the
        lawyer's past or present relationship with the judge or the court would create a reasonable
        apprehension of bias.

C.9.1 Meaning of "lawyer": The term "lawyer" generally includes the lawyer’s firm and each firm member. In
Rule #9, however, the term is used in the sense of the individual lawyer. Most relationships contemplated by Rule
#9 are sufficiently personal that others in the lawyer’s firm should not be tainted by association.


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On the other hand, circumstances are conceivable in which it would be unwise for a partner or associate of the
lawyer having the relationship to appear before the judge or court in question. Relevant factors include the size of
the firm, the nature and closeness of the relationship with the judge or court, the degree of connection between
the lawyer and the other firm member, and the importance of the matter. For example, if a judge was the spouse
of a partner in a firm having only two partners, it would be imprudent for the other partner to appear before that
judge in anything other than an uncontested matter.
C.9.2 General: Impartiality is an essential element of judicial proceedings, from a substantive viewpoint and
also in terms of society's perception of the justice system. Accordingly, lawyers have an ethical obligation to
contribute to the fact and appearance of impartiality.
The first aspect of Rule #9 is the relationship between a lawyer and an individual judge. See Interpretation for the
definition of "judge". Rule #9 clearly prohibits a lawyer from appearing before a judge who is a relative or with
whom the lawyer has a business relationship. Other close or intimate relationships may also bar a lawyer from
appearing, depending on the circumstances.
With respect to a judge who was formerly with the lawyer's firm, Commentary 4 of Chapter 5, Advertising,
prohibits any firm member from appearing before a judge whose name has been retained in the firm name.
Otherwise, the propriety of such an appearance will be governed by factors such as the length of time the judge
has been on the bench and the nature and import of the judicial proceeding. For example, it may be more
acceptable to appear before a former firm member in a routine chambers matter than in a trial. It will probably be
unacceptable if the party represented by the firm was at one time a client of the judge on a more than casual
basis.
The second aspect of Rule #9 is the relationship between a lawyer and a court. See Interpretation for the
definition of "court". Relationships that may create a reasonable apprehension of bias include the following:
        (a)      A firm member may be a member of a tribunal, council or other official body. While the lawyer is
                 generally prevented from appearing before the body itself, it is normally permissible to appear
                 before a committee of the body if the firm member is not a member of that committee.

        (b)      A lawyer may at one time have had an association with a court, tribunal, council or other official
                 body, as an employee or in the role of judge or adjudicator. The lawyer's subsequent appearance
                 before the body as counsel may be improper because of actual or perceived collegiality with the
                 current adjudicators, or because of a suspected "reverse bias" that could operate to the detriment
                 of the lawyer's client. The passage of time will in most cases mitigate these considerations, two
                 years being a standard benchmark. However, this period may be longer or shorter depending on
                 circumstances such as the length of time the lawyer was employed by the body and the degree to
                 which membership of the body has changed since the lawyer's departure. Other factors may also
                 be present that are not mitigated by the passage of time. Whether there is an apprehension of
                 bias in a particular case must therefore be determined by reference to all relevant circumstances.

In some instances, the other parties to a matter may consent to a lawyer's appearance before a judge or court
despite a past or present relationship, or the lawyer may have concluded on a consideration of all relevant factors
that such an appearance is not improper. Nonetheless, an appropriately impartial atmosphere must be maintained
during the proceeding, which will not be the case if the lawyer displays undue familiarity in discussions or dealings
with the judge or court.
R.10    A lawyer must not act as counsel in any proceeding in which it is likely that the lawyer will give
        evidence that will be contested.

C.10 A lawyer's objectivity and the impartiality of a proceeding will be called into question if the lawyer
combines the roles of advocate and witness. Consequently, if a lawyer or firm member will be required to give
contested evidence in a proceeding, the lawyer may not act as counsel during that proceeding.
"Proceeding", for the purposes of Rule #10, is intended to refer to a particular proceeding or stage of a matter,
such as an interlocutory proceeding or trial. If the proceeding in question is a trial, it is therefore permissible for
the lawyer to act up to the eve of trial provided that the client has been apprised of the disadvantages, such as
additional expense, in having replacement counsel prepared and available to assume conduct of the matter at
trial. In addition, the lawyer may act as counsel in subsequent stages of a matter after giving evidence at a
pre-trial proceeding in that matter, so long as the proceeding in question completely resolves the issue with


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respect to which the lawyer's evidence was required. It follows that a lawyer who has acted in pre-trial
proceedings but has then given evidence at trial may not act as appeal counsel if the lawyer's evidence at trial
remains in issue on the appeal.
Rule #10 is intended to apply to proceedings before any decision-making body to the extent that the rule is not
inconsistent with rules of procedure established by the body in question.
Rule #10 does not prohibit a lawyer from representing another firm member, or the firm itself, when that person or
firm is in the role of a client.
R.11    A lawyer must not express a personal opinion or belief to the court as to the facts in evidence.

C.11 To maintain impartiality, all testimony must be presented by properly-sworn witnesses who are subject to
cross-examination. A lawyer's role is to present the evidence on behalf of a client fairly without assertion of any
personal knowledge of the facts at issue. What the lawyer believes about the merits of the case is essentially
irrelevant. It is therefore inappropriate that a lawyer become, in effect, an unsworn witness by expressing a
personal opinion as to the matters in dispute. Particularly when a jury is involved, statements of this nature by the
advocate may be accorded undue credibility or accepted without question.
R.12    A lawyer's dealings with the court must be courteous and respectful.

C.12 As officers of the court, lawyers are obliged to maintain the dignity, order and decorum of judicial
proceedings so that the legal system functions properly. Disrespect for the court displayed by counsel, clients or
witnesses would erode the confidence of the public in the administration of justice. A lawyer must therefore
remain respectful and self-controlled and must take reasonable steps to ensure that those subject to the lawyer's
direction act in a similar fashion.
The duty of respect includes the obligation to be punctual and to honour to the letter any formal or informal
arrangement made with the court. It does not, however, oblige counsel to be timid or subservient in presenting a
case on behalf of a client. The lawyer has a right to be heard and must be courageous and forceful, if necessary,
in exercising that right and in making objections where appropriate.
R.13    A lawyer must not misrepresent to the court the identity of the lawyer's client or witness, the
        client's position in the litigation nor the issues to be determined in the litigation.

C.13    This rule applies to activities on the part of counsel such as the following:
            misidentification of a client, witness or other party:

            characterization of a client as adverse in interest to another party to the litigation when there is no
             such adversity;

            misrepresentation of a client's position in the litigation;

            conduct of the proceedings as though a matter remains in issue when the matter has been settled;

            concealment of the existence of a "Mary Carter" agreement or other agreement of similar import. An
             example is an agreement whereby one of the defendants in civil litigation settles with the plaintiff on
             the basis of a so-called guaranteed verdict. If the plaintiff is successful against the other defendants,
             the settling defendant's position will be enhanced. To conceal such an agreement would be to
             mislead the court with respect to (for example) an admission made by the settling defendant at trial
             that is apparently against that party's interest. In fact, the agreement has altered the respective
             positions or interests of the parties. Such an agreement must also be disclosed to other parties. (see
             Commentary 1 of Chapter 11, The Lawyer as Negotiator)

However, Rule #13 does not require that a lawyer representing an insured advise the court that the lawyer's
account is to be paid by the insurance company.
R.14    A lawyer must not mislead the court nor assist a client or witness to do so.

C.14.1 Misrepresentation by lawyer: It is an obvious contravention of Rule #14 for an advocate to lie to the court.
The rule applies as well, however, to an indirect misrepresentation. For example, a lawyer may not respond to a


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question from the court in a technically correct manner that creates a deliberately misleading impression (see
Rule #16(b)).
On the other hand, subject to Rule #8, a lawyer is not required to inform the court of facts that should have been
brought forth by opposing counsel. If it becomes apparent that the court is uninformed or misinformed on a factual
matter through no fault of the lawyer or the lawyer's client or witness, a lawyer is justified in remaining silent. An
example is failure of the Crown to raise the prior record of a criminal defendant. There is no duty on defence
counsel to bring such a record to the court's attention. In response to direct questioning by the court on this issue,
counsel is not required to reply. (see Rule #16(a))
While counsel may agree beforehand that the prior record of a criminal defendant will not be raised, counsel may
not state incorrectly to the court that no such record exists.
C.14.2 Misrepresentation by client or witness: A lawyer has a duty to refuse to offer evidence provided by a client
or other person that the lawyer knows to be false based on personal knowledge or the client's admission. Rule
#14 applies to oral and written testimony as well as to other evidence such as exhibits. For example, a lawyer
may not tender an affidavit known by the lawyer to contain misrepresentations or untrue statements. If a client
persists in instructions to use such evidence, the lawyer must withdraw in accordance with Chapter 14,
Withdrawal and Dismissal.
If it becomes apparent after the fact that evidence submitted by the lawyer is false, then Rule #15 applies.
When a client in a civil or criminal matter makes admissions to a lawyer, subsequent conduct of the case by the
lawyer may be limited or restricted so as to avoid possible participation in perjury. For example, the client may
clearly admit certain relevant and important facts. The lawyer, if satisfied that the admissions are true, may
properly take objection to the jurisdiction of the court or the admissibility or sufficiency of evidence, and may
otherwise attack the case of opposing parties, including the credibility of witnesses through cross-examination. It
would be improper, however, to set up an affirmative case that is contrary to such admissions. For example, if a
lawyer is satisfied that the client committed a crime, the lawyer would be prohibited from calling evidence in
support of an alibi intended to show that the client could not have committed, or in fact did not commit, the crime.
R.15    Upon becoming aware that the court is under a misapprehension as a result of submissions made
        by the lawyer or evidence given by the lawyer's client or witness, a lawyer must (subject to
        confidentiality - see Rule #7 of Chapter 7, Confidentiality) immediately correct the
        misapprehension.

C.15.1 General: This rule is similar to Rule #2 in Chapter 4, Relationship of the Lawyer to Other Lawyers. A
lawyer has a duty to correct a misapprehension of the court arising from an honest mistake on the part of counsel
or from perjury by the lawyer's client or witness. It may be a sufficient discharge of this duty to merely advise the
court not to rely on the impugned information.
The principle of Rule #15 applies not only to statements that were untrue at the time they were made, but to those
that were true when made but have subsequently become inaccurate due to a change in circumstance. For
example, it may have been represented to the Court that a personal injury plaintiff is permanently disabled. If,
prior to judgment, the plaintiff's condition undergoes material improvement, the lawyer must, subject to
confidentiality, convey this information to the court.
Even if a matter has been judicially determined, the discovery of an error that may reasonably be viewed as
having materially affected the outcome may oblige a lawyer to advise opposing counsel of the error. This may be
the case notwithstanding that the appeal period has expired, since another remedy may be available to redress
the mistake in whole or in part.
C.15.2 "Subject to confidentiality": (see rule #7 of Chapter 7, Confidentiality). Briefly, if correction of the
misrepresentation requires disclosure of confidential information, the lawyer must seek the client's consent to
such disclosure. If the client withholds consent, the lawyer is obliged to withdraw.
R.16    When the court requests that a lawyer answer a question or provide information, the following
        rules apply:

        (a)      The lawyer may decline to respond on the ground that to answer the question or provide
                 the information

                 (i)      would contravene the lawyer's obligations of confidentiality, or


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                 (ii)     would have the effect of making the lawyer a witness in the proceeding, or

                 (iii)    would be detrimental to the client's interests, the lawyer not being required to
                          respond by any other provision of this Code.

        (b)      The lawyer who chooses to respond must do so in a complete and truthful manner.

C.16 To fulfill their role in the administration of justice, lawyers must refrain from misleading the court and must
render assistance to the court in every reasonable respect. However, this obligation does not require that a lawyer
respond to inappropriate questioning from the court, breach client confidentiality, or otherwise injure the legitimate
interests of a client.
R.17    (a)      A lawyer's representations to the court concerning the facts of a case must be limited to
                 representations supported by the evidence.

        (b)      A lawyer's representations to the court concerning the law must be supported by judicial
                 decision or other legal authority unless the lawyer informs the court that there is no such
                 support.

C.17 As officers of the court, lawyers may not use improper means of persuasion that circumvent the
safeguards of fairness inherent in the adversary system. Such tactics may also constitute a violation of the
lawyer's duties to the court (see, for example, Rule #14).
Paragraph (a) of Rule #17 requires that a lawyer present argument having a rational basis in relation to the
evidence. While an advocate is obliged to advance all arguments that can be fairly made on the client's behalf,
including those with which one does not agree or sympathize, it is unacceptable to distort the evidence or to
create the impression that a matter is undisputed when in fact it is not. Nor may an advocate summarize the
evidence in an inaccurate fashion, since the result may be to mislead the trier of fact.
Similarly, with respect to paragraph (b) of Rule #17, when a lawyer makes a representation as to the state of the
law, it is presumed that legal authority exists to support the position taken unless the lawyer indicates the contrary
to the court. If the lawyer is aware of relevant statutory or common-law authority, it is improper to misstate that law
expressly or by implication, or to mislead the court regarding any aspect of a judicial decision, such as the
underlying facts, the basis on which the case was decided, or the fact that it is under appeal or has been
overruled (see also Rule #18).
R.18    A lawyer must inform the court of relevant adverse authority of which the lawyer is aware and that
        has not been raised by opposing counsel.

C.18 The court is entitled to expect that counsel will bring to the court's attention any law that may be of
importance in its deliberations. A lawyer must therefore inform the court of all relevant authority of which the
lawyer is aware. "Relevant authority" for the purposes of Rule #18 means decisions based on similar situations
giving rise to similar issues at the superior court level or higher in Canada.
R.19    A lawyer must not introduce or otherwise bring to the court's attention facts or evidence that the
        lawyer knows to be inadmissible.

C.19 It is an abuse of a lawyer's position of privilege and authority in the courtroom to attempt to circumvent the
rules of evidence. Examples are contriving to reveal a clearly inadmissible document, photograph or other
inflammatory evidence, and deliberately posing an improper question. While such actions may be particularly
prejudicial in a jury trial, possibly resulting in a mistrial, they are inappropriate in any courtroom proceeding.
Knowledge that evidence is inadmissible may be imputed to the lawyer if, under the circumstances, it would not
have been reasonable for the lawyer to come to any other conclusion. However, Rule #19 is not intended to
prevent the introduction of evidence for which there exists a reasonable argument in favour of admissibility.
R.20    A lawyer must not counsel or participate in:

        (a)      the obtaining of evidence or information by illegal means;

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        (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 having potential evidentiary value in a criminal proceeding.

C.20 Lawyers must uphold the law and refrain from conduct that might weaken respect for the law or interfere
with its fair administration. (see Chapter 1, Relationship of the Lawyer to Society and the Justice System) A
lawyer must therefore seek to maintain the integrity of evidence and its availability through appropriate
procedures to opposing parties. The word "property" in paragraphs (c) and (d) includes computerized information.
Paragraph (a) of Rule #20 prohibits a lawyer's involvement in the obtaining of evidence or information in a civil or
criminal matter by means that are contrary to law, including the Charter of Rights and Freedoms and the Criminal
Code.
Paragraph (c) is not intended to interfere with the testing of evidence as contemplated by the Rules of Court.
Paragraph (d) applies to criminal matters due to the danger of obstruction of justice if evidence in a criminal
matter is withheld. While a lawyer has no obligation to disclose the mere existence of such evidence, it would be
unethical to accept possession of it and then conceal or destroy it. The lawyer must therefore advise someone
wishing to deliver potential evidence that, if possession is accepted by the lawyer, it will be necessary to turn the
evidence over to appropriate authorities (unless it consists of communications or documents that are privileged).
When surrendering criminal evidence, however, a lawyer must protect confidentiality attaching to the
circumstances in which the material was acquired, which may require that the lawyer act anonymously or through
a third party.
There is no equivalent obligation of disclosure with respect to evidence in a civil proceeding in light of the
extensive discovery process provided by the Rules of Court. However, it is improper to block disclosure of
documents or other evidence duly requested pursuant to rules of production or practice.
R.21    A lawyer must treat with fairness all witnesses and others involved in a matter.

C.21 It is in the best interests of the individual lawyer, the profession and the administration of justice that an
advocate maintain a courteous demeanour throughout the litigation process. A witness must not be discouraged
from coming forward for fear of mistreatment by opposing counsel.
In questioning a witness, a lawyer's primary motivation will be advancement of the client's position. However,
professional ethics preclude actions by a lawyer having no substantial purpose other than to intimidate, harass or
embarrass a witness. (see Commentary 1) While a lawyer need not have evidentiary support for every question
put to a witness, a question or comment that impugns the character of a witness must have a basis in fact and be
justifiable on the grounds of relevance.
R.22    A lawyer must not advise or encourage a witness or potential witness in a matter to refrain from
        communicating with other parties involved in the matter, subject to the exceptions set forth in
        Commentary 22.

C.22 There is generally no property in a witness. To achieve the truth-seeking goal of the justice system, any
person having information relevant to a proceeding must be free to impart it voluntarily and in the absence of
improper influence. Rule #22 does not, however, prevent a lawyer from responding in the negative if a witness
specifically asks if it is mandatory to talk to opposing parties.
There are certain exceptions to Rule #22:
        (a)      The lawyer's client. It is not only permissible but expected that a lawyer will not allow a client to
                 discuss the merits of a case with an opponent except in the presence or with the consent of the
                 lawyer. (see Rule #6 of Chapter 4, Relationship of the Lawyer to Other Lawyers)

        (b)      Decision-makers within a corporate client. Since a corporation must act through human agents, it
                 is necessary to identify those within a corporate client having authority to act on its behalf.
                 Generally, all directors and officers, as well as management-level personnel with decision-making
                 authority, have sufficient identity with the corporation to be considered equivalent to the client for
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        (c)      Witnesses having a close connection and identification of interests with the client. A witness such
                 as a spouse or child of the client may be so closely connected with the client that it would be
                 contrary to that person's legitimate interests to discuss the case with opposing parties. In these
                 circumstances, it is permissible to advise the witness against engaging in such discussions.

        (d)      The expert witness. Because an expert witness usually receives confidential information of the
                 client, it would be inappropriate for that witness to communicate freely with all parties. In addition,
                 an expert's report will likely be privileged as part of the solicitor's brief. With respect to an expert,
                 such as an attending doctor, who can be characterized as both an ordinary and an expert
                 witness, opposing counsel is entitled to question the witness on matters not subject to privilege.
                 However, such questioning should be conducted only on notice to the lawyer concerned due to
                 the risk of improper disclosure, intentional or otherwise.

R.23    A lawyer must not permit or participate in a payment or other benefit to a witness in excess of
        reasonable compensation.

C.23 It is ethically permissible for a lawyer to agree that a witness will be paid all reasonable out-of-pocket
expenses and loss of income, if any, incurred by the witness as a result of appearing in court to testify. In
determining what is reasonable, a lawyer should consider the following. First, all citizens have a general obligation
to bear witness in a court of law and, as a corollary, must be prepared to incur some inconvenience and possibly
some financial detriment. Second, any payment to a witness that is clearly in excess of usual payments to
witnesses, whether or not it may be supported as an out-of-pocket expense, has the potential to create an
appearance of impropriety and a prima facie violation of Rule #23 that may be difficult to disprove.
The principle of Rule #23 applies as well to expert witnesses. The reasonableness of a payment to an expert is
determined by factors such as preparation time out of court and the usual charges of others rendering equivalent
professional services.
The payment of a contingent fee to an expert is not improper if the contingency involved and the amount payable
under that arrangement is reasonable in accordance with Rule #23.
R.24    A lawyer must not counsel a witness to give evidence that is untruthful or misleading.

C.24 While a lawyer may legitimately suggest alternative ways of presenting evidence so that it is better
understood, it is improper to direct or encourage a witness to misstate or misrepresent the facts. An advocate's
role is not to change or distort the evidence, but to assist the witness in bringing forth the evidence in a manner
that ensures fair and accurate comprehension by the court and opposing parties.
R.25    A lawyer involved in a proceeding:

        (a)      must not, during a cross-examination, obstruct the cross-examination in any manner; and

        (b)      must not, during a break in a cross-examination, discuss with the witness the evidence
                 that that witness has given or is about to give.

C.25 The term "cross-examination" as used in Rule #25 means the examination of a witness or party adverse
in interest to the client of the lawyer conducting the examination. It therefore includes an examination for
discovery, examination on affidavit or examination in aid of execution. The rule prohibits obstruction or improper
discussion by any lawyer involved in a proceeding and not just by the lawyer whose witness is under
cross-examination.
The opportunity to conduct a fully-ranging and uninterrupted cross-examination is fundamental to the adversary
system. It is counterbalanced by an opposing advocate's ability to ensure clarity of testimony through initial
briefing, direct examination and re-examination of that lawyer's witnesses. There is therefore no justification for
obstruction of cross-examination by unreasonable interruptions, repeated objection to proper questions, attempts
to have the witness change or tailor evidence, or other similar conduct while the examination is ongoing:
paragraph (a) of Rule #25.
Paragraph (b) of Rule #25 refers to discussions with a witness during breaks in the cross-examination. While any
testimony-related discussion is generally prohibited during breaks, there are two qualifications to the rule as it
relates to examinations for discovery. First, if the examination for discovery of a witness is adjourned for longer


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than one week, it is permissible for counsel to discuss with the witness all issues arising out of the matter,
including evidence that has been or is to be given, provided that opposing counsel has been advised of the
lawyer's intention to do so. If opposing counsel objects, the matter must be resolved by the court having
jurisdiction over the proceedings.
Second, Rule #25(b) is not intended to prevent discussions or consultations that are necessary to obtain the
fulfilment of undertakings given during an examination for discovery. However, under no circumstances are such
qualifications to be interpreted as permitting improper briefing such as that described in Rule #24 and
accompanying commentary.
Rule #25(b) may be modified or waived with the consent of counsel but, when the proceedings are before a court,
consent of the court must also be sought and received.
Rule #25 is not intended to prohibit a lawyer with no prior involvement in the proceedings, who has been retained
by a witness under cross-examination, from consulting with the lawyer's new client.
While Rule #25 applies to proceedings before any decision-making body, it is subject to the rules of procedure
established by the body in question.
R.26    A lawyer involved in a proceeding must not discuss the testimony of a witness with a person
        excluded by the court during such testimony.

C.26 While Rule #26 is necessarily limited to lawyers, discussion by anyone of testimony with those excluded
during the testimony would undermine the court's direction. Accordingly, a lawyer who becomes aware that
another person is engaging in such discussion must take reasonable steps to prevent it and should, if necessary,
report it to the court.
R.27    A lawyer must not enter a guilty plea, nor make an agreement with the prosecution to enter a
        guilty plea, on behalf of a client unless:

        (a)      the client so instructs the lawyer after receiving full information and advice from the
                 lawyer; and

        (b)      the client is prepared to admit in court the necessary factual and mental elements of the
                 charge or charges.

C.27 Entering a plea is one of the matters falling outside the implied authority of a lawyer and must therefore
be fully discussed with the client. It is preferable that a lawyer receive the client's written instructions with respect
to plea. Because of the serious and long-lasting ramifications of a guilty plea, a client's instructions in this respect
must be based on all relevant information, including the implications and possible consequences of the plea and
the fact that the court is under no obligation to accept it. Assuming compliance with Rule #27, it is proper for a
lawyer to agree with the prosecutor that a guilty plea will be entered to the offence charged, or to a lesser or
included offence, and to agree on a disposition or sentence to be proposed to the court. However, a plea
agreement may not involve a misrepresentation or misstatement of facts to the court (see Rule #14).
An agreement between the prosecution and defence regarding the plea to be entered is not considered a usual
lawyers' undertaking due to the policy considerations involved. Either party may withdraw from the agreement
prior to performance, although the withdrawing party should afford the other party ample notice. However, once
the agreed-upon plea has been entered by the defence, it is generally improper for the prosecution to attempt to
repudiate the agreement of the parties.
R.28    When engaged as a prosecutor, a lawyer exercises a public function involving much discretion
        and power. Accordingly:

        (a)      a lawyer's prime duty is not to seek to convict, but to see that justice is done through a fair
                 trial on the merits;

        (b)      a lawyer must act fairly and dispassionately;

        (c)      a lawyer must not do anything that might prevent an accused from being represented by
                 or communicating with counsel;



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        (d)       to the extent required by law or accepted practice, a lawyer must make timely disclosure
                  to the accused or defence counsel of all known relevant facts and witnesses, whether
                  tending towards guilt or innocence.

C.28 The terms "prosecutor" and "prosecution" have reference not only to proceedings under the Criminal
Code, but to criminal, quasi-criminal and other proceedings instituted pursuant to legislation (including rules and
regulations) that involve a public interest and potential for the imposition of a penalty. For example, counsel
engaged in disciplinary proceedings on behalf of a professional body would be considered a prosecutor for the
purposes of this rule. Examples and terminology deriving from prosecutions conducted on behalf of the Attorney-
General should therefore be read with the necessary changes in reference as appropriate.
The application of Rule #28 to Crown prosecutors is not intended to establish policy nor to interfere with the
proper exercise of prosecutorial discretion. Rather, the Law Society's scrutiny of conduct involving an exercise of
discretion will be limited to circumstances in which the discretion was exercised dishonestly or in bad faith. “Bad
faith” in this context refers to acts committed deliberately with intent to harm. Examples are:
             an exercise of discretion intended to obstruct, pervert or defeat the course of justice;

             an exercise of discretion undertaken for the personal advantage of the Crown prosecutor;

             an exercise of discretion intended to deprive an individual of equality before and under the law by
              reason of discrimination on the basis of race, creed, colour, national or ethnic origin, gender, religion,
              marital status, sexual orientation, age, mental or physical disability or any similar personal attribute.

In reviewing matters involving the exercise of prosecutorial discretion by a Crown prosecutor , the Executive
Director and the members of the Conduct Committee will keep in mind the following concepts and principles from
the Supreme Court of Canada decision in Krieger v. Law Society of Alberta (2002), 217 D.L.R. (4th) 513:
1.      The Law Society shall observe …"the unique and important role of the Attorney General and his
        agents…".

2.      The Law Society acknowledges "… the Attorney General's independence from judicial review in the
        sphere of prosecutorial discretion...".

3.      "The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who
        are not as competent to consider the various factors involved in making a decision to prosecute. To
        subject such decisions to political interference, or to judicial supervision, could erode the integrity of our
        system of prosecution."

4.      "Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney
        General's office and which are protected from the influence of improper political and other vitiating factors
        by the principle of independence."

5.      "An exercise of prosecutorial discretion will … be treated with deference by … law societies."

6.      "Without being exhaustive … the core elements of prosecutorial discretion encompass the following:

                  a.      the discretion whether to bring the prosecution of a charge laid by police;

                  b.      the discretion to enter a stay of proceedings;

                  c.      the discretion to accept a guilty plea to a lesser charge;

                  d.      the discretion to withdraw from criminal proceedings; and

                  e.      the discretion to take control of a private prosecution".

7.      "There is a clear distinction between prosecutorial discretion and professional conduct. It is only the latter
        that can be regulated by the Law Society. The Law Society has the jurisdiction to investigate any alleged
        breach of its ethical standards, even those committed by Crown prosecutors in connection with their
        prosecutorial discretion."


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8.      "Review by the Law Society for bad faith or improper purpose by a prosecutor does not constitute a
        review of the exercise of prosecutorial discretion per se, since an official action which is undertaken in
        bad faith or for improper motives is not within the scope of the powers of the Attorney General."

The Threshold Test to be met before the Executive Director refers a matter involving prosecutorial discretion to
the Conduct Committee or the Conduct Committee directs a hearing on it is that there is a reasonable prospect of
conviction based on the exercise of prosecutorial discretion dishonestly or in bad faith.
                                                                                                           Dec2005




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                                              CHAPTER 11
                                       THE LAWYER AS NEGOTIATOR
                                             STATEMENT OF PRINCIPLE
When acting as negotiator, a lawyer has a duty to seek a resolution in accordance with the client's
instructions, subject to limitations imposed by law or professional ethics.

                                                        RULES
1.      A lawyer must not lie to or mislead an opposing party.

2.      If a lawyer becomes aware during the course of a negotiation that:

        (a)      the lawyer has inadvertently misled an opposing party, or

        (b)      the client, or someone allied with the client or the client's matter, has misled an opposing party,
                 intentionally or otherwise, or

        (c)      the lawyer or the client, or someone allied with the client or the client's matter, has made a
                 material representation to an opposing party that was accurate when made but has since become
                 inaccurate,

        then, (subject to confidentiality - see Rule #7 of Chapter 7, Confidentiality) the lawyer must immediately
        correct the resulting misapprehension on the part of the opposing party.

3.      (a)      A lawyer must not make a settlement offer on behalf of a client except on the client's instructions.

        (b)      A lawyer must promptly and fully communicate all settlement offers to the client.

4.      A lawyer must not negotiate an agreement that the lawyer knows to be criminal, fraudulent or
        unconscionable.

5.      When negotiating with an opposing party who is not represented by counsel, a lawyer must:

        (a)      advise the party that the lawyer is acting only for the lawyer's client and is not representing that
                 party; and

        (b)      advise the party to retain independent counsel.

                                                    COMMENTARY
General

G.1     Meaning of "opposing party": In this chapter, "opposing party" means any person with whom a lawyer is
        negotiating in a given matter. In most instances this will be another lawyer, but it may also be a
        professional advisor (see Commentary 5.1) or a person not represented by counsel (see Commentary
        5.2).

G.2     Ethical rules relating to honesty and integrity are as applicable to negotiation as to any other aspect of a
        lawyer's practice. Failure to observe such rules is not justifiable on the basis of a client's instructions since
        the client is not entitled to require that a lawyer breach ethical standards. If a client persists in such
        instructions, withdrawal is mandatory. (see Chapter 14, Withdrawal and Dismissal)

R.1     A lawyer must not lie to or mislead an opposing party.

C.1       This rule expresses an obvious aspect of integrity. In no situation, including negotiation, is a lawyer
justified in deliberately misleading an opposing party (see also Rule #1 of Chapter 4, Relationship of the Lawyer
to Other Lawyers).


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The process of negotiation often involves representations as to the extent of a lawyer's authority. For example, a
client may authorize a lawyer to settle an action for no more than $100,000.00. The lawyer may not pretend a lack
of authority to offer more than $50,000.00 or $75,000.00 or any other amount under $100,000.00. In response to
a direct question about the monetary limits of the lawyer's authority, the alternatives of the lawyer are to respond
truthfully or simply decline to answer. The lawyer is not entitled to offer a response intended or likely to create a
misleading impression, which would be tantamount to lying.
Similarly, a lawyer who reaches agreement with some, but not all, of the opposing parties in a negotiation must
disclose the agreement to the remaining parties if the lawyer's client intends to continue as a party in the matter.
An example is a "Mary Carter" agreement (see Commentary 13 of Chapter 10, The Lawyer as Advocate) whereby
one of the defendants in civil litigation settles with the plaintiff on the basis of a so-called guaranteed verdict. If the
plaintiff is successful against the other defendants, the settling defendant's position will be enhanced. To conceal
such an agreement would be to mislead the other parties since, by continuing in the matter, the parties who have
reached agreement are representing that their positions are unchanged. In fact, the agreement has altered the
respective positions or interests of the parties and the appropriate negotiating strategy will be different as a result.
Any agreement having this effect, whether in a litigation context or otherwise, must be disclosed to all parties.
R.2     If a lawyer becomes aware during the course of a negotiation that:

        (a)      the lawyer has inadvertently misled an opposing party, or

        (b)      the client, or someone allied with the client or the client's matter, has misled an opposing
                 party, intentionally or otherwise, or

        (c)      the lawyer or the client, or someone allied with the client or the client's matter, has made a
                 material representation to an opposing party that was accurate when made but has since
                 become inaccurate,

        then, (subject to confidentiality - see Rule #7 of Chapter 7, Confidentiality) the lawyer must
        immediately correct the resulting misapprehension on the part of the opposing party.

C.2.1 General: In addition to refusing to deliberately mislead an opposing party, a lawyer involved in negotiation
has an obligation to ensure that a statement or action of the lawyer does not result in an inadvertent
misrepresentation. To the extent possible, a lawyer must also prevent a false impression from being created by
the client or someone allied with the client (such as an employee, friend or relative) or with the client's matter
(such as an expert or a witness). While a lawyer cannot be responsible for persons who are independent of the
client, a degree of control must be exerted by the lawyer over those subject to the lawyer's direction.
The terminology used in Rule #2 is to be broadly interpreted. The concept of "misleading" includes creating a
misconception through oral or written statements, other communications, actions or conduct, failure to act, or
silence. A lawyer may have provided technically accurate information that is rendered misleading by the
withholding of other information; in such a case, there is an obligation to correct the situation. In paragraph (c) of
Rule #2, the concept of an inaccurate representation is not limited to a misrepresentation that would be actionable
at law.
Although some representations are made only once in a negotiation, or at an early stage, they may be of such a
nature that an opposing party places unspoken reliance on their continuing accuracy. If a reasonable person in
possession of all the facts would assume this to be the case, then Rule #2(c) applies. For example, an injured
plaintiff may have been presented as permanently disabled. If the plaintiff's partial or complete recovery
subsequently becomes likely, then Rule #2 applies. Similarly, in negotiating a divorce settlement, a lawyer may
find that the client has additional sources of income not previously, disclosed to opposing parties. The
misapprehension must be corrected as soon as possible, subject to confidentiality.
The obligation to correct the misapprehension of an opposing party does not necessarily require disclosure of
further or new information. It may be sufficient to merely advise the opposing party not to rely on the previous
information. Also, Rule #2 does not apply when an opposing party has a misunderstanding not attributable to the
lawyer, the client or someone allied with the client or client's matter. For example, an opposing party may assume
that a key witness of the lawyer will be available when the lawyer knows the situation to be otherwise. Provided
the lawyer has not made a misleading statement or implication about the witness's availability, it is not necessary




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to correct the opposing party's mistaken assumption. However, if questioned directly, the lawyer must respond
truthfully or decline to answer.
C.2.2 "Subject to confidentiality": (see rule #7 of Chapter 7, Confidentiality). Briefly, if correction of the
misrepresentation requires disclosure of confidential information, the lawyer must seek the client's consent to
such disclosure. If the client withholds consent, the lawyer is obliged to withdraw.
R.3     (a)      A lawyer must not make a settlement offer on behalf of a client except on the client's
                 instructions.

        (b)      A lawyer must promptly and fully communicate all settlement offers to the client.

C.3      As noted in Commentary 15 of Chapter 9, The Lawyer as Advisor, the issue of whether to settle a dispute
is so fundamental to a lawyer's representation that it must be the subject of discussion with and direction from the
client. Every offer received from an opposing party must be presented to the client for consideration, regardless of
the client's earlier instructions. Similarly, the client's approval must be obtained before an offer originating with the
lawyer is communicated to an opposing party.
However, Rule #3 is not intended to inhibit lawyers in exploring settlement possibilities. In particular, a lawyer is
entitled to negotiate a settlement subject to client confirmation provided that opposing parties are made aware
that the settlement is conditional.
R.4     A lawyer must not negotiate an agreement that the lawyer knows to be criminal, fraudulent or
        unconscionable.

C.4      A lawyer is not entitled to negotiate an agreement that the lawyer knows would be set aside by a court as
criminal, fraudulent or unconscionable. Knowledge will be imputed to the lawyer when a reasonable argument
cannot be made for any other interpretation of the facts available to the lawyer.
An agreement that is clearly unfavourable to an opposing party but falls short of unconscionability is not improper
if the negotiation has been conducted in accordance with the rules and commentary of this chapter. However, if a
lawyer has personal objections to concluding such an agreement that potentially interfere with the lawyer's ability
to properly carry out the representation, withdrawal may be warranted. (see Rule #8 of Chapter 6, Conflicts of
Interest)
If the lawyer's client obtains an advantage to which the client has no legal entitlement through an error or
omission on the part of an opposing party, the lawyer is ethically obliged to correct the error. An example is an
arithmetical or typographical error, such as a reference to $65,000.00 instead of the correct figure of $56,000.00.
(see Rule #3 of Chapter 4, Relationship of the Lawyer to Other Lawyers)
R.5     When negotiating with an opposing party who is not represented by counsel, a lawyer must:

        (a)      advise the party that the lawyer is acting only for the lawyer's client and is not
                 representing that party; and

        (b)      advise the party to retain independent counsel.

C.5.1 Meaning of "unrepresented party": The reference in Rule #5 to a party not represented by counsel is not
intended to include professional advisors or persons having special qualifications who are retained for the
purposes of negotiation, such as insurance adjusters and bank managers.
C.5.2 General: When dealing with an unrepresented party, a lawyer has an obligation to ensure that there is no
misunderstanding as to whose interests the lawyer is acting to protect: paragraph (a) of Rule #5.
In addition, a lawyer acting as a negotiator may have particular opportunity to use an unrepresented party's
inexperience, lack of education or lack of legal knowledge to improperly further the interests of the lawyer's client.
The lawyer must therefore advise such a person to retain independent counsel: paragraph (b) of Rule #5.
The lengths to which a lawyer must go in ensuring a party's understanding of the matters referred to in Rule #5
will depend on all relevant factors, including the party's sophistication and relationship to the lawyer's client and
the nature of the agreement in question. Assuming compliance with Rule #5, a lawyer may thereafter represent
the client in the same manner as though the other party were represented by counsel.



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                                       CHAPTER 12
                     THE LAWYER IN CORPORATE AND GOVERNMENT SERVICE
                                            STATEMENT OF PRINCIPLE
A lawyer in corporate or government service has a duty to act in the best interests of the corporation or
government, as they are perceived by the corporation or government, subject to limitations imposed by
law or professional ethics.

                                                       RULES
1.      A lawyer in corporate or government service must consider the corporation or government to be the
        lawyer's client.

2.      A lawyer may act in a matter for another employee of a corporation or government only if the
        requirements of Rule #2 of Chapter 6, Conflicts of Interest, are satisfied.

3.      If a lawyer while acting for a corporation or government receives information material to the interests of
        the corporation or government, the lawyer must disclose the information to an appropriate authority in the
        corporation or government.

4.      A lawyer must not implement instructions of a corporation or government that would involve a breach of
        professional ethics or the commission of a crime or fraud.

                                                  COMMENTARY
General

G.1     Definitions and application: For the purposes of this chapter, "corporation" is to be interpreted broadly and
        includes a sole proprietor, partnership, joint venture, society and unincorporated association. Similarly,
        "government" is to be understood in its broadest sense. A lawyer working in a division, department or
        agency of the government or in a corporation ultimately controlled by the Crown is considered to be
        working for the government as a whole as opposed to that division, department, agency or corporation.
        See Commentary 1 for a more detailed discussion of client identification.

G.2     While the ethical standards that apply to lawyers in corporations and government are the same as those
        applying to other lawyers, the existence of an employment relationship may generate issues that do not
        normally arise in private practice. The rules and commentary of this chapter are intended to assist such
        counsel in identifying and resolving some of these concerns.

        Lawyers in corporations and government may perform functions other than acting as lawyers. In this
        regard, see Chapter 15, The Lawyer in Activities Other Than the Practice of Law.

G.3     Termination of employment: A lawyer who leaves the employ of a corporation or government is governed
        by Rule #3 of Chapter 6, Conflicts of Interest, with respect to ability to subsequently act against the former
        employer. In addition, Rule #4 of that chapter applies if a lawyer moves during the currency of a matter to
        a firm representing another party to the matter. See also Chapter 7, Confidentiality, respecting a lawyer's
        obligations of confidentiality.

R.1     A lawyer in corporate or government service must consider the corporation or government to be
        the lawyer's client.

C.1    The client of a lawyer employed by a corporation is the corporation itself and not the board of directors, a
shareholder, an officer or employee, or another component of the corporation. Likewise, the client of a lawyer
employed by the government is the government itself and not a board, agency, minister or Crown corporation.




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As an internal matter, a corporate or government client usually provides specific instructions regarding the
lawyer's duties and responsibilities. These instructions may include a direction to accept instructions from and
report to a particular person or group within the client; to keep certain information confidential from other persons
or groups within the client; or to act for more than one of its components, in circumstances that would constitute a
multiple representation if the corporation or government as a whole were not the client. A corporate or
government lawyer is entitled to act in accordance with such instructions until they are countermanded or
rescinded by the client.
Since a corporation or government must act through human agents, however, counsel must be satisfied that
those purporting to speak for the client have the authority to do so and that the instructions they convey are in the
best interests of the client, as perceived by the client based on considerations including legal advice. Independent
inquiry or verification is seldom necessary when instructions have been received through normal channels and
contain no unusual or questionable elements. The risk of inaccurate or unauthorized instructions may also lessen
as organizational size and complexity decrease since the interests of the person instructing the lawyer may be
more closely identified with those of the client itself.
R.2     A lawyer may act in a matter for another employee of a corporation or government only if the
        requirements of Rule #2 of Chapter 6, Conflicts of Interest, are satisfied.

C.2        A corporate or government lawyer may be requested to perform legal services in circumstances in which
another employee of the corporation or government expects that the lawyer will be protecting that person's
interests. In some situations, it may appear that the corporation or government has no substantial interest in the
matter, such as the purchase of a house by an employee. In other situations, such as the preparation of an
employment contract, the corporation or government clearly has an interest that differs from that of the employee.
In still others, such as the defence of both parties on a criminal or quasi-criminal charge, the corporation or
government and the employee may seem to have a common interest. In any of these cases, however, the lawyer
may acquire information from one party that could be significant to the other.
Before the lawyer undertakes the representation, therefore, the parties must agree that there will be a mutual
sharing of material information. The other requirements of Rule #2 of Chapter 6, Conflicts of Interest, must also be
satisfied. For example, the lawyer must:
            determine that the representation is in the best interests of both parties after consideration of all
             relevant factors;

            stipulate that the lawyer will be compelled to cease to act in the matter if a dispute develops, unless at
             that time both parties consent to the lawyer's continuing to represent the corporation or government in
             the matter;

            obtain the consent of the parties based on full and fair disclosure of the advantages and
             disadvantages of the lawyer's acting versus the engagement of outside counsel. If the employee
             involved is (for example) the president of a corporate client, the consent of the corporation required
             by Rule #2 of Chapter 6, Conflicts of Interest, must issue from someone other than the president,
             such as the board of directors.

If the lawyer considers the risk of divergence of interests to be high, or if one of the parties is unwilling to agree to
the mutual sharing of material information, the employee must retain independent counsel.
Rule #2 and this commentary also apply in principle when a corporate or government lawyer is requested to
represent a third party, such as an affiliated corporation or joint venturer, having an association with the
corporation or government but not forming part of it.




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R.3     If a lawyer while acting for a corporation or government receives information material to the
        interests of the corporation or government, the lawyer must disclose the information to an
        appropriate authority in the corporation or government.

C.3      It is usual to convey material information respecting the interests of a corporate or government client to
the person to whom the lawyer normally reports. However, there may be circumstances in which reporting
information to that individual would be ineffective or inappropriate. For example, the information may relate to
misconduct by that person, or the person may have a history of refusing or failing to deal with similar information
in a proper manner. In such a situation, the lawyer should report the information to other, usually more senior,
authorities within the client until satisfied that the information has been conveyed to someone who will give it
appropriate consideration.
If a lawyer, after taking all reasonable steps to protect the client's interests, receives instructions that would
involve a breach of professional ethics or the commission of a crime or fraud, the lawyer may be compelled to
withdraw from the representation. (see Commentary 4)
With respect to reporting a matter to authorities outside the client, see Rule #8(c) of Chapter 7, Confidentiality.
R.4     A lawyer must not implement instructions of a corporation or government that would involve a
        breach of professional ethics or the commission of a crime or fraud.

C.4     Like other lawyers, corporate and government counsel must refuse to engage in conduct that violates
professional ethics. The fact that such a stand may create conflict with the client or jeopardize one's position or
opportunity for advancement is not relevant from an ethical perspective.
Rule #10 of Chapter 9, The Lawyer as Advisor, and Rule #2(a) of Chapter 14, Withdrawal and Dismissal, provides
that withdrawal is mandatory when a client persists in instructions constituting a breach of ethics. In private
practice, withdrawal is understood to mean ceasing to act in a particular matter and does not necessarily preclude
a lawyer's continuing to act in other matters for the same client. Similarly, a corporate or government lawyer may
"withdraw" from a given matter by refusing to implement the client's instructions in that matter, while continuing to
advise the corporation or government in other respects.
In the case of a profound and fundamental disagreement between lawyer and client or a pervasive institutional
policy of illegality, withdrawal may also entail resignation. In most cases, however, a preferable approach is to
refer the contentious matter to outside counsel, seek alternative instructions from other levels of authority in the
corporation or government, or take similar action that falls short of resignation.
It is a breach of ethics for a lawyer to act when the services rendered will not be competent. (see Chapter 2,
Competence) Competence is an issue that arises in corporate and government practice as well as in private
practice, particularly when a lawyer is requested by the client to provide services that are unusual or outside the
scope of the lawyer's normal duties. Corporate and government counsel should therefore be aware of the issue of
competence and take such steps as are necessary to ensure that the lawyer is able to satisfy in each matter
undertaken the various aspects of competence described in Chapter 2, Competence.
With respect to instructions of a corporation or government that would involve the commission of a crime or fraud,
see Commentary 11 of Chapter 9, The Lawyer as Advisor.




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                                                    CHAPTER 13
                                                      FEES
                                             STATEMENT OF PRINCIPLE
A lawyer's fee must not exceed a fair and reasonable amount.

                                                        RULES
1.      The factors determining the amount that is a fair and reasonable fee in a given case include, but are not
        limited to, the following:

        (a)      the nature of the matter, including its difficulty and urgency; its importance to the client; its
                 monetary value; and the need for special skills or services;

        (b)      the time and effort expended;

        (c)      the results obtained;

        (d)      the customary charges of other lawyers of equal standing in the locality in similar matters and
                 circumstances;

        (e)      the likelihood, if made known to the client, that acceptance of the retainer will result in the
                 lawyer's inability to accept other employment;

        (f)      the experience and ability of the lawyer;

        (g)      any estimate given by the lawyer;

        (h)      whether the fee is contingent on the outcome of the matter,

        (i)      the client's prior consent to the fee and the sophistication of that client; and

        (j)      the direct costs incurred by the lawyer in providing the services.

2.      A lawyer must provide to the client in writing, before or within a reasonable time after commencing a
        representation, as much information regarding fees and disbursements as is reasonable and practical in
        the circumstances, including the basis on which fees will be determined.

3.      A lawyer and client may agree that the lawyer's fee will be contingent on the outcome of a matter,
        provided that the matter is not in the area of criminal law, divorce or custody.

4.      A lawyer must clearly identify on each statement of account the amount attributable to fees and the
        nature and amount of any disbursements.

5.      A lawyer may charge as disbursements only those amounts that have been paid or are required to be
        paid to a third party by the lawyer on a client's behalf.

6.      A lawyer must disclose to a client all party-and-party costs received by the lawyer in connection with the
        client's matter.

7.      Provided that the client does not pay more as a result, a lawyer may divide a fee with the following:

        (a)      a firm member;

        (b)      a lawyer who is not a firm member, but only if the client is aware and approves of that lawyer's
                 involvement, and the fee is divided in proportion to the work done and responsibilities assumed
                 by each lawyer;




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        (c)      a lawyer who is not a firm member who has referred a client, as compensation for the referral, but
                 only if the client is aware and approves and the fee to the client is not thereby increased.
                                                                                                             Nov2001

8.      Unless the client has consented, a lawyer must not accept from anyone other than the client a
        commission or other compensation related to the lawyer's professional employment in a matter.

9.      A lawyer must not assert a solicitor's lien against a client unable to pay the lawyer's account in
        circumstances in which it would materially prejudice the client.

10.     Money held in trust by a lawyer to the credit of a client may not be applied to fees incurred by the client
        unless an account has been rendered to the client.

                                                  COMMENTARY
General

G.1     Fees are often a sensitive issue in the lawyer/client relationship. A client accustomed to knowing the cost
        of goods and services in advance may be confused by or sceptical of a lawyer's inability to predict legal
        costs with certainty. A lawyer, in turn, may provide an insufficient or unclear explanation of fees due to
        inexperience, lack of appreciation for the client's position, or unwillingness to fully address a potentially
        controversial subject.

        It is not surprising, then, that the matter of fees gives rise to frequent lawyer/client misunderstandings.
        Such occurrences discredit the profession in the eyes of the public. In seeking to rectify this situation,
        lawyers must take the initiative in providing the best fee information possible at an early stage of each
        matter (see Rule #2 and accompanying commentary).

G.2     Reduction or waiver of fee: To increase access to the legal system, a lawyer should be willing to
        occasionally reduce or waive the fees of a client who is needy or disadvantaged or who is engaged in
        charitable or other worthwhile activities.

R.1     The factors determining the amount that is a fair and reasonable fee in a given case include, but
        are not limited to, the following:

        (a)      the nature of the matter, including its difficulty and urgency; its importance to the client;
                 its monetary value; and the need for special skills or services;

        (b)      the time and effort expended;

        (c)      the results obtained;

        (d)      the customary charges of other lawyers of equal standing in the locality in similar matters
                 and circumstances;

        (e)      the likelihood, if made known to the client, that acceptance of the retainer will result in the
                 lawyer's inability to accept other employment;

        (f)      the experience and ability of the lawyer;

        (g)      any estimate given by the lawyer;

        (h)      whether the fee is contingent on the outcome of the matter,

        (i)      the client's prior consent to the fee and the sophistication of that client; and

        (j)      the direct costs incurred by the lawyer in providing the services.




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C.1     As noted above, a fee must be justifiable as being equal to or less than a fair and reasonable amount for
the services rendered. In making that determination, all of the circumstances of a particular case will be
considered. Rule #1 lists a number of factors that are usually, but not always, relevant to the setting of a fee.
Although a lawyer may be obliged to reduce a fee due to a client's poverty, the wealth of a client has no relevance
to determination of the amount that constitutes a fair and reasonable fee.
        (a)      Legal services that involve complex or novel legal issues and therefore require unusual skill or
                 exercise of judgment are normally more expensive than those relating to routine matters.
                 Similarly, if a lawyer must undertake intensive involvement on short notice, or if unusual demands
                 are placed on support staff or equipment, a higher fee will ordinarily be justified. However, as
                 noted in Commentary G.1(c) of' Chapter 2, Competence, the fee must bear a reasonable
                 relationship to the value or importance of the matter from the client's perspective. If a lawyer is of
                 the view that the projected fees and disbursements will be clearly disproportionate, the client
                 must be so informed as early as possible. If the client is unwilling to pay the full fees and
                 disbursements as estimated by the lawyer, the lawyer will be obliged to decline to act or to charge
                 less than an amount that fairly compensates the lawyer.

        (b)      When time expended is the most important factor, or the only factor, taken into account by a
                 lawyer, the result may be a disservice to either the client or the lawyer.

                 Unfairness to the client may result because the lawyer was inefficient, or because the time
                 invested was not justified by the nature of the matter. Conversely, if the lawyer was extremely
                 efficient, achieved a remarkable result or worked under unusual pressures to accommodate the
                 client, a fee based solely on time may undervalue the lawyer's services. It is generally preferable
                 to consider a range of factors in establishing a fee unless the client has specifically agreed to pay
                 on the basis of time.

        (c)      In determining the amount that constitutes a fair and reasonable fee, consideration of the results
                 achieved is an attempt to take into account the value of a lawyer's services from the client's
                 perspective. For example, if a commercial transaction aborts and the lawyer's services are
                 therefore of minimal value to the client, the amount that fairly compensates the lawyer may be
                 less than that in a completed transaction. A result falling significantly below that which the client
                 was led to expect may also require a reduction of the fee. Conversely, the amount constituting a
                 fair and reasonable fee in a successful representation may be somewhat greater, particularly if
                 the lawyer's special skills contributed to the result.

                 The consideration of results achieved as one factor in setting a fee is to be distinguished from an
                 agreement that the lawyer's fee will be contingent on outcome. (see Rule #3)

        (e)      Agreeing to act in a particular matter may occasionally prevent a lawyer from accepting other
                 files, which may result in loss of income if other firm members are unable to handle the additional
                 matters. In this circumstance, the charging of a higher fee may be justified if the client is apprised
                 of the situation as soon as it becomes apparent to the lawyer.

        (f)      In some cases, the amount constituting a fair and reasonable fee for certain services may be
                 greater for a lawyer having particular skills and experience. However, one's ability to justify a
                 higher fee will be enhanced if full information in this regard has been provided to the client in
                 advance pursuant to Rule #2.

        (g)      A lawyer has an obligation to provide an estimate whenever possible (see Commentary 2). If an
                 estimate becomes unrealistic as the matter progresses, the client must be so advised. The most
                 recent estimate provided will be a significant factor in determining the fee that it is fair and
                 reasonable for the lawyer to charge under the circumstances.

        (h)       Because of the risk of non-payment in a contingent-fee arrangement, a lawyer who fulfills the
                 conditions for payment may be justified in recovering a larger amount than would have been fair
                 and reasonable on a non-contingency basis (see Commentary 3).




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        (i)      A prior agreement with a client as to the fee to be charged is a business transaction with a client
                 in the absence of independent legal advice. While an agreement with a sophisticated,
                 knowledgeable and experienced client will have some weight in determining whether a fee is fair
                 and reasonable, an agreement with an unsophisticated client may have little or no weight. On a
                 consideration of all relevant factors, including the client's agreement, the fee charged must be fair
                 and reasonable.

        (j)      The direct costs of providing legal services are overhead-type expenses such as those arising
                 from computer or fax machine use, storage of files or documents, secretarial and paralegal
                 assistance, postage, and the use of other supplies, services and equipment in the law office. The
                 number of direct costs referable to a particular matter is a proper factor to consider in setting a
                 fee, recognizing, however, the lawyer's obligation to be economical (see Commentary G.I(c)(v) of
                 Chapter 2, Competence). A lower fee may be warranted if such costs have been limited or
                 non-existent.

R.2     A lawyer must provide to the client in writing, before or within a reasonable time after
        commencing a representation, as much information regarding fees and disbursements as is
        reasonable and practical in the circumstances, including the basis on which fees will be
        determined.

C.2      Communication between lawyer and client is a key element of client satisfaction. (see Commentary 14 of
Chapter 9, The Lawyer as Advisor) A good starting-point is a frank and open discussion about fees at the outset
of a relationship, or within a reasonable time thereafter, which is subsequently confirmed in writing.
As a general rule, a lawyer must explain to each client the basis on which the fee will be established. Examples
are a fixed-fee basis; a contingency-fee basis (see Rule #3); a time-expended basis, in which case the lawyer's
hourly rate should be disclosed; and a quantum meruit basis, in which case the various factors that may be taken
into account should be explained to the client. The client's agreement to a fixed fee in advance does not affect a
lawyer's obligation to ensure that the fee is fair and reasonable (see Commentary 1(i)).
Whenever possible, a lawyer should provide an estimate of total legal costs or at least a range within which such
costs are likely to fall. The provision of an estimate entails the making of certain assumptions that should be
clearly outlined for the client. In cases where a meaningful estimate cannot be provided, the client may wish to
authorize the incurring of legal costs up to a certain amount, at which point the client is to be contacted for further
instructions.
The extent and nature of the information required to be provided in each case, and the timing of fee discussions,
will depend on all relevant circumstances. For example, the emotional state of a client may preclude such
discussions at the initial meeting. Rule #2 requires, however, that the matter be dealt with in writing within a
reasonable time. As to the substance of fee discussions, a lawyer may not be required to explain the basis on
which fees will be determined to a client already having a full appreciation of this issue due to a pre-existing
relationship with the lawyer. Discussion of the basis of fee determination may also lack usefulness in a transaction
involving several phases or steps if the fee applicable to each step will be calculated in a different manner. In both
these examples, an estimate of total legal costs for the matter in question would constitute more meaningful
information for the client.
After initial fee consultations with the client, and in keeping with a lawyer's general obligation to maintain ongoing
communication, the client must be kept advised of any developments affecting the current assessment (see
Commentary 1 (g)). Although there is no requirement that interim accounts be rendered, this practice is an
excellent means of determining whether the most recent information provided by a lawyer remains valid while
permitting the client to monitor legal costs as they accrue.
A lawyer must confirm with the client in writing the substance of all fee discussions that occur as a matter
progresses.




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R.3     A lawyer and client may agree that the lawyer's fee will be contingent on the outcome of a matter,
        provided that the matter is not in the area of criminal law, divorce or custody.

C.3       Contingent fees are governed by the Rules of Court. There are also ethical constraints on such fees. In
particular, they must be fair and reasonable in accordance with the fundamental principle of this chapter. Because
of the risk of non-payment in a contingency arrangement, however, the amount constituting a fair and reasonable
fee may exceed the fee that would be justifiable on an hourly or other non-contingency basis. (see Rule #1(h))
Factors relevant to the fairness and reasonableness of a contingent fee include the value of the matter and the
degree of risk involved. For example, a significant risk as to imposition of liability, or as to the amount likely to be
recovered where liability is apparent, will justify a larger fee than in a case involving relatively little risk.
Another factor in determination of the fairness of a contingent fee is the effort expended by the lawyer. It may
therefore be reasonable to stipulate in a contingent fee agreement that (for example) the lawyer will be entitled to
a higher percentage of recovery if settlement occurs during trial than if settlement is achieved prior to discovery.
The reference in Rule #3 to divorce matters is not intended to prohibit contingent fee arrangements in matters of
matrimonial property or support.
R.4     A lawyer must clearly identify on each statement of account the amount attributable to fees and
        the nature and amount of any disbursements.

C.4     The two main categories of charges on a statement of account are fees and disbursements. However, a
sub-category entitled "Other Charges" may be included under the fees heading if a lawyer wishes to separately
itemize charges such as paralegal, word processing or computer costs that are not disbursements.
Disbursements are charges levied by a third party and paid by a lawyer on a client's behalf (see Commentary 5).
A disbursement may be billed to a client as such although it has not yet been incurred or paid if its exact amount
is known to the lawyer, and it will be incurred or paid on the client's behalf within a reasonably short period of
time. If it is not paid within a reasonable time, the money received on its account must be returned to the client.
A lawyer's statement of account may not mislead or confuse the client and must conform as closely as possible
with information previously provided to the client. Consequently, items that are unusual or arbitrary warrant prior
disclosure to the client. For example, a fee for opening a file, calling up a closed file or performing any other
normal administrative function is unlikely to be anticipated by the client and should therefore be discussed with
the client beforehand.
A lawyer's duty to provide as much information as possible respecting fees and disbursements (see Rule #2 and
accompanying commentary) will normally require itemization of disbursements on an account and the provision of
some detail as to the services provided. The amount of detail will depend on the circumstances of each case,
including the extent to which the client was kept informed on an ongoing basis while the matter was current. At a
minimum, a lawyer should communicate a willingness to provide further elaboration of the lawyer's charges upon
request.
Subject to any special agreement with the client, a final account should be rendered within a reasonable time after
completion of the services.
R.5     A lawyer may charge as disbursements only those amounts that have been paid or are required to
        be paid to a third party by the lawyer on a client's behalf.

C.5     To be ethically justifiable, disbursements must have been reasonably incurred for the proper and
complete conduct of the client's matter. It is inappropriate to include on a statement of account significant
disbursements in respect of which the client has not granted express or implied authorization.
Payment of such items as government search and registration fees, agent fees and courier charges are properly
shown on a statement of account as disbursements. Internal office expenses assigned some value by the law firm
itself, such as photocopying and fax charges (apart from the long distance component), do not constitute
disbursements and should not be presented to the client as such on a statement of account. Expenses of this kind
are in fact a fee component and must be charged to the client as fees, although they may be itemized separately
under the fees heading on an account (see Commentary 4).




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If a lawyer has incurred as a disbursement an item that would normally fall within fees, the fee component of the
lawyer's account should be reduced accordingly. For example, it is usual for secretaries to be hired in-house and
their services accounted for under the category of fees. If a lawyer contracts out the secretarial services in a
particular matter and incurs a disbursement as a result, the removal of such services from the fee component
should be acknowledged through (for example) a reduction in the lawyer's hourly rate.
If a lawyer is financially interested in the party to which disbursements are incurred, such as a company
performing investigatory, brokerage or copying services, this fact must be disclosed to the client.
R.6     A lawyer must disclose to a client all party-and-party costs received by the lawyer in connection
        with the client's matter.

C.6      Party-and-party costs received by a lawyer are the property of the client and must therefore be accounted
for to the client. While an agreement that the lawyer will be entitled to costs is not uncommon, it does not affect
the lawyer's obligation to disclose the costs to the client.
R.7     Provided that the client does not pay more as a result, a lawyer may divide a fee with the
        following:

        (a)      a firm member;

        (b)      a lawyer who is not a firm member, but only if the client is aware and approves of that
                 lawyer's involvement, and the fee is divided in proportion to the work done and
                 responsibilities assumed by each lawyer;

        (c)      a lawyer who is not a firm member who has referred a client, as compensation for the
                 referral, but only if the client is aware and approves and the fee to the client is not thereby
                 increased.

C.7      This rule permits division of fees in certain circumstances. The paramount consideration in all cases is
fairness to the client; thus, the fee may not exceed that which would have been charged to the client if no division
of fees had occurred.
Within a firm, fees may be divided among lawyers in such manner as the firm sees fit. A fee may also be divided
with a lawyer outside the firm (including a lawyer not authorized to practise law in Alberta), but only in accordance
with paragraph (b) of Rule #7.
The payment by one lawyer to another lawyer outside the firm for the referral of a client is allowed so that lawyers
will be encouraged to see that a client gets the most suitably skilled and experienced lawyer for their affairs, and
to make it easier to avoid conflicts.
While division of fees in a particular client matter with non-lawyers is prohibited, it is permissible to compensate
employees and other marketing and public-relations personnel on a non-file-specific basis. (see Rule #7 of
Chapter 5, Advertising).
                                                                                                                 Nov2001

R.8     Unless the client has consented, a lawyer must not accept from anyone other than the client a
        commission or other compensation related to the lawyer's professional employment in a matter.

C.8     Due to the fiduciary nature of the lawyer/client relationship, all related financial dealings must be fully
disclosed to the client. As noted in Rule #8, the client must consent to any third-party payment to a lawyer in
connection with the client's matter. See the definitions of' "consent" and "disclosure" in Interpretation.
Rule #8 includes the following situations:
        (a)      Payment of the legal fees of a client by a third party. In this case, the lawyer must be satisfied that
                 the client concurs in the arrangement. For a discussion of the collateral issues that arise when
                 fees are paid by a third party, see Commentary 9.2 of Chapter 9, The Lawyer as Advisor.

        (b)      Payment by a third party to the lawyer of an amount in the nature of a finder's fee. A lawyer may
                 not accept such a payment unless the client consents after full disclosure. While a finder's fee
                 need not in every case be credited in full to the client, it must be taken into account in the account


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                 rendered to the client. That is, the fee charged to the client inclusive of the finder's fee must be
                 fair and reasonable given the services provided.

R.9     A lawyer must not assert a solicitor's lien against a client unable to pay the lawyer's account in
        circumstances in which it would materially prejudice the client.

C.9     A lawyer is entitled to a solicitor's lien over property of the client in certain circumstances. However, the
lawyer has a duty to decline to enforce the lien for non-payment of legal fees if the client is unable to pay and
assertion of the lien would materially prejudice the client's position in any uncompleted matter (material prejudice
being understood to exceed mere inconvenience to the client). Nor should a lawyer enforce a solicitor's lien for
non-payment if the client is prepared to enter into an arrangement that reasonably assures the lawyer of payment
in due course.
With respect to a matter being transferred to other counsel, the transferring lawyer may request that the receiving
lawyer undertake to pay an outstanding account from the monies ultimately recovered by that lawyer. Where the
matter in question is subject to a contingency agreement, the lawyers may agree to divide the contingent fee on
the basis of apportionment of total effort required to effect recovery.
R.10    Money held in trust by a lawyer to the credit of a client may not be applied to fees incurred by the
        client unless an account has been rendered to the client.

C.10 This rule permits the use of trust money held to the credit of a client to pay an outstanding account not
only in the matter in respect of which the trust money was received, but in any previous matter handled by the
lawyer for the same client.
Rule #10 is not, however, intended to be an exhaustive statement of the considerations that apply to the payment
of a lawyer's account from trust. The handling of trust money generally is governed by the Rules of the Law
Society. Those Rules must also be complied with in the application of trust money to fees earned by a lawyer.




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                                              CHAPTER 14
                                       WITHDRAWAL AND DISMISSAL
                                             STATEMENT OF PRINCIPLE
Having agreed to act in a matter, a lawyer has a duty not to withdraw without legal or ethical justification.

                                                        RULES
1.      A lawyer may withdraw upon reasonable notice to the client when justified by the circumstances.
        Circumstances that may justify, but not require, withdrawal include the following:

        (a)      the client fails after reasonable notice to provide funds on account of fees or disbursements in
                 accordance with the agreement made with the lawyer;

        (b)      the client's conduct in the matter is dishonourable or motivated primarily by malice;

        (c)      the client is persistently unreasonable or uncooperative in a material respect;

        (d)      the lawyer is unable to locate the client or to obtain proper instructions; or

        (e)      there is a serious loss of confidence between lawyer and client.

2.      A lawyer must withdraw upon reasonable notice to the client when:

        (a)      the client persists in instructing the lawyer to act contrary to professional ethics;

        (b)      the client persists in instructions that the lawyer knows will result in the lawyer's assisting the
                 client to commit a crime or fraud;

        (c)      the lawyer is unable to act competently or with reasonable promptness; or

        (d)      the lawyer's continued employment would violate the lawyer's obligations with respect to conflict
                 of interest.

3.      If a lawyer withdraws or is discharged from a matter, the lawyer must endeavour to avoid prejudice to the
        client and must cooperate with successor counsel.

4.      Upon withdrawal or dismissal, a lawyer must promptly render a final account and must account to the
        client for money and property received from the client.

5.      Before assuming conduct of a matter previously handled by another lawyer, a lawyer must be reasonably
        satisfied that the other lawyer has withdrawn or been discharged by the client.

                                                    COMMENTARY
General

G.1     As noted in Commentary 5 of Chapter 1, Relationship of the Lawyer to Society and the Justice System, a
        lawyer has no general duty to agree to act in a particular case. Having agreed to act, however, a lawyer
        may not withdraw without regard for professional considerations such as loyalty to the client; the duty to
        facilitate access to the legal system and enforcement of legal rights; and the inconvenience that would
        result to the client from change of counsel. It is inappropriate for a lawyer to withdraw on capricious or
        arbitrary grounds.

        In contrast, a client has the freedom to terminate the lawyer/client relationship at will. While termination by
        the client need not be justified, the absence of justification may affect the extent and nature of a lawyer's
        post-termination duties (see Commentary 3).



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G.2     Lawyers employed by corporations and government: The principles of withdrawal have unique application
        to lawyers in the employ of corporations and government. Some, such as Rule #1(a), are obviously
        inapplicable. (see Commentary 4 of Chapter 12, The Lawyer in Corporate and Government Service, for
        further discussion)

G.3     Reasonable notice: Reasonable notice of withdrawal is required to be given in all circumstances. An
        essential element of reasonable notice is notification to the client, unless the client cannot be located after
        reasonable efforts. Whether the court, opposing parties or others should also be notified will depend on
        the nature of the matter. Statutory provisions such as the Rules of Court may require such notification, or
        it may be dictated by professional courtesy.

        How quickly a lawyer may cease acting after notification will depend on all relevant circumstances. As a
        general rule, the client should be given sufficient time to retain and instruct replacement counsel and
        should not be left unrepresented on the eve of trial or at another critical stage. Nor should withdrawal or
        an intention to withdraw be permitted to seriously inconvenience witnesses, waste court time or prevent
        other counsel from reallocating time or resources scheduled for the matter in question. However, if
        withdrawal is mandatory, prevailing circumstances may override such considerations. For example, an
        intentional deception by the client may justify withdrawal immediately after notification or at a critical
        stage.

        In the case of advance warning of an intention to withdraw if a client fails to fulfill an obligation in default,
        such as payment of the lawyer's account, every effort should be made to ensure that withdrawal will occur
        at an appropriate time in the proceedings and will not violate the general principles of the preceding
        paragraph.

        Reasonable notice will vary according to whether withdrawal is optional or mandatory (see Commentaries
        1 and 2).

R.1     A lawyer may withdraw upon reasonable notice to the client when justified by the circumstances.
        Circumstances that may justify, but not require, withdrawal include the following:

        (a)      the client fails after reasonable notice to provide funds on account of fees or
                 disbursements in accordance with the agreement made with the lawyer;

        (b)      the client's conduct in the matter is dishonourable or motivated primarily by malice;

        (c)      the client is persistently unreasonable or uncooperative in a material respect;

        (d)      the lawyer is unable to locate the client or to obtain proper instructions;

        (e)      there is a serious loss of confidence between lawyer and client.

C.1      As noted in Commentary G.1, withdrawal may not be capricious or arbitrary. However, there are clearly
situations in which a lawyer should have the option of withdrawing although not compelled to do so by law or
professional ethics. For a general discussion of the requirement of reasonable notice, see Commentary G.3. In
the case of optional withdrawal, it is generally appropriate to continue acting until the client has had ample
opportunity to retain and instruct replacement counsel.
        (a)      Non-payment: Withdrawal may be an option when the client has failed to pay an account or a
                 retainer in accordance with an agreement in that respect, assuming that the fee involved is fair
                 and reasonable and the client has been provided with sufficient information regarding fees and
                 disbursements (see Chapter 13, Fees).

                 Although non-payment may be a justification for withdrawal, a lawyer ought to seriously consider
                 continuing to act if the extent of the client's default is minor; if the amount of work left to be done
                 is minimal; if non-payment is due to the client's inability to pay; or if the client would be placed in
                 peril as a result of withdrawal.




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        (b)      Dishonourable or malicious conduct: Examples of dishonourable conduct by a client are
                 persistent improper contact of an opposing party in order to pressure settlement and persistently
                 rude, offensive or abusive behaviour toward others involved in a matter. While many legal
                 problems, especially those that are adversarial, contain an element of malice, it is only when
                 malice constitutes the primary or substantial motivation of the client that a lawyer should consider
                 withdrawal.

        (c)      Lack of cooperation: Examples of uncooperative client behaviour are refusal to fulfill
                 undertakings, failure to attend examinations or meetings, and the making of unrealistic demands
                 or unnecessary telephone calls. When such behaviour becomes persistent or repetitive, it may
                 seriously interfere with the reasonable and proper discharge of a representation and may
                 therefore justify withdrawal.

        (d)      Missing client or absence of instructions: The efforts that must be exerted to locate a missing
                 client are discussed in Commentary 6 of Chapter 9, The Lawyer as Advisor. If they are
                 unsuccessful, or if a lawyer is unable to obtain proper instructions for some other reason, it is
                 necessary to assess the extent to which the lawyer is able and willing to continue to represent the
                 client through implied instructions or as otherwise permitted by law. In making this assessment,
                 the lawyer should be aware of the unique considerations that apply when a client is incapacitated
                 (see Rule #7 and accompanying commentary of Chapter 9, The Lawyer as Advisor) Withdrawal
                 may also at some point become mandatory depending on the nature and scope of the
                 representation, the necessity for express instructions and the remoteness of the possibility, in the
                 case of an incapacitated client, that a legal representative will be appointed.

        (e)      Loss of confidence: Situations typical of a serious loss of confidence include a client's deliberate
                 deception of a lawyer and repeated disagreements between lawyer and client over a range of
                 issues. While a single instance of disagreement or failure of the client to accept and act on the
                 lawyer's advice may not reflect a loss of confidence, factors such as the significance of the issue
                 involved and whether acceptance of the client's position would reflect poorly on the lawyer will be
                 relevant.

R.2     A lawyer must withdraw upon reasonable notice to the client when:

        (a)      the client persists in instructing the lawyer to act contrary to professional ethics;

        (b)      the client persists in instructions that the lawyer knows will result in the lawyer's assisting
                 the client to commit a crime or fraud;

        (c)      the lawyer is unable to act competently or with reasonable promptness; or

        (d)      the lawyer's continued employment would violate the lawyer's obligations with respect to
                 conflict of interest.

C.2       For a general discussion of reasonable notice, see Commentary G.3. In the case of mandatory
withdrawal, the notice period should normally be as short as possible since continuing to act will place the lawyer
in violation of other obligations. Specifically, if withdrawal is required by paragraph (a) or (b), the lawyer's
continued representation will be carried out contrary to the client's instructions; under paragraph (c), continued
representation will be incompetent; and under paragraph (d), continued representation will violate conflicts
principles.
        (a)      Breach of ethics: Withdrawal is mandatory when a client insists on improper conduct. Rule #2(a)
                 is not intended to apply to a mere suggestion of such conduct that is not pursued by the client
                 after receiving and considering the lawyer's advice.

                 An example falling within Rule #2(a) is a client's refusal to permit the lawyer to disclose
                 confidential information necessary to correct a misapprehension of the court or opposing counsel
                 occurring through the client's perjury (see Rule #2 of Chapter 4, Relationship of the Lawyer to
                 Other Lawyers, and Rule #15 of Chapter 10, The Lawyer as Advocate). The client's instructions
                 place the lawyer in breach of an ethical obligation and the lawyer must therefore withdraw.


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                  If there are outstanding undertakings or trust conditions in a matter, the lawyer must ensure that
                  these obligations are fulfilled despite withdrawal. For example, if a purchaser of real estate insists
                  that a lawyer improperly withhold funds from the closing amount or impose a "trust on a trust" with
                  respect to a portion of the closing amount, the lawyer must not only decline to do so but must,
                  before withdrawing, comply with the trust conditions earlier accepted by the lawyer.

                  For further guidance in specific areas, see the following:

             criminal or fraudulent conduct: Rule #11 of Chapter 9, The Lawyer as Advisor, and Rule #4 of
              Chapter 12, The Lawyer in Corporate and Government Service;

             client-generated misrepresentation of opposing party or court: Rule #2 of Chapter 4, Relationship of
              the Lawyer to Other Lawyers; Rule #15 of Chapter 10, The Lawyer as Advocate; and Rule #2 of
              Chapter 11, The Lawyer as Negotiator;

             refusal of client to consent to disclosure of confidential information required by ethics: Rule #7 of
              Chapter 7, Confidentiality.

        (b)       Perpetration of crime or fraud: A dishonest client may attempt to use the professional services or
                  facilities of a lawyer to implement an improper purpose such as money-laundering, concealing
                  stolen property or making a fraudulent conveyance. A lawyer may not implement instructions that
                  the lawyer knows to have such an object, and must withdraw from the representation if the client
                  persists in those instructions. Knowledge will be attributed to the lawyer when a reasonable
                  argument cannot be made for any other interpretation of the facts available to the lawyer.

        (c)       Lack of competence: After a matter is undertaken, it may become evident that the lawyer cannot
                  devote the necessary attention to the matter, cannot deal with it expeditiously, or lacks the
                  necessary knowledge, skills or experience to perform competently. In any of these
                  circumstances, the lawyer is obliged by this rule to withdraw (see also Chapter 2, Competence,
                  and Rule #4 and accompanying commentary of Chapter 9, The Lawyer as Advisor).

        (d)       Conflict of interest: Through no fault of the client, a lawyer may find that continued representation
                  of the client will place the lawyer in violation of this Code as it applies to conflicts of interest. The
                  lawyer must then withdraw.

R.3     If a lawyer withdraws or is discharged from a matter, the lawyer must endeavour to avoid
        prejudice to the client and must cooperate with successor counsel.

C.3      A withdrawing lawyer may have duties additional to those outlined in Rule #3. For example, a lawyer may
be obliged to assist the client in locating replacement counsel if withdrawal has occurred pursuant to paragraph
(c) or (d) of Rule #2, but may not be so obliged if withdrawal has been precipitated by the client's improper or
unreasonable conduct.
A withdrawing lawyer should not enforce a solicitor's lien for non-payment of fees if the client is prepared to enter
into an arrangement that reasonably assures the lawyer of payment in due course. Successor counsel may also
be requested to undertake to pay an outstanding account from the monies ultimately recovered by that counsel.
Where the matter in question is subject to a contingency agreement, the lawyers may agree to divide the
contingent fee on the basis of apportionment of total effort required to effect settlement.
Although a lawyer must cooperate with successor counsel, confidential information should not be disclosed
unless expressly or impliedly authorized by the client. (see Commentary 5 of Chapter 7, Confidentiality)




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R.4     Upon withdrawal or dismissal, a lawyer must promptly render a final account and must account to
        the client for money and property received from the client.

C.4      In every instance of withdrawal or dismissal, a lawyer must account to the client for all funds received
from the client and render a final statement of account. It may also be appropriate to provide a final report as to
the status of the client's matter. Finally, the lawyer (subject to the proper assertion of a solicitor's lien) is obliged to
deliver to the client other property of the client in the lawyer's possession, such as documents, securities, title
deeds and minute books, or dispose of them in accordance with the client's instructions.
All of the foregoing must be executed promptly upon withdrawal or dismissal. Unreasonable delay in accounting
to the client, returning money or property to the client or delivering the file to a successor lawyer is unethical
conduct.
R.5     Before assuming conduct of a matter previously handled by another lawyer, a lawyer must be
        reasonably satisfied that the other lawyer has withdrawn or been discharged by the client.

C.5     A lawyer's ability to accept employment in a matter known to have been previously handled by another
lawyer is subject to the constraints of professional and courteous dealings among counsel. (see Chapter 4,
Relationship of the Lawyer to Other Lawyers)
Both the withdrawing and successor lawyer must cooperate in facilitating a smooth transition with as little
inconvenience and expense to the client as possible. A successor lawyer has no general duty to ensure that the
previous lawyer has been paid, but it is appropriate to encourage the client to resolve an outstanding account. In
some situations, refusing to undertake a matter pending settlement of the account may also be acceptable
provided that the client is not deprived of counsel at a critical stage or subjected to other undue prejudice or
hardship.




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Code of Professional Conduct




                                       CHAPTER 15
                THE LAWYER IN ACTIVITIES OTHER THAN THE PRACTICE OF LAW
                                             STATEMENT OF PRINCIPLE
Activities engaged in by a lawyer other than the practice of law must not compromise the lawyer's
professional responsibilities nor bring discredit to the profession.

                                                       RULES
1.      When there may be confusion as to the capacity in which a lawyer is acting, the lawyer must ensure that
        such capacity is made as clear as possible to anyone with whom the lawyer deals.

2.      A lawyer's conduct in an activity other than the practice of law must be compatible with the best interests
        of the profession and the justice system.

3.      If a lawyer makes a referral to a business in which the lawyer, or a related person, has a direct or indirect
        financial interest, the interest must be fully disclosed to the client, whether or not a financial benefit
        accrues to the lawyer as a result of the referral.

                                                   COMMENTARY
General

G.1     The range of activities engaged in by lawyers is large and diverse. A lawyer may serve in public office,
        concurrently with the practice of law or otherwise; pursue an occupation such as farming that has no
        connection with the practice of law; or engage in an activity having an element of practice, such as
        marriage or investment counselling; accounting; estate planning; tax consulting; or property development
        or management.

        Whether the activity in question is entirely unrelated to the practice of law or overlaps with the practice to
        some extent, the profession through the Law Society must maintain an interest in its nature and the
        manner in which it is conducted. While the Law Society's primary concern is with conduct that calls into
        question a lawyer's suitability to practise law or that reflects poorly on the profession, lawyers should
        aspire to the highest standards of behaviour at all times and not just when acting as lawyers. (see also
        Preface; Commentary 3(a) of Interpretation; Commentary 1 of Chapter 1, Relationship of the Lawyer to
        Society and the Justice System; and Commentary 11 of Chapter 3, Relationship of the Lawyer to the
        Profession)

        Lawyers engaging in outside activities must also remain conscious of the rules in the Code regarding
        conflicts of interest and prohibition of hidden commissions, which apply regardless of whether the
        relationship established with another party is one of solicitor and client.

G.2     Mediation and arbitration: Mediation and arbitration are common activities of lawyers that technically fall
        outside the practice of law. While remaining bound by this Code (in particular, Commentary 1.2 of
        Chapter 6, Conflicts of Interest), lawyers engaging in such activities should also familiarize themselves
        with and adhere to other codes of conduct promulgated from time to time by bodies having expertise and
        authority in those areas.

R.1     When there may be confusion as to the capacity in which a lawyer is acting, the lawyer must
        ensure that such capacity is made as clear as possible to anyone with whom the lawyer deals.

C.1       Outside activities entirely unrelated to the practice of law create little danger that a person dealing with
the lawyer will mistakenly think that a lawyer/client relationship has been established. However, as outside
activities take on a professional tone or incorporate elements of practice, the risk increases that a lawyer's
position will be misconstrued. In any such situation, a lawyer must be as clear as possible in defining the capacity
in which the lawyer is acting. In particular, if circumstances exist where the recipient of services, acting
reasonably:


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                                                                    The Lawyer in Activities Other Than the Practice of Law


        (a)      may have difficulty determining whether the lawyer is acting in the capacity of barrister and
                 solicitor; or

        (b)      may expect that the lawyer will exercise professional judgment for the person's benefit

the obligation rests on the lawyer to explain the nature of the relationship. The differences between a lawyer/client
relationship and the proposed relationship must be identified and explained. Communications to the person in this
regard must be confirmed in writing.
The lawyer must also ensure that the other parties involved in such a relationship are aware that professional
liability insurance covering ancillary business activities is not available through the Law Society and that none of
the attributes of a lawyer/client relationship, such as confidentiality, privilege and assurance fund protection, is
applicable.
In addition to the specific disclosure and discussion that may be required in a particular situation, a lawyer
engaged in an ongoing outside activity should employ general procedures and routines that emphasize its
separate nature. An example is the use of letterhead, invoices, business cards, telephone numbers and premises
that are different from those employed in the lawyer's practice. It would also be prudent to maintain separate bank
accounts and financial records for the activity.
R.2     A lawyer's conduct in an activity other than the practice of law must be compatible with the best
        interests of the profession and the justice system.

C.2     Membership in a professional body is often considered evidence of good character in itself.
Consequently, society's expectations of lawyers will be high, and the behaviour of an individual lawyer may affect
generally-held opinions of the profession and the legal system (see also Rule #1 of Chapter 3, Relationship of the
Lawyer to the Profession, and Rules #1 and #3 of Chapter 1, Relationship of the Lawyer to Society and the
Justice System).
The Law Society is empowered by the Legal Profession Act to find that the conduct of a member is deserving of
sanction whether or not it is related to the practice of law. However, as noted in Commentary G.1, behaviour
outside the practice will not normally prompt disciplinary proceedings unless it is harmful to the profession or
justice system or evidences a lack of integrity or honour.
R.3     If a lawyer makes a referral to a business in which the lawyer, or a related person, has a direct or
        indirect financial interest, the interest must be fully disclosed to the client, whether or not a
        financial benefit accrues to the lawyer as a result of the referral.

No commentary




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Code of Professional Conduct




                                                                                 INDEX
The first reference in parentheses after each listing, or a reference following a semi-colon, is to a
chapter of this Code. I = Interpretation. Other references in parentheses are to specific provisions of the
chapter in question. S.O.P. = Statement of Principle; R. = Rule; C. = Commentary; G = General
(Commentary); P = Paragraph of Interpretation.

ABBREVIATED SERVICES (2-C.G.1(C)(V) / 9-C.2) .........2-2, 9-3                           ADVERTISING
ABUSE                                                                                      accurate and verifiable (5-R.1(a),C.1(a))..... 5-1, 5-2, 5-3
  of criminal law for civil ends (10-R.3, R.4) ...... 10-1, 10-4                           communicating with media and public (5-R.8, C.8) ...5-2,
  of position by lawyer (1-C.G.1, 1-C.7) ................ 1-2, 1-4                            5-7
  of process (10-R.1-5) ....................................... 1-4, 10-1                  consistent with integrity of profession (5-R.1(c) / 3-C.1)
ACCOUNTANTS                                                                                    ....................................................................... 3-1, 5-1
  disclosure of confidential information to (7-C.4) ........ 7-4                           defined (5-C.G.1) .......................................................5-2
  in-house                                                                                 extraprovincial firms
     inclusion on letterhead (5-R.4, C.4)....................... 5-5                          certified experts and specialists (5-R.5) .................5-6
  lawyers as (15-C.G.1) ............................................. 15-1                 fees (5-C.1(b), C.6) ............................................ 5-3, 5-6
  referral to (2-C.G.3 / 9-C.4) ................................ 2-4, 9-4                  misleading
                                                                                              regarding lawyer’s skill or experience (5-R.5) ........5-6
ACCOUNTING                                                                                    regarding likely outcomes (5-C.1(b)) ......................5-3
  advising client re                                                                       misleading, confusing or deceptive (5-R.1(b), C.1(a)(b))
     retaining experts (2-C.G.3).................................... 2-4                       ................................................................ 5-1, 5-2, 5-3
  systems, need for (2-C.G.1(e)).................................. 2-3                     of loans prohibited (5-R.2, C.2) .......................... 5-1, 5-4
  to client                                                                                permitted advertising expenses (5-C.7) .....................5-6
     for payments received from third parties (13-C.8) 13-6                                permitted content (5-C.1(c)) .......................................5-3
     on termination of retainer (14-R.4) ...................... 14-1                       prohibited forms
     re party-and-party costs (13-R.6) ........................ 13-1                          accidents or injury victims (5-C.1(c)) ......................5-4
ACCOUNTS .................. SEE FEES OR STATEMENT OF ACCOUNT                                  celebrity endorsements and use of spokespersons
ACCOUNTS RECEIVABLE                                                                                (5-C.1(c))............................................................5-4
  disclosure of to banker (7-C.8.2(e))........................... 7-7                         coercion, duress or harassment (5-C.1(c)).............5-3
ACCUSED                                                                                       comparison of fees (5-R.6(d)) ................................5-1
  dealing with                                                                                disparaging represtations of others (5-C.1(c))........5-3
     by prosecutor (10-R.28) ...................................... 10-3                      dramatic scenes, dramatizations (5-C.1(c)) ...........5-4
  representing (10-R.3, R.27)............................ 10-1, 10-3                          emotional appeals (5-C.1(c))..................................5-4
  unrepresented (10-R.28(d))..................................... 10-3                        emotional appeals in testimonials (5-C.1(c)) ..........5-4
ADDRESS OF CLIENT                                                                             firm name in telephone directory (5-C.1(c))............5-4
  as confidential information (7-C.1) ............................ 7-3                        generally (5-C.1(c)) ................................................5-4
                                                                                              incentives not relevant to selection of lawyer (5-
ADMINISTRATION OF JUSTICE .................. SEE JUSTICE SYSTEM
                                                                                                   C.1(c)) ................................................................5-4
ADMISSIONS BY CLIENT                                                                          inflammatory or undignified content (5-C.1(c)) .......5-4
  and restrictions on conduct of case (10-C.14.2)...... 10-8                                  payments to non-lawyers for referrals (5-R.7, C.7)5-2,
ADVANTAGE, UNFAIR                                                                                  5-6
  compassionate loans (6-C.9) .................................. 6-12                         references to agressive representation (5-C.1(c))..5-3
  general duty not to exert (1-R.7) ............................... 1-1                       references to use of improper strategies (5-C.1(c))5-3
  in business dealings with third party (8-C.G.1).......... 8-1                               status as expert or specialist (5-R.5).............. 5-1, 5-6
  in business transaction with client (6-C.9) ............... 6-12                            taking advantage of vulnerability(5-C.1(c)).............5-3
  in soliciting business (5-R.3, C.G.2,C.1,C.3) . 5-1, 5-2, 5-                             purpose (5-S.O.P.) .....................................................5-1
     3, 5-4                                                                                reference to ingenuity of lawyer (5-C.1(b)).................5-3
  re mistake of opposing counsel (4-R.3)..................... 4-1                          representations about lawyer’s practise (5-C.1(b)).....5-3
  re use of confidential information (7-R.6) .................. 7-1                        statistical information (5-C.1(b)) .................................5-3
ADVERSARY PROCEEDINGS                                                                      testimonials and endorsements (5-C.1(c)) .................5-4
  even-handedness of (10-C.7).................................. 10-5                       unjustified expectations (5-C.1(b)) .............................5-3
  general duties of prosecutor in (10-R.28) ................ 10-3                          use of referral services (5-C.7)...................................5-6
ADVERSARY SYSTEM                                                                         ADVICE
  and cross-examination (10-C.25) .......................... 10-11                         certificate of independent (9-C.12) .............................9-8
  impairment of (10-C.8.1) ......................................... 10-5                  client's refusal to accept
  undermining of (10-C.7, C.17) ........................ 10-5, 10-9                           as grounds for withdrawal (14-C.1(e))..................14-3
ADVERSE AUTHORITY                                                                          duties with respect to (9-C.12) ...................................9-8
  duty to advise court of (10-R.18) ............................. 10-2                     legal
                                                                                              generally (9-C.G.2).................................................9-2
ADVERTISEMENT
                                                                                              not to be given by staff (2-C.4.1) ............................2-5
  defined (5-C.G.1) ...................................................... 5-2
                                                                                           non-legal (9-C.G.4) ....................................................9-3


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  unsolicited (9-C.G.3) ................................................. 9-3           ASSOCIATE OF LAWYER ......................SEE ALSO FIRM MEMBER
ADVISING CLIENTS                                                                          appearing before judge with whom lawyer has
  ensuring client's comprehension (9-R.12) ................. 9-2                             relationship (10-C.9.1)..........................................10-6
  first ascertaining facts and law (9-R.12) .................... 9-1                      giving evidence (10-C.10) ........................................10-6
  not to be undertaken by staff (2-C.4.1)...................... 2-5                     ASSOCIATES (5-R.4, C.4) .................................................5-5
  of error or omission (9-R.18) ..................................... 9-2               ASSOCIATION OF LAWYERS
  on non-legal matters (9-C.G.4).................................. 9-3                    and confidentiality (7-C.G.2) ......................................7-2
  that additional legal advice required (6-C.5.1)......... 6-10                           and conflicts of interest (6-C.G.1)...............................6-2
  when improper (9-R.3, R.4)....................................... 9-1                   presentation to public of (5-C.1(b)).............................5-3
  with respect to crime or fraud (9-R.11) ...................... 9-2                      qualifying as firm (I-P.4(j)) .............................................2
AFFIDAVIT                                                                               ATTEMPTED VIOLATION OF CODE (I-P.3(B))............................1
  containing misrepresentations (10-C.14.2).............. 10-8                          ATTORNEY-GENERAL
AFFILIATED ENTITY                                                                         and prosecutions (10-C.28)....................................10-13
  advertising of loans (5-R.2, C.2)......................... 5-1, 5-4                   AUDITORS
  and business transaction with client (6-C.9)............ 6-12                           disclosure of client-related information to (7-C.8.2(e))7-7
  compassionate loans (6-C.9) .................................. 6-13
  defined (I-P.4(a)) ...........................................................2       AUTHORITY
  use of confidential information for benefit of (7-R.6).. 7-1                            legal
                                                                                             existence of to support representations to court (10-
AGE                                                                                               R.17(b)) ............................................................10-2
  and discrimination (1-R.9 / 10-C.28)............... 1-1, 10-13                          matters falling outside
AGENT OF LAWYER                                                                                   duty to obtain client's instructions (9-R.5)...........9-1
  disclosure of confidential information to (7-C.4, C.8.2(e))7-4, 7-7                             entering of plea (10-C.27) ..............................10-12
ALCOHOL ABUSE                                                                                scope of (9-C.5, 7.1, 15) ......................... 9-4, 9-5, 9-9
  by lawyer (2-C.G.1(f))................................................ 2-1              of lawyer
ALIA                                                                                         and settlement offers (9-C.15, 11-C.3)......... 9-9, 11-3
  report to (9-C.18)..................................................... 9-10               implied
ALTERNATIVE DISPUTE RESOLUTION (9-C.16) .................. 9-10                                   generally (9-R.5, 7.1(b)) .....................................9-1
                                                                                                  to disclose confidential information (7-R.8(e)) ....7-1
ANCILLARY BUSINESS ACTIVITIES                                                             of legal representative
  advertising of loans (5-R-2, C.2) ........................ 5-1, 5-4                        to instruct lawyer (9-R.8) ........................................9-1
  compassionate loans (6-C.9) .................................. 6-13                     relevant adverse
ANSWERING QUESTIONS FROM COURT (10-R.16) ............ 10-2                                   duty to disclose to court (10-R.18) .......................10-2
APPEAL                                                                                  AUTHORIZATION
  client to be consulted with respect to (9-C.5) ............ 9-4                         by client
  notification of to opposing trial counsel (10-C.6) ..... 10-5                              of disclosure or use of confidential information (7-
APPEARANCE                                                                                        R.8(e))................................................................7-1
  as counsel before court/judge when apprehension of                                    AUTOBIOGRAPHY OF LAWYER
      bias (10-R.9) ....................................................... 10-1          and use of confidential information (7-C.8.2(e)) .........7-7
  as counsel by former judge (10-C.9.2) .................... 10-6                       BAD FAITH
  of impropriety (6-R.6(c) / 10-C.9.1, 9.2)............ 6-2, 10-6                         in prosecutions (10-C.28) .......................................10-13
  of propriety (5-R.4, C.4)............................................. 5-5              outside the scope of prosecutor’s duties (10-C.28 (8))
APPOINTMENT                                                                                   ...........................................................................10-14
  of legal representative for client                                                    BANKER
      duties re (9-C.7.1) ................................................. 9-5           disclosure of confidential information to (7-C.8.2(e))..7-7
  with client
      duty to keep (9-R.13)............................................. 9-2            BAR ASSOCIATIONS
  with colleague                                                                          participation in (3-C.G.1(d))........................................3-1
      duty to keep (4-R.5)............................................... 4-1           BELIEF OF LAWYER
APPREHENSION OF BIAS/IMPROPRIETY (6-R.6(C) / 10-R.9) 6-2,                                 defined (I-P.4(c)) ...........................................................2
  10-1                                                                                  BENEFICIARIES
ARBITRATION BY LAWYER (6-C.1.2 / 15-C.G.2)..........6-3, 15-1                             acting for (6-C.2.1) .....................................................6-4
ARGUMENT                                                                                BENEFICIARY
  to court (10-R.17) .................................................... 10-2            acting for when is also and executor (6-C.2.4) ...........6-5
  with client .......................SEE DISAGREEMENT WITH CLIENT                         lawyer as (6-C.9)......................................................6-12
ARTICLING STUDENT ..............................SEE STUDENT AT LAW                      BEQUEST
                                                                                          accepting from client (6-C.9) ....................................6-12
ASSISTING CLIENT
  in commission of crime or fraud (9-R.11 / 12-R.4).... 9-2,                            BIAS
      12-1                                                                                reasonable apprehension of (10-R.9).......................10-1
  in delivery of document resembling court document (10-
      R.5) ..................................................................... 10-1
  in falsification, etc. of evidence (10-R.20)................ 10-2



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BORROWING FROM CLIENT (6-C.9) ................................. 6-12                               generally (12-C.1) ................................................12-1
BRIEFING OF WITNESS (10-C.24,25)............................. 10-11                                which individuals covered (4-C.6 / 10-C.22)4-5, 10-10
BUSINESS ACTIVITIES                                                                             in dire financial circumstances (6-C.9) .....................6-12
  advertising of loans (5-R.2, C.2)......................... 5-1, 5-4                           in dual capacity (6-C.2.4) ...........................................6-5
  compassionate loans (6-C.9) .................................. 6-13                           missing (9-R.6 / 14-R.1(d))............................... 9-1, 14-1
                                                                                                of in-house counsel (12-R.1) ....................................12-1
BUSINESS ASPECTS OF PRACTICE                                                                    receiving short-term legal services (6-R.5.1(a), 6-C.5.1)
  advertising of loans prohibited (5-R.2, C.2) ........ 5-1, 5-4                                    ..................................................................... 6-2, 6-10
  fiduciary standard not applicable to (8-C.G.1) ........... 8-1                                unpopular (9-C.11) .....................................................9-8
  obligations incurred in (8-R.1, 2, 3) ........................... 8-1                         use of confidential information of (7-R.6) ...................7-1
  standards applied to (8-S.O.P., C.G.1)...................... 8-1                              vulnerable (5-C.G.2, C.3) ...........................................5-4
BUSINESS INTERESTS OF LAWYER                                                                    when potential client included (2-C.3 / 5-C.1) ............2-4
  when in conflict with client's interests (6-R.7) ............ 6-2                           CLIENT NAMES
BUSINESS TRANSACTION WITH CLIENT (6-R.9 / 13-C.1(I)) .. 6-2,                                    confidentiality (7-R.2) .................................................7-1
  13-4                                                                                          publication of (5-C.G.2) ..............................................5-4
CANDOUR                                                                                       CLIENT'S PROPERTY
  in negotiation (11-R.1)............................................. 11-1                     accounting for on withdrawal (14-R.4)......................14-1
  toward clients (9-R.1, C.G.2).............................. 9-1, 9-3                          fiduciary duies re (7-C.3)............................................7-4
  toward colleagues (4-R.1) ......................................... 4-1                       protecting confidentiality of (7-R.3).............................7-1
  toward court (10-R.13 - 17) ..................................... 10-1                        solicitor's lien over (7-C.3 / 13-R.9 / 14-C.3) ... 7-4, 13-2,
  toward opposing parties (11-R.1) ............................ 11-1                               14-4
  toward others (1-R.6) ................................................ 1-1                  COACHING OF WITNESS (10-R.24)...................................10-2
CAPACITY                                                                                      CO-DEFENDANTS
  intellectual and emotional                                                                    acting for (6-C.2.1) .....................................................6-4
     as aspects of competence (2-C.G.1(f)) ................. 2-3
  of client (9-R.7.1, 8, C.12) .................................. 9-1, 9-8                    COERCION .................................... SEE INFLUENCE, IMPROPER
  when client threating suicide (7, C.8(e) / 9-C.7.2) 7-8, 9-                                 CO-GUARANTORS
     5                                                                                          acting for (6-C.2.1) .....................................................6-4
CERTIFICATE OF LEGAL ADVICE (9-C.12) ........................... 9-8                          CO-INSURED
CERTIFICATION AS SPECIALIST (5-R.5) .............................. 5-1                          acting for (6-C.2.1) .....................................................6-4
CHANGE OF LAWYER ................................... SEE WITHDRAWAL                           COLOUR
                                                                                                and discrimination (1-R.9 / 10-C.28) .............. 1-1, 10-13
CHARTER OF RIGHTS AND FREEDOMS
  re delay (2-C.2) ......................................................... 2-4              COMMERCIAL TRANSACTION
  re obtaining evidence by illegal means (10-C.20) . 10-10                                      aborted (13-C.1(c))...................................................13-3
  re search and seizure (7-C.G.3) ................................ 7-3                          and conflicts of interest (6-C.2.1) ...............................6-4
CLIENT                                                                                        COMMISSION
  advising that additional legal advice required (6-C.5.1)6-                                    acceptance of by lawyer (13-R.8).............................13-2
     10                                                                                       COMMITMENTS OF LAWYERS
  and right to choose counsel (5-C.5 / 6-C.2.1 / 9-C.9.2)5-                                     financial (8-R.2, 3)......................................................8-1
     6, 6-4, 9-7                                                                                to clients (9-R.13).......................................................9-2
  business transaction with (6-R.9) .............................. 6-2                          to other lawyers (4-R.5)..............................................4-1
  communication with other lawyer's (4-R.6)................ 4-1                               COMMUNICATION
  compassionate loan to (6-C.9) ................................ 6-12                           from client
  current                                                                                          duty to respond (9-R.13) ........................................9-2
     acting against (6-R.3(a), 6-R.5.1(a)(i),(ii), 6-C.5.1)6-1,                                 from colleague
        6-2, 6-10                                                                                  duty to respond (4-R.5) ..........................................4-1
     and unrelated matters (6-C.3.1) ............................ 6-7                           from Law Society
     defined (6-C.3.1) ................................................... 6-6                     duty to respond (3-R.3) ..........................................3-1
     duties to (6-C.3.1).................................................. 6-6                  general duty to respond to (1-C.6) .............................1-4
  defined (I-P.4(d)) ...........................................................2               of settlement offer (9-R.15(b) / 11-R.3(b))........ 9-2, 11-1
  disadvantaged                                                                                 with Client (9-R.14) ....................................................9-2
     and need for legal representation (1-C.4).............. 1-3                                with court in absence of other party (10-R.7) ...........10-1
  former                                                                                        with party represented by counsel (4-R.6) .................4-1
     acting against (6-R.3(b),(c) , 6-R.5.1(a)(ii), 6-C.5.1) 6-                                 with public ................. SEE LEGAL SERVICES - ADVERTISING
        2, 6-10                                                                               COMMUNITY LEGAL SERVICES
     acting against (6-R.3(b),(c), 6-R.5.1(a)(ii), 6-C.5.1)6-1                                  support of (3-C.G.1) ...................................................3-1
     survival of confidentiality re (7-R.5) ....................... 7-1                       COMPARISON
     use of confidential information of (7-R.6)............... 7-1                              between lawyers or firms (5-C.1(a)) ...........................5-2
  freedom of access to (9-C.9.1).................................. 9-6
  immediate interests of current                                                              COMPASSIONATE LOANS (6-C.9)......................................6-12
     not acting directly adverse to (6-R.3(a)) ................ 6-1                           COMPENSATION
  in context of corporation                                                                     of witness (10-R.23) .................................................10-2



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COMPETENCE                                                                                             by contract lawyer (I-P.4(k)) ......................................3
  as continuum (2-C.G.1) ............................................. 2-1                             by transferring lawyer (6-R.4).................................6-1
  declining to act when incompetent (1-R.5, C.5 / 2-R.2 /                                            use of
     9-R.4) ...................................................... 1-4, 2-1, 9-1                       for benefit of lawyer, firm member, related person or
  duty to maintain (2-R.1, C.G.1(h)) ............................. 2-1                                    afiliated entity (7-R.6(a)).....................................7-1
  importance to legal system (2-C.G.1)........................ 2-1                                     in another representation (6-R.3(b), (c) / 7-R.6(b))6-1,
  of client...................................................... SEE CAPACITY                            7-1
  of in-house counsel (12-C.4) ................................... 12-3                              use of (7-R.6) .............................................................7-1
  of lawyer, duty to report (3-R.4)................................. 3-1                          CONFIDENTIALITY
  of support personnel (2-R.4) ..................................... 2-1                            and multiple representation (6-C.2.2, 2.3 / 7-R.8(d)).6-5,
  refraining from conduct impairing (2-R.5) .................. 2-1                                     7-1
  withdrawing when incompetent (14-R.2(c)) ............. 14-1                                       compared with privilege (7-C.G.3)..............................7-3
COMPETENT SERVICE                                                                                   implied waiver of in appointment of legal representative
  steps in rendering (2-C.G.3)...................................... 2-3                               (9-C.7.1).................................................................9-5
COMPLAINANT                                                                                         keeping confidences from client (7-C.G.1) .................7-2
  attempting to influence (10-R.3) .............................. 10-1                              maintenance of by employees (7-R.4) .......................7-1
  discussions with by defence lawyer (10-C.3) .......... 10-4                                       not to be relied on by legal representative of client to
  representing (10-R.4) ..................................... 10-1, 10-4                               perpetuate misconduct (9-C.8)...............................9-6
COMPREHENSION BY CLIENT                                                                             of client's identity (7-R.2)............................................7-1
  of lawyer's advice                                                                                of client's property (7-R.3) ..........................................7-1
     duty to ensure (9-R.12) ......................................... 9-2                          of information of current client (6-R.5.1(a)(i),(ii), 6-C.3.1,
                                                                                                       6-C.5.1) ................................................. 6-2, 6-6, 6-10
COMPROMISE                                                                                          of information of former client (6-R.5.1(ii), 6-C.3.1, 6-
  duty to recommend (9-R.16) ..................................... 9-2                                 C.5.1) .................................................... 6-2, 6-6, 6-10
  not to be delegated to staff (2-C.4.1)......................... 2-5                               of information of opposing party (7-C.G.1) .................7-2
CONDUCT DESERVING OF SANCTION (PREFACE / I-P.3(A) / 1-                                              of information on public record (7-R.1).......................7-1
  C.1) ........................................................................1, 1-2               of representation (7-R.2) ............................................7-1
CONFESSION                                                                                          subject to (7-R.7)........................................................7-1
  of accused                                                                                        suicide threat (7-C.8 (c)(d) .........................................7-7
     and restrictions on conduct of defence (10-C.14.2)10-                                          surviving death of client (7-C.5)..................................7-4
        8                                                                                           surviving termination of retainer (7-R.5) .....................7-1
CONFIDANT                                                                                           when ethical obligation is subject to (7-R.7) ...............7-1
  lawyer as (7-C.G.1) ................................................... 7-2                     CONFLICT OF ETHICAL DUTIES (I-P.2(B)) ...............................1
CONFIDENCE                                                                                        CONFLICT OF INTEREST
  loss of, grounds for withdrawal (14-R.1(e)) ............. 14-1                                    acting for both corporation and employee (6-C.2.2 / 12-
CONFIDENTIAL INFORMATION                                                                               R.2) .............................................................. 6-5, 12-1
  and firm mergers (6-C.5) ........................................... 6-9                          acting opposite related person in (6-R.6(b))...............6-2
  and lawyer movement between firms (6-R.4(c))........ 6-1                                          acting when objectivity impaired (6-R.8) ....................6-2
  and multiple representation (6-C.2.2, 2.3 / 7-R.8(d)) 6-5,                                        and compassionate loans (6-C.9) ............................6-13
     7-1                                                                                            and contract lawyer (6-C.G.1) ....................................6-3
  and short-term legal services (6-R.5.1(b), 6-C.5.1) .. 6-2,                                       and current client (6-R.3(a)) .......................................6-1
     6-10                                                                                           and economically competing current clients (6-C.3.1)6-7
  and space-sharing lawyers (6-C.G.1 / 7-C.G.2) . 6-2, 7-2                                          and former client (6-R.3(b), (c))..................................6-1
  defined (I-P.4(e) / 6-C.3 / 7-C.1)............................ 2, 7-3                             and multiple representation (6-R.2)............................6-1
  disclosure                                                                                        and screening device (6-R.3(c), 6-R.5.1(b), 6-C.2.3, 6-
     don't tell your client (7-C.G.1)................................ 7-2                              C.3.3, 6-C.4, 6-C.5.1)....... 6-1, 6-2, 6-5, 6-7, 6-8, 6-10
     in application under Dependent                                                                 and space-sharing lawyers (6-C.G.1).........................6-2
        Adults Act (7-C.8.2(e) / 9-C.7.1) ........................ 7-7                              as grounds for withdrawal (14-R.2(d))......................14-1
     of minimum information (7-R.9) ............................. 7-2                               between clients
     required by law (7-R.8(b)) ..................................... 7-1                              acting in conflict or potential conflict situation (6-R.2)
     suicide threat (7-C.8 (c)(d) .................................... 7-7                                 ...........................................................................6-1
     to fulfill ethical duty (7-R.7).................................... 7-1                           in dispute (6-R.1)....................................................6-1
     to Law Society (7-R.8(a)) ...................................... 7-1                              when firms merge (6-R.5) ......................................6-1
     to lawyer's accountant, auditor or banker (7-C.4,                                                 when lawyer leaves firm (6-R.4).............................6-1
        8.2(e))......................................................... 7-4, 7-7                   between lawyer and client (6-R.7)..............................6-2
     to successor counsel (7-C.5)................................. 7-4                              defined (6-C.2.1) ........................................................6-4
     when acting for more than one party (6-C.2.2, 2.3 / 7-                                         due to possession of confidential information (6-R.3(b),
        R.8(d)) ........................................................ 6-5, 7-1                      (c), 4, 5 / 7-R.6) .............................................. 6-1, 7-1
     when expressly authorized (7-R.8(c)).................... 7-1                                   exception for short-term legal services
     when impliedly authorized (7-R.8(c))..................... 7-1                                     when provided by non-profit legal services provider
     when necessary in dispute with client (7-R.8(f)).... 7-2                                             (6-R.5.1, 6-C.5.1) ..................................... 6-2, 6-10
     when necessary to prevent crime (7-R.8(c)) ......... 7-1                                       general meaning (6-C.G.3) ........................................6-3
  possession of                                                                                     in business transaction with client (6-R.9) ..................6-2



                                                                                                                                                             Version #: 2009_V1
                                                                                        Index 4
                                                                                                                                                                   June 3, 2009
Code of Professional Conduct                                                                                                                                               Index



  potential conflict                                                                                 identifying persons with authority to instruct/receive
     defined (6-C.2.1) ................................................... 6-4                          advice (9-C.5 / 10-C.22 / 12-C.1) ...... 9-4, 10-10, 12-2
  vs. dispute (6-C.1.1) .................................................. 6-3                       instructing illegal/unethical acts (12-R.4)..................12-1
  when single client has dual capacity (6-C.2.4) .......... 6-5                                      subsequently acting against (12-C.G.3) ...................12-1
CONSENT OF CLIENT                                                                                 COSTS
  defined (1-P.4(f)) ...........................................................2                   advising client re treatment of (9-C.G.2) ....................9-2
  implied                                                                                           disclosing to client (13-R.6) ......................................13-1
     to disclosure or use of confidential information (7-                                           of legal representation
        R.8(e), C.8(e)) ................................................... 7-1                        when not justified (2-C.G.1(c)(iv) / 13-C.1(a)) 2-2, 13-
  to acceptance of commission by lawyer (13.R.8) .... 13-2                                                3
  to business transaction with lawyer (6-R.9)............... 6-2                                    party-and-party (13-R.6)...........................................13-1
  to continued representation when lawyer changes firms                                           COST-SHARERS
     (6-R.4) ................................................................... 6-1                manner of presentation to public (5-C.1(b)) ...............5-3
  to disclose suicide threat (7-C.8(e))........................... 7-7                            COST-SHARERS
  to disclosure or use of confidential information (7-R.7,                                          as firm (I-P.4(j) / 6-C.G.1 / 7-C.G.2) ............... 2, 6-2, 7-2
     8(e), 8.C(e))........................................................... 7-1
  to lawyer's acting opposite related person (6-R.6(a)) 6-2                                       COUNSEL
  to lawyer's appearing before judge when apprehension                                              as witness (10-R.10) ................................................10-1
     of bias (10-R.9) ................................................... 10-1                      communication with by accused
  to multiple representation                                                                           prosecutor not to interfere (10-R.28(c))................ See
     when firms have merged (6-R.5) ........................... 6-1                                       PROSECUTOR
     without sharing of information (6-C.2.3) ................ 6-5                                  dealing with parties represented by (4-R.6) ...............4-1
  to public/media attendance at clent proceedings (5-R.8,                                           defined (I-P.4(g)) ...........................................................2
     C.8) ................................................................ 5-2, 5-7               COURT ........................................................SEE ALSO JUDGE
  to representation when lawyer's interests conflict with                                           answering questions from (10-R.16) ........................10-2
     client's (6-R.7) ....................................................... 6-2                   appearing before
  to use of screening device (6-R.3(c), 6-C.2.3, 6-C.3.3,                                              when prohibited due to reasonable apprehension of
     6-C.4) ............................................... 6-1, 6-5, 6-7, 6-8                            bias (10-R.9) ....................................................10-1
  when not required in connection with potential conflict                                           defending from unjust criticism (1-C.2).......................1-3
     (6-C.5.1) .............................................................. 6-10                  defined (I-P.4(h)) ...........................................................2
CONSULTATION WITH CLIENT                                                                            general duties to (10-R.12-20) ....................... 10-1, 10-2
  generally (9-C.5, 14).................................................. 9-4                     COURTESY
  re appeal (9-C.5) ....................................................... 9-4                     to colleagues (4-C.G.2) ..............................................4-3
  re plea (9-C.5 / 10-R.27) .................................. 9-4, 10-3                            to court (10-R.12) .....................................................10-1
  re settlement (9-R.15 / 11-R.3)......................... 9-2, 11-1                                to others (1-R.6) .........................................................1-1
  re waiver of jury trial (9-C.5) ...................................... 9-4                        to witness (10-C.21) ...............................................10-10
  re whether client will testify (9-C.5)............................ 9-4                            when commenting on colleagues or professional
CONTACT WITH CLIENT                                                                                    organizations (3-R.2)..............................................3-1
  maintenance of (2-C.G.1(a) / 9-R.14)................. 2-2, 9-2                                  CREED
  other lawyer's client (4-R6)........................................ 4-1                          and discrimination (1-R.9 / 10-C.28) .............. 1-1, 10-13
CONTINGENT FEE                                                                                    CRIME
  division of when file transferred (13-C.9 / 14-C.3) .. 13-7,                                      advising or assisting client to commit (9-R.11 / 12-R.4 /
     14-4                                                                                              14-R.2(b))............................................ 9-2, 12-1, 14-1
  generally (13-R.1(h), 3) ........................................... 13-1                         commission of as unethical conduct (1-R.1 / 3-C.1)..1-1,
  payment of to expert witness (10-C.23)................. 10-11                                        3-1
CONTINUING PROFESSIONAL DEVELOPMENT (2-C.G.1(H)2-1, 2-                                              no disclosure of confidential information to prevent
  3                                                                                                    suicide (7-R.8(c), C.8(c))................................ 7-1, 7-7
                                                                                                    prospective
CONTRACT LAWYER                                                                                        meaning of in context of disclosure of confidential
  as possilble firm member (I-P.4(k)) ...............................3                                    information (7-C.8.2(c)) ......................................7-7
COOPERATION                                                                                       CRIMINAL CODE
  refusal of by a client (4-C.4 / 14-R.1(c)) ........... 4-5, 14-1                                  acting as prosecutor under (10-C.28).....................10-13
CO-PLAINTIFFS                                                                                       search and seizure provisions of (7-C.G.3)................7-3
  acting for (6-C.2.1) .................................................... 6-4                   CRIMINAL RECORD ............ SEE PRIOR RECORD OF DEFENDANT
CO-RESPONSIBILITY                                                                                 CRITICISM
  of lawyer in firm (I-P.3(d))..............................................2                       of colleagues (4-C.G.2) ..............................................4-3
CORPORATION                                                                                         of colleagues and professional organizations (3-R.2) 3-1
  acting for                                                                                        of justice system (1-C.G.1, 2).....................................1-2
     and employee (6-C.2.2 / 12-R.2) .................. 6-5, 12-1                                 CROSS-EXAMINATION
  as witness (10-C.22) ............................................. 10-11                          generally (10-C.21) ................................................10-10
  communicating with, when represented by counsel (4-                                               interference with (10-R.25).......................................10-2
     R.6) ....................................................................... 4-1
  defined (12-G.G.1) .................................................. 12-1


                                                                                                                                                         Version #: 2009_V1
                                                                                        Index 5
                                                                                                                                                               June 3, 2009
Code of Professional Conduct                                                                                                                                                     Index



CROWN ATTORNEY/COUNSEL ......................SEE PROSECUTOR                                      DELAY
CURRENT CLIENT                                                                                     caused by forcing unnecessary court application (4-C.4)
  and R. v. Neil (6-C.3.1).............................................. 6-7                           ...............................................................................4-5
  defined (6-C.3.1) ....................................................... 6-6                    for delay's sake (10-C.2) ..........................................10-3
  not acting directly adversely to immediate interests of                                          in dealing with clients (9-R.13) ...................................9-2
     (6-R.3(a), 6-R.5.1(a)(i), 6-C.3.1, 6-C.5.1)6-1, 6-2, 6-7,                                     in dealing with colleagues (4-R.5) ..............................4-1
     6-10                                                                                          in dealing with others generally (1-C.6)......................1-4
  scope of duty to (6-C.3.1).......................................... 6-6                         in litigation (10-R.2) ..................................................10-1
CUSTOMER OF CLIENT                                                                                 in responding to the Law Society (3-R.3) ...................3-1
  lawyer as (6-C.9) ..................................................... 6-12                     in transferring file (4-C.9) ...........................................4-6
                                                                                                   in returning client......................................................14-1
DEADLINES
  obligation to meet (2-C.G.1(a) / 4-R.5 / 9-R.13) 2-2, 4-1,                                     DELEGATION
                                                                                                   TO NON-LAWYER (2-C.4.1) ............................................2-4
     9-2
DEATH OF CLIENT                                                                                  DELIVERY IN ERROR
  not affecting confidentiality (7-C.5) ............................ 7-4                           of privileged document (4-R.8) ...................................4-1
DECEIT                                                                                           DEMONSTRABLY ACCURATE
  by client                                                                                        advertisement (5-R.1(a), C.1(a)) ................................5-2
     as grounds for withdrawal (14-C.G.1(e), 3) 14-3, 14-4                                         advertising (5-R.1(a), C.1(a)) ............................. 5-1, 5-2
  by lawyer                                                                                      DEPENDENT ADULT
     of client (9-R.1)............................................... 9-1, 9-3                     as client (9-R.7.1, 8)...................................................9-1
     of colleagues (4-R.1, 2) ......................................... 4-1                      DEPENDENT ADULTS ACT
     of court (10-R.13-17, C.27) ............. 10-1, 10-2, 10-12                                   application under
     of opposing parties in negotiation (11-R.1, 2)...... 11-1                                        disclosure of confidential information (7-C.8.2(e))..7-7
     of others                                                                                        when client is incapacitated (9-C.7.1) ....................9-5
        through misleading advertising, etc. (5-R.1(b), 5, 6,                                    DILIGENCE
           C.G.2)............................................................ 5-2                  duty of (2-C.G.1(a)) ....................................................2-2
        through misleading advertising, etc. (5-R.1(b), 5, 6,                                    DISABILITY
           C.G.2,C.1(a)).......................................... 5-1, 5-2                        and discrimination (1-R.9 / 10-C.28) .............. 1-1, 10-13
        through misleading document (10-R.5) ........... 10-1                                      of client (9-R.7.1, 8)....................................................9-1
DECLINING TO ACT                                                                                   of lawyer
  against current client (6-R.3(a) , 6-C.3.1) ........... 6-1, 6-6                                    self-induced (2-R.5)................................................2-1
  against former client (6-R.3(b), (c), 6-C.3.1)....... 6-1, 6-6                                 DISADVANTAGED CLIENT
  due to incompetence (1-R.5, C.5 / 2-R.2 / 9-R.4) . 1-4, 2-                                       and compassionate loans (6-C.9) ............................6-12
     1, 9-1                                                                                        and need for legal representation (1-C.4) ..................1-3
  due to knowledge of confidential information (6-R.3 / 7-
     R.6(b)) ................................................................... 7-1             DISAGREEMENT
  due to knowledge of confidential information (6-R.3(b),                                          distinguished from dispute (6-C.1.1) ..........................6-3
                                                                                                    WITH CLIENT
     (c), 6-C.3.1) .................................................... 6-1, 6-6
  due to loss of objectivity (6-R.7, 8) ............................ 6-2                               re fees (13-C.G.1) ................................................13-2
  ethical constraints on (1-R.1, C.1,1-R.5, C.5) 1-1, 1-2, 1-                                          re improper instructions (9-R.10, 11 / 12-C.4 / 14-
     3                                                                                                    R.2(a), (b)) ............................... 9-1, 9-2, 12-3, 14-1
  firm not disqualified if one lawyer provided short-term                                           with justice system (1-C.2) .........................................1-2
     legal services (6-C.5.1) ....................................... 6-10                          with professional organization (3-C.2)........................3-2
  in dispute (6-R.1)....................................................... 6-1                  DISBURSEMENTS
  in multiple representation situation (6-R.2)................ 6-1                                 and photocopying and fax charges charged by lawyer’s
  opposite related person (6-R.6(a)) ............................ 6-2                                  company, disclose (13-C.5) .................................13-5
  when requested by court (1-C.5) ............................... 1-4                              billing of (13-R.4, 5)..................................................13-1
DECORUM OF JUDICIAL PROCEEDINGS                                                                    defined (13-C.4) .......................................................13-5
  duty of lawyer with respect to (1-C.G.1, 3 / 10-C.G.2,                                           lawyer's responsibility for (8-C.2) ...............................8-2
     12) ................................................ 1-2, 1-3, 10-3, 10-7                   DISCLOSURE
DEFAMATION BY CLIENT                                                                               by prosecutor (10-R.28(d)) .......................................10-3
  participation of lawyer in (9-C.2)................................ 9-3                           of accounts receivable to banker (7-C.8.2(e)) ............7-7
                                                                                                   of confidential information
DEFENCE                                                                                                between space-sharers (7-C.G.2) ..........................7-2
  of client                                                                                            extent justified (7-R.9) ............................................7-2
     plea discussions and (10-R.27) ........................... 10-3                                   general rules against (7-R.1-6)...............................7-1
     when client has made admissions (10-C.14.2).... 10-8                                              in application under Dependent Adults Act (7-C.8.2(e)
  technical                                                                                               / 9-C.7.1) .................................................... 7-7, 9-5
     duty to advise client of (9-C.G.2) ........................... 9-2                                of one client to another (6-C.2.2 / 7-R.6(b), 8(d)) ..6-5,
  to legal obligation inclurred by lawyer                                                                 7-1
     limitations on use of (8-R.1, 3) .............................. 8-1                           of evidence in civil proceeding (10-C.20) ...............10-10
                                                                                                   of information material to corporate/government
                                                                                                       employer (12-R.3) ................................................12-1


                                                                                                                                                             Version #: 2009_V1
                                                                                       Index 6
                                                                                                                                                                   June 3, 2009
Code of Professional Conduct                                                                                                                                                   Index



   of interest in company charging disbursements (13-C.5 /                                         DISHONOURABLE CONDUCT
      15-R.3) .............................................. 13-1, 15-1, 15-2                        of client
   that conversation is being recorded (1-R.8) .............. 1-1                                       as grounds for withdrawal (14-R.1b)) ...................14-1
   to authorities                                                                                    of lawyer (Preface / I-P.3(a) / 1-C.1 / 3-R.1)... 1, 1-2, 3-1
      re property with evidentiary value (10-C.20)...... 10-10                                     DISMISSAL
   to client                                                                                         by client (14-C.G.1) ..................................................14-1
      defined (I-P.4(i)) ........................................................2                   general duties on (14-R.3, 4) ...................................14-1
      in multiple representation (6-C.2.2, 2.3 / 7-R.8(d)) 6-5,                                    DISPUTE
         7-1                                                                                         acting aopposite related person in (6-R.6(a)) .............6-2
      of all information necessary for proper representation                                         acting for opposing parties in (6-R.1) .........................6-1
         (7-C.6(b) / 9-C.G.1) .................................... 7-5, 9-2                          compromise or settlement of
      of conflicting interest of lawyer (6-C.7) ................ 6-11                                   duty to recommend (9-R.16) ..................................9-2
      of division of fees (13-R.7) .................................. 13-1                           continuing to act in
      of error or omission (9-R.18) ................................. 9-2                               when firms merge (6-R.5) ......................................6-1
      of information re fees (13-R.2, 4, 6)..................... 13-1                                meaning of (6-C.1.1) ..................................................6-3
      of receipt of commission (13-R.8) ....................... 13-2                                 possibility of
      of relationship with opposing counsel (6-R.6(c)) ... 6-2                                          as factor in propriety of multiple representation (6-
      of settlement offer (9-R.15 / 11-R.3)............. 9-2, 11-1                                         C.2.1) .................................................................6-4
      re business transaction with lawyer (6-R.9)........... 6-2                                     re amount payable by lawyer to third party (8-C.2) ....8-2
   to colleague                                                                                      with client justifying disclosure of confidential
      of inadvertent misrepresentation (4-R.2) ............... 4-1                                      information (7-R.8(f))..............................................7-2
      of Mary Carter Agreement (11-C.1)..................... 11-2
      of relationship with court (10-R.9) ....................... 10-1                             DISQUALIFICATION OF LAWYER ..............SEE DECLINING TO ACT
      of step taken or to be taken (10-R.6)................... 10-1                                DOCUMENTS
   to court                                                                                          intended to mislead (10-R.5) ....................................10-1
      of adverse facts in ex parte proceeding (10-R.8) 10-1                                          of clients
      of identity/position of client in litigation (10-R.13) 10-1                                       safekeeping (7-C.3)................................................7-4
      of inadvertent misrepresentation (10-R.15) ......... 10-2                                      privileged
      of Mary Carter agreement (10-C.13) ................... 10-7                                       of other side delivered in error (4-R.8) ...................4-1
      of relevant adverse authority (10-R.18) ............... 10-2                                 DRUG ABUSE
      that argument not supported by legal authority (10-                                            by lawyer (2-C.G.1(f)).................................................2-3
         R.17(b)) ........................................................... 10-2                 DUAL CAPACITY OF CLIENT
   to firm members and staff (7-C.4).............................. 7-4                               and effect on representation (6-C.2.4) .......................6-5
   to Law Society                                                                                  DUAL REPRESENTATION
      of confidential information (7-R.8(a)) ..................... 7-1                               generally (6-R.2) ........................................................6-1
      of incompetence/misconduct of colleague (3-R.4) 3-1                                            without mutual sharing of information (6-C.2.3)..........6-5
   to Law Society (7-R.8(a)) .......................................... 7-1
                                                                                                   DURESS
   to lawyer's accountant or banker (7-C.4, 8.2(e)) 7-4, 7-7
                                                                                                     in advertising techniques (5-C.1(c)) ...........................5-3
   to opposing party in negotiation
                                                                                                     in soliciting professional employment (5-C.3).............5-4
      of inadvertent misrepresentation (11-R.2) ........... 11-1
                                                                                                     possibility of accepting instructions from third party (9-
      of Mary Carter Agreement (11-C.1)..................... 11-2
                                                                                                        C.9.1) .....................................................................9-6
   to person to whom lawyer dealing when engaged in
      outside activity (15-R.1)....................................... 15-1                        EDUCATION
   to person to whom legal obligation incurred                                                       legal
      of possible defences (8-R.1) ................................. 8-1                                duties with respect to (2-C.G.1(h) / 3-C.G.1).. 2-3, 3-1
   when ethically required but client refuses consent (7-                                            of clients re
      R.7) ....................................................................... 7-1                  legal system
   when permitted or required (7-R.8) ........................... 7-1                                      specifically (5-C.G.2)..........................................5-2
DISCOVERY                                                                                          EMBARASSMENT (1-C.6) ...................................................1-4
  examination for (10-C.25)...................................... 10-11                            EMPLOYEE OF CORPORATE CLIENT
  improper disclosure (7-C.G.1) ................................... 7-2                              acting for (6-C.2.2 / 12-R.2) ............................. 6-5, 12-1
  of documents in civil proceeding (10-C.20) ........... 10-10                                       misconduct of (12-C.3).............................................12-3
DISCRETION                                                                                         EMPLOYEES
  of prosecutor (10-C.28) ......................................... 10-13                            competence of (2-R.4) ...............................................2-1
DISCRIMINATION (1-R.9)................................................... 1-1                        disclosure of confidential information to (7-C.4) .........7-4
                                                                                                     ethical guidance of (2-C.4.1) ......................................2-4
DISHONESTY
                                                                                                     maintenance of confidentiality by (7-R.4) ...................7-1
  of client
                                                                                                     on letterhead (5-C.4) ..................................................5-5
     as grounds for withdrawal (14-R.1(b), 2(a), (b)) .. 14-1
                                                                                                     sexual harassment of (1-C.10) ...................................1-6
     improper instructions (9-R.10, 11 / 12-R.4) ... 9-1, 9-2,
                                                                                                     students-at-law (2-C.4.2)............................................2-5
        12-1
                                                                                                     supervision of (2-C.4.1)..............................................2-4
  of lawyer
                                                                                                     tasks not exercisable by (2-C.4.1)..............................2-5
     as unethical conduct (4-R.1 / 9-R.1 / 10-R.13, 14, 17 /
        11-R.1) .....................4-1, 9-1, 9-3, 10-1, 10-2, 11-1



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                                                                                         Index 7
                                                                                                                                                                  June 3, 2009
Code of Professional Conduct                                                                                                                                             Index



EMPLOYMENT, DECLINING .....................SEE DECLINING TO ACT                                     EXCLUSIVITY OF RIGHT TO PRACTISE LAW (1-C.G.1 / 10-
ERROR                                                                                                  C.G.2) ........................................................................1-1
  disclosure, e.g., statement of adjustments (7-C.7) .... 7-5                                       EXPEDITIOUS PROCEEDINGS
  documents received in (4-R.8) .................................. 4-1                                 duties with respect to (2-C.2 / 10-R.2).............. 2-4, 10-1
  duty to report to client (9-R.18).................................. 9-2                              notice or exceptional circumstances (10-R.7) ..........10-1
  to colleague                                                                                      EXPERIENCE OF LAWYER
     duty not to take advantage of (4-R.3) .................... 4-1                                    as aspect of competence (2-C.G.1(g) / 9-C.4) ... 2-3, 9-4
     duty to advise colleague (4-C.3 / 9-C.10 / 11-C.4) 4-4,                                           as factor in determining fee (13-R.1(f)) ....................13-1
         9-7, 11-3                                                                                  EXPERT
ESTATE                                                                                                 consultation with (2-C.G.3 / 9-C.4) ..................... 2-4, 9-4
  as client                                                                                         EXPERT WITNESS
     when lawyer also acting for executor/beneficiary (6-                                              compensation of (10-R.23).......................................10-2
         C.2.4) ................................................................ 6-5                   discussions by with other parties (10-C.22) ...........10-10
ESTIMATE                                                                                               lawyer's responsibility for payment of (8-C.2).............8-2
  of costs of investigation                                                                         EXTRAJURISDICTIONAL MATTERS
     providing to client (9-C.2) ...................................... 9-3                            acting in (9-C.4)..........................................................9-4
  of fees and other legal costs
     as factor in setting fee (13-R.1(g))....................... 13-1                               EXTRAPROVINCIAL LAWYER
     providing to client (13-C.2) .................................. 13-4                              inclusion on letterhead (5-R.4, C.4)............................5-5
ETHNIC ORIGIN                                                                                       FACTS
  and discrimination (1-R.9 / 10-C.28)............... 1-1, 10-13                                       duty to ascertain (9-R.2).............................................9-1
                                                                                                       expressing personal opinion to court as to (10-R.11).10-
EVASION                                                                                                   1
  of law                                                                                               inadmissible
     improper to suggest (1-C.3) .................................. 1-3                                   attempting to introduce (10-R.19).........................10-2
  of proper legal procedures                                                                           representation concerning
     improper to suggest (5-C.G.2, C.1(c)) ................... 5-3                                        to court when not supported by evidence (10-R.17(a)) ...10-2
EVEN-HANDEDNESS OF ADVERSARY SYSTEM                                                                 FAIRNESS TO WITNESS (10-R.21) ....................................10-2
  undermined by ex parte communications with court (10-
     C.7) ..................................................................... 10-5                FALSE TESTIMONY
                                                                                                       of client or witness (10-C.R.21) ................................10-8
EVIDENCE
  alteration of (10-R.20(c)) ......................................... 10-2                         FALSIFICATION OF EVIDENCE (10-R.20(B))........................10-2
  concealment of (10-R.20(d)) ................................... 10-2                              FAMILY MEMBER OF LAWYER ................ SEE RELATED PERSON
  destruction of (10-R.20(c)) ...................................... 10-2                           FEES
  discussion of with witness under cross-examination (10-                                              advertisement of (5-R.6, C.1(b))......................... 5-1, 5-3
     R.25) ................................................................... 10-2                    agreement with client regarding (13-R.1(i)) ..............13-1
  expressing personal opinion to court as to (10-R.11) 10-                                             amount attributable to
     1                                                                                                    shown on account (13-R.4) ..................................13-1
  falsification of (10-R.20(b)) ...................................... 10-2                            and disbursements (13-R.4, 5).................................13-1
  giving of when acting as counsel (10-R.10)............. 10-1                                         and sophistication of client (13-R.1(i))......................13-1
  inaccurate                                                                                           and wealth of client (13-C.1) ....................................13-3
     counselling witness re (10-R.24) ......................... 10-2                                   contingent (13-R.1(h), 3) ..........................................13-1
  inadmissible                                                                                         division of (13-R.7) ...................................................13-1
     attempting to introduce (10-R.19)........................ 10-2                                    estimate of (13-R.1(g), C.2) ........................... 13-1, 13-3
  maintaining integrity of (10-C.20) .......................... 10-10                                  factors determining reasonableness of (13-R.1) ......13-1
  obtaining og by illegal means (10-R.20(a)).............. 10-2                                        finder's (13-R.8) .......................................................13-2
  representation to court not supported by (10-R.17(a))                                                information regarding
      ............................................................................ 10-2                   provision to client (5-R.6, C.6 / 13-R.2) ........ 5-6, 13-1
  testing of (10-C.20)................................................ 10-10                           lawyer's responsibility to set (2-C.4.1)........................2-5
EX PARTE PROCEEDINGS                                                                                   non-payment of
  duties with respect to (10-R.7, 8) ............................ 10-1                                    as grounds for withdrawal (14-R.1(a))..................14-1
EXAMINATION                                                                                               solicitor's lien for (13-R.9).....................................13-2
  for discovery                                                                                        not to be set by staff (2-C.4.1)....................................2-5
     and discussing testimony with witness (10-C.25) .. 10-                                            paid by third party (9-C.9.2 / 13-C.8)................ 9-7, 13-6
         11                                                                                            reduction of waiver of (13-C.G.2) .............................13-2
  in aid of execution                                                                                  referral
     as cross-examination (10-C.25) ........................ 10-11                                        payment of by lawyer (5-R.7) .................................5-2
  on affidavit                                                                                      FIDELITY TO CLIENTS' INTERESTS (6-S.O.P., 6-R.3(A))........6-1
     as cross-examination (10-C.25) ........................ 10-11                                  FIDUCIARY DUTIES
EXCLUDED WITNESS                                                                                       and compassionate loans (6-C.9) ............................6-13
  discussion with (10-R.26) ........................................ 10-3                              and current clients (6-C.3.1).......................................6-6
                                                                                                       not applied to business dealings with third parties (8-
                                                                                                          C.G.1) ....................................................................8-1



                                                                                                                                                        Version #: 2009_V1
                                                                                          Index 8
                                                                                                                                                              June 3, 2009
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   re business transaction with client (6-C.9)............... 6-12                              FRIVOLOUS PROCEEDINGS
   re client's property (7-C.3) ......................................... 7-4                     tactic in removing firm re conflict (6-C.4)....................6-8
   to third party conflicting with duty to client (9-C.3) ..... 9-4                             FRIVOLOUS PROCEEDINGS(1R.5,-C.5 / 10-R.1).........1-4, 10-1
FINANCIAL INTERESTS OF LAWYER                                                                   GARNISHEE SUMMONS
   and advertising of loans (5-R.2, C.2).................. 5-1, 5-4                               issuance of before judgment (10-C.7) ......................10-5
   and compassionate loans (6-C.9) ........................... 6-12                             GENDER
   in company used by firm (13-C.6 / 15-R.3).... 13-6, 15-1,                                      and discrimination (1-R.9 / 10-C.28) .............. 1-1, 10-13
       15-2
   when in conflict with client ......................................... 9-4                   GENERALIST
   when in conflict with client's interests (6-R.7 / 9-C.3) 6-2                                   rendering advice as (9-C.G.4) ....................................9-4
FINANCIAL MATTERS                                                                               NAME OF FIRM ..................................................................5-4
   advising client on                                                                           GIFT
       duty to retain expert (2-C.G.3)............................... 2-4                         accepting from client (6-C.9) ....................................6-12
   between lawyer and client                                                                      given by lawyer for recommendation (5-R.7, C.7) 5-2, 5-
       fiduciary duties                                                                              6
          re acceptance of commission (13-R.8)............ 13-2                                   nominal (6-C.9) ........................................................6-12
          re accounting to client on termination (14-R.4) 14-1                                  GOOD FAITH
          re disclosure of division of fees (13-R.7) ......... 13-1                               as aspect of reasonable behaviour by lawyer (I-P.4(q)) 3
          re disclosure of party-and-party costs (13-R.6) 13-1                                    in advocacy
FINANCIAL OBLIGATIONS                                                                                in dealing with witnesses (10-C.21)....................10-10
   duty to meet (1-C.G.1 / 8-R.2, 3) ........................ 1-2, 8-1                               in ex parte proceedings (10-C.7)..........................10-5
FINDER'S FEE (13-C.8) .................................................. 13-6                        in taking a step (10-C.1).......................................10-3
                                                                                                  in behaviour toward others (1-C.6 / 8-C.G.1) .............8-1
FIRM                                                                                              in behaviour toward others (1-C.7 / 8-C.G.1) .............1-4
   and conflict of interest (6-C.5.1) .............................. 6-10                         in criticism of Justice system (1-C.2)..........................1-2
   defined (I-P.4(j)) ............................................................2               in dealings between firm and departing lawyer (4-R.9) 4-
   lawyer changing firms                                                                             1
       and conflict of interest                                                                   in dealings with other lawyers (4-C.G.2) ....................4-3
          and dealings with former firm (4-R.9) ................ 4-1                              in determining how a matter will be conducted (4-C.G.2)
       and conflict of interest (6-R.4) ............................... 6-1                           ...............................................................................4-3
FIRM MEMBER                                                                                       in prosecutions
   contract lawyer as (6-C.G.1 / 7-C.G.2) ............... 6-3, 7-2                                   generally (10-C.28) ............................................10-13
   defined (I-P.4(k) / 6-C.5.1)....................................3, 6-10                        in remarks concerning colleagues or professional
   division of fees with (13-R.7) ................................... 13-1                           institutions (3-C.2) ..................................................3-2
   giving evidence (10-C.10) ....................................... 10-6                         in reporting misconduct of colleagues to Law Society (3-
   use of confidential information for benefit of (7-R.6).. 7-1                                      R.4) ........................................................................3-1
FIRM NAME                                                                                         in seeking changes to profession (3-C.G.1) ...............3-1
   as representation to public (5-C.1(b))........................ 5-3                             of instructions given by legal representative of
   extraprovincial lawyers (5-C.4).................................. 5-5                             incapacitated client (9-R.8) ....................................9-1
   generally (5-R.4, C.4) ......................................... 5-1, 5-4                      of position taken on client's behalf (10-C.1) .............10-3
   identify firm as engaged in the practice of law (5-C.4)5-5                                   GOVERNMENT
   inclusion of deceased or retired partner (5-C.4) ........ 5-5                                  defined (12-C.G.1) ...................................................12-1
   limited liability partnership (5-C.4) ............................. 5-5                        employment by
   listing in telephone directory (5-C.1(c))...................... 5-4                               and conflicts of interest (6-C.G.2)...........................6-3
   misleading or confusing (5-C.4) ................................ 5-5                         GUARANTEE
   prohibition against names of non-lawyers in (5-C.4) . 5-5                                      execution of by lawyer (8-C.1)....................................8-1
   use of judge’s name(5-C.4) ....................................... 5-5
   use of trade names (5-C.4) ....................................... 5-5                       GUILTY PLEA
                                                                                                  on behalf of client (10-C.27) ...................................10-12
FORMER CLIENT
   acting against (6-R.3(b),(c), 6-R.5.1(a)(ii), 6-C.3.1, 6-                                    HARASSMENT
       C.5.1) ............................................. 6-1, 6-2, 6-6, 6-10                   as object of communication to lawyer (9-C.13) ..........9-8
   survival of confidentiality with respect to (7-R.5) ....... 7-1                                as tactic (1-C.5, 6 / 10-C.1) .............................. 1-4, 10-3
   use of confidential information of (7-R.6)................... 7-1                              of client in solicitation of business (5-C.G.2) ..............5-3
                                                                                                  of client in solicitation of business (5-C.G.2. C.3).......5-4
FRAUD                                                                                             of witness (10-C.21) ...............................................10-10
   advising or assisting client to commit (9-R.11 / 12-R.4 /                                      sexual (1-R.9).............................................................1-1
       14-R.2(b))............................................ 9-2, 11-3, 14-1
                                                                                                HONESTY
FRAUDULENT PREFERENCE                                                                             in advertising (5-R.1(a),(b),C.1(a) ...................... 5-1, 5-2
   by client (9-C.11) ....................................................... 9-7                 in advising client (9-C.G.2).........................................9-2
FREEDOM OF CHOICE                                                                                 in negotiation (11-R.1)..............................................11-1
   of counsel by client (5-C.G.2,C.5 / 6-C.2.1 / 9-C.9.2)5-6,                                     to client (9-R.1)................................................... 9-1, 9-3
       6-4, 9-7                                                                                   to colleagues (4-R.1)..................................................4-1
                                                                                                  to court (10-R.13-17)...................................... 10-1, 10-2



                                                                                                                                                            Version #: 2009_V1
                                                                                      Index 9
                                                                                                                                                                  June 3, 2009
Code of Professional Conduct                                                                                                                                             Index



   to others generally (1-R.5)......................................... 1-1                       in business transaction with client (6-R.9)..............6-2
HOSTILITY                                                                                      in multiple representation
   between counsel                                                                                to unrepresented party (11-R.5) ...........................11-1
      as possible disqualifying factor (6-C.8 / 9-R.3, C.3) 6-                                 in multiple representation (6-C.2.2, 2.3) .....................6-5
          2, 9-1, 9-4                                                                       INEXPERIENCE OF LAWYER
   between parties                                                                             as possible disqualifying factor (2-C.G.1(g) / 9-C.4)..2-3,
      as factor in determining existence of dispute (6-C.1.1) .... 6-3                            9-4
IDENTITY OF CLIENT                                                                          INFLAMMATORY EVIDENCE (10-C.19) ...............................10-9
   as confidential information (7-R.2) ............................ 7-1                     INFLUENCE, IMPROPER
ILLEGALITY                                                                                     appearance before court (10-R.9) ............................10-1
   advising or assisting client to commit (9-R.11) .......... 9-2                              in business transaction with client (6-C.9) ................6-12
   and instructions to client (12-R.4)............................ 12-1                        of third party by provision of instructions by client (9-
   commission of as unethical conduct (1-R.1 / 3-C.1) . 1-1,                                      C.9.1) .....................................................................9-6
      3-1                                                                                      on client when lawyer is leaving firm (4-R.9)..............4-1
   of negotiated agreement (11-R.4) ........................... 11-1                           on others generally (1-R.7) ........................................1-1
IMPAIRMENT                                                                                     on vulnerable client (5-R.3,C.3,C.G.2) ............... 5-1, 5-4
   of capacity or motivation of lawyer (2-R.5) ................ 2-1                            on witness (10-C.22, 23) ................................ 1-1, 10-10
   of objectivity of lawyer (2-C.2 / 6-R.8 / 9-R.3) 2-4, 6-2, 9-                            INFORMATION
      1                                                                                        to clients
IMPARTIALITY OF COURT                                                                             distinguished from advice (9-C.11).........................9-8
   appearance of (10-R.9) ........................................... 10-1                        re fees (5-C.413-R.2) ...........................................13-1
IMPLIED AUTHORITY OF LAWYER                                                                    to public re legal services (1-S.O.P.,C.G.1 / 5-S.O.P.,
   generally (9-R.5, 7.1(b)) ............................................ 9-1                     R.1) ......................................................... 1-1, 5-1, 5-2
   to disclose confidential information (7-C.8.2(e), C.8(e))                                IN-HOUSE COUNSEL
       .............................................................................. 7-7      acting for affiliated corporation of employer (12-C.2)12-2
   to disclose suicide threat (7-C.8(e))........................... 7-7                        acting for employee of employer (12-R.2) ................12-1
IMPLIED CONSENT OF CLIENT                                                                      and unethical/illegal instructions (12-R.4) ................12-1
   to disclose suicide threat (7-C.8(e))........................... 7-7                        and withdrawal (12-C.4 / 14-C.G.2)..........................14-2
   to disclosure or use of confidential information (7-                                        application of ethical standards to (12-C.G.2) ..........12-1
      C.8.2(e),C.8(e)) ..................................................... 7-7               competence of (2 / 12-C.4) ......................................12-3
                                                                                               disclosure of information material to employer by (12-
IMPROVING THE JUSTICE SYSTEM (1-R.2) .......................... 1-1                               R.3) ......................................................................12-1
IMPROVING THE PROFESSION (3-C.G.1) ............................ 3-1                            identification of client by (12-C.1) .............................12-2
INADMISSIBLE EVIDENCE                                                                          maintenance of confidentiality by (12-C.1) ...............12-2
   attempts to introduce (10-R.19)............................... 10-2                         performing services outside scope of employment (12-
INADVERTENT MISLEADING                                                                            C.4) ......................................................................12-3
   of colleague (4-R.2)................................................... 4-1                 resignation of (12-C.4) .............................................12-3
   of court (10-R.15) .................................................... 10-2                subsequently acting against employer (12-C.G.3) ...12-1
   of opposing party (11-R.2)....................................... 11-1                   INSISTENCE BY CLIENT
INADVERTENT RECEIPT                                                                            on improper conduct (9-R.10 / 12-R.4 / 14-R.2(a))....9-1,
   of other party's privileged document (4-R.8).............. 4-1                                 12-1, 14-1
INCAPACITATED CLIENT                                                                           on refusing lawyer's advice (14-C.1(e))....................14-3
   client threatening suicide (7-C.8(e) / 9-C.7.2)..... 7-8, 9-5                            INSOLVENCY OF LAWYER
   duties in respect of (9-R.7.1, 8) ................................. 9-1                     as justification for non-payment of trade debts (8-C.3).8-
   emergency situation (9-R.7.2) ................................... 9-1                          2
   obtaining instructions from (9-R.7.1) ......................... 9-1                      INSTRUCTIONS
INCOME TAX LEGISLATION                                                                         and ethical obligations of counsel (4-C.4) ..................4-4
   advising client on (9-C.G.2, 4)............................ 9-2, 9-3                        client's refusal or failure to provide (9-C.5 / 14-C.1(d)).9-
   search and seizure provisions of (7-C.G.3) ............... 7-3                                 4, 14-3
INCOMPETENT CLIENT ................... SEE INCAPACITATED CLIENT                                contrary to professional ethics (9-R.10 / 10-C.14.2 / 11-
                                                                                                  C.G.2 / 12-R.4 / 14-R.2(a)) 9-1, 10-8, 11-1, 12-1, 14-1
INDEPENDENCE, PROFESSIONAL
                                                                                               duty to follow (9-C.G.1) ..............................................9-2
   effect of outside activities on (15-S.O.P.) ................ 15-1
                                                                                               duty to obtain (9-R.5) .................................................9-1
   generally (Preface / 6 / 9-R.3, C.G.2) ................. 9-1, 9-2
                                                                                               received from legal representative of incapacitated
INDEPENDENT ADVICE                                                                                client (9-R.8) ..........................................................9-1
   certificate of                                                                              received from third party (9-R.9) ................................9-1
      duties with respect to (9-C.12) .............................. 9-8                       when client cannot be located (9-R.6)........................9-1
   client to receive in business transaction with lawyer (6-                                   when client is incapacitated (9-R.7.1..........................9-1
      R.9) ....................................................................... 6-2
                                                                                            INSURANCE COMPANY
   client to receive re multiple representation and
                                                                                               acting for
      screening device (6-C.2.3) .................................... 6-5
                                                                                                  and insured (6-C.2.1) .............................................6-4
   duty of lawyer to recommend
                                                                                               paying legal fees of insured (9-C.9.2 / 10-C.13)9-7, 10-7



                                                                                                                                                      Version #: 2009_V1
                                                                                Index 10
                                                                                                                                                            June 3, 2009
Code of Professional Conduct                                                                                                                                                      Index



INTEGRITY                                                                                              JUDICIAL OFFICER................................................. SEE JUDGE
   as underlying principle (Preface) ...................................1                              JUDICIAL PROCEEDINGS
   honesty as aspect of (4-C.1) ..................................... 4-3                                decorum of (10-C.12) ...............................................10-7
   in business dealings with third parties (8-C.G.1) ....... 8-1                                         fairness, integrity and propriety of (10-C.G.2) ..........10-3
   in dealings between firm and departing lawyers (4-R.9)                                                impartiality of (10-C.9.2, 10, 11) ..................... 10-6, 10-7
       .............................................................................. 4-1              JURY TRIAL
   in dealings with other lawyers (4-S.O.P.) .................. 4-1                                      decision to waive to be made by client (9-C.5)...........9-4
   of evidence (10-C.20)............................................ 10-10
   of justice system                                                                                   JUSTICE SYSTEM
      in advertising (5-C.1(c)) ......................................... 5-3                            criticism of (1-C.2) ......................................................1-2
      in advertising (C.G.2) ............................................ 5-2                            described (1-C.2) .......................................................1-2
   of Justice system (1-C.G.1, C.2, 3) .................... 1-2, 1-3                                     improvement of (1-R.2) ..............................................1-1
   of lawyer                                                                                             interference with justice system through media (5-C.8)5-
      in advertising (5-C.1(c)) ......................................... 5-3                               7
      in advertising (C.G.2) ............................................ 5-2                            role of profession in (1-C.G.1, 1, 2, 3, 4) ..... 1-1, 1-2, 1-3
      in advocacy (10-R.1) .................................... 1-4, 10-1                                role of profession in (5-R.1(c), C.G.2) ................ 5-1, 5-2
INTENTION OF LAWYER                                                                                    KNOWLEDGE
   relevant to disciplinary assessment (I-P.3(c))................2                                       of confidential information
                                                                                                            as disqualifying factor (6-R.3(b), 4 / 7-R.6(b)) 6-1, 7-1
INTEREST OF LAWYER                                                                                       of conflict
   conflicting with that of client (6-R.7 / 9-C.3)........ 6-2, 9-4                                         disqualifying lawyer from providing short-term legal
INTEREST RATE ON COMPASSIONATE LOANS (6-C.9)........ 6-12                                                       services (6-R.5.1, 6-C.5.1) ....................... 6-2, 6-10
INTEREST RATE, UNCONSCIONABLE                                                                            of defence to enforceability of legal obligation of lawyer
   applied to lawyer (8-C.1) ........................................... 8-1                                (8-R.1)....................................................................8-1
   in client matter (11-C.4)........................................... 11-3                             of illegality of negotiated ageement (11-R.4)............11-1
INTERFERENCE                                                                                             of inadmissibility of facts or evidence (10-R.19) .......10-2
   with contractual relations                                                                            of information material to corporate or government
      by client                                                                                             employer (12-R.3) ................................................12-1
          participation of lawyer in (9-C.2)........................ 9-3                                 of law as aspct of competence (2-C.G.1(b))...............2-2
   with criminal justice system (10-R.3, 4) .......... 10-1, 10-4                                        of legal forms and processes (10-C.5) .....................10-4
   with cross-examination (10-R.25)............................ 10-2                                     of Mary Carter agreement (10-C.13 / 11-C.1) 10-7, 11-2
   with fair adminstration of law (1-R.3 / 10-C.20) .. 1-1, 10-                                          of misconduct of firm member (I-P.3(d))........................2
      10                                                                                                 of misconduct/incompetence of colleague
INTERIM BILLING (13-C.2)............................................... 13-4                                duty to report (3-R.4)..............................................3-1
                                                                                                         of misrepresentation by client or witness (10-C.14.2) 10-
INTERMEDIATE PARTY                                                                                          8
   accepting instructions from (9-R.9)............................ 9-1                                   of mistake by colleague (4-R.3 / 9-C.10)............ 4-1, 9-7
   accepting payment from (9-C.9.2 / 13-R.8) ...... 9-7, 13-2                                            of relevant adverse authority (10-R.18)....................10-2
INVASION OF PRIVACY                                                                                      that client's instructions will result in lawyer's assisting in
   re recording conversation (1-C.8).............................. 1-4                                      commission of crime or fraud (14-R.2(b)).............14-1
JUDGE ........................................................ SEE ALSO COURT                            that conduct is wrong
   answering question from (10-R.16) ......................... 10-2                                         as factor in disciplinary assessment (I-P.3(c))...........2
   appearing before                                                                                      that document has been provided in error by opposing
      when prohibited due to reasonable apprehension of                                                     party (4-R.8) ...........................................................4-1
          bias (10-R.9) ................................................... 10-1                         that party is represented by counsel (4-C.6) ..............4-5
   criticism of (1-C.2) ..................................................... 1-3                        that prospective client is represented by another lawyer
   defending from unjust criticism (1-C.2)...................... 1-3                                        (14-R.5)................................................................14-1
   defined (I-P.4(l)) ............................................................3                    LAW
   general duties (10-R.12-20) ........................... 10-1, 10-2                                    adverse
   inclusion in firm name (5-C.4) ................................... 5-5                                   informing court of (10-R.18) .................................10-2
   retired                                                                                               agreement contrary to
      appearing as counsel (10-C.9.2) ......................... 10-6                                        negotiation of (11-R.4) .........................................11-1
JUDGMENT                                                                                                 and relationship to Code (I-P.2(c) / 7-C.8.1) ..........1, 7-6
   professional                                                                                          breach of
      as aspect of competence (2-C.G.1(c).................... 2-1                                           advising or assisting client to commit (9-R.11) .......9-2
      as characteristic of effective legal advisor (9- C.G.2)                                               by lawyer
           .......................................................................... 9-2                       meaning of (1-C.1) .............................................1-2
      impairment of (2-C.2 / 6-R.8 / 9-R.3) ....... 2-4, 6-2, 9-1                                           by lawyer (1-R.1 / 3-C.1) ................................ 1-1, 3-1
      independence of (6-S.O.P. et seq. / 9-R.3, C.G.2)6-1,                                                 instructed by client (9-R.10 / 12-R.4 / 14-R.2(b))...9-1,
          9-1, 9-2                                                                                              12-1, 14-1
      not to be exercised by staff (2-C.4.1) .................... 2-5                                       not justified by belief in unjustness (1-C.1).............1-2
JUDICATURE ACT                                                                                           criticism of (1-C.1, 2) ..................................................1-2
   re court forms and processes (10-C.5).................... 10-4                                        duty to ascertain in client matter (9-R.2) ....................9-1
                                                                                                         duty to uphold (1-R.1 / 3-R.1)............................. 1-1, 3-1


                                                                                                                                                                Version #: 2009_V1
                                                                                            Index 11
                                                                                                                                                                      June 3, 2009
Code of Professional Conduct                                                                                                                                                     Index



  knowledge of as aspect of competence (2-C.G.1(b)) 2-1                                                   reporting misconduct/incompetence of colleagues (3-
  misstating to court (10-R.17(b))............................... 10-2                                       R.4) ....................................................................3-1
  requiring disclosure of confidential information (7-                                                    responding to Law Society (3-R.2) .........................3-1
     R.8(b)) ................................................................... 7-1                   generally (1-R.4 / 5 / 13-C.G.2) ........................ 1-1, 13-2
  requiring notification of step additional duties (10-R.6)                                            purpose of
      ............................................................................ 10-1                   advertising (5-S.O.P.).............................................5-1
LAW SCHOOL                                                                                             self-governing aspect of (Preface / 1-C.G.1 / 3-C.G.1,
  support of (3-C.G.1) .................................................. 3-1                             4.1)...................................................... 1, 1-1, 3-1, 3-2
LAW SOCIETY                                                                                          LEGAL REPRESENTATIVE
  and conduct deserving of sanction (I-P.3(a)).................1                                       acting for (9-R.8) ........................................................9-1
  criticism of (1-C.2 / 3-R.2) .................................. 1-2, 3-1                             receiving instructions from (9-R.8) .............................9-1
  criticism of professional institutions to (1-C.2 / 3-R.2) . 1-                                       seeking appoint of for client (9-R.7.1) ........................9-1
     2, 3-1                                                                                          LEGAL RESEARCH
  defined (I-P.4(m)) ..........................................................3                       in advising client (9-C.2).............................................9-3
  disclosure of confidential information to (7-R.8(a)) .... 7-1                                        in rendering competent service (2-C.G.3) ..................2-3
  expectations of re conduct of lawyers (Preface / I-P.3(a)                                          LEGAL SERVICES
     / 1-c.1 / 3-c.1 / 15-C.G.1)................... 1, 1-2, 3-1, 15-1                                  accessibility and availability of
  interest of, in business dealings of lawyer (8-C.G.1) . 8-1                                             assisting client to find counsel (1-R.5, C.5 / 2-R.3)1-1,
  jurisdiction of over members                                                                               1-3, 2-1
     when engaged in outside activities (15-C.G.1).... 15-1                                               declining to act See DECLINING TO ACT, See DECLINING
  jurisdiction of over members (Preface)..........................1                                          TO ACT
  opinion of (Preface / I-P.2(d)) ........................................1                               duty of profession (1-S.O.P., R.-4, C.G.1, G.2) ......1-2
  participation in as official (3-C.G.1(c)) ....................... 3-1                                   duty of profession (1-S.O.P., R.5, C.G.1, G.2) .......1-1
  program of certification sanctioned by (5-R.5)........... 5-1                                           purpose of advertising to assist client to find
  reporting misconduct/imcompetence of colleague to (3-                                                      counsel(5-R.1)............................................ 5-1, 5-2
     R.4) ....................................................................... 3-1                     to disadvantaged client (1-R.4) ..............................1-1
  responding to communication from (3-R.2) ............... 3-1                                         advertising
  rulings and opinions of                                                                                 as a specialist (5-R.5) ............................................5-1
     as supplementing Code (I-P.2(d)) .............................1                                      costs of (5-C.7).......................................................5-6
LAWYER                                                                                                    demonstrably accurate (5-R.1(a),C.1(a)) ....... 5-1, 5-2
  applicability of Code to when outside Alberta (Preface) 1                                               fees (5-R.6) ............................................................5-1
  as witness (10-R.10) ............................................... 10-1                               firm names, trade names and letterhead (5-R.4, C.4)
  defined (I-P.4(n)) ...........................................................3                            ................................................................... 5-1, 5-4
  leaving firm (4-R.9).................................................... 4-1                            guidelines ((5-C.1)..................................................5-2
  misconduct of                                                                                           improper strategies (5-C.G.2,C.1,(c))............. 5-2, 5-3
     duty to report (3-R.4) ............................................. 3-1                             invitation to public or media to attend client
  position in society (1-C.G.1, C.6 / 3-G.C.1) . 1-1, 1-4, 3-1                                               proceeding (5-R.8, C.8).............................. 5-2, 5-7
  tasks to be performed only by (2-C.4.1) .................... 2-5                                        manner of presenting practice to public (5-C.1(b)) .5-3
LEERING                                                                                                   preferred areas of practice (5-C.5) .........................5-6
  as sexual harassment (1-C.9) ................................... 1-6                                    publication of client names, etc. (5-C.G.2 / 7-R.2)..7-1
LEGAL AID PROGRAMS                                                                                        purpose of (5-S.O.P., R.1) ............................. 5-1, 5-2
  conflicts rules for short-term legal services (6-R.5.1, 6-                                              qualitative comparisons (5-C.1(a)) .........................5-2
     C.5.1) ........................................................... 6-2, 6-10                         quantitative statements (5-C.1(a))..........................5-2
  participation in (1-C.G.1,C.4 / 3-C.G.1) ....... 1-2, 1-3, 3-1                                          restricted practice (5-C.5).......................................5-6
                                                                                                          the availability of (5-S.O.P.) ...................................5-1
LEGAL AUTHORITY                                                                                           trade names (5-C.4) ...............................................5-5
  adverse                                                                                              and unpopular causes/clients (9-C.11)............... 2-3, 9-8
     duty to disclose to court (10-R.18) ...................... 10-2                                   paying fee to third party for recommendation (5-R.7).5-2
  misrepresenting to court (10-R.17(b)) ..................... 10-2
                                                                                                     LEGAL STRATEGY
LEGAL EDUCATION                                                                                        as aspect of competent service (2-C.G.3)..................2-3
  duties with respect to (2-C.G.1(h) / 3-C.G.1(a)) . 2-1, 3-1
                                                                                                     LEGAL SYSTEM ...................................... SEE JUSTICE SYSTEM
LEGAL FORMS AND PROCESSES
  knowledge of by lawyers (10-C.5) ........................... 10-4                                  LEGAL WRITING (2-C.G.1(H) / 3-C.G.1(A) / 1-C.G.1)...2-3, 3-1
LEGAL PROCEDURE                                                                                      LENDING TO CLIENTS .......................... SEE LOANS TO CLIENTS
  duty to take advantage of for client (10-C.1) ........... 10-3                                     LESSEE/LESSOR
LEGAL PROFESSION                                                                                       acting for both (6-C.2.1) .............................................6-4
  and exclusive right to practise law (1-C.G.1 / 10-C.G.2)                                           LETTERHEAD
      ..................................................................... 1-1, 10-3                  generally (5-R.4).........................................................5-1
  conduct harming (3-R.1)............................................ 3-1                              inclusion of extraprovincial lawyers (5-C.4) ................5-5
  duties of lawyer to                                                                                  inclusion of inactive or former members (5-C.4).........5-5
     proper conduct (3-R.2) .......................................... 3-1                             inclusion of names of non-lawyers (5-C.4) .................5-5
     remarks concerning (3-R.2)................................... 3-1                                 names listed (5-C.4)...................................................5-5




                                                                                                                                                              Version #: 2009_V1
                                                                                          Index 12
                                                                                                                                                                    June 3, 2009
Code of Professional Conduct                                                                                                                                             Index



LIEN, SOLICITOR'S (7-C.3 / 13-R.9 / 14-C.3) ....7-4, 13-2, 14-4                                 legal advice in advertising (5-C.1(a))..........................5-3
LIMITATION                                                                                      silence (4-C.2.1).........................................................4-4
   diary (2-C.G.1(e)) ...................................................... 2-1                to be broadly interpreted (4-C.2.1 / 11-C.2.1) .. 4-4, 11-2
   limited retainer (2-C.G.1(c)(v)) .................................. 2-2                    MISREPRESENTATION ................................... SEE ALSO DECEIT
   of practice by lawyer (5-C.5) ..................................... 5-6                      by lawyer
LITIGATION MATTER                                                                                   in advertising (5-C.1(a)) .........................................5-2
   as dispute (6-C.1.1)................................................... 6-3                      inadvertent (4-R.2 / 10-R.15 / 11-R.2). 4-1, 10-2, 11-1
LOANS                                                                                               meaning of (4-C.2.1 / 11-C.2.1).................... 4-4, 11-2
   advertising of, prohibited (5-R.2, C.2)................. 5-1, 5-4                                to court (10-R.13, 14, C-27) ............ 10-1, 10-2, 10-12
   to and from clients (6-R.9)......................................... 6-2                   MISSING CLIENT
   to clients, compassionate (6-C.9) ............................ 6-12                          as grounds for withdrawal (14-R.1(d))......................14-1
LOSS OF CONFIDENCE                                                                              duties with respect to (9-R.6) .....................................9-1
   between lawyer and client                                                                  MISSTATING FACTS, EVIDENCE OR LAW (10-R.13, 14, 17) 10-1,
      as grounds fro withdrawal (14-R.1(e)) ................. 14-1                              10-2
LOYALTY, PROFESSIONAL                                                                         MISTAKE
   as aspect of lawyer/client relationship (6-C.2.1) ........ 6-4                               duty to correct ................................. See MISCONCEPTION
LYING                                                                                           in calculating cash to close (7-C.7) ............................7-5
   by client or witness                                                                         not taking advantage of (4-R.3)..................................4-1
      as grounds for withdrawal (14-C.G.3, 1(e)) 14-2, 14-3                                   MISUSE OF CONFIDENTIAL INFORMATION (6-R.3(B), 4 / 7-
   by client or witness (10-C.14.2) ............................... 10-8                        R.6(B)) .................................................................6-1, 7-1
   by lawyer                                                                                  MORAL TURPITUDE ................. SEE DISHONOURABLE CONDUCT
      to client (9-R.1)............................................... 9-1, 9-3               MORTGAGEE/MORTGAGOR
      to colleague (4-R.1)............................................... 4-1                   acting for both (6-C.2.1) .............................................6-4
      to court (10-R.14) ................................................ 10-2                MOTIVATION OF CLIENT (14-R.1(B)) .................................14-1
      to opposing party (11-R.1)................................... 11-1
                                                                                              MOTIVATION OF LAWYER
MALICIOUS CONDUCT                                                                               impairment of (2-C.G.1(f)) ..........................................2-1
   of client as grounds for withdrawal (14-R.1(b))........ 14-1
                                                                                              MOVEMENT OF LAWYER ...............SEE RELOCATION OF LAWYER
MANAGEMENT OF PRACTICE
   as aspect of competence (2-C.G.1(e)) ...................... 2-1                            MULTIPLE REPRESENTATION
                                                                                                generally (6-R.2) ........................................................6-1
MARITAL STATUS                                                                                  on merger of law firms (6-R.5)....................................6-1
   and discrimination (1-R.9 / 10-C.28)............... 1-1, 10-13                               without mutual sharing of information (6-C.2.3)..........6-5
MARRIAGE BETWEEN LAWYERS                                                                      MUNICIPAL COUNCIL
   as possible disqualifying factor (6-R.6(a)) ................. 6-2                            appearance of lawyer before and apprehension of bias
MARY CARTER AGREEMENT (10-C.13 / 11-C.1).......10-7, 11-2                                           (10-C.9.2).............................................................10-6
MEDIA                                                                                           as court (I-P.4(h)) ..........................................................2
   inviting attendance of at client proceeding (5-R.8, C.8)5-                                 NAME OF CLIENT
      2, 5-7                                                                                    as confidential information (5-C.G.2 / 7-R.2)...... 5-4, 7-1
   lawyer's comments (1-C.2)........................................ 1-2                      NAME OF FIRM ........................................SEE ALSO FIRM NAME
MEDIATION BY LAWYER (6-C.1.2 / 15-C.G.2).............6-3, 15-1                                  generally (5-R.4, C.4)......................................... 5-1, 5-4
MEDICAL REPORT                                                                                  listing in telephone directory (5-C.1(c)) ......................5-4
   lawyer's responsibility for cost of (8-C.2) ................... 8-2                        NATIONAL ORIGIN
MENS REA OF LAWYER                                                                              and discrimination (I-R.9 / 10-C.28) ............... 1-1, 10-13
   relevant to disciplinary assessment (I-P.3(c))................2                            NEGLIGENCE
MERGER OF LAW FIRMS                                                                             distinguished from incompetence (2-C.G.2) ...............2-3
   implications of for continued representation (6-R.5) .. 6-1                                NEGLIGENT MISREPRESENTATION
   meaning of (6-C.5) .................................................... 6-9                  by client
MERITORIOUS CLAIM                                                                                   participation of lawyer in (9-C.2).............................9-3
   acting in absence of (10-R.1 / 14-R.1(b)) 1-4, 10-1, 14-1                                  NEGOTIATION
   not to go unrepresented (1-R.5) .................. 1-1, 1-3, 1-4                             and Mary Carter agreement (11-C.1) .......................11-2
MINOR                                                                                           misrepresentation in (11-R.1, 2)...............................11-1
   as client (9-R.7.1, 8) .................................................. 9-1                not to be undertaken by staff (2-C.4.1).......................2-5
MISCONCEPTION                                                                                   of criminal or fraudulent agreement (11-R.4) ...........11-1
   duty to dispel (4-R.2 / 10-R.15 / 11-R.2).. 4-1, 10-2, 11-1                                  settlement offer in (11-R.3) ......................................11-1
MISIDENTIFICATION OF CLIENT OR WITNESS (10-R.13)...... 10-1                                     with unrepresented party (11-R.5)............................11-1
MISLEADING ................................................SEE ALSO DECEIT                    NON-LEGAL ADVICE (9-C.G.4) ..........................................9-3
   advertising                                                                                NON-PAYMENT
      in presentation of firm to public (5-C.1(b)) ............. 5-3                            and solicitor's lien (7-C.3 / 13-R.9 / 14-C.3) ... 13-2, 14-4
      of fees (5-C.1(b)) ................................................... 5-3                of fee by client
   advertising (5-R.1(b), C.G.2.,C.1(a)(b))....... 5-1, 5-2, 5-3                                    as grounds for withdrawal (14-R.1(a))..................14-1
   firm name (5-R.4) ............................................... 5-1, 5-4


                                                                                                                                                       Version #: 2009_V1
                                                                                   Index 13
                                                                                                                                                             June 3, 2009
Code of Professional Conduct                                                                                                                                                    Index



NON-PROFIT LEGAL SERVICES PROVIDER                                                                       interference with existing files of (5-C.1(c)) ................5-3
  defined (6-C.5.1) ..................................................... 6-10                           meaning of (4-C.G.1) .................................................4-3
  providing short-term legal services                                                                    relationship with
     no conflict of interest (6-R.5.1, 6-C.5.1)........ 6-2, 6-10                                           fulfilling commitments to (4-R.5).............................4-1
NOTICE                                                                                                      misleading (4-R.1, 2)..............................................4-1
  of step to other parties (10-R.6) .............................. 10-1                                     receiving privileged document from (4-R.8) ...........4-1
  of withdrawal (14-C.G.3) ......................................... 14-2                                   requests for accommodations by (4-R.4) ...............4-1
NOTING IN DEFAULT                                                                                           taking advantage of mistakes (4-R.3).....................4-1
  duty to warn opposing counsel (10-C.6).................. 10-5                                             trust conditions and (4-R.11) ..................................4-2
                                                                                                            undertakings given to (4-R.10) ...............................4-1
NOTORIETY OF CLIENT (9-C.11)........................................ 9-8                                    when leaving firm (4-R.9) .......................................4-1
OBEDIENCE OF LAW (1-R.1) ............................................. 1-1                               responding to communications from (4-R.5) ..............4-1
OBJECTIVES OF CLIENT                                                                                   OUTSIDE ACTIVITIES OF LAWYER
  objectionable to lawyer (9-C.11)................................ 9-8                                   and advertising of loans (5-R.2, C.2).................. 5-1, 5-4
OBJECTIVITY BY LAWYER                                                                                    and compassionate loans (6-C.9) ............................6-13
  impairment of (2-C.2 / 6-R.8 / 9-R.3) ........... 2-4, 6-2, 9-1                                        conduct of a lawyer in (15-R.2) ................................15-1
  in advising client (9-C.G.2) ........................................ 9-2                              duty to clarify lawyer's role in (15-R.1) .....................15-1
  in assessing settlement of compromise (9-C.16) ...... 9-9                                              jurisdiction of Law Society over (Preface / I-P.3(a) / 3-
OBSTRUCTION BY LAWYER                                                                                       C.1 / 15-C.G.1)..........................................1, 3-1, 15-1
  of access to evidence or witnesses (4-C.G.2 / 10-C.20)                                                 mediation/arbitration (15-C.G.2)...............................15-1
      ................................................................... 4-3, 10-10                   OVERHEAD EXPENSES
  of cross-examination (10-R.25) ............................... 10-2                                    and disbursements (13-C.5).....................................13-5
  of justice (10-C.20) ................................................ 10-10                            as factor in setting fee (13-R.1(j)).............................13-1
OFFICE MANAGER                                                                                         OVERSIGHT
  inclusion on letterhead (5-R.4, C.4)........................... 5-5                                    by colleague
OFFICE STAFF .............................................. SEE EMPLOYEES                                   duty not to take advantage of (4-R.3).....................4-1
OFFICERS OF COURT                                                                                      PARALEGALS ................................................ SEE EMPLOYEES
  lawyer as (1-C.G.1 / 10-C.12, 17) ........... 1-2, 10-7, 10-9                                        PARTIAL SERVICES (2-C.G.1(C)(V) / 9-C.2) .................2-2, 9-3
OMISSION                                                                                               PARTING (4-R.9) ..............................................................4-1
  duty to report to client (9-R.18).................................. 9-2                              PARTISANSHIP
  of colleague                                                                                           of court
     duty not to take advantage of (4-C.3) .................... 4-4                                         appearance of (10-R.9) ........................................10-1
OPINION ............................................... SEE SECOND OPINION                               of lawyer
  of Law Society or committee thereof (Preface / I-P.2(d))                                                  affecting criticism of court or proceedings (1-C.2) ..1-3
      ..................................................................................1                   to be made clear when dealing with unrepresented
  qualified (9-C.2 / 2-C.G.1(c)) .............................. 2-1, 9-3                                       parties (1-C.5 / 11-R.5) ....................................11-1
OPPOSING PARTIES                                                                                            to be made clear when dealing with unrepresented
  dealing with                                                                                                 parties (1-C.6 / 11-R.5) ......................................1-4
     making evidence available to (10-C.20) ............ 10-10                                         PARTNER
     making witnesses available to (10-C.22)........... 10-10                                            as firm member (I-P.4(k)) ..............................................3
     when known to be represented (4-R.6) ................. 4-1                                          deceased or retired
  legitimate rights/interests of (2-C.2 / 4-C.G.2 / 10-C.6) 2-                                              inclusion in firm name (5-R.4, C.4).........................5-5
     4, 4-3, 10-5                                                                                      PARTY
  representation of in dispute (6-R.1) ........................... 6-1                                   defined (I-P.4(o)) ...........................................................3
  when not present at proceeding (10-R.8) ................ 10-1                                          represented by counsel
  when unrepresented (1-C.5 / 4-C.G.2 / 11-R.5) 1-4, 4-3,                                                   dealing with (4-R.6) ................................................4-1
     11-1                                                                                                unrepresented
OPPOSING PARTY                                                                                              dealing with (1-C.5 / 4-C.G.2 / 11-R.5)......... 4-3, 11-1
  defined in context of negotiation (11-C.G.1)............ 11-1                                             dealing with (1-C.6 / 4-C.G.2 / 11-R.5)...................1-4
ORGANIZATION                                                                                           PARTY-AND-PARTY COSTS
  as aspect of competence (2-C.G.1(e)) ...................... 2-1                                        duty to disclose to client (13-R.6) .............................13-1
OTHER CHARGES                                                                                          PATENT AND TRADEMARK AGENT
  as category on statement of account (13-C.4) ........ 13-5                                             inclusion on letterhead (5-R.4, C.4)............................5-5
OTHER LAWYERS                                                                                          PAYMENT
  assisting (4-C.G.2) .................................................... 4-3                           of fee by client
  comparison with                                                                                           failure of as grounds for withdrawal (14-R.1(a)) ...14-1
     in advertising (5-C.1(a))......................................... 5-2                              of fee by lawyer for recommendations (5-R.6) ...........5-2
  criticism of (3-R.2 / 4-C.G.2)............................... 3-1, 4-3                                 of lawyer by third party (9-C.9.2) ................................9-7
  in own firm                                                                                            of referral fee by lawyer (5-R.7)..................................5-2
     defined as firm members (I-P.4(k))............................3                                     to witness (10-R.23) .................................................10-2
  in own firm (4-C.G.1) ................................................. 4-3



                                                                                                                                                              Version #: 2009_V1
                                                                                            Index 14
                                                                                                                                                                    June 3, 2009
Code of Professional Conduct                                                                                                                                                   Index



PERJURY BY CLIENT (9-R.10 / 10-C.14.2).................9-1, 10-8                                  PROMISE BY LAWYER
PERSON (I-P.4(O))...............................................................3                   as undertaking (4-C.10) .............................................4-6
PERSONAL BELIEF OR OPINION OF LAWYER                                                                to client (2-C.G.1(a) / 9-C.13)............................. 2-1, 9-8
  at odds with client for cause (2-C.2 / 6-C.7 / 9-R.10,                                          PROPERTY
     C.11) .............................................. 2-4, 6-11, 9-1, 9-8                       having evidentiary value
  expressing to court (10-R.11).................................. 10-1                                 concealment of (10-R.20(d)) ................................10-2
PERSONAL INTEREST OF LAWYER                                                                            destruction or alteration of (10-R.20(c)) ...............10-2
  conflicting with client interests (6-R.7, 8, 9 / 9-R.3) .. 6-2,                                      meaning of (10-C.20) .........................................10-10
     9-1                                                                                            of client
                                                                                                       accounting for on termination of retainer (14-R.4)14-1
PERSONAL RELATIONSHIP OF LAWYER                                                                        defined (7-C.3) .......................................................7-4
  with court (10-R.9)................................................... 10-1                          fiduciary duies with respect to (7-C.3) ....................7-4
  with opposing counsel (6-R.6(c))............................... 6-2                                  protecting confidentiality of (7-R.3).........................7-1
PERSONAL RESPONSIBILITY OF LAWYER                                                                      safekeeping of (7-C.3)............................................7-4
  for financial commitments (8-R.2).............................. 8-1                                  solicitor's lien over (7-C.3 / 13-R.9 / 14-C.3) 7-4, 13-2,
  for legal obligations (8-R.1, 3) ................................... 8-1                                14-4
  for undertakings (4-R.10) .......................................... 4-1                        PROSECUTOR
PLEA DISCUSSIONS/NEGOTIATION                                                                        bad faith (10-C.28) .................................................10-13
  by defence lawyer (10-R.27) ................................... 10-3                              dealing with accused (10-R.28(c) (d)) ......................10-3
  by prosecutor (10-C.27) ........................................ 10-12                            disclosure by (10-R.28(d))........................................10-3
PLEA, ENTERING OF                                                                                   duties of (10-R.28) ...................................................10-3
  and consultation with client (9-C.5 / 10-C.27). 9-4, 10-12                                        generally (10-R.28) ..................................................10-3
POLITICS, LAWYER IN                                                                                 meaning of (10-C.28) .............................................10-13
  and conflicts of interest (6-C.G.2).............................. 6-3                             public function of (10-R.28) ......................................10-3
  as outside activity (15-C.G.1) .................................. 15-1                          PROSECUTORIAL DISCRETION
POOR CLIENTS                                                                                        conduct review in event of bad faith or dishonesty (10-
  and compassionate loans (6-C.9) ........................... 6-12                                     C.28(8))..............................................................10-14
  and need for legal representation (1-C.4).................. 1-3                                   distinct from professional conduct (10-C.28(7)) .....10-13
POSTPONEMENT                                                                                        elements of (10-C.28 (6)) .......................................10-13
  request for                                                                                       independence of Attorney General (10-C.28) ........10-13
     when justified (4-C.4 / 10-C.2)...................... 4-4, 10-4                                proper/improper exercise of (10-C.28) ...................10-13
POTENTIAL CLIENT .................. SEE PROSPECTIVE CLIENT, SEE                                   PROSPECTIVE CLIENT
  PROSPECTIVE CLIENT                                                                                confidential information of (7-C.G.1) ..........................7-2
                                                                                                    duty to assist in finding a lawyer (1-R.5 / 2-R.3) 1-1, 1-3,
POTENTIAL CONFLICT OF INTEREST
                                                                                                       1-4, 2-1
  acting opposite related person in (6-R.6(b)) .............. 6-2
                                                                                                    unacceptable means of soliciting business of (5-R.3,
POWER OF ATTORNEY                                                                                      C.1(c), C.3) ............................................. 5-1, 5-3, 5-4
  instructions for preparation received from third party (9-                                        unacceptable means of soliciting business of (5-R.3,
     C.9.1) .................................................................... 9-6                   C.3) ........................................................................5-2
PREPAID LEGAL SERVICES PLAN (9-C.9.2) ........................ 9-7                                PROSPECTIVE CRIME
PRIOR RECORD OF DEFENDANT                                                                           described in context of disclosure of confidential
  disclosure to court (10-C.14.1) ................................ 10-8                                information (7-C.8.2(c)(e))......................................7-7
  failure of Crown to raise (4-C.3 / 10-C.14.1)..... 4-4, 10-8                                    PUBLIC
PRIVACY, INVASION OF (1-C.8).......................................... 1-4                          duties of lawyer toward
PRIVILEGE                                                                                              in advertising (5-C.1(c))..........................................5-3
  distinguished from confidentiality (7-C.G.3)............... 7-3                                      in advertising (5-R.1(c)).................................. 5-1, 5-2
PRIVILEGED DOCUMENT OF OPPOSING PARTY                                                                  in business aspects of practice (8-C.G.1) ..............8-1
  inadvertent receipt of (4-R.8)..................................... 4-1                           expectations of
                                                                                                       re lawyer's competence (2-C.G.1)..........................2-1
PRO BONO WORK
                                                                                                       re lawyer's conduct (1-C.G.1 / 3-C.1) ............. 1-1, 3-1
  act on a pro bono basis (1-C.G.1 / 13-C.G.2)... 1-1, 13-2
                                                                                                    rights of
  conflicts rules for short-term legal services (6-R.5.1, 6-
                                                                                                       1-C.G.1,C.4)...........................................................1-3
     C.5.1) ........................................................... 6-2, 6-10
                                                                                                       to choose counsel (5-S.O.P, C.5 / 6-C.2.1 / 9-C.9.2)
PROCEEDING                                                                                                 ..................................................... 5-1, 5-6, 6-4, 9-7
  defined in context of lawyer as witness (10-C.10) ... 10-6                                           to know about legal system and services (1-C.G.1 /
PROFESSION .............................SEE ALSO LEGAL PROFESSION                                         5-S.O.P, C.G.2.).................................. 1-2, 5-1, 5-2
  defined (I-P.4(p)) ...........................................................3                      to legal counsel (1-C.G.1,C.4)................................1-1
PROFESSIONALISM                                                                                   PUBLIC ATTENDANCE
  as aspect of competence (2-C.G.1(a)) ...................... 2-1                                   at proceeding involving client (5-R.8, C.8) ......... 5-2, 5-7
PROGRESS OF CLIENT MATTER                                                                         PUBLIC GUARDIAN
  duty to report (2-C.G.1(a) / 9-R.14) .................... 2-1, 9-2                                reporting misconduct of legal representative of
                                                                                                       incapacitated client to (9-C.8(b)) ............................9-6



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Code of Professional Conduct                                                                                                                                                   Index



PUBLIC INTEREST                                                                                RECEIVER/MANAGER
  acting in (1-C.2)......................................................... 1-3                 acting for as well as creditor (6-C.2.1)........................6-4
  and rules/regulations of legal profession (Preface) .......1                                 RECOMMENDATION
PUBLIC OFFICE, LAWYER IN                                                                         of lawyer by third party (5-R.7) ...................................5-2
  acting subsequent to termination (6-C.G.2)............... 6-3                                  to client
  and conflicts of interest (6-C.G.2).............................. 6-3                             as aspect of advising client (9-C.G.2) ....................9-2
  as outside activity (15-C.G.1) .................................. 15-1                       RECORDING
PUBLIC RELATIONS                                                                                 conversation (1-R.8)...................................................1-1
  as factor in lawyer's advice (9-C.G.4)........................ 9-3                           RECORDS
  generally (1-C.G.1).................................................... 1-2                    duty to keep (2-C.G.1(e)) ...........................................2-1
  personnel                                                                                    RECTIFICATION OF ERROR
     compensation of by lawyer (5-R.6)........................ 5-2                               in client matter (9-C.18)............................................9-10
PUBLIC TRUSTEE                                                                                 REDUCTION OF FEE (1-C.4 / 2-C.G.1(C)(IV), (V) / 13-C.G.2) .1-
  reporting misconduct of legal representative of                                                3, 2-2, 13-2
     incapacitated client to (9-C.8(b)) ........................... 9-6
                                                                                               REFERRAL
PUBLICATION                                                                                      fee, payment of by lawyer (5-R.7) ..............................5-2
  of client names, etc. (5-C.G.1 / 7-R.2)....................... 5-4                             finder's fee (13-R.8)..................................................13-2
  of client names, etc. (5-C.G.2 / 7-R.2)....................... 7-1                             of client to expert (2-C.G.3 / 9-C.4) .................... 2-4, 9-4
  of criticism of legal system (1-C.2) ............................ 1-2                          of client to other counsel (2-C.3 / 5-C.1) ....................2-4
PUBLICITY                                                                                        services (5-C.G.1) ......................................................1-1
  and the lawyer (5-C.8)............................................... 5-7                    REFORM ACTIVITIES BY LAWYER
PUNCTUALITY                                                                                      in justice system (1-C.2 / 3-C.G.1) ..................... 1-3, 3-1
  with clients (9-R.13)................................................... 9-2                   political or social (1-C.7).............................................1-4
  with colleagues (4-R.5).............................................. 4-1                    REFUSING TO ACT...SEE DECLINING TO ACT, SEE DECLINING TO
QUALIFICATION TO PRACTICE LAW                                                                    ACT, SEE DECLINING TO ACT, SEE DECLINING TO ACT
  misrepresentation re (5-R.4, C.4) ....................... 5-1, 5-4                           RELATED PERSON
QUALITY CONTROL                                                                                  acting opposite (6-R.6(a)) ..........................................6-2
  as aspect of competence (2-C.G.1(e)) ...................... 2-1                                and business transaction with client (6-C.9).............6-12
QUALITY OF SERVICE (2-C.G.1(A)).................................... 2-1                          defined (I-P.4(r))............................................................3
QUASI-JUDICIAL BODY                                                                              use of confidential information for benefit (7-R.6).......7-1
  as court (I-P.4(h)) ..........................................................2              RELATED PERSONS
QUASI-OFFICIAL POSITION OF LAWYER (1-C.G.1)............... 1-1                                   and advertising of loans (5-R.2, C.2).................. 5-1, 5-4
QUESTIONABLE CONDUCT                                                                             and compassionate loans (6-C.9) ............................6-13
  duty to avoid (Preface / 1-R.1 / 3-R.1 / 15-C.G.1) 1-1, 3-                                   RELEVANT AUTHORITY
     1, 15-1                                                                                     meaning of (10-C.18) ...............................................10-9
QUESTIONING                                                                                    RELIGION
  of lawyer by court (10-R.16) .................................... 10-2                         and discrimination (1-R.9 / 10-C.28) .............. 1-1, 10-13
  of witness (10-C.21) .............................................. 10-10                    RELOCATION OF LAWYER
RACE                                                                                             and ability of new firm to continue acting (6-R.4) .......6-1
  and discrimination (1-R.9 / 10-C.28)............... 1-1, 10-13                                 manner of (4-R.9).......................................................4-1
REAL ESTATE MATTER                                                                             REMARKS BY LAWYER
  acting for both builder and purchaser (6-Mem-C.2.1).. 6-                                       re profession or colleague (3-R.2 / 4-C.G.2) ...... 3-1, 4-3
     14                                                                                        REMOVAL ..................................... SEE CONFLICT OF INTEREST
REAL ESTATE MATTERS                                                                            REPORTING
  accepting commission or other payment in (13-R.8) 13-2                                         misconduct of others involved in justice system (1-C.2)
  acting for both mortgagor and mortgagee (6-C.2.1) .. 6-4                                           ...............................................................................1-2
  acting for both vendor and purchaser (6-C.2.1)......... 6-4                                    to ALIA (9-R.18, C.18)...................................... 9-2, 9-10
  client instructing holdback (9-C.10) ........................... 9-7                           to client
  mistake in cash to close (7-C.7) ................................ 7-5                             generally (2-C.G.1(a) / 9-R.14)....................... 2-1, 9-2
  mistake in statement of adjustments (4-C.3) ............. 4-4                                     on termination (14-R.4) ........................................14-1
REASONABLE NOTICE                                                                                   re settlement offer (9-R.15(b) / 11-R.3(b)).... 9-2, 11-1
  of withdrawal (14-C.G.3) ......................................... 14-2                        to Law Society
  to firm of departure of lawyer (4-C.9)......................... 4-6                               misconduct/incompetence of colleague (3-R.4) .....3-1
  to other counsel                                                                             REPRESENTATION
     of appeal (10-C.6) ............................................... 10-5                     of fact by lawyer (4-C.2.1 / 11-C.2.1) ............... 4-4, 11-2
     of intention to communicate with court (10-R.7) .. 10-1                                   REPRESENTATIVE, LEGAL
     of step (10-R.6) ................................................... 10-1                   of incapacitated client
REASONABLENESS OF LAWYER                                                                            duty to seek appointment of (9-R.7.1(a))................9-1
  defined (I-P.4(q)) ...........................................................3                   taking instructions from (9-R.8) ..............................9-1




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                                                                                    Index 16
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Code of Professional Conduct                                                                                                                                                   Index



RESEARCH                                                                                          provided by non-profit legal services provider
  in advising client (9-C.2)............................................ 9-3                        no conflict of interest (6-R.5.1, 6-C.5.1) ....... 6-2, 6-10
  in rendering competent service (2-C.G.3) ................. 2-3                               SKILL
RESPECT                                                                                          as aspect of competence (1-C.G.1(d)) .......................2-3
  as aspect of lawyer/client relationship (1-C.7)........... 1-4                                 unusual
  for court (10-R.12) ................................................... 10-1                      as justifying higher fee (13-C.1 (a), (f)).................13-3
  for law (1-R.1) ........................................................... 1-1              SOCIAL INSURANCE NUMBER OF CLIENT
RESTRICTION OF PRACTICE (5-C.5)................................... 5-6                           as confidential information (7-C.1) .............................7-3
RETURNING CALLS (1-C.6 / 3-C.3 / 4-R.5 / 9-R.13) 1-4, 3-2, 4-                                  SOCIETY
  1, 9-2                                                                                         expectations of
RUDENESS                                                                                            re lawyer's conduct (1-C.G.1).................................1-2
  of client (14-C.1(b)) ................................................. 14-3                   position of lawyer in (1-C.G.1)....................................1-1
  of lawyer (1-C.6 / 3-C.1) ..................................... 1-4, 3-1                       rights and obligations of re legal representation (1-C.4)
RULES OF COURT                                                                                       ...............................................................................1-3
  and contingency fees (13-C.3) ................................ 13-5                          SOLICITATION OF PROFESSIONAL EMPLOYMENT
  and discovery (10-C.20) ........................................ 10-10                         and interference with existing file (5-C.G.2,C.1(c)).....5-3
  and notice                                                                                     exceptions to prohibition against direct solicitation
     generally (10-C.6)................................................ 10-5                        nature of relationship required (5-R.3(a)(b))...........5-4
     of withdrawal (14-C.G.3) ..................................... 14-2                         exceptions to prohitions against direct solicitation
RULES OF EVIDENCE                                                                                   nature of relationship required (5-R.3(a)(b))...........5-1
  attempts to circumvent (10-C.19) ............................ 10-9                             prohibited when client involved in traumatic event (5-
                                                                                                    R.3) ................................................................ 5-1, 5-4
RULES OF LAW SOCIETY                                                                             when client vulnerable (5-R.3, C.G.2, C.3)......... 5-1, 5-4
  and trust money (13-C.10) ...................................... 13-7
                                                                                               SOLICITOR'S LIEN
RULINGS OF LAW SOCIETY                                                                           assertion of (7-C.3 / 13-R.9 / 14-C.3) .........................7-4
  as supplemental to Code (I-P.2(d)) ...............................1
                                                                                               SOPHISTICATION
SCHOOL BOARD                                                                                     of client
  appearance of lawyer before and apprehension of bias                                              as relevant factor in ensuring comprehension of
     (10-C.9.2) ............................................................ 10-6                        advice (9-C.12)...................................................9-8
  as court (I-P.4(h)) ..........................................................2                   as relevant factor in fee agreement (13-R.1(i)) ....13-1
SCREENING DEVICE                                                                                    when doing business with lawyer (8-C.G.1) ...........8-1
  and conflicts of interest (6-C.2.3, 4) ................... 6-5, 6-8                            of opposing party when unrepresented in negotiation
SECOND OPINION                                                                                      (11-C.5.2).............................................................11-3
  assisting client to obtain (9-R.17 / 5-C.1(c)) ....... 5-3, 9-2                              SOURCE OF CONFIDENTIAL INFORMATION
  giving (4-R.7)............................................................. 4-1                irrelevant to confidentiality (7-R.1)..............................7-1
SECRET COMMISSIONS, FEES, ETC.                                                                 SPACE-SHARERS
  prohibited (13-R.8) .................................................. 13-2                    and maintenance of confidentiality (6-C.G.1 / 7-C.G.2,
SELF-GOVERNANCE                                                                                     4)............................................................. 6-2, 7-2, 7-4
  by legal profession (Preface / 1-C.G.1 / 3-C.G.1, 4.1)..1,                                     as firm (I-P.4(j) / 6-C.G.1 / 7-C.G.2) ............... 3, 6-3, 7-2
     1-1, 3-1, 3-2                                                                               manner of presentation to public (5-C.1(b)) ...............5-3
SETTLEMENT                                                                                     SPECIALIZATION BY LAWYERS (5-R.5).................................5-1
  duty to recommend (9-R.16) ..................................... 9-2                         SPOUSE OF LAWYER
  not to be delegated to staff (2-C.4.1)......................... 2-5                            acting opposite (6-R.6(a)) ..........................................6-2
SETTLEMENT OFFER                                                                                 as related person (I-P.4(r))............................................3
  duty to communicate to client (9-R.15(b) / 11-R.3(b)) 9-2                                    SPOUSES
  making on client's behalf (9-R.15(a) / 11-R.3(a)) 9-2, 11-                                     acting for both (6-C.2.1) .............................................6-4
     1                                                                                         STAFF .......................................................... SEE EMPLOYEES
SEXISM                                                                                         STANDARDS OF CONDUCT
  and discrimination (1-R.9) ......................................... 1-1                       applied in business aspects of practice (8-S.O.P.,
  as sexual harrasment (1-C.10).................................. 1-6                               C.G.1) ....................................................................8-1
SEXUAL HARRASMENT (1-R.10) ........................................ 1-1                        STATEMENT OF ACCOUNTS
SEXUAL ORIENTATION                                                                               and disbursements (13-C.4).....................................13-5
  and discrimination (1-R.9 / 10-C.28)............... 1-1, 10-13                                 and other charges (13-C.4) ......................................13-5
SHAREHOLDERS                                                                                     final
  acting for (6-C.2.1) .................................................... 6-4                     on withdrawal or dismissal (14-R.4) .....................14-1
SHARP PRACTICE                                                                                      timing of (13-C.4) .................................................13-5
  prohibited (4-R.3) ...................................................... 4-1                  generally (13-C.4) ....................................................13-5
SHOP-TALK                                                                                        interim (13-C.2) ........................................................13-4
  and confidentiality (7-C.1) ......................................... 7-3                    STATEMENT OF ADJUSTMENTS
SHORT-TERM LEGAL SERVICES                                                                        incorrect (4-C.3) .........................................................4-4
  defined (6-C.5.1) ..................................................... 6-10


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                                                                                    Index 17
                                                                                                                                                                 June 3, 2009
Code of Professional Conduct                                                                                                                                            Index



STATEMENT OF CLAIM                                                                        of lawyer/client relationship
  delivery of document resembling (10-C.5)............... 10-4                               by client (14-C.G.1) ..............................................14-1
  without merit (10-R.1)....................................... 1-4, 10-1               TEST CASE (1-C.1 / 7-C.8.2(C) / 9-C.11).............1-2, 7-6, 9-7
STRATEGY                                                                                THIRD PARTY
  improper                                                                                accepting instructions from (9-R.9) ............................9-1
     advertisement of (5-R.3, C.G.2, C.1(c), C.3) . 5-1, 5-2,                             accepting payment from (9-C.9.2 / 13-R.8) ...... 9-7, 13-2
        5-3                                                                             THREATENING
  legal                                                                                   criminal prosecution (10-R.4) ......................... 10-1, 10-4
     as aspect of competent service (2-C.G.3) ............. 2-3                           to commit suicide(7-C.8.2) .........................................7-7
STRUCTURED SETTLEMENT                                                                     to report colleague to Law Society (3-C.4.1) ..............3-2
  referred to in advertisement (5-C.1(a) ....................... 5-2                    TIMELY DISCLOSURE
STUDENT-AT-LAW                                                                            by prosecutor (10-R.28(d)) .......................................10-3
  defined (I-P.4(s)) ...........................................................3       TRADE DEBTS
  disclosure of confidential information to (7-C.4) ........ 7-4                          lawyer's responsibility for (8-C.3) ...............................8-2
  duties of lawyer re (5-C.2.2) ...................................... 2-5
  inclusion on letterhead (5-R.4, C.4)........................... 5-5                   TRADE NAMES
                                                                                          content (5-C.4) ...........................................................5-5
SUBJECT TO CONFIDENTIALITY                                                                generally (5-R.4, C.4)......................................... 5-1, 5-4
  meaning (7-R.7) ........................................................ 7-1            misleading or confusing (5-C.4) .................................5-5
SUBPOENA                                                                                  prohibited if implying connection with institutions (5-C.4)
  delivery of document resembling (10-C.5)............... 10-4                                ...............................................................................5-5
SUCCESSOR LAWYER                                                                        TRANSFER OF FILE
  cooperation with (14-R.3) ........................................ 14-1                 and confidential information to (7-C.5) .......................7-4
  disclosure                                                                              and duties of lawyer (4-C.9 / 14-C.5) ............... 4-6, 14-5
     of confidential information to (7-C.5) ..................... 7-4                     due to lawyer's mistake (9-C.18)..............................9-10
  duties of (14-R.5) .................................................... 14-1            initiated by client (5-C.G.2,C.1(c)) ..............................5-3
SUICIDE THREATENED BY CLIENT ............... SEE CONFIDENTIAL                           TRIBUNAL
  INFORMATION                                                                             appearing before after serving on (10-C.9.2) ...........10-6
SUPERVISION OF EMPLOYEES                                                                  as court (I-P.4(h)) ..........................................................2
  generally (2-R.4) ....................................................... 2-1           precedence of rules of procedure (10-C.25) ..........10-12
  re confidentiality (7-R.4) ............................................ 7-1           TRUST CONDITIONS
SUPPORT SYSTEMS                                                                           and non-lawyers (2-C.4.1 / 4-C.11.1) ................. 2-5, 4-8
  staff, equipment and facilities (2-C.G.1(e))................ 2-1                        don't tell your client (7-C.G.1).....................................7-2
SUPPRESSION                                                                               fulfilling despite client's instructions (4-C.11.3 / 9-C.10 /
  of evidence, facts or law (10-R.17, 18, 20).............. 10-2                             14-C.2(a)).............................................. 4-8, 9-7, 14-4
SURRENDERING CRIMINAL EVIDENCE (10-C.20) ............. 10-10                              generally (4-R.11) ......................................................4-2
                                                                                          implied (4-C.11.2).......................................................4-8
TACTICS                                                                                   trust on a trust (4-C.11.3) ...........................................4-8
  removing firm re conflict ............................................ 6-9
                                                                                        TRUST MONEY
TAKING A STEP                                                                             and application to outstanding account (13-R.10) ....13-2
  duty to notify other parties (10-R.6) ......................... 10-1
                                                                                        TRUSTEE IN BANKRUPTCY
TAPE RECORDING                                                                            acting for as well as creditor (6-C.2.1)........................6-4
  conversation (1-R.8).................................................. 1-1
                                                                                        TYPOGRAPHICAL ERROR
TAXES                                                                                     by opposing counsel (4-R.3) ......................................4-1
  advising client on (9-C.G.2, 4)............................ 9-3, 9-4                    by opposing party (11-C.4).......................................11-3
  and statement whether included in published fee (5-R.6)5-1
                                                                                        UNAUTHORIZED PRACTICE
TECHNICAL BREACH OF CODE (I-P.3(A)) ................................1                     supervision of and responsibility for employees (2-
TECHNICAL DEFENCE                                                                            C.4.1) .....................................................................2-4
  duty to advise client of (9-C.G.2) ............................... 9-2                UNCONSCIONABLE AGREEMENT
TECHNICAL TERMS                                                                           negotiation of (11-R.4) .............................................11-1
  and use in advertising (5-C.1(a)) ............................... 5-2                 UNCONSCIONABLE INTEREST RATE
TECHNICALITY                                                                              applied to lawyer (8-C.1) ............................................8-1
  as defence to criminal charge (9-C.G.2).................... 9-2                         in client matter (11-C.4)............................................11-3
  generally (10-C.1).................................................... 10-3           UNCOOPERATIVENESS OF CLIENT
TELEPHONE CALLS                                                                           as grounds for withdrawal (14-R.1(c)) ......................14-1
  duty to return (2-C.G.1(a) / 3-R.3 / 4-R.5 / 9-R.13)2-2, 3-                           UNDERTAKINGS
     1, 4-1, 9-2                                                                          and non-lawyers (2-C.4.1)..........................................2-5
  failure of colleague to return                                                          generally (4-R.10) ......................................................4-1
     as reportable conduct (3-C.4)................................ 3-2
  tape recording (1-R.8) ............................................... 1-1            UNFAIR ADVANTAGE..........................SEE ADVANTAGE, UNFAIR
TERMINATION                                                                             UNION
  of association between lawyers (4-R.9)..................... 4-1                         paying legal fees of member (9-C.9.2) .......................9-7



                                                                                                                                                    Version #: 2009_V1
                                                                             Index 18
                                                                                                                                                          June 3, 2009
Code of Professional Conduct                                                                                                                                                     Index



UNPOPULAR CAUSE/CLIENT (9-C.11) ................................ 9-8                               due to dishonourable or malicious conduct by client (14-
UNREALISTIC DEMANDS BY CLIENT                                                                         R.1(b))..................................................................14-1
  as grounds for withdrawal (14-C.1(c)) ..................... 14-3                                 due to improper instructions (14-R.2(a), (b)) ............14-1
UNREPRESENTED PARTY                                                                                due to inability to locate client/obtain instructions (14-
  dealing with (1-C.5 / 4-C.G.2 / 11-R.5) ............. 4-3, 11-1                                     R.1(d))..................................................................14-1
  dealing with (1-C.6 / 4-C.G.2 / 11-R.5) ...................... 1-4                               due to lawyer's incompetence (14-R.2(c))................14-1
  defined in context of negotiation (11-C.5.1)............. 11-3                                   due to loss of confidence (14-R.1(e)) .......................14-1
  duties of lawyer to in negotiation (11-R.5) ............... 11-1                                 due to non-payment by client (14-R.1(a)).................14-1
                                                                                                   due to possession of confidential information (7-R.6(b))
UNREPRESENTED PERSON                                                                                   ...............................................................................7-1
  dealing with (1-C.5 / 4-C.G.2 / 11-R.5) ............. 4-3, 11-1                                  due to unreasonableness of client (14-R.1(c)) .........14-1
  dealing with (1-C.6 / 4-C.G.2 / 11-R.5) ...................... 1-4                               duties on (14-R.3, 4) ................................................14-1
UTMOST GOOD FAITH                                                                                  enforcement of solicitor's lien on (14-C.3) ................14-4
  undertakings as matter of (4-C.10)............................ 4-6                               mandatory (14-R.2) ..................................................14-1
VENDOR                                                                                             notice of (14-C.G.3)..................................................14-2
  acting for as well as purchaser (6-C.2.1)................... 6-4                                 of lawyer movement between firms (6-R.4)................6-1
VEXATIOUS PROCEEDINGS (5-C.1 / 10-R.1)...............1-4, 10-1                                     on merger of law firms (6-R.5)....................................6-1
WAIVER                                                                                             optional (14-R.1) ......................................................14-1
  of jury trial                                                                                  WITHDRAWAL OF CRIMINAL CHARGES
     decision to be made by client (9-C.5) .................... 9-4                                influencing (10-R.3, 4).................................... 10-1, 10-4
WAIVING OF FEE (1-C.G.1,C.4 / 13-C.G.2)........1-2, 1-3, 13-2                                    WITNESS
WILFULLNESS                                                                                        attempting to influence (10-R.22, 23) .......................10-2
  of lawyer's conduct                                                                              counselling re evidence (10-R.24)............................10-2
     relevant to disciplinary assessment (I-P.3(c))............2                                   discussion with when under cross-examination (10-
                                                                                                      R.25) ....................................................................10-2
WILL
                                                                                                   dissuading from discussing case (10-R.22) .............10-2
  instructions for preparation of received from third party
                                                                                                   excluded (10-R.26)...................................................10-3
     (9-C.9.1) ................................................................ 9-6
                                                                                                   lawyer as (10-R.10)..................................................10-1
WILLS                                                                                              misrepresenting identity of (10-R.13) .......................10-1
  ensuring client's access to (7-C.3) ............................ 7-4                             misrepresention by (4-R.2(b) / 10-R.13, 14 / 11-R.2(b))
  safeguarding of (7-C.3) ............................................. 7-4                            ................................................... 4-1, 10-1, 10-2, 11-1
WITHDRAWAL                                                                                         no property in (10-C.22) .........................................10-10
  accounting to client on (14-R.4) .............................. 14-1                             payment to (10-R.23) ...............................................10-2
  avoiding prejudice to client on (14-R.3) ................... 14-1                                treatment of (10-R.21)..............................................10-2
  by in-house counsel (12-C.4) .................................. 12-3                           ZEALOUS REPRESENTATION
  due to client's failure to cooperate (14-R.1(c))......... 14-1                                   duty of (10-C.G2, 12) ..................................... 10-3, 10-7
  due to conflict of interest (14-R.1(d)) ....................... 14-1




                                                                                                                                                             Version #: 2009_V1
                                                                                      Index 19
                                                                                                                                                                   June 3, 2009

				
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