BC lawyers regulated/governed by Law Society, responsible for admission to profession, rules of “prof resp”, & discipline
PCH only guide, not „code‟, but rare that violation of handbook does not = prof misconduct
PCH is put together by “benchers” who derive authority from Legal Profession Act - Same force as regs passed by prov legislature
Professional discipline burden of proof is “clear, cogent & convincing” ev; somewhere btwn BOP & BARD, but closer to BARD
ROLE OF LAW SOCIETY
Primary object & duty: protect public interest
Secondary duty: protect interests of members
Law Society independent of gov‟t - Regulated by “Benchers”, primarily elected lawyers
Law Society runs like a mini-government that contains:
o „Legislature‟, when “Benchers” sit & make amendments to PCH
o „Police department‟, (investigation staff)
o „Complaints department‟
This all paid for by lawyers, through fees.
Re discipline, chair of committee will either:
o Send notice to lawyer,
o Call lawyer in for a meeting w/a Bencher & another senior member of profession
o Issue a „citation‟ (i.e. equivalent of a charge), which leads to a full-blown disciplinary hearing
o At end of hearing can have reprimands, fines, suspensions, conditions of practice, disbarment, or a combo
Penalty issued by either 1 or 3-member panels of Benchers, can be appealed to full Benchers. Can further appeal to CA or other JR
39% of complaints against lawyers are complaints from own clients; major area of complaint is procrastination (lawyer not getting to a file)
Roughly 2000 complaints per year. On avg, every lawyer can expect a complaint every 5 yrs.
- Cross can both find & obscure truth
Appointment of counsel can bring up values that militate against truth-finding
- preservation of family unit
- role of Crown in prosecution (disclosure allows accused to invent fake explanations)
- If state or other power could seek truth in untrammelled manner, we wouldn‟t have lawyers
- Can‟t just be just, have to appear to be just < another veil over truth-finding
Struggle w/pluralism – same values not weighed in same way
2. AUTHORITY TO ACT
As agents, lawyers must act on instructions of principal & give advice. Lawyers not autonomous, act on direction for sole benefit principal.
S/t given “general authority”: General instructions to settle dispute w/o express authority from client - “just get me best deal you can”.
o This general authority should BE reduced to writing. If not written down, client will most likely be believed by ct aw b/c of
presumption that if point of communication btwn lawyer & client is impt, lawyer will write it down. Rebuttable presumption, not
absolute. Good to have in writing b/c avoids „misunderstandings‟ - where client says “I didn‟t say that”.
Retainer: allows you to confirm in writing underlying facts provided by client & agrmt btwn you & client about scope & nature of relship.
That is, what client can reas expect you to do. You may want to put in retainer letter what it doesn‟t include - ie. Giving business advice.
o Retainer can incl fees. Can go back to retainer & make changes by follow-up letter as case may be. Keep a paper trail.
If lawyer enters settlement agrmt w/o clt‟s express authority, agrmt may still be binding on clt under agency law (implied authority)
o But, lawyers may be subject to malpractice liability claims by clients.
Yonge v. Toynbee (Eng 1910)
Once client‟s of unsound mind, solicitor can‟t act b/c client unable to properly instruct.
- Once client became of unsound mind, solicitors were personally responsible for costs thrown away by other side.
- All that is b/c there is implied warrant of existence of authority while acting
Lower level req. in crim, but must at least understand charge & defense. Otherwise not fit to stand trial. – If they‟re wasted, tell them to
come back when they sober up. > In trial, “I am unable to properly obtain instructions from my client at this moment”
Soundness hearing < level is lower < as long as they insist they‟re fit it‟s enough
How to avoid problem?
o Meet client. Not good idea in general to proceed by way of phone. “Sometimes people sound a lot saner than they look.” “the actual
written word is no more than 7% of communication” he says phone = 32% - non-verbal communication.
o Have ongoing communication. At every stage of proceedings, check back w/client that they haven‟t changed mind re whether to
proceed; reaffirm authority/capacity to provide authority < this also lets client know you care.
Prof Resp Ziskrout 2004
o Every time you file something, good practice to send draft to client so they can correct any mistakes/misunderstandings; also keeps
client informed re what‟s going on w/suit.
Implied warrant of existence of authority < reflected in PCH Ch. 4-1.1
Lawyer who has interest in matter, or represents client who has interest in matter, must not communicate w/any person re matter if,
to lawyer‟s knowledge, person is represented by another lawyer, except through or w/consent of person‟s lawyer.
- Reason for implied warrant: Fear of intimidation
Death of Client = Termination of authority
- Personal representative may step in via estate < but then you‟re representing estate, not client
Dumart Packing Co. Ltd. v. Dumart (Appeal Cda 1928)
Upon death of client, lawyer no longer has authority & therefore can no longer act; may have to pay costs if he does.
MacKenzie v. Carroll (Ont 1975)
lawyer purported to accept settlement offer on learning of client‟s death. As soon as counsel found out, he repudiated liability.
- Held, agreement not enforceable. Authority of solicitor revoked by client‟s death.
Z: most lawyers would be concerned about breaching their duty of confidentiality if they expose death.
But ct only said have to disclose before purporting to accept offer.
PRIVILEGE & CONFIDENTIALITY
Your job as lawyer is to assist clients to solve problems, & in that context, talk for clients. Not part of your job to talk about clients. One
of your most fundamental obligations is to refrain from talking about clients except when talking for them in order to solve their problems.
- Duty set out in ch. 5 of PCH not to reveal info gained in representing client.
All kinds of exceptions to S-C privilege. Unlikely to help determine whether or not info confidential, b/c much of what you learn as a
solicitor is a client secret even though not privileged pursuant to doctrine.
- When seeking to determine whether something is confidential, move directly to ch 5 of PCH.
Solicitor client privilege: Started as obligation of “gentleman barrister” – shifted to become a client right carrying a concomitant duty. <
Hohfeldian duty (“for your life as a lawyer you should know that scheme”)
- Theory: by shielding communications from state‟s or other side‟s power to demand ev, clients encouraged to be open & frank w/lawyers.
- This sort of client-lawyer relship is encouraged b/c lawyers can‟t give good advice or rep‟n w/o knowing all facts.
Smith v. Jones
Guy charged w/v. serious sex assault. Lawyer retained shrink to get opinion re how dangerous he might be if released. Shrink said v.
dangerous. Gave report to lawyer. Lawyer didn‟t reveal report to ct, shrink upset. Got own lawyer to bring action for legal declaration wrt
his right to reveal report. Ct reaffirmed public safety exception to S-C priv, along way talking about importance of latter.
o p. 70 para 46 – “privilege is that of client, not lawyer”
o para 49 < enumeration of substantive rule:
1. Confidentiality of communications btwn solicitor/client may be raised in any circs where such communications likely to be
disclosed w/o client‟s consent.
2. Unless law provides otherwise, when & to extent legit exercise of right would interfere w/another person‟s right to have
communications w/lawyer kept confidential, resulting conflict should be resolved in favour of protecting confidentiality.
3. When law gives s/o authority to do sth which, in circs of case, might interfere w/that confidentiality, decision to do so &
choice of means of exercising authority should be det‟d w/view to not interfering w/it except to extent absolutely nec. in
order to achieve ends sought by enabling legislation.
4. Acts providing otherwise in sitches under para 2 & enabling legis referred to in para 3 must be interp‟d restrictively.
Public safety exception:
1. clear risk to identifiable person or group
2. risk of substantial bodily/psychological harm or death
3. imminent danger
Full answer & defence
- trumps priv < when “no longer has any interests to protect” & info could help another accused
- on facts of case person whose privilege going to be interfered w/already had been acquitted – Z says don‟t construe these words
to go beyond accused already having been acquitted
o Where challenged, onus is on those seeking to set aside privilege.
o Privilege does not apply to every communication btwn solicitor & client.
o Priv only applies when there has been confidential communication in lawyer-client capacity for purpose of obtaining legal advice.
- para 55 – criminal communications < not honestly made for sincere legal advice purposes – ie false legal aid application
- if in process of committing crime, dupes lawyer
para 96-7 < not always same amt of time shrink had (guy in jail) – suppose danger of sth that may happen tomorrow? Not appropriate to
consider precise steps expert might take to prevent harm to public – might be appropriate to notify potential victim, cops, Crown prosecutor
Prof Resp Ziskrout 2004
If client says “I‟m going to kill that guy” < decide whether serious, are you qualified to decide that, you should get expert advice wrt
whether three factors in Smith & Jones are present or how to ascertain whether they‟re present, sort of questions you should ask
R. v. Brown (SCC 2002)
> not in casebook
F: X accused of murder, but another person, Brown, allegedly told his gf he had killed deceased & confessed to 3 crim lawyers. Cops
investigated but couldn‟t find any ev linking Brown to crime. TJ ordered application to obtain what would otherwise have been priv‟d info.
H: SCC overturned application, & clarified this exception to privilege.
R: Threshold Test:
1) The info sought from S-C communication can‟t be gotten from any other source
2) The accused must be otherwise unable to raise a reasonable doubt.
Once threshold test satisfied, then innocence at stake issue is to be examined. 2-stage inquiry:
1) Accused seeking production of S-C communication must show evidentiary basis exists that COULD raise reas doubt as to guilt.
2) If evidentiary basis exists, TJ examines communication to determine whether LIKELY to raise reas doubt re guilt of accused.
Z: ct careful to only allow privilege to be trumped on v. rare occasions even when something like innocence at stake involved.
Descoteaux v. Mierzwinski
The false legal aid application case.
1. Advice sought in furtherance of crime not privileged.
2. No search of lawyers‟ office unless no reasonable alternative; terms & conditions attached.
3. Terms of warrant must protect confidentiality as much as possible.
R. v. B.
p. 97 < explains docs protected & not protected from disclosure
Authority to pay < ct determined had nothing to do w/provision of legal advice, exigible
Doc that would reveal method of incorporation which could reveal advice given was privileged
Immense amt of power (determine/control destiny of client by virtue of communication) resides in lawyer, more than dr/clergy; so
profound obligation on lawyer‟s part to protect communications.
H: Authorization to law firm re funds held in trust not priv b/c not directly related to obtaining legal advice; just doced a fact.
-Name of client not protected b/c not normally communicated in confidence so has been held not priv except in special circs.
R: S-C privilege only applies if 4 conditions met:
1. There must be a communication, whether oral or written;
2. It must be of a confidential character;
3. It must be btwn a client (or agent) & legal advisor; and
4. It must be in furtherance of provision of legal advice.
Ex: clt says “ I feel badly... years ago… illegally got welfare…want to pay back $$ but don‟t want to be convicted of criminal offence”.
Q: What to do?? Open file, take cheque, deposit trust acct. When money in trust, write letter to ministry: “ I act for client who wishes to
repay monies received from you” (no admission, doesn‟t reveal sex, ID) If client ever charged, file on record.
Priv lasts forever < beyond death
Client dies < authority to act dies but obligations to client don‟t
Clients wouldn‟t be open & frank if they thought secrets could be revealed after death
- Z says rests on assumptions about human behaviour that haven‟t been backed up by empirical evidence
- Would absence of such a privilege prevent people from seeking lawyers?
- Doctors & shrinks also have confidentiality duty but not protected by privilege. Why? Lawyers barrier btwn state power & individual
Lavallee (SCC 2002)
F: search of lawyers offices, codified s. 488.1 CC.; challenged under Chtr on basis legislation violated s. 8 right to fundamental justice
H: When warrant executed, responsibility of lawyer to claim priv. Once docs seized/ under seal, lawyer must reveal name to protect priv.
Ct articulates at para 49: general principles that govern law offices as a matter of CL (10 of them):
1. Search warrant should not issue for docs known to be protected by S-C priv.
2. Should not issue if reasonable alternatives exist.
3. Issuing justice must be rigorously demanding w/respect to S-C priv.
4. All docs in lawyer‟s possession must be sealed before being examined or seized.
5. Every effort made contact lawyer/client when warrant executed; where can‟t be contacted, rep of Bar should oversee sealing/seizure.
6. Investigating officer executing warrant should report efforts made to contact all potential priv. holders to JP. Priv. holders should then
be given reas opp‟ty to assert claim of priv & if claim contested, to have issue judicially decided.
7. If notification of potential priv. holders not possible, lawyer who had custody of docs seized, or another lawyer appointed either by Law
Society or by ct, should examine docs to det. whether claim of priv. should be asserted, & should be given reas opp‟ty to do so.
8. AG may make submissions on issue of priv., but should be permitted to inspect docs beforehand.
9. Sealed docs that aren‟t priv. can be used in normal course of investigation.
10. Docs found privileged should be returned to priv. holder or person designated by ct.
Prof Resp Ziskrout 2004
Search warrant wrt lawyer‟s office < Money laundering case < authorities not necessarily sure lawyer would comply w/search warrant
- But couldn‟t allow cops to search ALL docs – resp of lawyer to get all docs sealed & then J decides what‟s relevant < move to registry
Solution here is get lawyer cops don‟t distrust to take over > Consent order – approval of lawyer being searched & authorities doing search
Search of lawyer‟s office < Mostly not too troubling b/c lawyer can‟t simply hand over docs w/o demand/client waiver so there has to be
formal demand, usu by way of warrant. In circs where lawyer not target of investigation & not suspected close to client, authorities content
for lawyer to provide doc exigible under warrant & if client hasn‟t waived priv, to provide those docs under seal & place in custody of
indep 3rd party, usu ct registry. As part of lawyer‟s responsibility to ensure confidentiality & privilege, not enough to seal & give to cops &
say deliver to registry, have to send a lawyer or articled student w/it & make sure it gets out of grasp of cops.
Steps for lawyer to take during search of a law office:
1. Assert client privilege on all docs [Chapter 5, Provision 14].
2. Ensure that all docs are sealed.
3. Keep copies for yourself & client if possible (or have a very good inventory of what has been sealed).
4. Accompany police officers to ct registry & keep eye on doc until stored in registry or until client can bring claim for privilege.
5. As soon as search warrant is executed, under duty of loyalty must immediately write client of occurrence of search & explain that
docs have been sealed in registry & that client has x number of days to bring claim for privilege.
6. Make sure that client actually receives notification.
7. If unable to contact client, inform ct that it was impossible to disclose to client that search had taken place.
8. Seek extension of time for making claim until Crown can establish client actually has notice of execution of warrant.
9. After docs sent to ct registry, ct will decide whether privileged info in docs will be released.
Law Society, in Legal Profession Act, realized there must be limitations to searches of law offices.
Law Society must receive notice before warrant served, & prior to search lawyer must be informed of right to speak w/Law Society.
If it is suspected lawyer not providing all requisite info or that lawyer is guilty party, Law Society will appoint “custodian” to manage ppty
of lawyer - Custodian will have same responsibilities to assert privilege that original lawyer had.
Festing v. Canada AG
> not in casebook
H: Codification of searches of law offices s. 488.1 CCC held unconstitutional as violation of Chtr rights. NB: Case on appeal to SCC.
Name of client is confidential but not privileged – but sometimes it is privileged too
Thorson v. Jones (1973)
< not in casebook but “you should know it”
S/o involved in hit&run, talked to lawyer < altho normally client name not privileged, it was here b/c once you had name you had
revelation of communication of relevant fact
Maranda v. Richer (SCC 2003)
Ct decides amt of billings is confidential & privileged < reflects degree of work & concern applied to matter
Priv can only be waived by client except for sitches as set out in Fawcett & Steiner, Russell & DuMoulin, Hicks & Hicks, where there are
issues of true intention of testator or appointment of receiver manager
Fawcett v. Steiner (BC 1998)
Exception to S-C priv only made out wrt Geffen v. Goodman, “true intentions of Sor/Tor”
- estate/corporate client in receivership can sometimes waive privilege
Re Russell & DuMoulin (BCSC 1986)
Receiver-mgr can waive company‟s S-C priv
Hicks v. Hicks (Ont 1986)
Priv waivable to disclose testator‟s true intentions
- estate/corporate client in receivership can sometimes waive privilege
Edgecombe v. Thurber (BCCA 2000)
Edgecombe v. Lea preceded, same lawyer acted for Lea & Thurber - Wanted to use same info from E for both cases
- When lawyer receives info pursuant to ct rules as part of proceeding, can use docs & info only for purpose of that particular litigation
Policy reason < for litigation process to work effectively, there must be disclosure “otherwise litigation by ambush” < people need to get
relevant info out of other side. Rules of combat: each side has to produce docs. Since people must produce as litigants for fair procedure,
otherwise entitled to privacy; makes sense there be limit to use to which docs can be put, ought not to be put to use outside lawsuit.
- Lawyer should have just asked to use docs < if he had, prob OK b/c prob relevant < case raises Q, how do you deal w/duty of
confidentiality & loyalty to client? Supposed to tell client everything. If you have info you got while acting for Client A, can you even act
for Client B in light of fact you can‟t tell Client B how you got info?
Other exceptions to privilege:
Prof Resp Ziskrout 2004
- Can disclose to partners, associates & staff, if useful/necessary, w/o checking w/client. Good idea to check as part of initial convo
w/client “unless you tell me otherwise”
- Can reveal what‟s privileged insofar as necessary to do so to collect fee legally (ie not extortion attempt) or if in dispute w/client, once
client has released version of communication
Confidentiality < privilege & professional duty < provision 1 of PCH Ch. 5
- Duty not to use info acquired during course of S-C relship for gossip, for gain, or in any way against interest of client or former client
- Broader than privilege < includes everything you learn during relship, no matter how
- Public info still confidential – “I was subject of Royal Commission into fraud 30 yrs ago” < clt may wish to remain as secret as it can
No telling stories to anyone even if take out name < don‟t know what person knows - might plug in name, or repeat story to s/o who can
Lawyer-client relship doesn‟t start w/retainer or agreement to act > obligations wrt privilege/confidentiality commence moment any info is
provided to you for purpose of obtaining legal advice
Minors entitled to confidentiality as well, even wrt parents
- If parent brings kid in, you get them to leave room
Take all reasonable steps to ensure privacy & safety of confidential info
- if cluttered, all interviews w/client should be in boardroom < may see something
- Lawyer shall not disclose fact of having been consulted or retained unless necessary
- keep secrets even after termination even if disagreements have arisen
- can‟t use secrets for gain (memoirs)
- can‟t disclose info re one client to another – if necessary to act for one person, can‟t act
15 – Inadvertent access: return unread/uncopied, or if read part/all, stop & return, advising aware of contents & what use intend to make
- clients may bring in info you can‟t ethically use
Ch. 5-16 < really bothers Z – against lawyer being last protector of client against state
16. A lawyer may disclose a client‟s confidential info for purpose of securing appointment of a guardian or in conjunction w/other protective
action taken on behalf of client, provided:
(a) lawyer reasonably believes client cannot adequately instruct counsel regarding issue of disclosure,
(b) lawyer reasonably believes disclosure necessary to protect client‟s interests,
(c) disclosure not contrary to any instructions re disclosure given lawyer by client when client capable of giving such instructions, &
(d) lawyer discloses minimum amount of info required.
- Doesn‟t see need for this, wouldn‟t family & other professionals have noticed sth? Will scare clients > lawyer stands btwn govt & indivs,
how can it be right for us to use our judgment to turn client in to authorities? Throws out regard for indiv & providing best possible advice
to entire group of clients & in particular, most disadvantaged clients.
- this was put in place wrt general incapacity
PCH ch 5 provision 11(b)
11. A lawyer may:
(a) w/express or implied authority of client, disclose confidential info, &
(b) unless client directs otherwise, disclose client‟s affairs to partners, associates & articled students and, to extent necessary, to
legal assistants, non-legal staff such as secretaries & filing clerks, & to others whose services are utilized by lawyer.
Info may be disclosed to partners, associates & office staff where necessary/useful to do so in promoting clients‟ interest
- Law says this is implied. Z says make it express: ask “is it OK if I discuss your case w/anyone in office?” If they say ok, write it down!
5-12 < disclosure to prevent a crime – reas grounds to believe nec prevent crime wrt death/GBH any person < incl mental (Smith v Jones)
- permissive rather than mandatory < Law Society wanted to make it mandatory < “why when private citizens don‟t have to?”
- why limitation on it? Should include swindles, fraud < Z thinks standard should be higher than reasonable belief
- how far ought Law Society‟s jurisdiction to go?
If client tells you re upcoming crime, comment gratuitous & had nothing to do w/getting legit legal advice < or some sort of ruse to get you
to assist client in promotion of criminal aim or intent > Such communications ought not properly to be protected by Law Society rule
- before handbook came out it was “any serious crime” < why does it even have to be serious?
- different view of duty of loyalty < why are we loyal to people who‟ve behaved in that way?
5-liner in Smith v. Jones talk about Terasoff case < civil liability if you know sth bad‟s going to happen & you don‟t do anything about it
Client says planning suicide = usually cry for help > many people can‟t bring themselves to seek help
- see if serious < phone & find out who to call anonymously < advice < ask more Q‟s or inform person about more appropriate professional
Will < person has to have capacity < always have notes wrt capacity < tell them have to be sure they‟re on top in case of questioning will
Prof Resp Ziskrout 2004
Info that is necessary to collect fees may be disclosed if client refuses to pay, implicit . 69(5) of Legal Profession Act. “ lawyer must not
sue…until 90 days ….” You are allowed to disclose so much privileged info as necessary to collect fee. See McDougall v. Campbell 1877
-if dispute w/client (trying to defend rep), once client has released version of communication, ok; or in circs such as crim case, accused
appeals that lawyer didn‟t follow instructions or otherwise behaved illegally/unethically or failed to provide effective assistance as counsel.
Although lawyer not directly attacked as party, Crown may wish to hear what lawyer has to say & call lawyer to rebut allegations.
Z: Should always check w/Law Society before proceeding
R. v. Li (BCCA 1993)
Accused alleged impropriety of lawyer; Crown took allegations & delivered them to lawyer; said can you provide us w/affidavit giving
your side of story. Lawyer fired off affidavit that was filed in ct by Crown. CJ said what should have happened was former lawyer should
only provide sealed affidavit, & seal should not be broken unless & until ct ruled whether priv had been waived (not for Crown or lawyer
to come to that determination; decn to be made by ct re admissibility of that evidence).
If you are former lawyer & served w/subpoena, should inform former client‟s new counsel you are going to attend ct w/file
- at ct, claim privilege
- only testify as W if ordered to do so by ct wrt admissibility. Should not be arguing on behalf of former client.
- consider whether or not to show up w/ your own lawyer
*before showing up, don‟t provide any info until ct order issued requiring it, & allegations should only be answered by sealed affidavit.
Martin v. Gray < in reasons by SC: we as society perhaps unduly concerned w/extent of S-C privilege (harbinger) (1991)
- inroads < elderly, infirm, proceeds of crime
- Imp‟t that lawyers understand importance of it at profound level
CHAPTER 5, PCH: „Duty of Confidentiality‟
5-1: Confidentiality is much broader than privilege. Includes everything you learn, no matter how acquired in course of professional
relship regardless if others may share knowledge t/f, includes info in public domain
5-2: i.e. don‟t leave docs lying around office, don‟t leave door open when interviewing witnesses, etc.
5-3: This is an example of diff btwn privilege & confidential info insofar as identity of client, though not privileged, is confidential
The name of client is not privileged but is confidential & should not be disclosed unless client consents or is required [R. v. B.]
The name of client may be both confidential & privileged in certain circs [Thorson v. Jones]
5-4: Death doesn‟t terminate obligation of confidentiality since disclosure would reflect on client‟s rep & may be source of embarrassment
5-5: All that is needed is a transfer of info for advice to make a person a client
5-6: lawyer who engages in literary work such as autobiography or memoirs shall not disclose confidential info
5-7: lawyer shall not disclose to one client confidential info concerning or received from another client in a different matter, & shall
decline employment or withdraw from a retainer which might require such disclosure.
Problem: Janitor tells lawyer he is charged w/stealing valuable docs/securities & wonders what sentence likely to be if guilty since has 2
previous convictions for same offence. Your office deals w/large transactions involving millions of dollars.
- Close enough to being client (asked for advice & provided info for purpose of obtaining legitimate legal advice) that communications
covered by S-C confidentiality.
Possible courses of action:
- Discuss w/janitor & seek consent, or could explain problems regarding conflict of interest
- Advise other lawyers to lock up all valuable securities & docs
- Ask ethics committee at Law Society how to act
Problem: Janitor tells you he‟s been charged w/sexual assault & has 2 previous convictions. Janitor wants to know what outcome will be.
Courses of action:
- „Public safety‟ exception from privilege (i.e. duty to protect female employees)
- Tell other lawyers of possible dangers in non-specific terms, mentioning privilege & need to keep it confidential
- An „inconsequential breach of a rule‟ to protect interest of many
5-8: you don‟t know who people will tell; virtually impossible to tell any story w/o someone being able to figure it out.
5-9: lawyer who, while in public employment, had SUBSTANTIAL responsibility or confidential info relating to a matter shall not, after
leaving public employment, represent any other party in connection w/ that matter, w/o consent of lawyer‟s former public employer.
5-10: -if you acquire info about somebody, you can‟t argue against them.
5-11: Part of lawyer‟s obligation is to explain to staff their obligation to keep clients‟ info confidential
Below level of articling students, can only reveal things that are necessary to be told to move file along (i.e. “to extent necessary”)
Prof Resp Ziskrout 2004
Cannot talk to spouse about anything that is confidential or privileged
5-12: lawyer may disclose info received as a result of a S-C relship if lawyer has reasonable grounds to believe that disclosure is necessary
to prevent a crime involving death or serious bodily harm to any person (Smith v. Jones)
- Lawyers „may disclose‟ (i.e. not mandatory) b/c lawyer may choose not to disclose out of duty of loyalty to client
Z: Thinks shouldn‟t be so limited since should be no ethical responsibility to be loyal to protect someone where reas grounds to believe any
crime; thinks should extend to disclose commercial crimes, or any crimes, rather than only crimes involving „death or serious bodily harm‟
Problem: Client tells lawyer, “I want you to draft my will & I must have it by tomorrow b/c I will kill myself”
Must look at exact test from Smith v. Jones to determine if w/in “public safety” exception
Does this represent a „danger to public‟?
“Benchers” will have sympathy w/lawyer for revealing some info & for breaching confidentiality
Closest case is Tarisoff v. Regents of University of California (US case mentioned by SCC in Smith v. Jones)
Problems: (1) Client admits to you that he was engineer behind construction of a building, & made a mistake. Error created a high risk
that it could collapse very soon. Seeks legal advice. < Public safety exception
(2) Client admits to murder in US & there is s/o else on trial for that, about to be convicted & sent to death. < Innocence at stake exception
(3) Client says other side‟s lawyer has made his life miserable & he is going to kill him in ctroom.
- Must ask probing questions to determine seriousness of intention
- If serious, may notify chief judge that there ought to be scanning equipment in ctroom at that time
- There is no duty to disclose, issue is if one is able to disclose
“The Impact of Proceeds of Crime Legislation”, Benchers‟ Bulletin Supplement
„Proceeds of crime‟ - not just money obtained as a result of criminal activity; also includes what that money has been used to purchase
Must be very careful wrt receipt of trust money, since giving this money back to clients (i.e. transferring) is an offence
Receiving proceeds of crime as payment for legal services is criminal – can‟t even give it back to client
Z: Best advice is to not take cash from clients
Lawyers might be found to have requisite mens rea via wilful blindness if „ought to have known‟ $$ proceeds of crime [R. v. Sansegret]
Undertakings should be made conditional so if learn funds are proceeds of crime, non-performance won‟t constitute breach of undertaking
This may affect real estate practitioners, wills & estate lawyers, divorce lawyers, securities lawyer
Law Society BC v. AG Canada (BCSC 2001)
Proceeds of crime legislation req lawyers, where indicia money laundering, “rat out” clients w/o telling them.
Law Society got temporary exemption, then gov‟t backed off.
Z: no big deal b/c supposed to rat after transaction > advise client before transaction goes thru < nothing stops you telling client if see
suspicious circs, have to report
3. CONFLICT OF INTEREST
PCH Ch. 6:
„Conflicts of interest btwn clients‟
1. As a general principle, a lawyer has a duty to give undivided loyalty to every client.
2. A lawyer may act for clients adverse in interest in circs permitted in this chapter.
3. A lawyer may, w/informed client consent, represent clients in circs that might, in future, give rise to divided loyalties.
„Acting for two or more clients‟
4. A lawyer may jointly represent two or more clients if, at commencement of retainer lawyer:
(a): explains to each client principle of undivided loyalty
(b): advises each client that no info received from one of them as a part of joint rep‟n can be treated as confidential as btwn them
(c): receives from all clients fully informed consent to one of following courses of action to be followed in event lawyer receives from
one client, in lawyer‟s separate rep‟n of that client, info relevant to joint rep‟n:
the info must not be disclosed to other jointly represented clients, & lawyer must withdraw from joint rep‟n
the info must be disclosed to all other jointly represented clients, & lawyer may continue to act for client‟s jointly, and
(d): secures informed consent of each client (w/ ILA, if nec) re course of action that will be followed if conflict arises btwn them.
*******All of this info should be provided in writing
Further exception to confidentiality : when acting for 2 or more people, can‟t keep one‟s statements secret from other person‟s where a
joint rep‟n since duty of loyalty requires lawyers to tell clients everything that may assist them
6.3 lawyer must not represent a client for purpose of acting against interests of another client of lawyer unless:
both clients are informed that lawyer proposes to act for both clients & both consent, and
matters are substantially unrelated & lawyer does not possess confidential info arising from rep‟n of one client that might reasonably
affect other rep‟n.
Z: seems no reason to not ask your client if they consent or care! If you don‟t ask, client might think you are being sneaky.
6.4: For purposes of Rule 6.3, consent of a client to lawyer acting for another client adverse in interest may be inferred in absence of contrary
instructions if, in reasonable belief of lawyer, client would consent in matter in question b/c client has:
(a) previously consented to lawyer, or another lawyer, acting for another client adverse in interest,
(b) commonly permitted a lawyer to act against client while retaining same lawyer in other matters to act on client‟s behalf, or
(c) consented, generally, to lawyer acting for another client adverse in interest.
Prof Resp Ziskrout 2004
& canon 3(2), 3(7)
One of principal obligations of lawyer is to avoid conflict of interest so lawyers will be properly able to exercise independent professional
judgment in assisting clients > w/o this, some ulterior motive intervenes/potentially intervenes in relship which precludes full benefit of
independent judgment & therefore full loyalty of solicitor to client not obtained
- Conflicts generally involve duties of loyalty & confidentiality concerns
- Conflicts are problems in more than one area > solicitor‟s liability, insurance if you get sued, wreck reputation, law society discipline
1. Types of conflict
2. Sources of law that define solicitor‟s obligation to avoid conflict
3. Most common areas where conflicts issues arise
4. How to avoid these issues
Sources of Law re Conflicts: Ct decisions arising out of inherent jurisdiction of ct to supervise lawyers as officers of ct
Fused bar < everyone both barrister & solicitor < as barrister, not officer of ct > Barristers have right of audience, can‟t be kept out of ct <>
Solicitors wrt conflict of interest trial < ct jurisd to control behaviour of solicitors as officers of ct > s/t ct makes directions as part of this
- McDonald estate v. Martin Case is good example of that
Other sources – PCH ch.6; canons 3(2) & (7); Opinions from benchers in Bencher‟s Bulletin & pronouncements of Ethics Ctee
There is dual & overlapping jurisd < where cts in prov may be deciding whether lawyer permitted to continue acting (whether there is
disqualifying conflict of interest) or whether lawyer in civil liability context responsible for damage to client/former client; as well
benchers have power & responsibility pursuant to regulatory & gov‟t functions to go past cts & enforce
Types of Conflicts
A. Lawyer asked to represent both sides of a transaction
B. Lawyer acts for multiple clients who may not be on opposite sides
C. Party on opposite side is a former client
D. Conflict btwn lawyer‟s personal interests & those of client
A. Representing Both Sides of a Transaction
Significant risks < 2 parties almost by def‟n have diff interests – will wish info to be concealed from other – & there may be interests one
party wishes to preserve/protect as against others
Real estate conveyance – purchase & seller < PCH 6-10; Appendix 3 – conveyances desc. “simple” where can act for both sides – limited
- Doctrine of imputed knowledge
B. Acting for Multiple Clients who may not be on opposite sides
i.e. number of parties entering a partnership, number of defendants in a criminal action, co-plaintiffs in a civil action, etc.)
PCH Ch. 6-4
4. A lawyer may jointly represent two or more clients if, at commencement of retainer, lawyer:
(a) explains to each client principle of undivided loyalty,
(b) advises each clt that no info rec‟d from one of them as part of joint rep‟n can be treated as confidential as btwn them,
(c) receives from all clients fully informed consent to one of following courses of action to be followed in event lawyer receives from
one client, in lawyer‟s separate rep‟n of that client, info relevant to joint rep‟n:
(i) info must not be disclosed to other jointly represented clients, & lawyer must withdraw from joint rep‟n;
(ii) info must be disclosed to all other jointly represented clients, & lawyer may continue to act for clients jointly, &
(d) secures informed consent each clt (w/ILA, if nec) re course action that will be followed if conflict arises btwn them.
If going to act for more than 1 client, good idea to give all of your info in writing, copy to everybody – impt to note words in
Davey v. Wooley
When acting for multiple clients, onus on lawyer to establish client has had best professional assistance he could possibly have afforded.
- wrt allegation of conflict of interest by client against lawyer, onus is reversed w/very high std
Real danger even if things look OK now, interests of multiple clients may diverge at any time. Then you may not be able to act for either
b/c duties of loyalty & confidentiality preclude you each from other
- This might not be problematic if parties have consented Ch. 6-6.3
- When acting multiple clients, any new info from them/other side wrt brief comes to light, or any change in law, quickly re-analyze sitch
- Q to ask: Is there anything I‟m not doing/saying wrt 1+ of these people that I would be doing/saying if I only acted for 1 of them?
When multiple clts unhappy w/each other < may be asked to mediate – am I being called on to settle dispute btwn my clients? conflict
- this esp. likely to happen in smaller communities
- can‟t possibly be loyal to each party to dispute
- get away w/it a lot – clients accept judgment
- if don‟t accept, go to see other lawyer < potentially big problem w/law society & ct
- “amicable separation” < probably favours one side – not appropriate to give advice to both
Prof Resp Ziskrout 2004
- “we just need a witness” < can get anyone else in world
Will almost always require ILA Ch. 6-4(d)
Has there been a change in law that creates a conflict?
When new info comes to light, has a conflict arisen?
Is lawyer being called upon to settle a dispute or negotiate btwn clients?
Re disputes among s/hs, a solicitor cannot act for company & majority s/hs since interests are not same
C. Acting against a Former Client
6-7. Subject to Rule 7.4, lawyer must not represent client for purpose of acting against interests of former client of lawyer unless:
former client is informed that lawyer proposes to act for clt adverse in interest to former clt & former clt consents to new rep‟n, or
new rep‟n is substantially unrelated to lawyer's rep‟n of former client, & lawyer does not possess confidential info arising from rep‟n
of former client that might reasonably affect new rep‟n.
MacDonald Estate v. Martin
Former junior solicitor for appellant moved to firm acting for respondent. Lawyer said had not discussed case w/new firm but this moot.
H: SCC attempts to balance 3 competing values in determining if lawyers are able to act:
1. To maintain high standards of legal profession & integrity of justice system (i.e. appearance).
2. The right to counsel of one‟s choice.
3. Maintaining mobility w/in legal profession.
R: use of confidential info is matter usually not susceptible to proof; test must be public represented by reas informed person would be
satisfied no use of confidential info would occur. Test for whether there is disqualifying conflict of interest in acting against former client:
1. Did lawyer receive confidential info attributable to a solicitor & client relship relevant to matter at hand?
Once shown by client that there existed a previous relship that is sufficiently related to retainer, ct should infer that confidential
info was imparted unless sol satisfies ct that no info was imparted which was relevant (reverse onus).
2. Is there a risk it will be used to prejudice client?
A lawyer who has relevant confidential info is automatically disqualified from acting against a client or former client.
p. 174 - Ct should draw inference lawyers who work together share confidences, unless satisfied on basis of clear/convincing ev all reas
measures taken to ensure no disclosure by “tainted” lawyer to members of firm engaged against former client (ie : use of screening devices)
Big case in area - very broad impact < made it clear ct is concerned to eliminate appearance of impropriety
“mildly tainted migratory lawyer” acting for appellant, moved to law firm acting for respondent < says has not discussed case w/new firm.
Ct at p. 164 discusses 3 competing values:
1. maintaining high stds of legal profession & integrity of justice system
2. right of litigants to counsel of choice unless good cause to displace that right
3. permitting mobility w/in profession
bottom of 164 struggle to retain respect of public
p. 165 - importance of confidentiality
p. 173 - appropriate test
SCC clearly illustrates concerns of eliminating appearance of potential impropriety
Z: When deciding whether to take case, ask whether screening necessary would be detailed, ornate, interfere w/collegiality at too high cost
R. v. Parsons
F: Lawyer had acted for father of accused in dispute concerning maintenance. Accused‟s mother murdered. Accused blamed dad.
Lawyer made sure dad signed irrevocable waiver waiving privilege & consented to his former lawyer representing accused. Most imp‟tly,
got waiver after having client obtain ILA. Accused signed consent & declaration that he retained counsel in full knowledge of counsel‟s
former rep‟n of his father. counsel testified had received no confidential info from accused‟s father.
H: J did not err in refusing to remove counsel. Allegation of potential conflict balanced against accused‟s right to counsel. Right to
choice enormous wrt charge of murder. Facts did not establish counsel had gained confidential info. Reas informed person would be
satisfied no use of confidential info would occur. Lawyer acted properly by obtaining consent & recommending ILA. If no ILA sought,
lawyer in conflict of interest re waiver b/c lawyer‟s interest in keeping case & father‟s interest would be different.
- Dad & accused waived ILA concern – Not enough – each interested in seeing other convicted
- Do you want to run risk that at end of case someone will say “I only consented b/c lawyer said good idea”?
- “That‟s why there really has to be a certificate of ILA”
D. Conflict Btwn Lawyer‟s Personal Interests & Best Interests of Client:
(e.g. financial interest, or relship w/3rd party such as a co-investor; personal relship w/member of client‟s family, etc).
Ramsbottom v. Morning (Ont. 1991)
H: b/c of considerable delay in motion, s would be entitled to some consideration & it would be unfair at this late date to require to
give up solicitors of its choice when conflict has been apparent for all to see for over 2 yrs. (i.e. similar to acquiescence)
Application remove s/o from case, inherent juris of ct – no explanation lengthy delay (2 yrs) – too long interfere w/counsel of choice
- May simply be tactical move – if cts allow wait forever say “conflict of interest”, may take too long for other side retain new counsel
Prof Resp Ziskrout 2004
- This addressed in “Blair Downs”
Blair Downs (1999)
F: People brought up claims in petition in bankruptcy against BD w/o notice (ex parte). Lawyer acting for petitioning co (Sanderli) got
order from ct & appointed Arthur Anderson as receivers. One of BD‟s lawyers bring application to disqualify AA‟s law firm from acting
b/c AA lawyer has personal interest in outcome of case since husb works for petitioner. At least appearance of conflict since duty to
provide balanced, objective ILA to AA re carrying out duties including to BD.
H: Ct found no conflict since lawyers presumed to refrain from revealing confidences. This confidentiality extends to one‟s spouse.
Z: Real issue: Spouse had real direct or indirect interest in outcome, precludes person from pursuing necessary professional judgement
Mottershead v. Burdwood Bay Settlement Co. (BCSC 1999)
F: consulted lawyer from firm that now reps ; she provided lawyer w/confidential info. Contends info could now be used against her in
these proceedings. Lawyer quit firm & now testifies he never disclosed any info w/any member of former firm & no file ever opened.
H: Test is whether public, rep‟d by reas informed person, would be satisfied no use of confidential info will occur. 2 Qs from Macdonald:
- Mere consultation w/o opening of a file contains no risk & it would not be fair to remove conflicted lawyer.
R: Potential unfairness to a party by interfering w/their counsel of choice can defeat an application re conflict.
– Raises interesting tactic < knockout interview – s/o comes to talk about sth for reason they want to make sure you can‟t act against them
- doesn‟t accord w/rationale for confidentiality – not coming to seek bona fide legal advice
- Lawyer providing such advice risks disciplinary hearing - conduct unbecoming, suggested client by deceit knock another lawyer out
Mara v. Blake (BCCA 1996)
F: in 4 car crashes. s insured by ICBC who retained same counsel. In 3 cases, liability admitted, but in 4th denied. All 4 actions tried
together, but judge advised counsel given fact liability was denied in one action & contributory negligence being advanced in others,
counsel in conflict; counsel refused so judge adjourned. 4 s want order set aside on basis there was no conflict.
H: Appeal allowed
R: While ct can override counsel of choice if admin of justice threatened, jurisd should, except most unusual circs, be left to Law Society.
-Cts do not delegate resp to protect admin of justice, but v. slow to invoke powers in absence of concern by Law Society & litigants
Only if there is a clear error, will cts trump Law Society‟s decision
- All s & were consenting – TJ didn‟t care
1. ct shouldn‟t intervene & deny right to counsel if everyone wants to go ahead, no complaint from any client, Law Society not interested
2. these sorts of concerns should be left to Law Society except in unusual circs - ct doesn‟t say why
Role of ct to decide disputes btwn litigants < generally good not to mix in to deal w/conduct issues wrt lawyers that appear in front of it
- Ct says there are unusual circs where it can‟t be helped < this not one of them
Williamson v. Roberts & Griffin (BCCA 1997)
F: Williamson, himself a lawyer, witness on XFD by member of firm Roberts & Griffin. During interview, firm concluded based on what
he was saying, should be joined into action. Claims he said those things in prep for discovery, thus firm had duty of confidentiality to him.
R: Duty to “Near Client”: BCCA applies new doctrine. Unless lawyers make it clear to “near clients” at beginning of an interview that if
a conflict btwn them & a real client develops, lawyer will then be acting against them, they will be in breach of their duty.
Z: At outset, make clear „near clients‟ are not clients & that are not providing advice on this matter independent to advice to firm. Also,
„near client‟ must understand any info provided, duty-bound to provide to firm.
-Tell „near client‟ “I have neither a duty of confidentiality nor loyalty to you,” & confirm it in writing
Phoenix v. Metcalfe (BCCA 1974)
H: Nothing wrong in solicitor giving ev on behalf of clt even though solicitor is partner of client‟s counsel. Nor impropriety in counsel
continuing to act after partner has testified for that reason alone. TJ wrong in directing appellant should retain diff counsel for trial
- CA decided right to counsel precluded them from denying s/o ability to be rep‟d in ct by lawyer whose partner was W (tho didn‟t like it).
Davey v. Wooley (CA 1982)
H: Diff partners in same firm rep both vendor & purchaser in sale of biz, one partner had financial interest in deal. On closing transaction,
vendor signed acknowledgment he knew acting on both sides & personal interest in transaction. S admitted only informed vendor of
conflict weeks prior to closing. Vendor alleged suffered loss b/c inadequate security. Action for breach of fid duty dismissed by TJ.
H: Could not view S as separate entity from law firm, duty to assess situation when first approached. S should have directed vendor to go
elsewhere. Onus on S to show vendor had best professional assistance; could not do this.
Chief Industries Inc. v. Equisource (Ont 1992)
disclosed financial info to sol during retainer in bankruptcy matter. Held, it is reas to infer that same sol, now acting for against former
client, would make use of financial info disclosed to him.
Prof Resp Ziskrout 2004
Appropriate test to be applied in cases involving alleged disqualifying conflict of interest is whether public, as represented by reas informed
person, would be satisfied that no use of confidential info would occur.
R. v. Leask
F: Murder charge. T material witness, previously charged w/3 counts drug trafficking where M acted for him. M part of B‟s law firm. M
says cannot represent T b/c B reps accused. T concerned re cross by s/o in B‟s firm, b/c gave info to M. Crown applies B removal.
H: B removed. Ct inferred that lawyer (M) obtained confidential info of previous client (T) re background & character. For later possible
impeachment in trial, credibility would be issue & info re T‟s background & character might become relevant.
R: Despite M‟s undertaking not to use info, lawyer cannot compartmentalize source of info. Also, there is appearance problem, as lawyer
might avoid use of info that may have been acquired legitimately b/c it may be perceived to have come from conflict.
R. v. Lindskog (Sask 1997)
F: Crown had previously defended accused re theft & prosecuted her twice thereafter w/o objection.
H: Primary concern of ct is due process, trial fairness, & protection of accused‟s Chtr rights, so Crown can‟t prosecute her in future.
NB: Concerns of mobility & choice of counsel different re Crown. Therefore, if there is conflict, Crown should appoint new prosecutor.
Z: A matter of bad judgement to prosecute an accused after defending them.
R. v. Neil (SCC 2002)
Complaints paralegal provided legal advice contrary Legal Professions Act (Alta). Police investigation led to 92-ct indictment. One
charge: accused fabricated ct docs re divorce action. Other charges re alleged scheme to defraud C Trust. Convicted re divorce; mistrial
declared re C Trust. Accused sought stay on basis lawyers in conflict of interest. Alleged lawyers used forged docs to obtain divorce for
client. Alleged, w/o his knowledge, lawyers already acting for business associate wrt C Trust, whom knew/ought to have known would be
charged in same proceedings. Sought stay on basis denied right to effective rep‟n under Chtr; granted at trial, CA vacated. Appealed SCC.
H: Dismissed. Law firm put selves in position where duties to other clients conflicted w/duty of loyalty to accused. As fiduciary, couldn‟t
serve 2 masters. But accused fell short wrt remedy. Law firm's conduct didn‟t affect fairness of divorce action & no issue of confidential
info. In C Trust action, law firm in conflict of interest. In end, however, law firm did not act for accused. Conflict did not result in charges
being so vitiated as to render abuse of process for state to seek conviction at new trial.
Nothing about „appearance‟ of conflict explicit in PCH, but SCC does recognize it as factor in Martin v. MacDonald Estate
Therefore, appearance likely imp‟t factor, although might be defence in disciplinary hearing followed explicit language in PCH
Problem #1: 2 people go to a mediator & come to an agreement by way of mediation, mediator asks for it to be witnessed, they come to
you. If it‟s just a witnessing, anyone could have done it. But moment you put your signature on doc, it means more than just being a
witness. NEVER EVER be just a witness. You can offer to give advice & only after giving advice choose to be a witness.
Even if common goal btwn clients, separate interests may need protection (ie. 2+ people wanting to incorporate). May be about how shares
distributed in terms of number, class, preferred vs. voting, who‟s contributing how much $$, expertise, whether there‟s majority & minority
interest, whether there is s/h block, etc. Also have to ask whether it is anticipated whether extra contributions may be necessary in future &
how realistic it is for each & every one of them to come up w/ contribution, & what penalty will be if any in case of default.
Problem #2: 2 people come in, want mutual wills (everything to each other). Don‟t live together; difficulty in acting for both?
YES: going to leave everything to each other but no committed relship. Ask what you would be saying to one of them if they‟d come in
alone? Are they really sincere, no kids together, other person says don‟t have kids, but what if they do & that kid could come after estate.
Z: Don‟t act for them b/c there are these questions.
Ribeiro v. Vancouver (BCCA 2002)
F: suing city & cops. Application by city to have ‟s counsel removed b/c same law firm acting for also acted in defence of a few cops,
firm unaware that they were acting both for & against city. Firm provided affidavit from one of its counsel saying there had been no
exchange of info. BCSC looked at 6. 3 of Chapter 6 & said Law Society rule applied; denied continued rep‟n by that law firm.
H: BCCA decided not bound by 6.3 & whether or not client was consenting not determined; looked at relship btwn cases.
Z: Case leaves open result ct could say it‟s not abuse of ct‟s process or abuse for lawyer to act against former client….while at same time
lawyer appears to be in clear breach of Law Society‟s professional standard. Law Society says you can‟t, ct says you can: absurd!!!
R. v. Edkins (NTSC 2002)
Granted application by Crown to remove counsel –had previously represented compl, would know things he could use against her
Chapter 10, sub-rule 9: A lawyer can‟t be lawyer & witness & it extends to one‟s partner as well.
4. TRANSACTIONS WITH CLIENTS
PCH Chapter 7
A lawyer must not provide any legal services where they have any financial interest.
Bell v. Cochrane (BC 1897)
Prof Resp Ziskrout 2004
F: in serious debt, applied to for loan to enable him to settle w/creditors. now claims agrmt entered not one in proper discharge of
duty towards should have advised to execute in light of S-C relship.
H: No pretence for suggestion that at time trans entered into, relied in any way on as solicitor.
R: Transaction btwn sol & client may be legally enforceable if “no deception was practiced or advantage taken”.
Re A Solicitor (BCCA 1995)
F: Lawyer advised 1st client to put $20,000 into 2nd client‟s mortgage. 2nd client paid lawyer‟s fees w/this $$
R: If lawyer has interest in a transaction, lawyer must not only disclose his interest but advise client to seek ILA.
NB: Ultimately, ct wouldn‟t interfere w/decision of disciplinary tribunal. Matter for benchers to determine; ct must be very careful not to
interfere w/ decn of benchers, in theory based on prof std which only they being members of profession can properly apply.
Z: Thinks rule should go even further; even if lawyer not taking part of proceeds of mtge, shouldn‟t be involved in this sort of transaction.
Cavallin v. King (BCSC 1984)
Z was lawyer on case.
Where contest of credibility is btwn lawyer & non-lawyer, & there is no writing, inference to be drawn in favour of non-lawyer; ct has to
be satisfied lawyer‟s recollection is to be relied upon. There is a shift in standard. (P. 164)
H: TJ held there was no S-C relship btwn Cavallin & King. Despite this, b/c of long lasting S-C relship, Cavallin relying upon King‟s
expertise & King knew this. This created fiduciary relship btwn King & Cavallin.
-Milligan v. Gemini Mercury Sales Ltd: sol may deal w/client or purchase client‟s ppty even during continuance of relation but BOP lies
on him to show transaction perfectly fair, since transaction only inhibited & not prohibited. Must satisfy ct he has taken no advantage of
professional posn & that a just & fair price has been given.
R: All lawyers covered by professional liability insurance that covers work done as lawyer, but there is no coverage where there is no S-C
relship. King personally responsible to pay damages, susp for 5 yrs.
NB: Reverse onus created where lawyer being sued for negligence since lawyers taken to know what is imp‟t re communications w/clients.
It is assumed whatever is imp‟t will be written down.
Many obligations of a S-C relship continue after end of retainer
Z: When it‟s solicitor‟s word against client‟s word, it is reverse onus, lawyer has to prove his word.
If entering joint venture, get it in clear writing that you are not acting in a fiduciary role, that no other party has expected to retain or
obtained any legal advice from you or relied upon any expertise you may have whatsoever. That writing ought to be backed by a certificate
of ILA. If you are entering into that kind of deal, you should have some ILA yourself.
Re Harmes Estate (PC 1946)
H: Lawyers should never prepare a will & also take a benefit. Clients must always have ILA.
John v. Foo (BCCA 1953)t
Solicitor purchased interest in ppty from illiterate client. alleges fraudulent & failed to disclose material matters, & had deprived him
of his right to cut & remove timber to ‟s gain & advantage.
H: Applies Demerara Bauxite Company Ltd. v. Hubbard in BC.
Demerara Bauxite Co. v. Hubbard (PC 1923)
Solicitor took option to buy land from former client (H); before obtaining option told H he might make a profit, but did not tell her another
bidder was willing to pay more, which would require him to raise his bid.
H: Ct found solicitor had not made full disclosure. In absence of competent ILA, transaction btwn persons in S-C relship or confidential
relship of similar character can‟t be upheld unless person claiming to enforce K can prove person standing in confidential posn has
disclosed w/o reservation all info in his possession & can further show transaction was fair, having regard to all circs.
-Incumbent to prove person who holds confidential relship advised client diligently as he should have done had transaction been btwn his
client & a stranger, & that trans was as advantageous to client as it would have been had he been endeavouring to sell to a stranger.
NB: This does not change after S-C relship ends.
Z: Lawyers who purport to transact w/clients (or former clients) should always insist client get ILA, & that they be given full access to
info. But is that enough? If you are a part of deal you may know stuff indep lawyer doesn‟t know & you have to reveal disclosure w/o
reservation of all info & hindsight is always 20/20.
Z: Case is authority for proposition onus is on sol to show disclosure w/o reservation of all info & that transaction was fair having regard to
all circs….Goes on to say that that principles applies so long as confidence in lawyer by client is proved or continued.
Morkin v. Boras et al (Alta SC 1978)
Solicitor & others bought interest in clt‟s land to prevent foreclosure. Sale of ppty voidable as didn‟t know all rights, didn‟t obtain ILA.
H: Applies Demerara Bauxide Company Ltd. v. Hubbard in Canada.
Loftus v. Harris (Ont 1920)
F: had been solicitor/adviser of t‟trix. took principal benefit under will, drawn by another sol. Former will had been made in favour of .
R: equitable doctrine: “All dealings btwn solicitor/client are to be viewed w/suspicion & void if obtained by undue influence”.
Prof Resp Ziskrout 2004
Z ; if party writes or prepares will under which he takes benefit, such suspicion must be removed
All deals btwn solicitor & client will be viewed w/suspicion. Lawyer cannot draft will under which lawyer takes.
PCH Ch. 13-1,2; Ch. 11
Any personal assurance in your capacity as a lawyer.
A solicitor will rely on word of another solicitor.
A lawyer‟s undertaking in one‟s capacity as a lawyer can be a simple, bare promise that is enforceable
Any assurances in lawyer‟s professional capacity (promises to do/forbear to do) create professional obligation to do/forbear to do.
Lawyer‟s promises, made in capacity as lawyers, are enforceable w/o consideration.
Underlying policy: W/o lawyers‟ being able to rely on other lawyers‟ promises, there would be a meltdown in world of commerce.
Valleyfield Construction Ltd. v. Argo Construction Ltd. et al. (Ont. 1970)
H: Word of sol viewed by another sol as virtually sacred. Sol can rely on it b/c it will be kept; only in rare circs measures have to be taken
in formal proceedings to force sols to honour their commitments.
- Filing of certificate of readiness does not & can‟t alter obligation lawyer assumed by giving undertaking before filing took place. If sol
reneges on obligation, cts should enforce it. Delivery of certificate does not waive obligation. Sanctity of sol‟s undertakings must
predominate over admittedly impt effect of a certificate of readiness.
Z: bear in mind this is 1970 (no email, faxes, etc) such that there were more oral undertakings back then.
B/c failure to honour undertakings is subject to severe discipline, Z always advises students to never give or accept undertaking if there is
another way to deal w/problem (don‟t want to have to remember by obligations). Z also wants to make sure undertaking entirely under his
control; doesn‟t want to give undertaking where he has to rely on someone to do or not to do something.
Bernard v. Elliot (NSCA 1984)
F: TJ asked counsel for undertaking re client‟s future good behaviour. Lawyer gave it.
H: Improper for ct & improper for counsel to ask for or give personal assurances re conduct of client. Not permitted to vouch personally
either for facts in support of client‟s case or for client‟s truthfulness & reliability.
R: Under Provision 7(a), lawyer must not give undertaking that cannot be fulfilled; client‟s behaviour is not under lawyer‟s control.
Z: Don‟t always have to use word “undertaking”, any promise/assurance. What would you do if ct asks for undertaking of this sort?
-refer ct to caselaw & law society…..rather than personalize it, side-step issue.
Bank of BC v. Mutrie (BCCA 1981)
H: Solicitor‟s undertaking may be enforced against him personally depending on facts. Undertaking must be his personally, given by him
in capacity as solicitor & must be clear on terms. Can‟t read into letter/conversation agreement by solicitor to pay $$ herself if it turned out
nothing owed to client. Only conditional undertaking (on funds coming to office); since never received funds, not liable.
Solicitor provided undertaking to bank – p. 287 letter: upon receipt & delivery we will undertake to...
Money never shows up – bank tries to rely on undertaking
Ct says no, this wasn‟t unconditional undertaking – p. 289 – inexorable conclusion...
conditional undertaking – undertaking that if something happens, you‟ll do something
Don‟t provide unconditional undertaking unless sitch is entirely w/in your control
- If you are seeking to rely on undertaking, either make sure it‟s unconditional, or make sure conditions are acceptable to your client
Kutilin v. Auerbach (BCCA 1988)
F: claims damages against lawyer who acted for his wife in matrimonial dispute.
H: Ct held that undertaking was in substance to client () but w/subsidiary term that payment would be made to his lawyer. When lawyer
ceased to act, term requiring payment to be made to him ceased to have any effect.
R: “An undertaking is any unequivocal declaration of intention addressed to someone who reasonably places reliance on it & made by;
solicitor in course of his practice, either personally or by a member of his staff or
a solicitor as „solicitor‟, but not in course of his practice whereby solicitor becomes personally bound.”
-Definition problematic b/c lawyer could be personally bound by stmt by staff member. Therefore, must tell staff not to give undertakings.
Z: Thinks lawyer would not be found guilty of a disciplinary violation if its staff had given undertakings after being warned not to
Action involving maintenance, custody, access – question re what to do w/pending sale of matrimonial home
- Solicitor insistent money to go to him < so he‟d get paid
Wife‟s lawyer gives husband‟s lawyer undertaking to pay him proceeds of sale – Mr. Kutelin changes lawyer – Ms. Auerbach had already
paid K‟s lawyer – K sues for not giving it to him - ct held undertaking was to husband, not lawyer, not binding after discharge.
- Auerbach should have paid money to husband after notifying husband‟s lawyer – then lawyer could have garnished
PCH ch 11 – (7) lawyer must not give undertaking that can‟t be fulfilled, etc.
- if undertaking conditional in any way, must be stated clearly in undertaking itself
(10) must not impose on other lawyers unfair...
Prof Resp Ziskrout 2004
Problem: Lawyer for employee sends letter for employer‟s lawyer saying enclosed is computer equipment not to be released unless
employer writes employee good conduct letter. This not in original agreement.
- Can‟t rely on own sense of whether proper to impose conditions. If left to indiv‟s subjective sense whether undertaking should be relied
on, undertakings couldn‟t be relied on. So no matter how ludicrous or crazy condition is, if not in condition to comply, just return whatever
was sent you immediately.
- How to handle client demanding equipment? Don‟t badmouth other lawyer. “He seems to have a different perspective. We have to
abide by these undertakings. I know very frustrating for you etc. “
McCarthy Tetrault v. Lawson Lundell (BCSC 1991)
H: “Where funds are held in trust, subject to undertakings, those undertakings take precedence over any developing disputes btwn clients.”
In circs, McCarthy can‟t now ignore undertaking upon which it agreed to hold money in trust.
R: “It is of overarching importance to practice of law as an honourable profession that solicitors comply, w/o reservation or question
w/trust conditions upon which docs have been entrusted to them by other solicitors…”
- Where money held in trust subject to undertakings, these always take precedents over other developing disputes btwn clients – p. 300
Towne v. Miller (Ont. 2001)
Lawyer undertook to provide certain docs during XFD – looks at them, thinks delicate & not relevant, edits out > Ct says once there‟s been
an undertaking, relevance not an issue. Otherwise you only have to provide relevant docs, but undertaking displaces this.
Chapter 13 PCH – responsibility of Law Society – subject to rule 2, report another lawyer‟s breach of undertaking that has not been
consented to or waive < you have no discretion not to report subject to privilege & confidentiality
- Lawyers must be able to rely w/absolute confidence that undertakings will be enforced
- Lawyers should give as few undertakings as possible
- Always consider if undertaking is necessary to conclude business of client
- Whenever giving or taking undertakings, reduce it to writing & send it to other lawyer
- Undertakings need not be in writing, tho foolish not to do so
- Read mail every day, incl e-mail – read every word b/c may be undertaking imposed somewhere < no defence to say didn‟t read it!
- If there is undertaking/trust condition – if can‟t comply, send it back – if can comply, big note on front of file & sth in reminder syst
- Undertakings may be varied or waived
- Consent or waiver can be given after fact < avoids some problems
6. LAWYER AS ADVOCATE
Not enough to know rules & be generally rule abiding; must be courageously honest to avoid by & large, embarrassment or humiliation
As counsel, there is duty not to mislead ct. There is no corresponding duty to lead ct to truth, w/exceptions of:
- Ex parte applications (i.e. where there is no opposing party),
- In role as Crown counsel, &
- In a civil case, or as Crown you have obligation to disclose docs upon demand
Have duty to ct (tribunal/board/etc) to provide pertinent authority on point.
Harper v. Harper (SCC 1980)
Counsel before CA & later in SCC, in his factum & in argument, relied on record of trial ct that he knew was false.
- At trial, client said title to ppty still w/dept of Veterans‟ affairs; but knew passed to him. TJ misled; award affected. Doc establishing title
surfaced. Counsel continued to rely on record; other side sought to introduce doc, counsel resisted: “entitled to rely on record”
- SCC Laskin said that was a bunch of shit. “No ct can condone attempts to mislead it”
- When seeking to rely on record you know to be untrue you are misleading ct.
Z: lawyer wasn‟t punished…benchers concluded it was a difficult issue, never ruled upon before, so gave prospective ruling
SCC rules: obligation upon litigants to produce all relevant docs (all docs that may or may not be admissible) + obligation on lawyer to
make sure that client understands & observes this rule.
Caveat re disclosure of docs – SC rule requires litigants to disclose – obligation in civil proceedings to disclose all docs relevant either in
support of or hostile to client‟s case > test is not admissibility, it‟s relevance
- So long as disclosure of doc may lead other side on train of inquiry that is relevant, it must be disclosed.
What if client refuses to disclose doc? “if you‟re not prepared to give me instructions consistent w/my professional obligations, I can‟t act
for you” – don‟t have to tell other side if you‟re not acting (confidentiality)
- tell client: “things pop up”
- if you don‟t disclose, client may mention doc in ct
Duty of Prosecutor
R. v. Berens
R: “It had always hitherto been supposition in administration of criminal justice, as a general rule, that prosecuting counsel was in a kind
of judicial position; that while he was there to conduct his case, he was to do it at his discretion, but w/a feeling of responsibility - not as if
trying to obtain a verdict, but to assist Judge in fairly putting case before jury, & nothing more.”
R: This is based on underlying policy of ensuring fairness & avoiding improper conviction.
Prof Resp Ziskrout 2004
-Z: It is no part of job of Crown counsel to try to „win‟ a case
314 – l. 852 – always hitherto been supposition...
- not a partisan strong-arm of state but a quasi-judicial officer of ct
- nothing inappropriate about asking for conviction – what is inappropriate is to be zealous
- dispassionately explain that elements have been proven
Duty to seek truth & lead ct to truth
Test – have you done everything you could to fairly & properly seek truth?
CHAPTER 1, PCH: Canons of legal ethics
“A lawyer is a minister of justice, an officer of cts, a client‟s advocate, & a member of an ancient, honourable, & learned profession”
1.1 A lawyer owes a duty to state, to maintain its integrity & its law. A lawyer should not aid, counsel, or assist any person to act in any way
contrary to law.
1.2 When engaged as a Crown prosecutor, a lawyer‟s primary duty is not to seek a conviction but to see that justice is done; to that end
lawyer should make timely disclosure to defence of all facts & known witnesses whether tending to show guilt or innocence, or that would
affect punishment of accused.
CHAPTER 8, PCH: lawyer as advocate
„Duties of prosecutor‟
18. When engaged as a prosecutor lawyer‟s prime duty is not to seek a conviction, but to see that justice is done. prosecutor exercises a
public function involving much discretion & power, & must act fairly & dispassionately. prosecutor should not do anything which might prevent
accused from being represented by counsel or communicating w/counsel and, to extent required by law & accepted practice, should make
timely disclosure to defence counsel or to an unrepresented accused of all relevant facts & known witnesses, whether tending to show guilt or
innocence, or that would affect punishment of accused.
The discretion to prosecute is wholly w/in discretion of AG, unless a truly improper motive can be demonstrated
In order to proceed w/a case, a prosecutor should be satisfied that there is a substantial likelihood of conviction & that it is in public interest
to proceed w/prosecution
ARTICLE “The Role of Crown Counsel”, by Arthur Maloney
From Boucher v. Queen [SCC, 1955], Rand, J. stated:
“It cannot be overemphasized that purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what Crown
considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of facts
is presented: it should be done firmly & pressed to its legitimate strength, but it must also be done fairly. Role of prosecutor excludes any
notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged w/greater personal
responsibility. It is to be efficiently performed w/an ingrained sense of dignity, seriousness, & justness of judicial proceedings”.
R. v. Stinchcombe (SCC 1991)
R: “Fruits of Crown‟s investigation are not Crown property, but rather public property”. All relevant info must be disclosed, whether
helpful or harmful, & whether Crown intends to use it or not, in order to enable defence to prepare.
R. v. O’Connor (SCC 1995)
If complainant willing to release private info in order to further crim proceedings, accused should be entitled to use info in prep of defence.
-when defence seeks info in hands of 3rd party as compared to state (crown), onus on accused to satisfy J info likely to be relevant.
-There is no expectation of privacy in Crown records. Crown has a duty to produce personal & confidential records in its possession.
The same duty to disclose arises in administrative sphere before commissions or regulatory panels
Crown must disclose all relevant info – before that there was no legal duty
p. 345 < attitude before – what material should be given? crown counsel has a great deal of discretion...
PCH canons part 1 > 1(2) when engaged as Crown prosecutor, duty not to seek prosecution but to see justice is
Counsel is not judge: Its for judge/jury to decide whether accused is guilty/innocent,
-you as a lawyer are there to represent, not decide which way client will use info
Disclosure: duty of counsel to disclose all info which he receives about case to his client
Habitual guilty pleas : counsel is to see that his client is given a fair trial, counsel should not habitually advice his clients to plead guilty.
Conflict of interest; in case of co-accused that implicate one another, each should have separate rep‟n
Withdrawal :counsel may withdraw but must not disclose reason for withdrawal to ct or to Crown.
-counsel may only withdraw for non payment of fees if client has sufficient time to retain other counsel.
Social Contact: counsel should not associate w/ clients except on a purely professional basis.
Z: should never act for friend/family b/c necessary have capacity & resolve to be completely objective & dispassionate to provide highest
level of effective rep‟n & assistance. Locked into situation emotionally, judgment affected & run risk of losing friend or unhappy family
Duty to Ct
Prof Resp Ziskrout 2004
Interviewing Crown Witnesses: as there is no property in a witness, proper to interview Crown W, but should only interview in presence of
3rd party so W can‟t allege tampering w/ev. Some say although perfectly proper, wise to have Crown witnesses interviewed by another
lawyer, since may require testimony (from interviewing lawyer) regarding proof of prior inconsistent statement if witness changes story
Plea Bargaining: counsel must always be candid w/ ct, Crown & his client under such circs. It may be that interests of client & admin of
justice are best served if what has occurred is placed on record
Excluded Witnesses; jurors: counsel must never advise excluded W of testimony given in ct in their absence. Similarly counsel should not
speak to own W temporarily excused during cross. You should not speak w/jurors or associate w/them in any way during trial
Client instructs counsel that he is guilty: scope of defence is limited, but still entitled to put Crown to strict proof of charges.
Perjury: if client instructs you that they will commit perjury, you should withdraw if there is enough time, if its too late, your argument
should not be based in any way upon perjured testimony of accused if he does speak
Counsel in possession of incriminating evidence: instruct client that he could be in trouble, advise him of law & then say that you can give
no further advice in connection w/ object.
-can‟t give it to Crown b/c breaches S-C confidence
-author says avoid getting in situation, don‟t take custody of anything that is or may become evidence.
-don‟t take “original” of anything where there is concern that there may be problem w/ possession of it. May need to inspect
original doc but do it in presence of 3rd party & not in your office.
Duty to Opponent
Undertakings :all counsel must live up to their undertakings
attacking Witnesses: it is no part of duty of an advocate to viciously attack opposing witnesses.
Unfair actions by cops or Crown: duty of defence to expose wrongdoings, & to object to ct
Problem: Janitor calls lawyer at midnight. Tells him that there is a dead woman in building & that police will suspect him. Lawyer agrees
to meet client at office. Thinks shirt dirty, gets him to change it, takes him in to police. Later realizes shirt bloody.
-Lawyer acts as bailee since doesn‟t own shirt. Would be obstruction of justice if destroys, conceals evidence. But, lawyer cannot keep it
in office b/c would likely to be found to be concealing it
-Lawyer could retain own counsel & get opinion of ethics committee of Law Society & follow their advice
-Law is that „communications‟ are privileged, but hard evidence doesn‟t fit w/in solicitor client privilege
Z: Thinks that lawyer should have returned shirt to client & warned client of law regarding to obstruction of justice. Accused doesn‟t have
to turn shirt over to police, but cannot destroy, conceal shirt
Counsel in possession of incriminating evidence
- turning it over personally is breaching confidentiality
- retain another lawyer to deliver ev to authorities, can‟t say anything more about it < not even say anything about whose evidence it is
- another view: you are bailee of evidence – holding it for that person – “if your client doesn‟t tell him he‟s going to destroy it, tell him
law – this is an item that may well be material – may be part of offence of obstruction of justice to destroy or conceal it”
“not as a human being, but as a lawyer”
No law saying you have to disclose or can‟t leave w/lawful owner < you just can‟t conceal or destroy
Actus reus of offence of wilfully attempting to obstruct justice is doing of act which has a tendency to pervert or obstruct course of justice.
Word "wilfully" denotes mens rea of offence. Specific intent offence; onus on Crown to prove intended to obstruct course of justice.
R. v. Murray (Ont 2000)
H: “Not entirely clear why there exists almost universal view that incriminating physical evidence must go to prosecution. In my opinion it
does not follow that b/c concealment of incriminating physical evidence forbidden, always a corresponding positive obligation to disclose.”
Z: Murray acted unprofessionally, as a “high price courier” for Bernardo. Murray should have inquired about what was in envelope &
what was on videotape. After learning of nature of these items, Murray would have gotten advice regarding what he was to do
Law is not settled regarding obligations of lawyers possessing concealed evidence
Z: Does not think that lawyer can continue to represent client
First problem was – taking a sealed envelope from jail. As a lawyer, you can never just take a sealed envelope from jail – it‟s an offence –
can contain contraband of some kind. Also bullshit – privilege, confidentiality, why doesn‟t client just tell you?
Second problem – command in letter “don‟t open til inside 57 Bayview” – who‟s in driver‟s seat here? you‟re supposed to be in charge
Third problem – don‟t even know what they‟re hunting for – puzzle re what evidence in house is & what can be done w/it
- you‟re going to trip over material ev – say what you‟re going to do w/it if he hasn‟t told you truth re what it is b/c going to be stuck w/it
Fourth - instruction not to view videotapes - mere possession may constitute criminal offence
- Always look at originals but don‟t keep in crim
fuzzy thinking at end of case re how long he could hold tapes, what constitutes obstruction
Duty to provide docs
In civil case, lawyer may be served w/‟demand‟ for production of doc, & has a duty to produce all docs that are relevant to case
Lawyer has duty to ensure that client provides these docs
Docs that are „relevant‟ means more than simply what is admissible in evidence
This includes not only all useful & relevant docs but also all docs that may lead other party to „train of inquiry‟. Thus, client must produce
not only docs that may assist case, but also doc that may hurt case, & also includes docs that may be inadmissible later in ct
The only exception are docs that fall into solicitor/client privilege
This client duty is found in Rules of Ct, but as counsel, lawyers must encourage our clients to do this
If client refuses to produce docs, lawyer cannot represent since lawyer knows docs exist & client has instructed lawyer not to list them
Prof Resp Ziskrout 2004
ARTICLE: Professional responsibility of Criminal Defence Lawyer; 3 hardest questions
Q: Is it proper to cross for purpose of discrediting reliability or credibility of an adverse W whom you know to be telling truth?
A: attorney is obliged to attack if he can reliability or credibility of an opposing W, contrary result would inevitably impair “perfect
freedom of consultation by client w/ attorney”, which is essential to administration of justice.
-you can‟t use what your client has told you from preventing you from aggressively cross examining b/c that violates principle of not using
what your client tells you against him, this would be prejudicing your client.
Q: Is it proper to put W on stand when you know he will commit perjury?
A: attorney that prevents his client from testifying only b/c client has confided his guilt is violating that confidence by acting upon info in a
way that will seriously prejudice his client‟s interests.
-for an attorney to disclose his client‟ perjury would involve direct violation of Canon 37
-lawyer has duty to dissuade client from testifying perjuriously on grounds of law & morality
Q: Is it proper to give your client legal advice when you have reason to believe knowledge you give him will tempt him to commit perjury?
-No conceivable ethical requirement that lawyer trap client into hasty & ill-considered answer before telling him significance of question.
-Submitted that client is entitled to have info about law & to make own decn whether to act upon it. To decide otherwise would not only
penalize less well-educated , but would also prejudice client b/c of his initial truthfulness in telling his story in confidence to attorney.
ARTICLE; “The Role of Defence Counsel”, by Morris Manning American bar association standards;
Standard for counsel competence:
- Counsel should confer w/his client w/o delay & as often as necessary to ascertain that potential defences are available. Counsel should
discuss potential strategies & tactical choices w/ his client.
- Counsel should promptly advise his client of his rights & take all actions necessary to preserve them
- Counsel must conduct appropriate investigations, both factual & legal, to determine what can be developed. In most cases atty or
agent should interview not only own witnesses but also those govt intends to call, when accessible. Investigation should always incl
efforts to secure info in possession of prosecution & law enforcement authorities. Duty to investigate also req adequate legal research.
ARTICLE: Some observations of duties of a Prosecutor
Lord Heward CJ: “it can‟t be too often made plain biz of Crown is fairly & impartially exhibit all facts to jury. Crown has no interest in
procuring conviction. Only interest is that right person should be convicted & that truth should be known & that justice should be done.”
- he was judge that stated that justice not only should be done but should manifestly & undoubtedly seem to be done
p.346 - propriety of questioning accused on record – point made it‟s always correct to do so for purpose of credibility – sometimes record
may be put to accused on that basis but where real motive is to point to propensity
***RE: asking questions you don‟t know answer to: if you are Crown, want to get to truth, not concerned w/advancing particular claim or
thinking about winning & losing.
ARTICLE: “Ethical Standards for Defence Counsel”, by J. Hoolihan
Duty to Client
Fees -must not charge excessively
Surrendering Client to Police : No law requires that a man sought by cops surrender; to alleviate concerns of obstructing justice &
aiding/abetting felon, sol should always advise person give self up. Surrender is factor in mitigation of sentence; flight indicative of guilt.
p. 348 Hoolihan – no law requiring someone to surrender but should advise to give self up
- mitigation, flight seen as indicative of guilt
- all same things apply to someone unlawfully at large
Should client make a statement? Sometimes it can do more harm than good.
Privilege: must not disclose oral/written confidences of clients or advice given. Priv attaches whenever consulted in professional capacity
as a lawyer. Communications made in furtherance of crime not protected (R v. Smith) & nor stmt of intention to commit a future crime.
p. 350 social contact – crim lawyers shouldn‟t associate w/clients except on professional basis -
- lose objectivity you need to conduct case properly – professional judgment
- don‟t have same ability to control relship
- you lose friend, but you‟re stuck w/ relative
Shouldn‟t even have someone in your firm acting for friend/relative
Felderhof – Ont CA – insults btwn Crown & defence
- J affirms it proper for Crown to seek conviction, but must be done fairly
- criticism of insults btwn each other & about each other to J
Thresh – prosecutor sums up to jury made submission may not be enough evidence to convict one accused – protest – J said appropriate
p. 350 – Interviewing Crown witnesses < dangerous – only in presence of 3rd person – can‟t say lawyer attempted to tamper
If ct asks whether client has a record, can decline to answer question
- but may remand accused until they get info < matter of personal judgment & what you know about judge
Prof Resp Ziskrout 2004
Excluded witness – don‟t speak to them, including own client
Disguising client – line btwn immaculate dress & disguise can be fine
Client says he‟s guilty < neither in cross nor jury address may you indicate client is innocent
Duty of confidentiality trumps disclosure according to Ont. benchers
PCH 8-21: In ex parte proceedings lawyer shall inform ct or tribunal of all material facts known to lawyer which will enable ct or tribunal
to make an informed decn, even if facts are adverse to interests of lawyer‟s client.
Holowaty v. Holowaty & McDermid (Sask CA 1949)
R: On ex parte chambers motion, lawyers have duty to present all material facts in affidavit or attached to affidavit to ct. Counsel has
obligation to reveal to ct all material evidence on point, regardless of whether or not it assists/detracts from your clients position b/f ct.
Z: obligation goes beyond bringing to ct attn what is in front of you, it requires you to make reasonable inquiry to assure that you have
properly placed all material evidence b/f ct
7. CLIENT PERJURY
See p. 337 CB
CHAPTER 8, PCH:
2. Where a client advises lawyer that client intends to offer false testimony in a proceeding, lawyer shall explain to client lawyer‟s professional
duty to withdraw if client insists on offering, or in fact does offer, false testimony.
3. Where a client who has been counselled in accordance w/Rule 2 advises lawyer that client intends to offer false testimony in a proceeding
lawyer shall, in accordance w/Chapter 10, withdraw from representing client in that matter.
4. A lawyer who withdraws under Rule 3 shall not disclose to ct or tribunal, or to any other person, fact that withdrawal was occasioned by
client‟s insistence on offering false testimony.
The procedure for withdrawal is outlined in PCH [Chapter 10, Provision 8]
5. A lawyer shall not call as a witness in a proceeding a person who has advised lawyer that witness intends to offer false testimony.
6. Mere inconsistency in a client‟s or W‟s statements or testimony, or btwn two proffered defences, is insufficient to support conclusion that
person will offer or has offered false testimony. H/e, lawyer shall explore inconsistency w/client or W at first available opportunity. If, based on
that enquiry, lawyer is certain that client or W intends to offer false testimony, then lawyer shall comply w/Rules 2 to 5. Otherwise, lawyer is
entitled to proceed, leaving it to ct or tribunal to assess truth or otherwise of client‟s or W‟s statements/testimony.
If duty counsel – if you tell story accused has told you is inconsistent w/truth, misleading ct, criminal < aiding & abetting
- tell client to speak for themselves or take instructions & tell truth
- Advise client to exercise right to say nothing, but don‟t forbid to speak < “my lawyer told me I couldn‟t”
Advising client – wrt initial interview – three different views:
1. “tell me what happened” – write it out, ask questions
2. before asking anything, obtain Crown disclosure – particulars – & review w/client – then say, “do you have anything to say about this”
3. go thru Crown disclosure w/client & then let client know some of law in context
- 3rd suggested as best to Z by prof – client charged w/assault at hockey arena – explain that there has to be intention to commit assault &
that if for instance client was not intending to strike but just tap on shoulder, that might be a defence
- Z doesn‟t like #1 – w/o indicating what‟s been disclosed b/c (1) nobody should be asked to speak to anyone about this incl. own lawyer
w/o knowing what allegations are (2) wrt most crim clients you‟ll be dealing with, unless client gets clearly focused wrt disclosure info,
may well not know exactly what trouble they‟re in
- Z likes #2 - #3 is suborning perjury
- Sometimes it is right thing to provide accused w/law. Suppose acting for accused in rural area – charged w/murdering spouse. If you
don‟t tell him drunkenness is defence, he may well think it‟s aggravating factor. By not telling, encouraging to lie against their interests.
- Avoid putting client in position where they have to stay w/lie.
- Depends on circs. Be clear w/self whether suborning perjury or legitimately seeking defence. If there is chance info you‟re providing
about law will be utilized by accused in furtherance of providing you w/truth that helps provide defence, you are justified in providing info.
Conduct of case – you are not simply mouthpiece of client. Client must decide freely whether to plead guilty or not, but all other decisions
are yours to make unless client refuses < you only act on authority. In that case you may have to withdraw – if your professional view re
how to proceed conflicts w/client instructions, can‟t take client‟s instructions against own view of how to proceed. Question of degree.
- What‟s rationale to tell clients for why decisions have to be yours? They came to see you to do game plan – if you lose control of that,
there‟s not much reason for you to be there
Video – Lying Client
Z‟s analysis: inconsistent statements, but we don‟t know which one is inaccurate
- not our business to make that decision
Chapter 8 (6): Inconsistent statements; mere inconsistency in a testimony is insufficient to reach conclusion that client is lying.
Have a recess, explore inconsistency; [rules 2-5 do not operate, as client does not intend to lie, but already has]
Continue w/case, but one can withdraw if one wishes
It is up to judge to decide what truth is
Prof Resp Ziskrout 2004
- client might even have been lying in first place – might think less damaging to have a cheap TV
*You don‟t have right to come to judgment about anything
surprise perjury – except NB no duty to rat out & withdraw
- “a whole array of things that you can do”
Z upset that there‟s no guidance in handbook – this was deliberate decision on part of benchers
- wants rule that you have duty to withdraw, but in initial interview say that if there‟s perjury whether or not warned, will withdraw
Z thinks you should tell client that if she commits perjury, you will have to withdraw.
Then when they commit perjury, ask for a recess, advise client, & withdraw if they don‟t recant.
If an inconsistency, there is an obligation to proceed & cannot just assume perjury
If lawyer is coming to a conclusion on anything less than a certainty, then lawyer is usurping role of judge or trier of fact
In Canada, there are different schools of thought regarding „surprise perjury‟:
Should continue w/case, & at recess, remonstrate, advising has committed criminal offence of perjury & should correct ev, if refuses can:
Engage in “free narrative” approach (ask no further questions on topic & refrain from using that ev when making submissions to ct)
Each school of thought is open to lawyer since there is no consensus on rule. Either alternative is preferential to theory that as a lawyer,
highest duty is to client, & under duty of confidentiality should always proceed
In BC, if you would like to you can withdraw b/c “entitled” to according to PCH. You can allow free narrative & refrain from mentioning
evidence in your submission or just carry on & use evidence.
As btwn free narrative & withdrawal: Z is happiest w/ a rule that says during course of being engaged as counsel it is obligation of lawyer
to say “if you perjure yourself & I know about it, I will be obliged to withdraw” & then if perjury occurs, duty to withdraw. Such a
position gives full & fair meaning to client, & avoids lawyer becoming involved in untenable situation, leaves client w/ ability to proceed
as he/she wishes w/ full knowledge of consequences.
Some say that this interferes w/ duty of loyalty to client, but why be loyal to someone who decides to break law?
Z: where client wishes preserve option of perjury (CC offence) & abuses process of ct, not option legal profession ought to be sensitive to.
Lawyers should explain rules of privilege & perjury to clients during initial interview
As litigation counsel, you have right to withdraw [Leask v. Cronin]
No enactment in BC law to report perjury to ct.
Obligations of Counsel wrt giving evidence:
- viva voce evidence: as well as affidavit evidence is subject to rule against perjury
- make sure person swearing appears personally b/f you & that you have asked them if you “solemly swear”, that they have signed
affidavit, that exhibits were all there at time of signing affidavit.
Z: fix on certain forms of words you use every time w/o fail when swearing affidavit; can say you know did it b/c always do it that way.
ARTICLE; “But Only if You Know” (American view)
-3 ethical obligations imposed upon criminal defence lawyer:
- to provide effective assistance of counsel, lawyer is required to seek out all relevant facts.
- to assure clients won‟t hold back essential facts from lawyers, & to protect clients‟ rights, lawyer has responsibility of confidentiality.
- lawyer is required to be candid w/ ct, even to point of betraying client‟s confidences by revealing client perjury.
*to resolve trilemma, one of these duties must give way.
-Traditional view is that full info & confidentiality are overriding obligations, both ethically & constitutionally, thus lawyer should know
truth but should not betray client‟s confidence & secrets by conveying to judge/jury client intends to commit perjury or has done so.
-Lawyer must make good faith ongoing efforts to dissuade client or to withdraw w/o prejudicing client, lawyer may not assist client to
improve upon perjury, but must maintain client‟s confidences & secrets.
-In Model Rules of Professional conduct, ABA appears to have reversed longstanding tradition. Lawyer appears to be required to reveal
client perjury either before or after fact. But appearance deceptive b/c opening phrase of rule “ a lawyer shall not knowingly…” Required
to violate confidentiality by revealing client perjury, but only if you “know” client intends to or has committed perjury.
- Client‟s admission of perjury does not clearly suffice unless it is corroborated by “other facts” that clearly establish perjury.
- Before revealing perjury, lawyer must meet appropriate std of knowing, but also have attempted to dissuade client, otherwise violates
duty of loyalty to client.
ARTICLE; Excerpt from “Client Perjury” (California law review) by Charles Wolfram
-This section attempts to flesh out major elements of problems that confront an attorney when forced to deal w/ a client‟s perjury:
What does an attorney know?
- Attorney may offer evidence only where there are reasonable grounds for good faith belief that testimony is arguably factually correct.
- Attorney should not be able to evade responsibility of correcting false testimony by wilfully remaining ignorant where known facts call
for further investigation. So long as clues compellingly suggest possibly serious falsity, an attorney should be under a responsibility to
conduct such further investigation as an attorney desiring to protect interests of a client would conduct under similar circs.
Prof Resp Ziskrout 2004
Remonstration w/ Client
-atty under obligation to attempt in good faith to discourage client or other W from committing perjury. A similar remonstration is required
if perjury is discovered after it has occurred.
-Remonstration seems to consist of 5 elements:
1. Client should be advised false testimony may be a crime; plain professional competence would seem to require this much.
2. Client should be advised of strategic risks incurred by falsely testifying or by not making prompt disclosure of false testimony.
3. Client should be urged to testify truthfully or where relevant make full disclosure true facts where perjury already committed.
4. Atty at this point must inform client failure to testify truthfully or to correct past perjury would force atty to withdraw from case.
5. In jurisds where warning relevant, client should be told atty will be required to disclose client‟s perjury if it goes uncorrected.
Perjury known in advance
-if client in a civil case will testify largely to matters that are perjurious, there is little basis to believe that any authority would permit
attorney to call client as a W.
3 schools of thought exist w/in criminal defence rep‟n:
1. Holds criminal lawyer to same standards applicable in civil rep‟n (prohibited from calling perjurious client to testify or from
asking a client question answer to which it‟s known will be perjurious. (California)
2. ABA Defence Standards: requires attorney to remonstrate w/accused against false testimony but if accused insists on right to
testify, would permit attorney to call W & place W under “free narrative” so accused can tell his story
3. Client who, over protest of atty, insists on perjurious testimony should be examined question by question in normal way by atty.
-if client insists on perjury, uniform answers in civil cases is atty can‟t proceed, perhaps even if this means abandoning client in midst of
proceedings. Some would go further & require that attorney report perjury to ct.
-in criminal cases, withdrawal is required only if trial has not begun.
Argument to fact finder
-in civil cases, an advocate may not argue known perjury or other false evidence to fact finder.
-in criminal cases, ABA Defence Fxn standards require that attorney ignore known perjury in closing argument.
Chapter 8, Provision 21
If client will not permit you, you cannot act.
R. v. Doz
R: Lawyers have duty not to mislead ct.
8. UNPOPULAR CLIENT
“First & foremost, lawyer is defender of system” < this allows you to do your best for people who seem guilty – effective justice system –
- if seemingly guilty didn‟t have counsel, wouldn‟t have fair justice system
Rondel v. Worsley
“It is easier, pleasanter, & more advantageous professionally for barristers to advise, represent or defend those who are decent & reasonable
& likely to succeed than those who are unpleasant, unreasonable & have an apparently hopeless case. Yet it would be tragic if our legal
system came to provide no reputable defenders for latter. That would be inevitable result of allowing barristers to pick & choose their
clients. It not infrequently happens that unpleasant, unreasonable, & those who apparently have hopeless cases turn out after a full & fair
hearing to be in right. It is a judge‟s solemn duty to find that out by a careful & unbiased investigation. This they simply cannot do if
counsel do not take on less attractive task of advising & representing such persons however small their merits.”
- There is a duty of counsel to act for apparently guilty
- A lawyer‟s role is to do what can be done for their client in interests of justice, which precludes lawyers from coming to judgment
themselves, one way or other
- Sometimes the unpopular client turns out to be right.
ARTICLE; “Representation of the Unpopular”, by H. H. Cooper
As society developed & became civilized, laws developed, & as society became more developed, more laws & soon citizenry could not
possibly know all laws which is why profession of law was developed. We know how to move from fact to abstract, how to identify
principle, to argue relevancy of principle, etc.
If lawyers not prepared to act for unpopular & unpopular were un-represented, what chance would they have? -there is no prob finding
lawyers to defend them, “the notorious cases, unpopular , these are challenges…..that few lawyers can resist….high risk investment.
Z: Per canons, role of counsel is defender of justice system & part of this notion of role of lawyer justifies & requires defence of unpopular
- If lawyers cannot defend someone (based on moral principles), then you also should not prosecute
- If you cannot defend, it is b/c of some emotional grip that makes you unable to proceed w/matter w/objective, professional detachment. It
is therefore unlikely that you would be able to act w/objective, professional detachment for prosecuting side either
- Unpopular litigant needs the lawyer more than most.
Prof Resp Ziskrout 2004
- Appearing for him courts professional unpopularity.
- “Cab rank” system helps with this.
- American system encourages “defender” or “prosecutor” mentality.
American rule says that you needn‟t act for any client.
British rule says that you must as your duty as a lawyer (Z likes this).
Canadian rule is somewhere in btwn.
Legal right should apply to everyone. person who needs a lawyer most is person who appears to be most guilty.
Also it makes it possible for a lawyer take a case & not align themselves w/position of client.
People screw cases up badly when deeply emotionally attached to cause of client. Same applies when deeply emotionally revolted by
cause of their client. Either way you will not have necessary degree of professional detachment that will allow you to carefully plan best
strategy. Movement may need visibility of ct case & martyr to an unjust law. If you are lawyer, you may not do best job for your client.
The test is that if you could never act for other side of case, then chances are you are too emotionally attached to deal w/it.
Labour lawyers & car smash lawyers always on one side or other. In labour law clients won‟t permit it “b/c class war”. Problem: when
only act from certain perspective get certain views of other side, become quite hardened. Sometimes crim lawyers also have this problem.
Taking on unpopular clients can severely damage your career. But it is right thing to do, & it demands courage. This can have a greater
effect in a smaller community, & can even have effect on families.
9. CIVIL DISOBEDIENCE
ARTICLE: “The Fracture of Good Order”, by Charles R. DiSalvo
Discusses concerns of counselling clients bent on civil disobedience
Lawyers must be careful to stay away from sections of CCC that would join them in as aiding & abetting commission of criminal offences
Q; Can lawyer get in trouble for aiding, abetting or counseling commission of offence? YES although nothing wrong w/giving
dispassionate legal advice about consequences of offence.
-If you are a member of cause yourself, have to be extremely careful of quality of advice you give. May be difficult to give careful,
considered & impassionate advice someone unconnected to issue would be giving. If going to give advice, make sure you tell client it
would be irresponsible for client to get advice only from you or someone like you; should get advice from s/o far removed from cause.
-you also have personal conflict b/c you have interest in it becoming political theatre
If you yourself thinking of engaging in civil disobedience, get legal advice - you‟ll never be able to properly analyze it yourself
In terms of assistance that a lawyer can provide in analyzing consequences, it‟s appropriate to analyze completely any legal consequences
of each possible alternative so that client appreciates seriousness of any act of disobedience & advise of political consequences as well.
Steps to take:
Take excellent notes of advice that you are giving
Before interview is over, get client to tell you what they understand from what you have said
Problem: Client, out on bail, enters office & asks which countries have extradition treaties w/Canada.
- Lawyer cannot help client commit an offence, & cannot be wilfully blind
- Lawyer also cannot obstruct justice or be a party to obstruction of justice
- Therefore, lawyer must investigate further & ask client how answer is relevant
if client asks for info wrt poss crim actions, ask why & then explain ramifications
“I‟m declining to answer that question, but it seems to me you‟re thinking of doing X, so let‟s discuss possible ramifications of that”
Giving legal advice here may constitute facilitation of crime: “compounded purpose”
Tort of inducing breach of K as distinct from advice about K. Conclusion: if you advise s/o to break K, not inducing breach of K. But
could become joint tortfeasor. Advise clients re what law is & consequences of breakage, leaving decision entirely to them.
CHAPTER 1, PCH: Canons of legal ethics
“In these several capacities, it is a lawyer‟s duty to promote interests of state, serve cause of justice, maintain authority & dignity of cts, be
faithful to clients, be candid & courteous in relations w/other lawyers & demonstrate personal integrity.”
Problem: Svend engaged in logging protest in violation of injunction. Announced in press this was imp‟t matter of principle to him, & if
need be, he would sacrifice his license to practice law.
Letters sent to Law Society - he should be thrown out for violation of a prime canon that there is a duty to State (part 1 of Canons of ethics)
& you cant‟ go about as a lawyer w/ a duty to state & go breaking/disrespecting law.
Others said this was freedom of expression & didn‟t involve moral turpitude.
Svend wasn‟t member of Law Society at the time so didn‟t matter, but if reapplied for reinstatement, Credentials Committee will look
again into fitness & character. There is no law on it; there is tension btwn duty to state & Charter right to freedom of conscience.
Bottom line: Conscientious civil disobedience would not, except extreme cases, be sufficiently serious to merit professional discipline.
Prof Resp Ziskrout 2004
ARTICLE “Civil Disobedience and the Legal Profession” Dale Gibson
Imp‟t points: be careful in counselling client wrt breaking law. Can easily run afoul of Crim Code sections wrt aiding, abetting,
counselling. While it is permissible to give dispassionate legal advice re effect of criminal action, wrong to advise client to commit it.
10. PLEA BARGAINING
Involves negotiating w/ defence for a guilty plea in exchange for a reduced charge or other benefit to accused
ARTICLE; “The Influence of Prosecutor”, by Wayne MacKay
Idea of settling a criminal matter has a ring of impropriety to it
There is much discretion left to Crown regarding resolution of a matter, which can lead to abuses since not publicly accountable
Problem is that there is no real check on this discretion
ARTICLE; “Fees for pleas called improper”, by Mark Curriden
Defence counsel in Georgia agreed to waive collective right to fees, in exchange for prosecutor not seeking death penalty
Problem: In context of admin hearing involving Law Society, asked “If we vacate this matter & move hearing to conduct review (low level,
no serious record, no penalty, no publicaion), will your client be seeking costs (significant costs involved b/c lengthy hearing to date)?”
Z: Felt improper to ask & improper for him to answer question b/c might adversely affect his client; what he decided to do was to tell client
what they had asked & then he gave dispassionate legal advice regarding effect of answering, & suggested client write letter himself
ARTICLE; “Prosecutorial discretion: Plea Bargaining”, by Judge Lawrence Goulet
J‟s sentencing authority is usurped
Personal relship btwn Crown & defence becomes “overly significant”
Potential for over-charging increases
Determination of guilt & innocence is taken out of cts
Legal issues are not tested, nor is law developed
Individuals w/language problems & little knowledge of their rights might be manipulated
Plea bargaining viewed badly by public
Lots of prosecutorial discretion
There is no real check on it
Both innocent & guilty are pressured to plea bargain
CHAPTER 8, PCH: lawyer as advocate: „Rep‟n of an accused on a guilty plea‟
20. A lawyer may represent an accused on a guilty plea provided that accused:
(a) admits to all factual elements of offence and,
(b) is competent to instruct lawyer.
Problem: Client dangerously driving, said accelerator in his car was stuck. Seemed unlikely since able to slow down # of times, turn &
stop car. Lawyer told client TJ would not likely believe this, & better off admitting truth. Client decided to plead guilty but stuck to story.
Problematic since one can‟t enter into a plea bargain unless pleading guilty, but since client wouldn‟t admit to elements, pled not guilty.
R. v. Goodwin
Crown was under no duty to make bargain. Respondent had right to have case tried, but w/knowledge of bargain, entered guilty plea. A
bargain is a bargain, & if Crown wishes not to be bound, shouldn‟t have made it in first place.
R: Crown should stick to plea bargains they make. Burden is on party who seeks to repudiate.
R. v. Brown
Sentence altered to comply w/plea bargain after Crown welshed.
R. v. Turner
Lawyer urged clt to plead guilty in strong terms. Should make it clear it‟s their choice. Line btwn giving strong advice & undue influence.
Z believes it‟s lawyer‟s job to be tough w/client & say that their story won‟t hold up in ct, & that they should plead guilty.
Things to say
I can‟t construct a proper defense to that.
No one will believe this.
I am not accompanying you to firing squad.
11. FEES AND MARKETING
ARTICLE “The Paradox: Lawyers, Money & Success”, by Macklin Fleming
If lawyers properly communicate during course of retainer, clients should know what services they are being provided
Fees are too high.
Discuss & confirm it up front & obtain a letter to that effect. They probably won‟t bring it up.
Prof Resp Ziskrout 2004
MacLeod v. Harrington
R: ct has inherent jursid to review fees & conduct of solicitors.
ARTICLE, “Excessive Legal Fees”, Macklin Fleming
Excessive fees is often a result of overstaffing. There is over billing & over qualifying (doing more work than is strictly necessary).
Tension btwn lawyer & client. A lot of firms overcharge on photocopies, long distance calls, Quicklaw, etc.
Z: imp‟t to bill quickly after positive result b/c of gratuity curve. The longer after the case, the less vital to the result they think you were.
Some people won‟t pay unless you give them the bill completely.
CHAPTER 9, PCH: Fees
Provision 1: not excessive
Provision 2: cannot pay for referrals unless to a member of law society
If someone doesn‟t want to pay, drop it. They‟ll squawk & ruin your rep. Do not argue w/clients over fees.
Size clt up. Don‟t work for him if think he‟s a rascal. If properly assessed clt at beginning of retainer, shouldn‟t have problems.
At end of day, apologize that he is not happy, & just ask him to pay what he thinks is fair.
It‟s better than having complaints (most complaints to Law Society are about fee, or are at least partially grounded in fee.).
You‟ll get a bad reputation w/other lawyers if you pursue fees.
Keep their expectations realistic. Explain that the law doesn‟t teach people a lesson.
“No teaching ever goes on in practice of law.”
The best advertising is to quietly do a good job. Don‟t take on work you can‟t do.
Unsophisticated clients are only ones that will be attracted by marketing.
Chapter 14 has marketing rules.
Precluded from saying you are a specialist.
The lawyers w/a lot of advertising usually have a bad professional conduct record.
Fees have climbed higher than rate of inflation largely b/c provision of legal services has become a much more complex activity & it takes
much more of a lawyers time: e.g. length of docs, such as reasons for judgment, have increased ten-fold
Z A good idea is to “cc” client every piece of correspondence that is received or sent out
Concerned w/overstaffing (i.e. too many lawyers working on file) that may lead to redundancies & work done solely for financial interests
of lawyer (20 lawyers working on firm, had to read same book of cases, etc, more $ involved usually leads to more lawyers involved.)
Z: thinks billing hours lead to fraud; (10-12 hrs of work leads to 4-5 billable hours); 1000-1100 hrs was good, but now its more like 2200
hrs, how can anyone legitimately bill that many hours.
Z: Feels that it‟s imp‟t for lawyers to do at least some pro-bono work as there are great personal rewards
********obligation to put retainer funds into a trust account (not your money until it is billed)
Marketing is usually only effective for criminal, car accident, wills variation, divorce, & wrongful dismissal cases
These advertisements attract unsophisticated clients, since more sophisticated clients will not hire lawyers from yellow pages
12. COMPETENCE OF COUNSEL
CHAPTER 3, PCH: Competence & quality of service
„Knowledge & skill‟
1. A lawyer shall, w/respect to each are of law in which lawyer practices, acquire & maintain:
An adequate knowledge of substantive law
An adequate knowledge of practice & procedures by which that substantive law can be effectively applied,
Adequate skills to represent client‟s interests effectively.
Z: How to self test that you have all of above? Ask how much experience do I have; if little knowledge/experience don‟t take on file, but to
gain experience say would like to retain senior counsel & depending on case have them as consultant, or tag on as junior. This way keep
client, make $$, learn about area, less stress, avoid making mistakes (Law Society) & avoid prospect of being sued, strengthen S-C relship.
2. A lawyer shall, before accepting retainer, be satisfied lawyer has ability & capacity to deal adequately w/legal matters to be undertaken.
3. A lawyer shall serve each client in a conscientious, diligent & efficient manner so as to provide a quality of service at least equal to that
which be expected of a competent lawyer in a similar situation. Quality of service can be measured, in part, by:
Keeping client reasonably informed
Answering reasonable requests from client to info
Responding, when necessary, to client‟s communications
Keeping appointments w/clients, etc.
Seeking assistance when needed
A lot of that can be handled if you are a neat & tidy person, which doesn‟t mean that you are a good lawyer, or a competent one.
Prof Resp Ziskrout 2004
A lawyer can & should seek advice about areas they are shaky about.
Z: if Law society thinks that lawyer is behaving incompetently, law society will send in a lawyer & an examiner & measure how “tidy”
everything is….but how do you measure competency? Law society does go in & measures easily measurable stuff (how nice is writing,
how good are notes, organization, etc), that is problematic, but that is all they can measure.
Con artists will take complicated matters to green lawyers saying that matter is simple, & that you are a fabulous lawyer they have heard
about. Z says to never get involved in a deal unless you understand all aspects of deal. Often they offer you a lot of money. If you take cash
or an undeclared gift, then they have you in their pocket. It‟s probably a scam, they want credibility of letters being written on “lawyer
letterhead” so they trade on your untarnished name & initials (LLB) beside it.
Z: whenever you don‟t understand intricacies of deal/transactions/doc, this fear of embarrassment can taunt you into failing to slow person
down & fully comprehend it yourself. You can never act as a lawyer when you are uncertain of law & uncertain of facts. YOU won‟t meet
criteria set out in Ch. 3 of Prof. Conduct handbook.
Alcoholism affects btwn 10%-20% of practicing bar. It is not uncommon that lawyer representing other side will be a drunk. Law society
offers free confidential help for drunk lawyers. It is imp‟t not to be an enabler.
- Cocaine is also a difficult problem in bar. Coke addicts will do or say anything to get more cocaine. It also changes their brain chemistry
so they become paranoid & have delusions of grandeur. It is imp‟t to distance yourself from these lawyers, or to help them.
ARTICLE;“The Law & Ethics of Lawyering”, Hazard & Koniak
Survey showing that up to ½ of lawyers who appear in serious cases are not really qualified to render fully adequate rep‟n
Berger (US Chief Justice) quote: Z thinks that as people continue on in practice, they develop higher standards for self & others, & as they
get older they get sour & cranky. There are times when you become overconfident, esp. while sitting on bench
-Z thinks that older members/bench share this view
- “always easy to criticize s/o else‟s game”
- careful about thinking others incompetent – easy to do
Geller v. Brisseau et al. (BCCA 1979)
F: TJ declared pleadings were defective but, lawyer stubbornly continued to lead evidence TJ said was irrelevant.
H: BCCA referred to oral reasons since TJ completely changed reasons btwn oral reasons to written reasons.
R: Arguable case that was supported in evidence; TJ should not have interfered b/c had duty to listen fairly to submissions & evidence.
Head of TV news suing Vancouver Sun & Sun‟s TV columnist
CA reproduces both oral & written reasons of TJ
- written version much more measured
Mistake lawyer made was insisting on proceeding case own way after ruling by ct – you can‟t just barge ahead, say “I accept ruling of ct.
But for this ruling I would have called X, Y, Z.” Then you‟ve set up your appeal. You won‟t win directly w/judge.
Z: Shouldn‟t have continued lead ev in face of adverse ruling. Better served by way of appeal; could have argued judge erred wrt non-suit.
Lawyer not sufficiently attuned to procedure & how to be most effective lawyer he could; good case to ask for recess, ask senior counsel
either to figure out another way or to explain it to judge, either way senior counsel would have been better equipped to deal w/ situation.
Proper course to take when you think that ruling is wrong is to note on record “For record but for this ruling, I would have called ev from
following X witnesses to show Y, but for this ruling, I am precluded from doing so.” Couldn‟t continue blindly.
ARTICLE “Advice for young lawyer”, by Sir Thomas Lund < secretary of UK Law Society
If possible meet & discuss matters w/opposing counsel (rather than always writing); often makes conduct of case much easier for both
Have courage to act and, where appropriate, not to do sth you think is wrong or unwise
- make as many friends as possible among other lawyers
13. LAWYERS AND MEDIA
Lawyer is defender of legal system. Legal profession should rise to defense of judiciary.
Chapter 1, Canon 2, sub 2
Judges not being free to defend themselves are entitled to support of legal profession against unjust criticism & complaint.
Whenever there is proper ground… it is proper for lawyer to submit grievance to proper authorities.
The Media wants to afflict comfortable & comfort afflicted. If you‟re acting for comfortable you‟re screwed…
To speak to media
In client‟s interest
With client‟s consent
Lawyer must be qualified
Beleaguered judges making public comments – Charter made public more excited about judgments since Canons written; also media
getting more sensational
Prof Resp Ziskrout 2004
Difficult as lawyer to deal w/media – we‟re trained to work in system w/fairness principles, which media doesn‟t have
Generally if defence will do your client no good to speak w/press – “comfort afflicted & afflict comfortable”
- must be in client‟s interest, must be w/client‟s consent, you must be qualified
Chapter 14, provision 6
A lawyer must not comment publicly on validity, worth or probable outcome of case in which a lawyer acts.
Do not use press as an opportunity to market, as it won‟t work.
There is no obligation to speak to press.
Problem w/lawyers heeding advice to stay away from media – People want to be on TV
- some lawyer happy to have opportunity to get publicity
- result often not what they hope
Be careful w/press – camera is always on, everything is quotable – “be quite afraid”
- you don‟t have to respond to them
-lawyers take on controversial cases to get exposure, more work, etc,
Z: cautions when you deal w/media case is a notorious, & may well end up attracting a whole lot of people w/notorious cases.
-bear in mind, that when media comes knocking, this brings into play provision 6;
6; a lawyer must not :
comment publicly on validity, worth or probable outcome of a legal proceeding in which lawyer acts;
endorse or lend his or her credibility as a lawyer to promotion or advertisement of any product, property, investment or service for sale to
i) law practice w/ which lawyer is affiliated
ii) book or other publication that lawyer has written or assisted in writing, or
iii) product designed to assist in practice of law & w/ which lawyer has experience, or
state publicly lawyer speaks on behalf of legal profession unless lawyer expressly authorized to state official posn of legal profession.
Z: can‟t say you are going to win, but can say what claim is & what defence
Footnote: “The lawyer owes a duty to client to be qualified to represent client effectively before public & not to permit any personal interest or
other cause to conflict w/client‟s interests
Z: if you haven‟t had major media training & don‟t have extensive knowledge you are not qualified. It is almost impossible to be qualified
w/o having taking effective media training
-Training teaches lawyers not to answer questions, & how to bridge these questions to answers that they want to say
14. DISCIPLINARY ACTION
Minor matter dealt w/as a conduct review. There are various other levels.
Duty of Candor/Forthrightness has to also do w/ responding to any complaints. Rule of 3 C‟s:
Also: Counsel (get it, if you can‟t deal it w/yourself)
If you get a complaint, get advice about it.
Don‟t bad mouth complainant. Apologize as Law Society will like you more.
Fear of embarrassment causes a lot of problems < often from lying
- When in grip of panic, bad time to make decisions – get advice
Law Society of BC v. Ogilvie (LSBC 1999)
Ultimate penalty of disbarment reserved for sitches where it is the only way to protect the public.
One factor is utility of general or specific deterrence. MacKenzie says in his book that this is not job for law society, & Z agrees.
Average lawyers have one complaint every 6 years. Good lawyers have no complaints, or only one.
For every 3 official complaints, there are 48 people who are really mad at you.
Prof Resp Ziskrout 2004