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BRENT COTTER, Q.C. W I T H T H E A S S I S T A N C E O F K A T E M A C K A Y

Legal Ethics for Saskatchewan Lawyers

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Objectives

• A framework for legal ethics • Key ethical principles from jurisprudence and Codes

of Professional Conduct, old and new

• The ‘language’ and structure of the new Code • Key ethical provisions in the new Code of

Professional Conduct “in context”

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Structure of 2012 Code of Professional Conduct (I)

Foreward Preface Definitions Chapter 1 – Standards of the Legal Profession Integrity Chapter 2 – Relationship to Clients Competence Quality of Service Confidentiality Conflicts Preservation of Client’s Property Fees and Disbursements Withdrawal from Representation Chapter 3 – Marketing of Legal Services Making Legal Services Available Marketing Advertising Nature of Practice Chapter 4 – Relationship to the Administration of Justice The Lawyer as Advocate The Lawyer as Witness

Interviewing Witnesses Communication with Witnesses Giving

Evidence Relations with Jurors The Lawyer and the Administration of Justice Lawyers and Mediators Chapter 5 – Relationship to Students, Employees, and Others Supervision Students Harassment and Discrimination Chapter 6 – Relationship to the Society and Other Lawyers Responsibility to the Society and the Profession

Generally Responsibility to Lawyers and Others Outside Interests and the Practice of Law The Lawyer in Public Office Public Appearances and Public Statements Preventing Unauthorized Practice Retired Judges Returning to Practice Errors and Omissions

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•Structure of 2012 Code of Professional Conduct (II)

Law Society of Saskatchewan Code of Professional Conduct 1991, Chapter IX, Guiding Principle 16: Communicating with Witnesses “The lawyer should observe the following guidelines respecting communication with witnesses giving evidence […]” Law Society of Saskatchewan Code of Professional Conduct 2012, 4.04 (2): Communicating with Witnesses Giving Evidence “Subject to the direction of the tribunal, a lawyer must observe the following rules respecting communication with witnesses giving evidence […]”

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Legal Ethics & the Nature of the Lawyer’s Role

“[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, in his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion…” - Lord Brougham, addressing the House of Lords in defence of Queen Caroline (against charges of adultery brought against her by her husband, King George IV)

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Law Society of Saskatchewan Code of Professional Conduct, 2012 on the Lawyer’s Role

PREFACE “Lawyers are essential participants in a justice system that advances the Rule of Law. They represent the interests of their clients, are members of a profession and are officers of the Court. They enjoy a unique and privileged position in society. Lawyers have a professional and ethical responsibility to serve their clients, the profession and the judicial system in terms that protect and promote their clients and the public interest.” A lawyer must “fulfill his or her core duties of integrity, competency and loyalty.” Rule 1.01 (2) A lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations, and institutions.

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The Non-Obvious Nature of Legal Ethics

SITUATION #1 A client and his wife have come to see you to sign up “mutual wills” that you have drafted for them – essentially, wills that mirror one another, in which each spouse, on dying, leaves all of his or her estate to the other spouse. The client has been a longstanding business law client of your firm. He signs his will and then leaves your office to catch a plane out of town on business. After he leaves, his wife tells you that she will not sign the will you have drafted. She indicates that she wants a different will that would leave her estate to a child to whom she gave birth prior to her marriage, and of whose existence her husband is unaware. She insists that you do not tell her husband any of this. What do you do?

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The Non-Intuitive Nature of Legal Ethics

SK Code of Professional Conduct, 2012, 2.04 (5), “Joint Retainers”, Commentary “A lawyer who receives instructions from spouses or partners to prepare one or more wills for them based on their shared understanding of what is to be in each will should treat the matter as a joint retainer and comply with subrule (5) [advice to the client on the ‘rules’ for joint retainers]. Further, at the outset of this joint retainer, the lawyer should advise the spouses or partners that, if subsequently only one of them were to communicate new instructions, such as instructions to change or revoke a will:

(a) the subsequent communication would be treated as a request for a new retainer and not as part of the joint retainer;

(b) in accordance with Rule 2.03 [confidentiality], the lawyer would be obliged to hold the subsequent communication in strict confidence and not disclose it to the other spouse or partner; and

(c) the lawyer would have a duty to decline the new retainer, unless: i. the spouses or partners had annulled their marriage, divorced, permanently ended their

conjugal relationship or permanently ended their close personal relationship, as the case may be;

ii. the other spouse or partner had died; or iii. the other spouse or partner was informed of the subsequent communication and agreed

to the lawyer acting on the new instructions. After advising the spouses or partners in the manner described above, the lawyer should obtain their consent to act in accordance with subrule (9) [client consent, including to the potential referral of one client to another lawyer].

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The Non-Intuitive Nature of Legal Ethics II

Disclosure of Binding Adverse Authority Law Society of Saskatchewan Code of Professional Conduct, 2012, 4.01 (1) & (2):

“When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect. “When acting as an advocate, a lawyer must not […]

(i) deliberately refrain from informing a tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by another party”

This is a change from the previous Code (Chapter IX, Commentary 2(h)) where the comparable phrase was “any pertinent adverse authority”

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The Lawyer-Client Relationship: Who Is My Client, and “When”?

Law Society of Saskatchewan, Code of Professional Conduct, 1991

‘Client’ means a person on whose behalf a lawyer renders or undertakes to render professional services* Law Society of Saskatchewan, Code of Professional Conduct, 2012

‘Client’ means a person who: a) consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or b) having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on his or her behalf.

Commentary “A lawyer-client relationship may be established without formality.” “When an individual consults a lawyers in a representative capacity, the client is the corporation, partnership, organization, or other legal entitle that the individual is representing” “For greater clarity, a client does not include a near-client, such as an affiliated entity, director, shareholder, employee, or family member, unless there is objective evidence to demonstrate that such an individual had a reasonable expectation that a lawyer-client relationship would be established.”

“A lawyer also owes a duty of confidentiality to anyone seeking advice or assistance on a matter invoking a lawyer’s professional knowledge, although the lawyer may not render an account or agree to represent that person. A solicitor and client relationship is often established without formality. A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since the possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter.”

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The Lawyer-Client Relationship: Who Is My Client, and “When”?

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When the Client is an Organization 2.02 (3) Although a lawyer may receive instructions from an officer, employee,

agent or representative, when a lawyer is employed or retained by an organization, including a corporation, the lawyer must act for the organization in exercising his or her duties and in providing professional services.

Commentary A lawyer acting for an organization should keep in mind that the organization, as such, is

the client and that a corporate client has a legal personality distinct from its shareholders, officers, directors and employees. While the organization or corporation acts and gives instructions through its officers, directors, employees, members, agents or representatives, the lawyer should ensure that it is the interests of the organization that are served and protected.

… In addition to acting for the organization, a lawyer may also accept a joint retainer and

act for a person associated with the organization. For example, a lawyer may advise an officer of an organization about liability insurance. In such cases the lawyer acting for an organization should be alert to the prospects of conflicts of interests and should comply with the rules about the avoidance of conflicts of interests (Rule 2.04).

Commencement of Lawyer-Client Relationship

Descôteaux v. Mierzwinski [1982](SCC) “When dealing with the right to confidentiality it is necessary, in my view, to distinguish between the moment when the retainer is established and the moment when the solicitor-client relationship arises. The latter arises as soon as the potential client has his first dealings with the lawyer’s office in order to obtain legal advice.”* * R. v. Cunningham Law Society of Saskatchewan Code of Professional Conduct, 2012, 2.03(1), Commentary “A lawyer also owes a duty of confidentiality to anyone seeking advice or assistance on a matter invoking a lawyer’s professional knowledge, although the lawyer may not render an account or agree to represent that person. A solicitor and client relationship is often established without formality. A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since the possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter.”

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Duties Owed by the Lawyer to the Client: Fiduciary Duty: Loyalty

Law Society of Saskatchewan Code of Professional Conduct, 2012, 2.04 “The lawyer-client relationship is a fiduciary relationship and

as such, the lawyer has a duty of loyalty to the client […] Arising from the duty of loyalty are other duties, such as the duty to commit to the client’s cause, the duty of confidentiality, the duty of candour and the duty not to act against the interests of the client. This obligation is premised on an established or ongoing lawyer-client relationship in which the client must be assured of the lawyer’s undivided loyalty, free from any material impairment of the lawyer and client relationship.”

“The relationship between lawyer and client is a fiduciary one, and no conflict between the lawyer’s own interest and the lawyer’s duty to the client can be permitted.”

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Duties Owed by the Lawyer to the Client: Fiduciary Duty: Loyalty

R. v. Neil, per Binnie J. “The duty of loyalty is intertwined with the fiduciary

nature of the lawyer-client relationship. One of the roots of the word fiduciary is fides, or loyalty, and loyalty is often cited as one of the defining characteristics of a fiduciary […] The lawyer fulfills squarely Professor Donovan Waters’ definition of a fiduciary:

In putting together words to describe a “fiduciary” there is of course no immediate obstacle. Almost everybody would say that it is a person in whom trust and confidence is placed by another on whose behalf the fiduciary is to act. The other (the beneficiary) is entitled to expect that the fiduciary will be concerned solely for the beneficiary’s interests, never the fiduciary’s own. The ‘relationship’ must be the dependence or reliance of the beneficiary upon the fiduciary.”

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Duties Owed by the Lawyer to the Client: Integrity

Law Society of Saskatchewan Code of Professional Conduct, 2012

“1.01 (1) A lawyer has a duty to carry on the practice of law and discharge responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity. 1.01 (2) A lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations, and institutions.”

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Duties Owed by the Lawyer to the Client: Competence & Quality of Service

Both the former and new Codes each contain an extensive chapter on these topics. The new Code contains a ‘definitions’ section under rule 2.01(1) in which the competent lawyer is defined extensively. Appendix A (Competence Profile) of the former Code has been removed from the document.

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Duties Owed by the Lawyer to the Client: Honesty & Candour

Law Society of Saskatchewan Code of Professional Conduct, 1991 Chapter III “The lawyer must be both honest and candid when advising clients.” Commentary “...the client [should be] informed of the true position and fairly advised about the real issues or questions involved.” “The lawyer should clearly indicate the facts, circumstances and assumptions upon which the lawyer’s opinion is based” “The lawyer should be wary of bold and confident assurances to the client” Law Society of Saskatchewan Code of Professional Conduct, 2012 “2.02 (2) When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter.” Commentary “A lawyer should disclose to the client all the circumstances of the lawyer’s relations to the parties and interest in or connection with the matter” “The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results” “Occasionally, a lawyer must be firm with a client. Firmness, without rudeness, is not a violation of the rule.”

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Confidentiality & Privilege: The Central Nature of the Duty of Confidentiality

Law Society of Saskatchewan Code of Professional Conduct, 1991

“The lawyer has a duty to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and shall not divulge such information unless disclosure is expressly or implicitly authorized by the client, required by law, or otherwise permitted or required by this Code.” “[…] the lawyer should not disclose having been consulted or retained by a person unless the nature of the matter requires such disclosure.” “The lawyer owes a duty of secrecy to every client, without exception, regardless of whether it be a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.”

Law Society of Saskatchewan, Code of Professional Conduct, 2012

“A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:

(a) expressly or impliedly authorized by the client; (b) required by law or a court to do so; (c) required to deliver the information to the Law Society, or (d) otherwise permitted by this rule.”

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Descôteaux v. Mierzwinski on Confidentiality

“The items of information that a lawyer requires from a person in order to decide if he will agree to advise or represent him are just as much communications made in order to obtain legal advice as any information communicated to him subsequently. It has long been recognized that even if the lawyer does not agree to advise the person seeking his services, communications made by the person to the lawyer or his staff for that purpose are none the less privileged… A lawyer also owes a duty of confidentiality to anyone seeking advice or assistance on a matter invoking a lawyer’s professional knowledge, although the lawyer may not render an account or agree to represent that person. A solicitor and client relationship is often established without formality. A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since the possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter…. Moreover, the same applies not only to information given before the retainer is perfected concerning the legal problem itself, but also to information concerning the client’s ability to pay the lawyer and any other information which a lawyer is reasonably entitled to require before accepting the retainer.”

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Differences Between Confidentiality and Privilege

Law Society of Saskatchewan Code of Professional Conduct, 2012 – Rule 2.03(1), Commentary:

The “ethical rule [of confidentiality] must be distinguished from the evidentiary rule of lawyer and client privilege which is a constitutionally protected right, concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or to the fact that others may share the knowledge.”

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Differences Between Confidentiality and Privilege 21

First, confidentiality is an ethical principle, whereas the duty of lawyer-client privilege is a legal duty.

Second, the duty of confidentiality is engaged with respect to all of the client information acquired by the lawyer in the course of the professional relationship, whereas the lawyer-client privilege is limited to private communications that take place between lawyer and client.

Third, the ethical obligation continues even if the information comes to be known by others, whereas communication of the privileged information to third parties can privilege from coming into existence or can bring it to an end.

Fourth, the privilege is a legal duty primarily associated with the law of evidence (though as we shall see it has grown in status from an evidentiary principle to a principle of substantive law to, in appropriate circumstances, a “principle of fundamental justice”). By comparison, confidentiality is a wide-ranging duty, but only an ‘ethical’ one.

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Trends in the Duty of Confidentiality & Privilege

Honour

Evidentiary principle

Principle of substantive law [Solosky]

Principle of fundamental justice [McClure, FLSC v. A-G Canada]

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Exceptions to Confidentiality and Privilege: Innocence at Stake

R. v. McClure; R. v. Brown “Solicitor-client privilege is not absolute […] in rare circumstances, it will be subordinated to an

individual’s right to make full answer and defense” “Rules and privileges will yield to the Charter guarantee of a fair trial where they stand in the way of an

innocent person establishing his or her innocence […] Section 7 of the Charter entitles an accused to a fair hearing”

“[…] privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction”

“Before the test is even considered, the accused must establish that the information he is seeking in the solicitor-client file is not available from any other source and he is otherwise unable to raise a reasonable doubt as to his guilt in any other way”

“The innocence at stake test is applied in two stages […] At the first stage, the accused seeking production of a solicitor-client communication must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt […] the trial judge must [then] examine the solicitor-client file to determine whether, in fact, there is a communication that is likely to raise a reasonable doubt as to the guilt of the accused”

“It falls to the accused to demonstrate some evidentiary basis for his claim that there exists a solicitor-client communication relevant to the defense he raises. Mere speculation as to what a file might contain is insufficient.”

‘After the fact’ discoveries of innocence should generally be addressed through S. 690 applications, and not through attempts to set aside lawyer-client privilege

The privilege applies to oral and written communications. In the rare cases where disclosure is mandated, disclosure is to be made only to the accused [but not the

Crown]. Any disclosure adduced for the purpose of avoiding a wrongful conviction cannot be used to incriminate

the privilege holder, who is entitled to ‘immunity’ with respect to his otherwise privileged communications.

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Exceptions to Confidentiality and Privilege: Crime/Fraud

Descoteaux, per Lamer J. Confidential, whether they relate to financial means or to the

legal problems itself, communications lose that character if and to the extent that they were made for the purpose of obtaining legal advice to facilitate the commission of a crime.

The same is true a fortiori where, as in the case at bar, the

communication itself is the material element (actus reus) of the crime; this is all the more evident where the victim of the crime is precisely the office of the lawyer to whom the communication was made…

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Exceptions to Confidentiality: Legislative Exceptions

Descôteaux v. Mierzwinski, per Lamer J. A judge must not interfere with the confidentiality of communications between solicitor & client, except to the extent absolutely necessary to achieve the ends sought by the enabling legislation The confidentiality of communications between solicitor and client may be raised in any circumstances

where such communications are likely to be disclosed without the client’s consent. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would

interfere with another person’s right to have his communications with his lawyer kept confidentiality. When the law gives someone the authority to do something which, in the circumstances of the case, might

interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

Acts providing otherwise must be interpreted restrictively. Goodis v. Ontario (Ministry of Correctional Services), per Rothstein J. “The appropriate test for any document claimed to be subject to solicitor-client privilege is ‘absolute

necessity’” “Absolute necessity is as restrictive a test as may be formulated short of an absolute

prohibition” Absent absolute necessity in order to achieve the end sought by the enabling legislation, such records may

not be disclosed”

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Exceptions to Confidentiality: Legislative Exceptions

Law Society Investigations Law Society of Saskatchewan v. Merchant et al , per Richards J.A. Law Societies have the authority to demand the production of records subject to

solicitor-client privilege if access to the information is necessary to fulfill their legislative mandate with respect to investigations of allegations of lawyer misconduct. • The wording of s. 63(1) of The Legal Profession Act, 1990, considered in its

statutory context, clearly reveals a legislative intention that the Law Society be empowered to demand access to material subject to solicitor-client privilege;

• The Law Society must be able to delve into complaints in order to satisfy the objectives of the Act;

• Where the demand of the Law Society is narrowly framed so as to limit it to matters directly related to the complaint, where the demanded records are required for the purposes of investigating a complaint and where there is no other way to obtain the records in question, disclosure will be authorized.

• As a result of this case, subrule (c) has been added to 2.03 (1) of the new Code: A lawyer [must not divulge confidential information] unless: … (c) required to deliver the information to the Law Society

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Exceptions to Confidentiality and Privilege: Legislative Exceptions

Terrorist Financing Federation of Law Societies of Canada v. Canada (Attorney

General) BCSC, 2011, per Gerow J. [on appeal] • The Regime proposed by the federal government following the

9/11 Terrorist Attacks infringes s. 7 of the Charter insofar as it applies to lawyers and law firms because it puts both lawyers and their clients’ liberty interests in jeopardy by requiring lawyers to collect and retain information about clients, and make the information available to the government to aid in combating and money laundering and terrorist financing; furthermore, this infringement is not justified under s. 1 of the Charter

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Exceptions to Confidentiality and Privilege: Public Safety/Future Harm

SCENARIO #2 A client comes to your office to discuss a variation to his will. He is a client of

long-standing who has recently suffered a series of severe personal difficulties and business setbacks. His wife has left him for another man and has moved to another province with the children. His business recently went bankrupt and his health is deteriorating.

What he tells you is that he is amending his will to leave everything to his children, that he wants the will prepared by ‘Friday’ and in strict confidence that he intends to commit suicide on the weekend.

After a lengthy and heartfelt discussion, in which you encourage him to consider other options and to seek professional help, which you would be pleased to arrange, he states firmly and resolutely “Thanks, but I have thought this through and have made up my mind. Just have the will ready by Friday.” He leaves your office.

What, if anything, would you do?

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Exceptions to Confidentiality and Privilege: Public Safety/Future Harm

Smith v. Jones “When public safety is involved and death or serious bodily harm is

imminent, the privilege should be set aside.” “…if a public safety exception applied to solicitor-client privilege, it

applies to all classifications of privilege and duties of confidentiality.” “What factors should be taken into consideration in determining whether

[…] privilege should be displaced? […] There are three factors to be considered: First, is there a clear risk to an identifiable person or group of persons? Second, is there a risk of serious bodily harm or death? Third, is the danger imminent? Clearly, if the risk is imminent, the

danger is serious.” If these criteria are met, the lawyer is “authorized” to disclose the

information, though to the most limited extent necessary to seek to avert the harm.

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Exceptions to Confidentiality: Public Safety/Future Harm

Law Society of Saskatchewan Code of Professional Conduct, 1991, Chapter IV, Commentary 11 “Disclosure of information necessary to prevent a crime will be justified if the lawyer has reasonable grounds for believing that a crime is likely to be committed and will be mandatory when the anticipated crime is one involving violence against the person.” Law Society of Saskatchewan Code of Professional Conduct, 2012 “2.03 (3) A lawyer must disclose confidential information, but only to the extent necessary if the lawyer has reasonable grounds for believing that an identifiable person or group is in imminent danger of death or serious bodily harm and believes disclosure is necessary to prevent the death or harm.” 2.03(4) A lawyer may divulge confidential information, but only to the extent necessary: … (d) if the lawyer has reasonable grounds for believing that a crime is likely to be committed and believes disclosure could prevent the crime; or (e) if the lawyer has reasonable grounds for believing that a dangerous situation is likely to develop at a court facility

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Other “Optional” Exceptions to Confidentiality

Law Society of Saskatchewan Code of Professional Conduct 2012, Rule 2.03 Client consent (Rule 2.03(1), Rule 2.03(4))

To establish or collect a fee (Rule 2.03(4), Rule 2.03(6))

To secure legal or ethical advice about a lawyer’s proposed

conduct (Rule 2.03(4), Rule 2.03(7)) To defend oneself against allegations of criminal liability, civil

liability, professional negligence, professional misconduct or conduct unbecoming a lawyer (Rule 2.03(5))

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Exceptions to Confidentiality and Privilege: Real Evidence

R. v Murray Where a lawyer finds herself in possession of real evidence, the lawyer’s

obligation in such circumstances is to deal proactively with the evidence In Murray, defense counsel for Paul Bernardo took and retained possession of

videotapes which implicated his client, and was eventually charged with obstruction of justice. The Court stated: “Once he had discovered the overwhelming significance of the critical tapes, Murray […] was left with but three legally justifiable options: (a) Immediately turn over the tapes to the prosecution, either directly or anonymously; (b) Deposit them with the trial judge; or (c) Disclose their existence to the prosecution and prepare to do battle to retain them …lawyers may not conceal material physical evidence of crime.”

Law Society of Alberta Code of Professional Conduct, Chapter 10, Rule 20, “The Lawyer as Advocate”: “A lawyer must not counsel or participate in:

(a) the obtaining of information by illegal means; (b) the falsification of evidence; (c) the destruction of property having potential evidentiary value or the alteration of property so as to affect its evidentiary value; or (d) the concealment of property having potential evidentiary value in criminal proceeding.

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Conflicts of Interest: 1991 Code of Professional Conduct

Law Society of Saskatchewan Code of Professional Conduct, 1991 – differentiates between conflicts of interest as between lawyer and client versus between client and other client: Chapter V: “The lawyer shall not advise or represent both sides of a dispute and, save after adequate disclosure to and with the consent of the clients or prospective clients concerned, shall not act or continue to act in a manner when there is or is likely to be a conflicting interest.” Chapter VI: “The lawyer shall not act for the client where the lawyer’s duty to the client and the personal interests of the lawyer or an associate are in conflict.”

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Client-Client Conflicts

• Re MacDonald Estate; Martin v. Gray – “quintessential

‘transferring lawyer’ case”: • 3 competing values:

• Concern to maintain the high standards of the legal profession and the integrity of our justice system

• Litigant should not be deprived of his or her choice of counsel without good cause • Desirability of permitting reasonable mobility in the legal profession

• “Even an appearance of impropriety should be avoided” • “Once it is shown by the client that there existed a previous relationship which is

sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant […] A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail.”

• Sopinka J. on guidance from the CBA and the Law Societies • Development of Chapter VA of the 1991 Code of Professional Conduct,

now set out in Rule 2.04(17-26) of the 2012 Code

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Client-Client Conflicts: Duties to Current Clients

R. v. Neil, per Binnie J. • “[The client is] entitled to a level of commitment from his lawyer that

whatever could properly be done on his behalf would be done as surely as it would have been done if the appellant had had the skills and training to do the job personally.”

• “[…] it is the firm, not just the individual lawyer, that owes a fiduciary duty to its clients.”

• “The bright line is […] that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client – even if the two mandates are unrelated – unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other.”

• A conflict is: “a ‘substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.”

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Conflicts of Interest: Current Clients

CBA Position; Wallace v. CN et al In a Task Force Report and in submissions to the Federation of

Law Societies, the Canadian Bar Association urged the adoption of “substantial risk to representation” as the cornerstone of “current client” conflicts, and as a more suitable interpretation of Neil

In Wallace, though the case was ultimately decided on other grounds, Popescul J., as he then was, and Ottenbreit J.A. in the Court of Appeal, adopted the “substantial risk to representation” approach as either the proper interpretation of Neil or as a moderated interpretation of the bright line test in Neil required in the specific circumstances of the case. (On appeal to the Supreme Court of Canada.)

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Law Society of Saskatchewan Code of Professional Conduct 2012, definitions: “A ‘conflict of interest’ means the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person.” Rule 2.04 (1), “Duty to Avoid Conflicts of Interest” “A lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.”

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Law Society of Saskatchewan Code of Professional Conduct, Rule 2.04 (1), Commentary

The value of an independent bar is diminished unless the lawyer is free from conflicts of

interest. The rule governing conflicts of interest is founded in the duty of loyalty which is grounded in the law governing fiduciaries. The lawyer-client relationship is a fiduciary relationship and as such, the lawyer has a duty of loyalty to the client. To maintain public confidence in the integrity of the legal profession and the administration of justice, in which lawyers play a key role, it is essential that lawyers respect the duty of loyalty. Arising from the duty of loyalty are other duties, such as a duty to commit to the client’s cause, the duty of confidentiality, the duty of candour and the duty not to act against the interests of the client. This obligation is premised on an established or ongoing lawyer client relationship in which the client must be assured of the lawyer’s undivided loyalty, free from any material impairment of the lawyer and client relationship.

The rule reflects the principle articulated by the Supreme Court of Canada in the cases of R. v. Neil, 2002 SCC 70 and Strother v. 3464920 Canada Inc., 2007 SCC 24, regarding conflicting interests involving current clients, that a lawyer must not represent one client whose legal interests are directly adverse to the immediate legal interests of another client without consent. This duty arises even if the matters are unrelated. The lawyer client relationship may be irreparably damaged where the lawyer’s representation of one client is directly adverse to another client’s immediate interests.

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Strother et al v. Monarch Entertainment Ltd., per Binnie J. 2007 SCC 204 The lawyer’s fiduciary obligations extend beyond the terms of the retainer When a lawyer is retained by a client, the scope of the retainer is governed by contract. … The

solicitor-client relationship thus created is however overlaid with certain fiduciary responsibilities, which are imposed as a matter of law. The Davis factum puts it well: “The source of the duty is not the retainer itself, but all the circumstances (including the

retainer) creating a relationship of trust and confidence from which flow obligations of loyalty and transparency.”

Not every breach of the contract of retainer is a breach of a fiduciary duty. On the other hand, fiduciary duties provide a framework within which the lawyer performs the work and may include obligations that go beyond what the parties expressly bargained for. The foundation of this branch of the law is the need to protect the integrity of the administration of justice…

A law firm may represent competitors [properly managed] … [c]onflict of interest principles do not generally preclude a law firm or lawyer from acting

concurrently for different clients who are in the same line of business, or who compete with each other for business…

The clients' respective "interests" that require the protection of the duty of loyalty have to do with the practice of law, not commercial prosperity. Here the alleged "adversity" between concurrent clients related to business matters. This is not to say that commercial interests can never be relevant. …

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Current Client Conflicts of Interest and The Professional Litigant Exception

Neil , per Binnie J. In exceptional cases, consent of the client may be inferred. For example, governments generally accept that private practitioners who do their civil or criminal work will act against them in unrelated matters, and a contrary position in a particular case may, depending on the circumstances, be seen as tactical rather than principled. Chartered banks and entities that could be described as professional litigants may have a similarly broad-minded attitude where the matters are sufficiently unrelated that there is no danger of confidential information being abused. These exceptional cases are explained by the notion of informed consent, express or implied.

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Current Client Conflicts of Interest and The Professional Litigant Exception

Wallace, per Ottenbreit J.A. The Codes of Professional Conduct, as mentioned earlier, allow lawyers to act against

current and former clients under certain conditions. Neil itself enunciates one exception to the “Bright Line” Rule, the Professional Litigant Exception, where acting adverse in interest is permissible ….

The salient features of those exceptional cases mentioned in Neil when consent may be inferred or expressed to allow a law firm to act adverse in interest appear to be:

(a) the client is a larger corporate client such as a government or bank; (b) the matters are sufficiently unrelated; and (c) there is no danger of confidential information being abused. “…There may be, in my view, a fourth factor bearing on when the Professional Litigant

Exception will apply and that is whether, in the circumstances, its application is consistent with the high standards of the legal profession and the integrity of the justice system.”

…[I]in those circumstances, it is reasonable to assume that the client will have a broad-minded attitude and generally accept that counsel may act adverse in interest. The corollary to this is that it is reasonable for the law firm to make such an assumption and act on it.

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Conflicts of Interest: Former Clients

Law Society of Saskatchewan Code of Professional Conduct, 2012, 2.04 (10): Acting Against Former Clients “Unless the former client consents, a lawyer must not act against a former client in: (a) the same matter, (b) any related matter, or (c) any other matter if the lawyer has relevant confidential information arising from the representation of the former client that may prejudice that client.”

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Conflicts of Interest: Former Clients

Exceptions to the prohibition against acting against a former client: Client consent Confidential information – new matter

Rule 2.04(11) sets out “interests of justice” factors which, if established, will allow the lawyer’s firm (but not the lawyer) may act against the former client even if the former client declines to consent and the lawyer has obtained confidential information – these factors include whether proper screens are in place, whether there will be prejudice to any party, the availability of suitable alternative counsel, and ‘issues affecting the public interest’

Placing mortgage, advising mortgagor, subsequent foreclosure Commentary to Rule 2.04(9) (Joint Retainers) (identical to former Code Chapter V,

Guiding Principle 12) allows a lawyer to act on such a foreclosure in limited circumstances: Foreclosure based on subsequent, unrelated events Original legal service for mortgage documentation only Original mortgagor not a party to the foreclosure Mortgagor has no beneficial interest, no claim against mortgagor personally Mortgagor consent

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Conflicts of Interest: Joint Retainers

Law Society of Saskatchewan Code of Professional Conduct, 2012 Joint Retainers Rule 2.04 (5) “Before a lawyer acts in a matter or transaction for more than one client, the lawyer must advise each of the clients that:

(a) the lawyer has been asked to act for both or all of them; (b) no information received in connection with the matter from one client can be treated as confidential so far as any of the others are concerned; and (c) if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely.”

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Borrower and Lender Rule 2.04(12) of the new Code begins with a prohibition against acting for both a lender and borrower but then establishes a series of exceptions in Rule 2.04(14) where the “lending client” is a financial institution that lends money in its usual course of business,

• The lender is a seller, taking a mortgage as part of the purchase price; • In remote locations with no other lawyer available to handle the matter; • The lender and borrower are not at arm’s length

Rule 2.04 (15) requires that in all such circumstances “[…] the lawyer must disclose to the borrower and the lender, in writing, before the advance or release of the mortgage or loan funds, all material information that is relevant to the transaction.” (The Commentary to this Rule offers some guidance regarding “material information” – e.g. the fact that the property is being “flipped” and requires the disclosure of the material information “even if the lender or the borrower does not ask…”)

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Builder/Developer and Purchaser Though not set out in a Rule, the Commentary to the Rule 2.04(9), repeated in the Commentary to Rules 2.04(27-41) on Lawyer-Client Conflicts, sets out another prohibition, consistent with the provisions of the 1991 Code:

“Notwithstanding any other provisions of the The Code of Professional Conduct, a lawyer shall not act for both the builder or developer and the purchaser in a real estate transaction resulting from the construction of a new home, even if the parties consent.”

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Conflicts of Interest: Lawyer-Client Conflicts: Financial and Business Relationships

SK Code of Professional Conduct, 2012, Rule 2.04 (1), Commentary “…a conflict of interest exists when there is a substantial risk that a lawyer’s

loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest”

“Conflicts of interest can arise [where]: A lawyer, an associate, a law partner or a family member has a personal

financial interest in a client’s affairs or in a matter in which the lawyer is requested to act for a client, such as a partnership interest in some joint business venture with a client […]

A lawyer or his or her law firm acts for a public or private corporation and the lawyer serves as a director of the corporation.

Sole practitioners who practice with other lawyers in cost-sharing or other arrangements represent clients on opposite sides of a dispute.” [See also R. v. Neil]

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Conflicts of Interest: Lawyer-Client Conflict: Financial and Business Relationships

SK Code of Professional Conduct, 2012, Rule 2.04 (27-35) and Commentaries These Rules and Commentaries, are significant elaborations of

Chapter VI of the former Code; the basic Rule is 2.04(28): “Subject to this rule, a lawyer must not enter into a transaction with a client unless the transaction is fair and reasonable to the client, the client consents to the transaction and the client has independent legal representation with respect to the transaction”.

The Commentary to this Rule lists the types of transactions to which the Rule applies:

Lending or borrowing money; Buying or selling property; Accepting a gift, including a testamentary gift; Giving or acquiring an interest in a company or other entity; Recommending an investment; Entering into a common business venture.

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Lending or borrowing money • Pursuant to “A lawyer must not borrow money from a client unless the

client is a lending institution … or [with additional qualifications related to the protection of the client’s interests] a ‘related person’ as defined by the Income Tax Act... (Rule 2.04(31) )

• If the borrowing is to be done by the lawyer’s spouse or an entity in which the lawyer or the lawyer’s spouse has a substantial interest, “ …the lawyer must ensure that the client’s interests are fully protected by the nature of the case and by independent legal representation.” (Rule 2.04(33))

• Where the lawyer is lending money to a client, in addition to disclosing the conflict and obtaining client consent, “… the lawyer must … (b) require that the client receive independent legal representation …” (Rule 2.04(34))

• Rules 2.04(35),(36) and (40) limit the circumstances in which lawyers may give personal guarantees of clients’ indebtedness. Unless the person is a family member, this applies to acting as a surety for a client in custody.

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Accepting a gift, including a testamentary gift • Rules 2.04(37-39) set out limitations on a lawyer’s activities related to wills

and testamentary gifts: • A lawyer may not include a clause in a client’s will directing the executor to

retain the lawyer’s services in the administration of the estate (Rule 2.04(37))

• A lawyer cannot prepare a will or other instrument giving a gift in which the client makes a gift to the lawyer or an associate (unless the client is a family member) (Rule 2.04(38))

• A lawyer is not allowed to receive anything other than a nominal gift from a client unless the client has received independent legal advice (Rule 2.04(39))

Giving or acquiring an interest in a company or other entity • Pursuant to Rule 2.04(29), where a client intends to make an investment in

an entity in which the lawyer has a meaningful interest, among other things related to the disclosure of the conflict and related to client consent, “…the lawyer must … (b) recommend and require that the client receive independent legal advice”

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Conflicts of Interest: Lawyer-Client Conflicts

Personal Relationships

Law Society of Saskatchewan Code of Professional Conduct 2012, Rule 2.04 (1), Commentary “Conflicts of interest can arise [where…] a lawyer has a sexual or close

personal relationship with a client. Such a relationship may conflict with the lawyer’s duty to provide objective,

disinterested professional advice to the client. The relationship may obscure whether certain information was acquired in the course of the lawyer and client relationship and may jeopardize the client’s right to have all information concerning his or her affairs held in strict confidence. The relationship may in some circumstances permit exploitation of the client by his or her lawyer. If the lawyer is a member of a firm and concludes that a conflict exists, the conflict is not imputed to the lawyer’s firm, but would be cured if another lawyer in the firm who is not involved in such a relationship with the client handled the client’s work.”

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Conflicts of Interest: Lawyer-Client Conflicts

Personal Relationships Law Society of Upper Canada v. Hunter “If a lawyer has a sexual or intimate personal relationship with a client, this may conflict with the

lawyer’s duty to provide objective, disinterested professional advice to the client. Before accepting a retainer from or continuing a retainer with a person with whom the lawyer has such a relationship, a lawyer should consider the following factors: The vulnerability of the client, both emotional and economic; The fact that the lawyer and client relationship may create a power imbalance in favour of the

lawyer or, in some circumstances, in favour of the client; Whether the sexual or intimate personal relationship will jeopardize the client’s right to have all

information concerning the client’s business and affairs held in strict confidence […] the existence of the relationship may obscure whether certain information was acquired in the course of the lawyer and client relationship;

Whether such a relationship may require the lawyer the act as a witness in the proceedings; Whether such a relationship will interfere in any way with the lawyer’s fiduciary obligations to the

client, his or her ability to fulfill obligations owed as an officer of the court and to the administration of justice.”

“[T]he lawyer should recommend [independent legal advice] to ensure that the client’s consent is informed, genuine, and uncoerced.”

“The Rules of Professional Conduct do not create an absolute prohibition against initiating or continuing a sexual/romantic relationship with a client […] However, it can fairly be said that any sexual/romantic relationship with a client, at the very least, raises serious questions about whether the lawyer is thereby placed in a conflict of interest or is otherwise jeopardizing the solicitor-client relationship. (In many cases, it also invites concern over whether the sexual/romantic relationship is truly consensual.)”

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Termination of the Lawyer-Client Relationship

In the former Code of Professional Conduct, the topic of “withdrawal” was afforded its own chapter (Chapter XII). The new Code addresses “withdrawal” in Rule 2.07. The basic language of both rules is similar. Most of the Guiding Principles in the Commentary of the former Code have been written into the new Code as Rules, with some changes to the wording.

Law Society of Saskatchewan Code of Professional Conduct, 1991, c. XII “The lawyer owes a duty to the client not to withdraw services except for good cause and upon notice appropriate in the circumstances.” Law Society of Saskatchewan Code of Professional Conduct, 2012 “2.07 (1) A lawyer must not withdraw from representation of a client except for good cause and on reasonable notice to the client.”

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Termination of the Lawyer-Client Relationship

Optional Withdrawal

“2.07 (2) If there has been a serious loss of confidence between the lawyer and client, the lawyer may withdraw.”

Obligatory Withdrawal

“2.07 (7) A lawyer must withdraw if: a) discharged by a client; b) a client persists in instructing the lawyer to act

contrary to professional ethics; or c) the lawyer is not competent to continue to handle a

matter.”

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Termination of the Lawyer-Client Relationship: Manner of Withdrawal

SK Code of Professional Conduct, 2012 Manner of Withdrawal “2.07 (8) When a lawyer withdraws, the lawyer must try to minimize expense and avoid prejudice to the client and must do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor lawyer.” “2.07 (9) On discharge or withdrawal, a lawyer must:

(a) notify the client in writing, stating: (i) the fact that the lawyer has withdrawn; (ii) the reasons, if any, for the withdrawal; and (iii) in the case of litigation, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should retain new counsel promptly;

(b) subject to the lawyer’s right to a lien, deliver to or to the order of the client all papers and property to which the client is entitled; (c) subject to any applicable trust conditions, give the client all relevant information in connection with the case or matter; (d) account for all funds of the client then held or previously dealt with, including the refunding of any remuneration not earned during the representation; (e) promptly render an account for outstanding fees and disbursements; (f) co-operate with the successor lawyer in the transfer of the file so as to minimize expense and avoid prejudice to the client; and (g) comply with the applicable rules of court.”

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Termination of Lawyer-Client Relationship: Withdrawal for Non-Payment of Fees

Non-payment of Fees “2.07 (3) If, after reasonable notice, the client fails to provide a retainer or funds on account of disbursements or fees, a lawyer may withdraw unless serious prejudice to the client would result.”

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Withdrawal from Criminal Proceedings “2.07 (4) If a lawyer has agreed to act in a criminal case and the interval between a withdrawal and the trial of the case is sufficient to enable the client to obtain another lawyer and to allow such other lawyer adequate time for preparation, the lawyer who has agreed to act may withdraw because the client has not paid the agreed fee or for other adequate cause, provided that the lawyer:

a) notifies the client, in writing, that the lawyer is withdrawing because the fees have not been paid or for other adequate cause;

b) accounts to the client for any monies received on account of fees and disbursements;

c) notifies the Crown counsel in writing that the lawyer is no longer acting;

d) in a case when the lawyer’s name appears on the records of the court as acting for the accused, notifies the clerk or registrar of the appropriate court in writing that the lawyer is no longer acting; and

e) complies with the applicable rules of court.”

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Termination of Lawyer-Client Relationship:

Withdrawal for Non-Payment of Fees

R. v. Cunningham, 2010 “If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an

adjournment will not be necessary, then the court should allow withdrawal. In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.”

“Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for ‘ethical reasons’. However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.”

“If withdrawal is sought for an ethical reason, then the court must grant withdrawal.”

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R. v. Cunningham, continued

If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel’s request. In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors: whether it is feasible for the accused to represent himself or herself; other means of obtaining representation; impact on the accused from delay in proceedings, particularly if the accused is in custody; conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused

to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;

impact on the Crown and any co-accused; impact on complainants, witnesses and jurors; fairness to defence counsel, including consideration of the expected length and complexity

of the proceedings; the history of the proceedings, e.g. if the accused has changed lawyers repeatedly

On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused.

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Other Duties Owed by Lawyers

To the Court Law Society of Saskatchewan Code of Professional Conduct, 2012 4.01 (1) When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and respect. (Specific prohibitions are succinctly listed in Rule 4.02(2))

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Duties Owed by Lawyers to Other Lawyers

To Other Lawyers Section 6.02 of the new Code is similar to Chapter XVI of the former Code, with the exception of some minor variations and additions, including the following rules and commentary: Law Society of Saskatchewan Code of Professional Conduct, 2012

“6.02 (4) A lawyer must not, in the course of professional practice, send correspondence or otherwise communicate to a client, another lawyer or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.” “6.02 (7) A lawyer who is not otherwise interested in a matter may give a second opinion to a person who is represented by a lawyer with respect to that matter.” “6.02 (9) When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must: urge the unrepresented person to obtain independent legal representation; take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client.” “6.02 (10) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently send must promptly notify the sender.

Commentary Lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this rule requires the lawyer to notify the sender promptly in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been lost […] Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Unless a lawyer is required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.”

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Duties Owed by Lawyers to the Legal Profession

The 2012 Code sets out, with much greater specificity, the obligation to report significant shortcomings on the part of other lawyers. Duty to Report Misconduct Rule 6.01(3) “Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer must report to the Society:

(a) the misappropriation or misapplication of trust monies; (b) the abandonment of a law practice; (c) participation in criminal activity related to a lawyer’s practice; (d) the mental instability of a lawyer of such a nature that the lawyer’s clients are likely to be materially prejudiced; (e) conduct that raises a substantial question as to another lawyer’s honesty, trustworthiness, or competency as a lawyer; (f) any other situation in which a lawyer’s clients are likely to be materially prejudiced.”

Encouraging Client to Report Dishonest Conduct Rule 6.01 (4) “A lawyer must encourage a client who has a claim or complaint against an apparently dishonest lawyer to report the facts to the Society as soon as reasonably practicable.”

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Other Duties Owed by Lawyers

To the Administration of Justice Law Society of Saskatchewan Code of Professional Conduct, 2012

“4.06 (1) A lawyer must encourage public respect for and try to improve the administration of justice.”

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Ancillary Provisions of the 2012 Code - Advocacy 64

Guilty Pleas 4.01(8) “A lawyer for an accused or potential accused may enter into an agreement with the prosecutor about a guilty plea if, following investigation, (a) the lawyer advises his or her client about the prospects for an acquittal or finding of guilt; (b) the lawyer advises the client of the implications and possible consequences of a guilty plea and particularly of the sentencing authority and the discretion of the court […] (c) the client voluntarily is prepared to admit the necessary factual and mental elements of the offence charged; and (d) the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea.” Previously, the Code had required the lawyer to have bona fide concluded and advised the client that an acquittal wss uncertain or unlikely ….

Ancillary Provisions of the 2012 Code - Advocacy 65

Communicating with Witnesses Giving Evidence 4.04 (2) Subject to the direction of the tribunal, a lawyer must observe the following rules respecting

communication with witnesses giving evidence:

(a) during examination-in-chief, the examining lawyer may discuss with the witness any matter;

(b) during cross-examination of the lawyer’s own witness, the lawyer must not discuss with the witness the evidence given in chief or relating to any matter introduced or touched on during the examination-in-chief;

(c) upon the conclusion of cross-examination and during any re-examination the lawyer may discuss with the witness any matter.

Commentary The application of these rules may be determined by the practice and procedures of the tribunal and may be modified by

agreement of counsel. Previous Code provisions were noticeably more extensive, but more restrictive. For example, the Commentary related

to communication with witness during examination-in-chief was that it was ‘not improper for the examining lawyer to discuss with the witness any matter that has not been covered in examination up to that point’.

Relations with Jurors 4.05 – “Communications before Trial”, “Disclosure of Information”, “Communication During Trial”

Ancillary Provisions of the 2012 Code

Dishonesty, Fraud When Client an Organization 2.02 (8)(c) – “Up the ladder reporting”

Threatening Criminal or Regulatory Proceedings 2.02 (5) “A lawyer must not, in an attempt to gain a benefit for a client, threaten, or advise a client to threaten: (a) to initiate or proceed with a criminal or quasi-criminal charge; or (b) to make a complaint to a regulatory authority.”

Dishonesty, Fraud by Client 2.02 (7) “[…] a lawyer must never knowingly assist in or encourage any dishonesty,

fraud, crime or illegal conduct, or instruct the client on how to violate the law and avoid punishment.”

Exception for Multi-discipline Practices and Interjurisdictional Law Firms 2.06 (8) – “fee sharing”

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Ancillary Provisions of the 2012 Code

Making Legal Services Available 3.01 – 3.03

Retired Judges 6.07 – three-year restriction

Prosecutors, [Rule 4.01(3)] Mediators [Rule 4.07]

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Conclusions

Ethical obligations can be subtle, demanding and occasionally frustrating The sources of a lawyer’s ethical obligations are a mix of professional rules and

guidelines, jurisprudence, and personal values. Law Societies are coming to see that a high-quality, modern Code of

Professional Conduct can establish norms of lawyering conduct, can contribute to lawyers’ understandings of ethics and can constitute an important component of lawyer self-regulation in the public interest

The 2012 Code does this through: A greater degree of comprehensiveness; The use of language that imposes ‘tighter’ obligations on lawyers; Greater focus on client interests, and a [limited] enrichment of public interest

considerations; and Providing a greater degree of specific guidance to lawyers encountering ethical issues

In an effort to perform well and honourably as a professional, and to avoid trouble, it is worthwhile to know the Code of Professional Conduct

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Trends in the Legal Profession

The Role of the Federation of Law Societies and Governance Developments o Model Code o Entry Standards

• FLSC Task Force on Legal Education • Admission Standards

o Discipline o NCA o Active engagement in ‘legal profession’ litigation

Challenges to Self-Regulation Lawyer Discipline – Process, Jurisprudence, Sanctions, ’Negligence’ Trends toward National and International Practice Trends toward Interdisciplinary Practices Access to Justice – Cost, Pro Bono, Limited Scope Representation, etc. Demography The Role of Non-Lawyers Trends toward Non-Lawyer Ownership of Law Firms

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